Director of Public Prosecutions v Hughes
[2016] VCC 1788
•22 November 2016
IN THE COUNTY COURT OF VICTORIA
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-16-01534
DIRECTOR OF PUBLIC PROSECUTIONS Prosecution
v
LIAM HUGHES Defendant
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JUDGE: HIS HONOUR JUDGE MURPHY
WHERE HELD: Melbourne
DATE OF HEARING: 22 November 2016
DATE OF SENTENCE: 22 November 2016
CASE MAY BE CITED AS: DPP v Hughes
MEDIUM NEUTRAL CITATION: [2016] VCC 1788
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – possession of a drug of dependence – armed robbery – multiple offenders – armed with machetes – vulnerable victim – plea of guilty – young offender – community corrections order – fine
Legislation Cited: Crimes Act 1958 (Vic); Sentencing Act 1991 (Vic)
Sentence:2 year Community Corrections Order together with $750 in fines
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APPEARANCES: Counsel Solicitors
For the Crown Mr J Manning Office of Public Prosecutions
For the Defendant Mr R Thyssen Ann Valos Criminal Law
HIS HONOUR:
Liam Hughes, you have pleaded guilty to one count of armed robbery, maximum penalty 25 years imprisonment, and two counts of possession of a drug of dependence. The maximum penalty for the drug offences depends on the finding as to whether or not they were for purposes other than personal use. The first drug charge, charge 2, relates to a series of drugs, cocaine, MDMA and methylamphetamine. Charge 3 relates to Cannabis L.
Having heard the submissions of your counsel, I am prepared to accept that the drugs were for your personal use, particularly having regard to the evidence from your father, that in fact you had had some drug problems back for at least a couple of years. Therefore, the maximum penalty for Charge 2 is 12 months imprisonment, and the maximum for Charge 3 is five penalty units.
The circumstances of the offending, as set out in the Crown Opening[1] was read in open court on the plea, and which I incorporate by reference and will direct that it remain on the file.
[1] Exhibit A in the Plea.
In essence, at the time you were just a couple of weeks past your 18th birthday, and you were in the Point Cook area where you lived and were brought up, with two other offenders, one of whom was a 16 year old. He was driving your car and there was a third unnamed person in the back seat.
You attended at the 7-Eleven and you saw, after you left there, the complainant who had also been into the 7-Eleven and purchased something. You saw him standing on a street corner. You then went past him, yelled at him and then subsequently you parked your car and you and the co-offender came back. At the time your co-offender was wearing a mask and he was carrying a machete. You were carrying a machete in a wooden sheath.
You then came up to the victim and demanded that he give you his bag and subsequently you took the bag off him, which contained some clothing, a Louis Vuitton bag, whether it was a fake or not is not clear, a wallet and identification cards as well as his medication.
In the course of that altercation he was saying, "I need the medication" but you ignored that. You were also demanding his headphones. They are not the subject of the charge. He went back to the store and the two of you followed him and then the altercation concluded.
Police, who were obviously using CCTV footage, identified you and then raided your home the following Friday, four or five days later, at which point they found the machete, the complainant’s clothing, they found snap-lock bags containing cocaine, MDMA, methylamphetamine and also cannabis in your car,[2] a set of digital scales and some unused snap-lock bags and also another unknown quantity of a drug or some other substance.
[2] This forms the basis of Charges 2 & 3.
You were then arrested, interviewed by the police where you made some partial admissions in the record of interview. At the end of the record of interview you said, "I felt pretty bad afterwards 'cause he was screaming. I don't have a reason. It was just a stupid, stupid mistake, wrong place, wrong time and wrong people" and you told the police that you were remorseful.
Seriousness of the Offending
10.Armed robbery is an inherently serious offence given that it carries a 25 year maximum and puts the fear of God into the victim, particularly when in this case there were two of you, at night, with a vulnerable victim as put by the prosecutor, and you were both carrying serious weapons.
11.So it must have been a frightening experience for the victim even if he has not filed a victim impact statement, and he was remonstrating with you. This is, therefore, a serious example of armed robbery against a vulnerable victim in the middle of nowhere, in the middle of night, in an open street.
12.The drug offending is of lesser seriousness. As I said, I’ve found that the drugs were for personal use, but even so, you had a cocktail of three different types of serious drugs as well as the cannabis.
