Director of Public Prosecutions v Hunt
[2012] VCC 2165
•9 August 2012
| IN THE COUNTY COURT OF VICTORIA | Revised |
AT GEELONG
CRIMINAL DIVISION
Case No CR-12-00571
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DUNCAN HUNT |
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JUDGE: | HIS HONOUR JUDGE MAIDMENT | |
WHERE HELD: | Geelong | |
DATE OF HEARING: | 9 August 2012 | |
DATE OF SENTENCE: | 9 August 2012 | |
CASE MAY BE CITED AS: | DPP v Hunt | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 2165 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms S.A. Flynn | |
| For the Accused | Mr T.L. Fitzpatrick |
HIS HONOUR:
1 Duncan Hunt, you can remain seated for the time being.
2 You have pleaded guilty to an indictment charging you with an offence of armed robbery and an offence of theft, both offences having occurred on 13 December 2011, and related summary offences that on the same day you unlawfully assaulted Steven Martin and on the same day you possessed a controlled weapon without lawful excuse. On the previous day you carried a dangerous article without lawful excuse.
3 You have no prior convictions.
4 The prosecution tendered a summary of prosecution opening which is Exhibit A and I incorporate that summary into these reasons for sentence.
5 The offence of armed robbery carries a maximum term of imprisonment of 25 years. The offence of theft carries a maximum term of imprisonment of ten years. The offence of unlawful assault carries a maximum term of imprisonment of three months. The offence of possessing a controlled weapon, a maximum term of imprisonment of one year and the offence of carrying a dangerous article without lawful excuse, maximum term of imprisonment of six months.
6 There was also one other offence which I failed to mention which was the driving an unregistered motor vehicle to which you have also pleaded guilty. The maximum sentence for that is a fine of 25 penalty units and I have a discretion as to whether I should disqualify you from holding a licence as a result of your plea of guilty to that offence.
7 The offences involved serious criminal conduct. On 12 December of last year at about 2 pm you attended your former place of work at the Geelong Council Maintenance Depot in Belmont and sought information as to whether two employees of that organisation were present. You were carrying a golf club in your hand when you made the request and you pointed that golf club at the site manager from whom you sought the information, or rather from a worker, who you also encountered during your visit.
8 On the following day at about 9.30 am you attended The Cash Store at 142 Ryrie Street in Geelong and you requested money from the attendant who was serving customers and threatened that person with a knife saying, "You're fucking lucky you're not making a big fuss, 'cause I could stab you, not a problem." Also, "You're not going to have 12 days before Christmas" clearly causing the victim to be utterly petrified by your conduct. No doubt that experience will live with her for a very long time if not the rest of her life.
9 You later that day attended the Lord Nelson Tavern in Bellarine Street in Geelong in the drive-through bottle shop and there was a female 22 year old sales assistant and the manager, Mr Steven Martin. You asked the sales assistant for a packet of cigarettes and when she put those on the counter you grabbed them and went towards the door. She locked the front doors and you were approached by the manager, Mr Steven Martin.
10 You pulled out a knife and prised open the door of the premises, got into your vehicle and followed by Mr Martin. He opened the driver's door and attempted to grab you. You drove off dragging Mr Martin for a couple of metres until he let go.
11 You were later seen driving a Holden station wagon the number of which had been taken down by the staff at the Lord Nelson Tavern, and you were arrested. The police found a blackboard which you had stolen from The Cash Store earlier in the day as well as a golf club in the vehicle. There were various other items also discovered in the vehicle which are the subject of an application for a disposal order, which I understand, is not opposed.
12 You were deemed to be psychologically unfit to be interviewed by a Forensic Medical Officer.
13 Clearly, those are serious offences, in particular the offences of armed robbery and those which involved theft and circumstances where you had with you a knife.
14 The community should be rightly concerned about conduct of this kind. The court should be concerned to impose sentences that, not only justly punish those who engage in that kind of conduct, but deter others from committing offences of that kind. Ordinarily, that would require a significant term of imprisonment immediately to be served even though you have no prior convictions. However in the plea made on your behalf, a number of reports were tendered and formed Exhibit 1 on the plea which show that you have mental impairments which have been diagnosed variously as schizophrenia, bipolar disorder and schizoaffective disorder which is the way that Dr Walton describes your condition in his report dated 7 August 2012.
