Director of Public Prosecutions v Humphreys

[2016] VCC 2039

IN THE COUNTY COURT OF VICTORIA  Revised
(Not) Restricted
 Suitable for Publication

AT GEELONG
CRIMINAL JURISDICTION

CR 16-01526

DIRECTOR OF PUBLIC PROSECUTIONS

v

GEORGE HUMPHREYS

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JUDGE:	HIS HONOUR JUDGE M.P. BOURKE
WHERE HELD:	Geelong
DATE OF HEARING:
DATE OF SENTENCE:	21 December 2016
CASE MAY BE CITED AS:	DPP v Humphreys
MEDIUM NEUTRAL CITATION:	[2016] VCC 2039

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms S. Flynn
For the Accused	Mr A. Zingler

Pages 1 - 7

 

 

HIS HONOUR: 

1George Humphreys, you are to be sentenced for the indictable offences of armed robbery and common assault.  They have been charged on indictment No.G10736117.  The maximum sentences are 25 years imprisonment for armed robbery and five years' imprisonment for assault. 

2You have pleaded guilty to these offences before me on 14 December.  When interviewed by police on 13 March 2016 you exercised your right to silence.   Committal went by hand-up brief on 2 September and you entered pleas of guilty.  Hitherto, you had also been charged with the offence of aggravated burglary,  which was withdrawn. 

3You receive the benefit of your plea of guilty and the level of co-operation  that short history of the proceeding shows  You have facilitated the interests of justice and your plea is an expression of remorse.

4At your plea hearing, also on 14 December,  Ms Flynn for the Crown tendered a written summary of prosecution opening and photographs mainly depicting the scene of your offending and aftermath,  including the injury to your victim, Corey Dupe. 

5Mr Tovey for you tendered the forensic psychological report of Dr Aaron Cunningham dated 6 December 2016.  He also provided an outline of the plea submissions. 

6The circumstances of offending are set out in the tendered Crown opening which is Exhibit A.  My own summary may therefore be shorter. 

7Between 7 and 8 pm on 12 March 2016 you and others went to the home of Jennifer Blackney in Goodall Court, Corio.  You were with associates Michael Matthews, Natalie Boltar, Lisa and Bonnie Murray and Andre Russell.  At the house were Blackney and others, including Corey Dupe and Peter Gibbons.  A number of the two groups knew each other.  Matthews entered, followed by you and others.  It is apparent that he had grievance with Gibbons and assaulted him.  After that you approached Dupe and committed the two offences for which you are to be sentenced by me.   There was quite aged bad feeling between you.  I do not find that this was the purpose for the attendance at the premises or entering.  Mr Tovey has given some explanation of it.  He did not press this as your true reason for committing the offences.  Your offending seems fundamentally opportunistic.  You punched him to the head several times and then produced a box cutter.  You threatened to cut him. You slashed at and cut the peak of the cap that he was wearing.  I have viewed the photographic evidence of that.   I find that the aim was intimidation of him, not to injure.  You demanded the keys to his car and forced him to write two receipts for its sale to you.  You did not find the first satisfactory.  I have viewed a photograph of the second. It is extremely crude in form and execution.  During the course of all this, you threatened to shoot Dupe if he went to the police. 

8You, Matthews and the others left.  Moments later you came back, punched Dupe and took the keys.  It is presumed that you had forgotten to take them.  Charge 2, common assault, is made up of the combination of blows and intimidation.  That, of course, also played its part in Charge 1, armed robbery. Dupe's injuries were a bloodied and swollen face.  He did not seek medical treatment. 

9On 13 March, the next day, police located the car at Matthews’ address in Corio.  You, Matthews and some of the others were there.  You were arrested.

