Director of Public Prosecutions v Hutchings

IN THE COUNTY COURT OF VICTORIA

Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION
CR 17-00101

DIRECTOR OF PUBLIC PROSECUTIONS

MARK HUTCHINGS

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JUDGE:	HIS HONOUR JUDGE GRANT
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	2 March 2017
CASE MAY BE CITED AS:	DPP v Hutchings
MEDIUM NEUTRAL CITATION:	[2017] VCC 183

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms C. Duckett	OPP
For the Accused	Ms C. Lynch	Papa Hughes Lawyers

HIS HONOUR:

Mark Hutchings, you have pleaded guilty to two charges of theft, one charge of armed robbery and one charge of prohibited person possess a firearm.
You have also pleaded guilty to a related summary offence of assault with a weapon.
The maximum penalty for the offences on the indictment are: theft, ten years' imprisonment; armed robbery, 25 years' imprisonment; and prohibited person, ten years' imprisonment.
The maximum penalty for the related summary offence is two years' imprisonment.
The circumstances of your offending are set out in the document entitled, “Summary of Prosecution Opening for Plea Purposes”, which the prosecutor read in open court. I do not intend to repeat the whole summary. It is an exhibit in this hearing.
Briefly, on 3 January 2016, the victim of the first theft, Rajesh Punjabi, asked a friend to place a wanted ad on Gumtree for the purchase of an Apple iPhone.
On 4 January 2016 that friend told Mr Punjabi that he had been contacted by a male who had an iPhone that he wanted to sell. Mr Punjabi was given a phone number and an address in Cranbourne. Later that evening he was driving with his friend, Narain Dinani and his wife to the Cranbourne address when he received a phone call advising that the address had changed and he was to go to

14 Greenridge Avenue, Narre Warren.
When Mr Punjabi arrived at the address he saw a white Subaru reverse-parked in the driveway. The driver of that vehicle was your co-offender, Adrian Fry. You were a passenger in the vehicle. Mr Punjabi and Narain Dinani approached the car.

Mr Dinani inspected the phone and confirmed it was under warranty. After some further discussion between the victim and Fry, the victim handed him $620 for the purchase of the phone. Fry then reached into the vehicle and picked up a black Taser. He turned the Taser on and pushed it at Mr Punjabi. Mr Punjabi stepped back and Fry drove off with the money and the phone.
On 3 January 2016 the second victim, Tom Ibatan, began communicating with a male about the purchase of an iPhone that had been advertised on Gumtree. On

5 January he agreed to meet the male at the Berwick Railway Station. It is the prosecution case that the male was Adrian Fry.
The victim arrived at the station and was invited by Fry to inspect the phone in the back seat of the car Fry was driving. The victim got into the car and saw you in the front passenger seat. The victim inspected the phone and Fry told him that he had forgotten the phone charger. Fry said he would drive the victim to his house to get the charger and then deliver him back to the station. The victim was in fact driven to a dirt road in Beaconsfield where he handed over $750. You and Fry then pointed guns at him. The victim was told to “get out of the car and leave his iPhone and his bag in the car” or he would be shot. During this time the victim was struck to the head causing a cut that required stitching. Fry then drove away.
You were arrested on 9 April 2016 in a drug-affected state and remanded in custody.
Mr Hutchings, on 4 January 2016, Mr Fry committed two serious offences when he stole Mr Punjabi’s money, and then used a Taser to harm him and facilitate his escape from the scene. You were with him at the time. Your pleas of guilty are admissions of your complicity in this offending. However, in assessing your culpability, I take account of the fact that you were not an active participant – in summary, you did not set up the meeting; you did not get out of the car; you did not speak to the victim and you did not use the Taser. In these circumstances I regard your culpability as much lower than Fry’s.
The offences against Mr Ibatan are different. You were an active participant in that offending. Clearly, you understood the plan was to lure the victim to a remote area and steal his money. You and Fry were both armed. When the victim had handed over the money, you both produced firearms and robbed him. The victim was struck to the face causing an injury that required stitches. At the time you were a prohibited person from possessing a firearm. This is very serious offending.
Not surprisingly, the victims have suffered emotional and psychological harm.