15 His report is instructive in that he formed the view that your mental state at the time of the offending was not such as to deprive you of the capacity to distinguish between right and wrong but was certainly of central relevance to your offending and clearly engaged the principles that have been spoken of in a number of cases that have come before the courts in this State and were conveniently set out in the judgment of the Court of Appeal in the well known case of Verdins.
16 It is clear from these reports that all of the various elements of the Verdins principles, it seems to me, are engaged in your particular case so as to reduce your moral culpability for the offending conduct very significantly, to render you an inappropriate vehicle for the expression of general deterrence and to indicate that, were you to be required to serve a term of imprisonment, that the impact upon you would be much greater because of your mental impairments than the impact upon someone who did not have those mental impairments.
17 Also I think that it is clear that a term of imprisonment, such as might be indicated by this kind of offending, would also be highly likely to exacerbate your mental illnesses.
18 It seems clear from the reports that you had been showing signs of deterioration in your mental condition shortly before and at the time of the commission of these offences.
19 The conduct in the commission of the offences indicates that you clearly were suffering significantly from your mental impairments and that, had it not been for the fact that you were not taking your medication at the time or not taking it as you should have been, it is unlikely that you would have engaged in this conduct. That is borne out by the fact that you have got to your present age, despite having suffered from these mental impairments for quite some time, without having committed any other criminal offences.
20 Notwithstanding that, you have been living a substantially independent life. You have been able to purchase a unit and to maintain the mortgage payments on that unit. I am told that part of the context in which this offending occurred arose from relationships with some of your neighbours at those units and that is unfortunate. It is not relevant other than it is contextual. But nevertheless, it also needs to be taken into account in considering the risks that you may pose in respect of re-offending if some action is not taken to ameliorate those stressors.
21 It may be that it is partly a perception thing borne out of the fact that you were not taking your medication at the time. No doubt those will be factors which are taken into account by those that are concerned with your ongoing care and treatment.
22 I think that it is noteworthy - and this is supported by the references that I received and form Exhibit 2 - that you do have considerable support from those near and dear to you. There is a rather lovely letter written by your grandmother, which no doubt you have read, and which supports the proposition that you are basically a decent person and that this is conduct which is completely out of character and a product of your illness rather than any real criminal intent.
23 The prosecution has accepted in this case, and I think properly so, that a Community Correction Order is within the range of sentencing options open to me. They have properly pointed out to me that it is open to me to impose a condition which involves you performing community work. Indeed that was one of the questions that I posed in seeking an assessment as to your suitability for a Community Correction Order as to whether you are suitable for that and it seems that you are.
24 I should say that the other thing that was pointed out to me which might fulfil an appropriate sentencing consideration, that is, punishment, could be met by imposing a sentence, along with a Community Correction Order, which effectively absorbed the period that you have already spent on remand. I would have to conclude before I did that that a term of imprisonment was appropriate to your offending conduct having regard to your moral culpability.
25 I don't conclude that your moral culpability was such that it requires me to impose a term of imprisonment, or indeed, punishment reflected by a requirement that you undergo a period of unpaid community work.
26 It does seem to me that the fact that you have been on remand will have been a salutary lesson to you and a quite significant period of time from 13 December of last year to 3 April this year will have, no doubt, impacted upon you. Hopefully may serve as a reminder that it is important that you take your medication in the future and avoid placing yourself in a situation where you are vulnerable to engaging in this kind of out of character conduct.
27 I have to balance the concerns of the community against your moral culpability and the need to ensure, so far as I reasonably can, your rehabilitation. It is not always a perfect balance that one achieves. I think that the protection of the community, and indeed the interests of the community in the long run, are more likely to be served by promoting your rehabilitation than by punishing you in a way that the kind of offending conduct would ordinarily deserve.
28 I think that your prospects of avoiding offending in the future are good given the support structures around you and the close family support that you enjoy. You, obviously, have to play your part in co-operating with those who seek to assist you.
