Director of Public Prosecutions v Hutchinson
[2024] VCC 133
•15 February 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR-23-01704
| THE DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| PETER HUTCHINSON |
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JUDGE: | HIS HONOUR JUDGE LAURITSEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 12 February 2024 | |
DATE OF SENTENCE: | 15 February 2024 | |
CASE MAY BE CITED AS: | DPP v Hutchinson | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 133 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Charges of theft, common assault, attempted armed robbery and theft of motor vehicle – relevant criminal history – general deterrence and denunciation not relevant – specific deterrence and protection of the community of importance – early plea of guilty – Bugmy – Verdins – delay
Legislation Cited: Crimes (Mental Impairment and Unfitness to be Tried) Act 1997; Sentencing Act 1991
Cases Cited:Worboyes v The Queen [2021] VSCA 169; Bugmy v The Queen [2013] HCA 37; R v Verdins [2007] VSCA 62; R v McNamara [2006] VSCA 267; DPP v Spiteri [2006] VSCA 214.
Sentence: Total effective sentence of 21 months' imprisonment. Non-parole period of 14 months' imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms A. Liantzakis | Office of Public Prosecutions |
| For the Accused | Ms E. Byrt | Papa Hughes Lawyers |
HIS HONOUR:
Introduction
1Peter Hutchinson, I propose to send you to a total effective sentence of 21 months' imprisonment and fix a non-parole period of 14 months' imprisonment. I will declare the 423 days of your pre-sentence detention, excluding today, as time served under those sentences. Four hundred and twenty-three days is about 14 months.
2You pleaded guilty to a charge of theft, three charges of common assault, a charge of attempted armed robbery and a charge a theft of a motor vehicle.
3The circumstances of this offending is set out in the ‘Summary of prosecution opening upon plea’, which is Exhibit A.
Circumstances
4On 2 January 2021, you went to a shopping centre in Sunshine. You entered a clothing store and stole a bag belonging to the store's manager. It contained two sets of keys, a wallet, personal cards and $300 in cash. Shortly afterwards you left the store. The store's manager discovered his bag was missing and found you. You ran away and were grabbed by the manager who you struck several times in the face. You took a syringe from your pocket and thrust it at the manager. You did not make contact with him but he let you go. You ran away.
5The manager chased you. His cries for help drew the attention of others. You got into the rear seat of a car occupied by a disabled person and his carer. Despite your demands, the car could not be driven forward because of a crowd of persons surrounding it.
6The disabled person was a 25-year-old male who suffered from severe autism. He was seated in the front passenger seat. You threatened to harm him by thrusting an uncapped syringe towards his neck. You then pointed the syringe at the carer and demanded he drive. Again, he was unable to do so because of the crowd’s presence.
7You climbed into the front seat between the two men. A member of the public opened the door of the car and tried to pull you out. You left the car through a rear door and fled. The disabled man suffered a scratch to the back of his neck and the carer suffered minor cuts to his forehead. The prosecution concedes it cannot prove these injuries were inflicted by the syringe.
8At about 2.55 pm on the same day, you stole a car from the 7-Eleven store, where its owner had entered the store while leaving the keys in the ignition. At about 4.43 pm, you return to the store in the car and returned the car and gave the keys to the service attendant.
9For whatever reason, the police did not seek to interview you until 17 November 2022. You declined to be interviewed. On 12 December 2022, the police filed a charge and summons. By that stage, you were in custody for unrelated matters. On 19 December 2022, on these charges, you remanded into custody. Thereafter, there have been several court appearances in the Magistrates' Court allowing the investigation of the issues of fitness to be tried in the defence of mental impairment.
Victim impact statements
10There are no victim impact statements.
Criminal history
11Between 14 December 2004 and 2 December 2020, you have appeared in a criminal court on 33 occasions and have been found guilty or convicted of 275 charges.
12
You have been sentenced to immediate imprisonment on 14 occasions, some of those sentences resulted from the restoration of suspended sentences. Your longest sentence of imprisonment was 27 months, with a non-parole period of 15 months. This sentence was imposed in this court for the offence riot, on
24 March 2017.
13Among other things, you have 10 prior convictions for theft of a motor car, and one for attempted theft of a motor vehicle.
14On 31 July 2019, a magistrate sentenced you to 18 months' imprisonment for a host of mainly dishonesty charges. This sentence was suspended upon you undertaking a drug treatment order. On 2 February 2021, the order was cancelled, and you served three months' imprisonment.
15The Director provided the sentencing remarks of two judges of this court in sentencing you in 2007 and in 2017[1].
[1][2007] VCC 643 and [2017] VCC 302.
Personal
16You were born in Canberra and have no siblings. When you were aged 18 months, your father left the family home. You have no memory of him and you have had no contact with him since. You were told that he was violent to your mother.