10As to co-offenders, Matthews faces charges of aggravated burglary and causing injury.  The matter is listed for trial.   Russell was convicted and fined in the Magistrates' Court for offences of trespass and possession of weapons offences.  Boltar was sentenced to a short term of imprisonment, also in the Magistrates' Court, for offences of theft and trespass.  Lisa Murray was convicted and fined for trespass, drug and Firearm Act offences.  None of these offences were those committed by you.  Parity was not argued by Mr Tovey.

11You are a 36-year-old man presently placed in custody serving two sentences (one of which is subject to appeal, also heard before me on 14 December) and awaiting this sentence on indictment G10736117.

12You have suffered an unstable upbringing.  You were raised mainly in Victoria.  There was an older sister and younger brother.  Your parents separated when you were 12. You stayed with and have a good relationship with your mother. 

13Are those voices, Mr Humphreys, people in other rooms; are they?

14OFFENDER:  They have got the back door open, yeah.  Do you want me to shut it?

15HIS HONOUR:  Yes, if somebody could. 

16OFFENDER:  They want me to shut the door.

17PRISON OFFICER:  Sorry?

18OFFENDER:  They want me to shut the door - or come in.  What do you want me to do?

19PRISON OFFICER:  It's all right, shut it.

20OFFENDER:  Sorry.

21HIS HONOUR:  Thank you Mr Humphreys. I will go back a step.  There was an older brother and younger sister.  Your parents separated when you were 12.  You stayed with and have a good relationship with your mother.  Your father was an alcoholic and your mother dealt with a drinking problem for a time after the separation.  You have had little relationship with your father; although you lived with him for a time in Queensland during teenage.  You left school at Year 8.  You have worked since, when not in custody, mainly driving trucks and excavators. 

22In teenage you began a long term relationship of about 12 years.  You had two children, now aged 15 and 16.  You see your 15 year old.  The relationship ended because of your drug abuse and periods in prison.  You have been in a more recent relationship for some time.  You have a two year old daughter.  Your partner is supportive of you.  Your mother has also been so. 

23You began to use alcohol and then cannabis at 13.  You used amphetamines from 18 and then methyl amphetamine over the last four or five years.  At the time of offending you were using every day and were effectively homeless.  I accept that you grew up in a situation which made you vulnerable to substance abuse.  Your older sister died in 2013 from a drug overdose.

24Your criminal record filed with the indictment is very extensive, running from 1995 (when you were 15) to June 2016.  The criminal record document is 24 pages.  There are mainly offences of dishonesty, of violence and driving offences.  You have served several sentences of imprisonment, particularly since 2008.  There are subsequent sentences set out in Mr Tovey's chronology within his outline of submissions.  I shall return to this when dealing with the question of totality. 

25The report of psychologist Dr Cummings states symptoms of anxiety and depression and indicators of institutionalisation.  It states at its end: 

"Mr Humphreys presents with protective factors that may reduce his risk and improve his prospects for rehabilitation.  He is aware of his dependence to drugs and stated that he wanted to engage in treatment.  He has not previously engaged in long term rehabilitation.  He acknowledged his need to engage with supportive treatment to develop life skills.  Whilst this decision is solely a matter for the courts, from a psychological perspective, Mr Humphreys would benefit from a disposition that facilitated his rehabilitation.  He worried that he is becoming institutionalised in gaol.  He reported increasing anxiety and panic in the community when confronted with day to day living stresses.  He may benefit from engaging with inpatient drug rehabilitation to improve his ability to regulate emotions and transition into the community living in a supportive environment.  He may access this treatment through Direct Line.  Engaging in drug and alcohol prevention including his ability to regulate emotions in coping with day to day living skills will reduce his risk and possibly predict rehabilitation."

26When released from prison in November 2015 you lived with your mother and tried to stay drug free.  However, you relapsed in early 2016 and, because of that, moved out of her home.  As earlier suggested you were again entrenched in a drug milieu at time of offending in March of this year.  There was other offending since, dealt with in the Magistrates' Court. 