29 I propose in a moment, if you consent, to make a Community Correction Order which will require you to stay out of trouble for a period of two years and will require you to report to a Community Corrections Centre, to stay at a given address, to notify change of address and to obey directions that are given to you and also to submit to assessment and treatment in relation to your mental health issues as directed by the Regional Manager for the Department of Corrections. No doubt you have had all that explained to you. Are you willing to consent to an order made in those sort of terms?
30 PRISONER: Yes, Your Honour.
31 HIS HONOUR: Duncan Hunt, on the charge of armed robbery on the indictment and the charge of theft on the indictment, to which you have pleaded guilty, and on each of the offences - related summary offences - of alleging assault on Steven Martin, possessing a controlled weapon without lawful excuse, driving an unregistered motor vehicle and carrying a dangerous article, I convict you and I order that you be placed on a Community Correction Order for a period of two years from today's date.
32 The order will contain the following core conditions, that you do not commit, whether inside or outside Victoria during the next two years, an offence punishable by imprisonment. That you must report to and receive visits from the Secretary of the Department of Community Corrections or his nominee, or her nominee. You must report to the Community Corrections Centre specified in the order within two clear working days. That will be up to 4 pm, I think, on Monday next.
33 Which Centre will it be; will it be Geelong?
34 MS FLYNN: Geelong.
35 HIS HONOUR: Yes, all right. It will be the Geelong Community Corrections Centre. You are to notify the Secretary of the Department of any change of address or employment within two clear working days after the change. You must not leave Victoria except with the permission, either generally or in relation to a particular case of the Secretary, and you must comply with any direction given by the Secretary that is necessary for the Secretary to give to ensure that you comply with the order.
36 In addition I order that you be subject to a treatment and rehabilitation condition which will require that you submit to a mental health assessment and treatment as directed by the Secretary of the Department of Corrections or his or her nominee.
37 There are also applications for an order that you provide a forensic sample which I will be handed in draft form in a moment and that will require you to submit to the provision of a scraping from the inside of your mouth. It will require you to attend, I think, the Geelong Police Station, for that purpose within the next period that will be specified in the order.
38 If you fail to comply with the request from the authorised officer to provide the scraping from the inside of your mouth then that officer may use reasonable force to obtain a blood sample from you. Do you understand that?
39 PRISONER: Yes, I do.
40 HIS HONOUR: I am sure you will comply but I need to give you that warning. The other order that is sought is for disposal of a number of items that were found in your motor vehicle and I understand that that order is not opposed and I intend to make that order as well.
41 But for your pleas of guilty I would have sentenced you to a Community Correction Order for a period of two years and that you undergo, in addition to the conditions that I've set out, a period of unpaid community work involving 80 hours of community service.
42 Anything else that I have forgotten?
43 MS FLYNN: I take it that Your Honour is not going to interfere with the prisoner's licence. Your Honour did mention before - - -
44 HIS HONOUR: I did mention it and I don't propose to make any order in relation to the prisoner's licence, thank you.
45 MS FLYNN: Yes, Your Honour.
46 HIS HONOUR: I will sign those various drafts in a moment. You can sit down for the moment, Mr Hunt.
47 (Orders signed.)
48 Mr Fitzpatrick, the order has been drawn up. If you would not mind checking it and ensuring that your client understands what he is signing.
49 MR FITZPATRICK: Yes, Your Honour.
50 HIS HONOUR: I will ask you to go with Mr Travers in a moment to your client at the rear of the court to ensure that that takes place.
51 MR FITZPATRICK: Yes, Your Honour. Thanks, Your Honour.
52 HIS HONOUR: Thank you.
53 (Order acknowledged and countersigned.)
54 Now I have countersigned against your client's signature in the terms that I have already pronounced.
55 MR FITZPATRICK: Yes, Your Honour.
56 HIS HONOUR: Anything else?
57 MS FLYNN: No, Your Honour. I don't think so, Your Honour.
58 HIS HONOUR: Your client can leave the dock now, Mr Fitzpatrick.
59 MR FITZPATRICK: Thank you, Your Honour.
60 HIS HONOUR: You may go, thank you.
61 (Prisoner released.)
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