Mr Punjabi and his wife (Ms Kumari) have prepared a joint victim impact statement that details that harm. They have been greatly affected by what happened.

Ms Kumari was especially vulnerable because she was pregnant at the time. They moved away from their home for a few days after the incident and they have had periods of sleeplessness, flashbacks and worry. Mr Ibatan has also provided a victim impact statement. He suffered a physical injury to his head that required stitching and for some weeks afterwards experienced intermittent headaches. He has also suffered flashbacks that have affected his sleep and made him anxious.
In this case general deterrence, just punishment and denunciation are all highly-relevant sentencing considerations.
You have admitted a number of prior convictions going back to 2005. You have two prior convictions for recklessly cause injury. In 2008 you were sentenced to your first period of imprisonment. It was a sentence of 13 months with a seven-month minimum. Importantly, in December 2010 you were sentenced in this court to a total effective term of three and a half years with a two-year minimum for offences of intentionally cause injury, armed robbery and threat to kill. Given this history, specific deterrence and protection of the community are also highly relevant sentencing considerations.
You are 31 years old. Your childhood was not easy. Your parents separated when you were an infant and your circumstances were impoverished. When you were seven years old, your mother commenced a relationship with a particularly violent man who was also a drug user. This relationship lasted for two or three years and during this time you bore the brunt of his aggression. I have no doubt that this experience has left its legacy upon you. The family moved about during these years and your schooling was disrupted. You estimate that you attended seven or eight primary schools.
When you were 13 years old you commenced drinking. This became a real problem for you during your teenage years. You had no success in secondary school, having been expelled from Pakenham Secondary College and Koo Wee Rup Secondary College. You then spent two years at Cranbourne before finishing school at the end of Year 9.
Your work history after leaving school was initially steady but it fell away as your drug addiction became more pronounced.
You commenced using ecstasy and amphetamines as an 18-year-old. Inevitably, you began offending. In 2010 you started using methylamphetamines and GHB, which increased to daily use and continued until you were remanded for this offending.
There are some matters in mitigation.
I am satisfied you entered an early plea of guilty. It is indicative of your remorse. Your remorse is confirmed through the report of Warren Simmons, consulting psychologist, who states that you did not seek to justify your behaviour and that you acknowledged its significant impact on the victims. Importantly, your plea has spared the victims from the stress associated with giving evidence. The plea has also saved the community the cost associated with a criminal trial. You will be given credit for all these matters.
On 7 June 2016 you were sentenced to 120 days' imprisonment for other matters. I will take that sentence into account in a general way in determining sentence in this matter.
You have experienced a level of hardship in prison. You have spent a significant part of your remand period at the MRC. Because of the impact of the riot at that prison in 2015, you have been subject to increased lock down hours.
Mr Hutchings, I am extremely guarded about your prospects of rehabilitation. You have a significant drug addiction. It has been long-standing. Support offered over the years on a Community Based Order, Intensive Correction Orders and parole have been unable to stop your use of drugs or your offending. Worryingly, this is the second time you have come before this court for the offence of armed robbery. A previous gaol term for that offence did not have a deterrent effect.
Parity is a relevant consideration in this case. Fry was sentenced to a term of three years' imprisonment for the offence of armed robbery. For all his offending, including the same charges that you have pleaded guilty to, he received a total effective sentence of four years with a minimum term of two years and three months. Your counsel correctly submits that he had more charges than you; had offended over a few more days; was responsible for pre-planning; was found in possession of weapons and, was the active offender in the first incident. These are all relevant matters for me to consider. However, there are also other real differences between you and Fry that I must weigh in the balance. When I sentenced Fry I noted that he was still a relatively young man, and that rehabilitation was still a relevant sentencing consideration in his case. It was also important that at the time I dealt with him, he was undergoing his first sentence of imprisonment. Importantly, he had a limited history for offences of violence and no prior conviction for armed robbery. You do have a prior conviction for armed robbery and whilst you are not to be sentenced for your prior offending, the prior is significant as far as the issues of specific deterrence, protection of the community and prospects of rehabilitation are concerned. In determining your sentence I must recognise the importance of these matters.
Would you please stand?
On the charges on the indictment, you are convicted and sentenced as follows.
Charge 1 – six months' imprisonment.
Charge 2 – 12 months' imprisonment.
Charge 3 – 42 months' imprisonment.
Charge 4 – 12 months' imprisonment.
On the summary charge you are convicted and sentenced to three months' imprisonment.
I order that one month of the sentence on Charge 1 and two months of the sentence on Charge 2 be served cumulatively upon each other, and on the sentence imposed on Charge 3 on the indictment. This makes a total effective sentence of 45 months' imprisonment.
I fix a minimum term of 30 months before you will be eligible for release on parole. I declare that you have served 207 days pre-sentence detention.
If you had pleaded not guilty and been found guilty after a trial, the total effective sentence would have been five years and three months, with a minimum term of four years before being eligible for release on parole.
I make the compensation orders sought by the prosecution.
Are there any other matters?
MS DUCKETT: There is one other housekeeping matter, Your Honour.
HIS HONOUR: Yes.
MS DUCKETT: I had Ms Piccone have a look at the orders in relation to the matters of Fry.
HIS HONOUR: Yes.
MS DUCKETT: The prosecution required to just make an application for a forfeiture of disposal order in relation to the firearms that were seized from Fry because there has not been one done to date.
HIS HONOUR: But I made those orders. I am certain I made those orders for