27This was serious offending. Armed robbery attracts a maximum sentence of 35 years.  I agree with Mr Tovey that there does not feature a number of aggravating factors sometimes present.  It is not to use the phrase, a "high end" example. However, there were adverse aspects.  As was raised in Mr Tovey's written submissions and on the plea, it was not in one sense offending of long duration; however, Corey Dupe's situation and your intimidation of him was quite prolonged and quite malevolent.  You threatened him with the box cutter in a particularly frightening way. 

28As I said at the plea, you were well aware of your advantage.  Your drug use and intoxication is no mitigation.  You have a large number of prior convictions, many of those offences committed in the context of drug use. 

29The circumstances here make important such sentencing purposes and considerations as specific and general deterrence, moral culpability, condemnation of the offending and the need for proportionate punishment.  There must be a sentence of imprisonment, one of at least significant length.

30There are mitigating and/or moderating factors which should go to reduce the length of that sentence.  They include the following. 

31(1)   Your plea of guilty and co-operation.

32(2)  Your personal history and circumstances.  I bear in mind that your introduction to and the early development of your drug dependence occurred in the context of disadvantage and instability. 

33(3)   It is difficult to see your prospects for rehabilitation in a positive light.  You have, at 36,  an extensive prior history.  You have been to prison several times.  Your dependence on drugs is deep set and now long term.  I accept the evidence of Dr Cunningham and the submission of Mr Tovey that you wish to rehabilitate.

34I take into account that upon your application you have been placed into a unit at Fulham Prison which runs a long term anger management and intensive drug program.  In that situation you work full time in the prison grounds. 

35(4)   The principle of totality is important in your case.   Mr Tovey's earlier mentioned chronology sets out the sequence of prison sentences, release and further sentence since late 2011. It reveals offending close in time to this offending, for which you have received subsequent Magistrate’s court sentences.  I have heard your appeal against one, also on 14 December.   You are serving another sentence, imposed in November of this year which you do not appeal.  That is a sentence of five months of which four months are to be served cumulatively upon other presently served sentences.  I have decided to meet the requirements or requirement totality not by orders in respect of this sentence but by orders of concurrency on the appeal sentence I shall make late this morning.  This was raised and discussed in this plea and the appeal hearing on 14 December, and again today.  The hearing of both proceedings and my sentence on them is an unusual situation.  My overall aim is to achieve a just total period of imprisonment for the offences you have committed close in time; it seems, in the first part of 2016. 

36After taking into account the relevant and competing factors, I sentence you as follows:

37On indictment G10736117 Charge 1, armed robbery,  you are sentenced to three years' imprisonment.

38On Charge 2, assault, I sentence you to nine months' imprisonment.  I direct that three months of the sentence of Charge 2 be served cumulatively on the sentence of Charge 1.  That is a total effective sentence of three years and three months.  I set a minimum term before eligibility for parole of two years.  Against that, I declare a pre-sentence ‑ ‑ ‑

39MS FLYNN:  Sorry, Your Honour, just before Your Honour goes on, I need to correct my earlier submission about that.

40HIS HONOUR:  Yes.

41MS FLYNN:  Just to make it clear I will give Your Honour the dates.  It is 250 days.

42HIS HONOUR:  250 days.

43MS FLYNN:  And that encompasses the remand date, from 13 March 2016 up until 17 November 2016 being the day before the Sunshine Magistrates' Court.

44HIS HONOUR:  All right.

45MS FLYNN:  I apologise, Your Honour.

46HIS HONOUR:  Does that include today?

47MS FLYNN:  It does - no, because he's currently undergoing sentence.

48HIS HONOUR:  He is serving sentence, so you do not have to worry about it.

49MS FLYNN:  So I have stopped it the day before the sentence. 

50HIS HONOUR:  Well, I declare against that minimum term of two years now 250 days of pre-sentence detention.  That is getting close to eight and a half months.  I need to say what I would have imposed had you not pleaded guilty.  It would have been a sentence of five years with a minimum term of three years.  So the arithmetic must be clear to you.

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