Matters in Mitigation
13.I turn now to matters in mitigation put by your counsel, Mr Thyssen. In a comprehensive plea, he outlined your personal circumstances which he had also outlined in the written submission which is on the file.
14.Your father was in court to give evidence in support and your mother, who could not attend due to the fact that she was upset, and looking after your younger sister.
15.Until recently you came from an intact family. Your father, who gave evidence, indicated that his separation with your mother a month or two prior to the offence had an impact on you and may have contributed to the offending. He left the family home and of course that meant the father figure in the home was no longer there. As seems to happen so often in these courts, that leads to young males falling into trouble.
16.You attended the local Emmanuel College there in Point Cook until Year 10 and then you were expelled, according to your mother, due to your drug use with another person. You went to another school for a short time and then took up an apprenticeship at the Sanctuary Lakes Golf Club, where you worked as a kitchen hand and played golf there.
17.You have been successful in that apprenticeship so far. You have completed three years – there was a good reference from the head cook at the Golf Club.
18.You have a good work ethic and when you turned 18 you were able to purchase a car for cash, and the fact that you have got this work ethic and have a partially completed apprenticeship, is an important consideration in sentencing you.
19.Further, it was put on your behalf on the plea, you are a first offender and thus this offending - and this is borne out by the three testimonials - is out of character for you. I must say, when I first saw the outline, I expected for you to have prior convictions and you do not.
20.In sentencing you, I take into account your plea of guilty. As your counsel said, it was an early plea of guilty. You made partial admissions in the record of interview. Your plea is also an indication of remorse, and as soon as the charges were laid, you indicated by correspondence that you would be pleading guilty which obviated the need for a contested committal, and the complainant has been spared any involvement in the criminal justice system, apart from his statement to the police. That is factor as you have facilitated the course of justice.
21.Your plea is also evidence of your remorse which was expressed in the record of interview and it also is an important indication that you have insight into your offending and the remorse is also supported by your mother's letter and also the other letter from your boss at the Sanctuary Lakes Golf Club. So all those factors are relevant and I take them into account.
Sentencing Considerations
22.In sentencing you, as in all sentencing decisions, the court is required to balance a number of competing considerations. The need for punishment of offenders, the need for denunciation, the need to deter others from such offending and the need to deter you from further offending. Weighed against this is the community interest in rehabilitation and re-integration of offenders into the community.
23.In the case of youthful offenders, the considerations of rehabilitation, are far more important usually than general deterrence. Punishment of youthful offenders may in fact lead to more offending. This principle is long-standing, and was referred to by Mr Thyssen, and applies particularly in cases of first offenders. There is a great public benefit in maximising the prospect that an offender will return to being a law-abiding member of the community and advance their life.
24.Here, on the references before me and the evidence of your father, you have had, and continue to have, family support and you do have the capacity to put the matter behind you. You have a good work ethic, and as I said, you are in the third year of an apprenticeship.
25.Like many young people, at a stage in your teenage years you have fallen into drug use and bad company. This is a partial explanation behind this offending.
26.I have mentioned your youth. In the letters from your supervisor and your mother, they both refer to your immaturity. Your mother refers to you as having the mindset of a 16 year old. You are now nearly 19. Your immaturity and the fact that this offending occurred in company, shows that it is in the community interest that you be given the opportunity to show that this offending was, indeed, out of character.
27.Weighing the competing considerations, and noting the prosecution concession that a community corrections order would be within range, I have decided that a disposition that gives paramountcy to your youth and the prospects of your rehabilitation is called for.
28.Principles or parsimony are such that, if at all possible, a disposition that does not call for imprisonment should be preferred in all the circumstances if the sentencing objectives can otherwise be achieved.
29.Here, given your lack of prior convictions, your insight into your drug problems, which according to your mother you are attempting to address and she is endeavouring to arrange for admission to a residential facility, your age at the time of the offending and employment record, I have had you assessed for a community corrections order and they regard you as suitable.
30.Further, they seem to indicate that they regard you as having a low risk of re-offending. The assessor indicates that a supervisory condition would not be appropriate, or not necessary. I have decided that a supervisory condition for 12 months would be an appropriate condition on a community corrections order.