Mr Fry. I will just check my sentencing remarks. "I make the disposal on the forfeiture orders sought by the prosecution", which were, as I understood it, forfeiture and disposal orders concerning the firearms.
MS DUCKETT: Sorry, Your Honour - - -'
HIS HONOUR: You can be seated there, Mr Hutchings.
MS DUCKETT: - - - ordinarily of course, where they are not items such as this, it would not concern me at all. I just had the - no, it is on p.8 of your reasons for sentence, Your Honour.
HIS HONOUR: Yes.
MS DUCKETT: It says at - you comment to Ms Piper, who is the instructing solicitor at that hearing that you did not have any - the disposal or forfeiture orders and were unfortunately - - -
HIS HONOUR: Oh, I see. Yes, Ms Piper said there are none sought.
MS DUCKETT: - - -assured that there are none sought and if that - - -
HIS HONOUR: Why was that?
MS DUCKETT: If they were not firearms and were just items of clothing, it would not be of concern.
HIS HONOUR: Well, they need to be forfeited. I am surprised they were not forfeited at that time.
MS DUCKETT: Yes.
HIS HONOUR: Perhaps it was because there was still a co-offender pending.
MS DUCKETT: I am unaware, Your Honour. It might be, it often is the case, but I do have two copies of one at court and I just ask that they could be signed off by the court and then the investigator can - - -
HIS HONOUR: Yes, certainly I will make forfeiture and disposal orders.
MS DUCKETT: They're under the Firearms Act, Ms Lynch has had a look at them. She, of course, won't know anything about them because she does not know about Mr Fry's matters, but they are the firearms that were seized from Mr Fry when he was apprehended and will need to be destroyed.
HIS HONOUR: Well, there are two items, Ms Lynch. The disposal order is in relation to two Tasers. Your client - -
MS LYNCH: They, as I understand it, was all found on Fry upon arrest so I have nothing to say.
HIS HONOUR: Yes, it all concerns Fry, not your client.
MS LYNCH: Yes, Your Honour.
MS DUCKETT: Yes.
HIS HONOUR: I will just sign off on these orders now.
MS DUCKETT: I appreciate that, Your Honour. I apologised, but after reading your reasons we realised that certain steps had not been taken.
HIS HONOUR: All right. No other matters?
MS LYNCH: No.
MS DUCKETT: They are the only other matters, thank you very much, Your Honour.
HIS HONOUR: Thank you. Mr Hutchings can be removed.
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[2017] VCC 183

2 March 2017