31.I have accepted the submission of your counsel that a community corrections order would be appropriate and that would allow you to be referred for drug and alcohol treatment, as appropriate, be under supervision and also to engage in some community work.
32.So, could you please stand.
33.If you are prepared to consent, I intend to impose a two year community corrections order on you.
34.OFFENDER: Yes, Your Honour.
35.HIS HONOUR: With a special condition that you undertake drug assessment and treatment, alcohol assessment and treatment and that you be under supervision for one year. In addition to that, you undertake 200 hours of community work, and 100 hours of that can be allocated to going to do drug and alcohol treatment. That is on the armed robbery offence.
36.On the first drug offence,[3] you are convicted and fined $500. On the cannabis offence,[4] convicted and fined $250 and I give you a stay of three months on payment of the fines.
[3] Charge 2 on the Indictment.
[4] Charge 3 on the indictment.
37.I declare that, if you had not pleaded guilty, I would have had you assessed for a Youth Detention Centre order.
38.I propose to stand down for a short time and hand Mr Thyssen and counsel the relevant community corrections order and ask that Mr Thyssen explain it to you and get you to sign it and then we will resume in a moment.
39.OFFENDER: Yes, Your Honour.
(Order signed.)
40.HIS HONOUR: Mr Manning, were you seeking some other orders?
41.MR MANNING: Yes, Your Honour, as noted in the opening, there are two ancillary orders sought. A disposal order in relation to the drugs and a forensic sample order.
42.HIS HONOUR: Have you got those?
43.MR MANNING: Yes, I will hand those up now.
44.MR THYSSEN: Neither of them opposed, Your Honour.
45.HIS HONOUR: Yes. Mr Hughes, stand up. I have got to explain the sentence to you.
46.OFFENDER: Yes.
47.HIS HONOUR: You are on a community corrections order for two years from today. That means that, if you commit an offence carrying a term of imprisonment in the next two years, that breaches the community corrections order. That itself carries a three months maximum term of imprisonment.
48.It is a condition of the order you be under supervision of the Office of Corrections or the regional office out there in Werribee. You are to turn up there within two business days, and you have got to go to any alcohol and drug courses that they direct you to, as well as accept supervision visits for 12 months.
49.In addition to that you have got to do 200 hours of community work which the Office of Corrections will arrange that for you. If you do not do that, again, that is a breach of the community corrections order. So that is hanging over your head for two years.
50.In addition, the prosecution have sought, having regard to the seriousness of the offending, that you provide a forensic sample. Having regard to the seriousness of the offending, in particular the armed robbery, it is appropriate that you provide a forensic sample, meaning a mouth swab and you have got to attend at a police station - they will give you a list - within 28 days to provide that sample if it has not already been taken.
51.The prosecution have also sought forfeiture of the drugs and the other material and I have signed an order to that effect.
52.Mr Hughes, I have convicted you and sentenced you to a two year community corrections order and fined you $750, in total, for the two drug offences.
53.I have given you the opportunity to draw on your family's support, your father's support, the fact that you have got this apprenticeship, you have got a good work ethic and your youth.
54.If it had have occurred two weeks earlier you would not have been 18. You might have been in the Children's Court, so, I have emphasised your rehabilitation.
55.You have fallen off the wagon on this occasion. I do not want to see you back in any court system. You have got to take whatever opportunities and courses that the Office of Corrections can provide for you, and hopefully your mother can get you into this residential facility to crack this drug habit.
56.But the important thing is to get out of the company of these idiots that you were with that night, because you, with an immature, not properly formed brain, you act in a pack and get yourself into trouble which is exactly what happened on this night. You have to become more mature in order that you can put this behind you and go forward in your life. But, remember, if you commit an offence in the next two years, you will come back before me. I will have a transcript of everything I have said to you and I will not cut you any slack. Do you understand?
57.OFFENDER: Yes, Your Honour.
58.HIS HONOUR: Anything else, Mr Prosecutor?
59.MR MANNING: Your Honour, could I just clarify, Charge 1 was with conviction; is that correct.
60.HIS HONOUR: Yes.
61.MR THYSSEN: Thanks, Your Honour.
62.HIS HONOUR: We will adjourn sine die.
63.COUNSEL: As Your Honour pleases.
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