17When you were aged seven, your mother remarried. You took your stepfather's surname. You describe your stepfather as abusive and controlling, however, you did enjoy activities with him such as hunting and working on cars. You were frightened of your stepfather. You were not allowed to laugh or be humerus. You were physically abused with a stick, spoon or fist and if you cried, you were abused again.
18Throughout your childhood and early adolescence, you and your family moved around. You lived in Melbourne, Queensland and Canberra. When you were aged 14, your mother separated from your stepfather. She told you she stayed with him for so long as she felt you needed a father figure in your life. At this time, you moved from Queensland to Victoria.
19You have had limited contact with your mother in recent years. You state she is not well and has psychological issues. Your other family members reside interstate.
Education and employment
20You do not have ‘normal’ friendships with children of your own age and would spend most of your time playing sports with older children. You moved schools often, due to your family relocating, and always felt you were the odd one out and the new kid. This affected your ability to make friends.
21The last school you attended was in Flemington. You participated in a special programme to allow you to complete tests and examinations but you did not finish Year 10. During school, you worked at Hungry Jack's. After leaving school you completed two years in a cabinet making apprenticeship. You stopped because of the negative influence of your peer group and drugs.
22You have completed other courses such as forklift driving and front/backend development. You spent time working in a Safeway warehouse driving a forklift truck and intermittently in the construction industry. You completed an advanced driving course and prior to your remand, you were planning to apply for your heavy rigid driving truck licence. You have received Centrelink benefits for a number of years.
Relationships
23You have had two long-term relationships. The first lasted for several years, but you describe it as a negative relationship.
24Most recent significant relationship was with Donna, which commenced in your early twenties. It lasted for seven years and you both used drugs for majority of these years. In 2015, you and Donna abstained from drugs, but then she was hospitalised for endocarditis, needing a heart valve replacement. You were in prison at the time and she was in hospital for a year. After you were released, her illness and recovery motivated you to continue to abstain from substances. You and Donna moved to Orange to be closer to Donna's son. You found employment and ultimately purchased a racehorse. You had planned to stay away from substances. However, Donna then contracted golden staph around her heart and required antibiotics for 18 months. She died in April 2016, due to further medical complications.
25You still struggle with her death. You relapsed into substance abuse and stated you still have conversations with her and think of her regularly. You now believe you have accepted her death.
Medical History
26You have had a number of injuries during your life. You have overdosed on illicit drugs numerous times, requiring hospitalisation. In 2010 you were in a car accident and fractured a vertebra in your neck. During another accident, you 'crushed your arm', and continue to suffer nerve pain from this injury. On one occasion when you overdosed, someone robbed you and slit your throat while you were unconscious. You woke up in hospital, your throat was stitched and you were shocked about what had occurred. You have been stabbed numerous other times and the one occasion someone 'shot up your house' while driving past. You were uninjured.
27After this offending you reported feeling suicidal and cut your arms requiring 45 stitches. You report hearing voices and you were highly distressed.
Substance use
28You were introduced to cannabis and then heroin at the age of 13. The use of this drug escalated and when you were 14 and you were prescribed suboxone to help cease your addiction. You have previously used amphetamine and benzodiazepines, however you were addicted to heroin for many years. At the time of this offending, you were using methamphetamine daily.
Psychiatrist
29Mark Ryan is a Forensic Psychiatrist. On 6 September 2023, he interviewed you at the request of your solicitors.[2] Your solicitors asked him to examine whether you were fit to stand trial. The test is set out in s 6 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997. In the end, he concluded you were fit to stand trial. In reaching that conclusion, he examined your circumstances thoroughly.
[2]Report dated 27 October 2023.
30Reviewing your contact with mental health services and turning to recent years, you suffer from a serious, enduring mental illness, such as schizophrenia, or schizoaffective disorder. While on regular medication, you are reasonably stable, but you do exhibit intermittently symptoms of psychosis, particularly hearing voices and referential ideas. You also have a lowered mood.
31He noted the ability of cannabis and methamphetamine to induce psychotic symptoms. He accepted the diagnosis of post-traumatic stress disorder, which affected the development of your personality and contributing to your emotional dysregulation and your tendency to abuse drugs.
Psychologist
32
Alison Mynard is a Clinical Psychologist. On 19 January 2024, she interviewed you at the request of your solicitors.[3] She had earlier interviewed you on
22 September 2017.[4]
[3]Report dated 28 January 2024.
[4]Report dated 25 September 2017.
33It was your stepfather's abuse which causes symptoms of a post-traumatic stress disorder. This disorder adversely affected your daily functioning as a young person and now as an adult. She sees your drug use as a response to the emotional effects of this psychological disorder.
34More definite than Dr Ryan, Ms Mynard diagnoses schizophrenia, starting possibly with a drug induced psychosis from your opioid use and withdrawal in your early teenage years. Coupled with you taking methamphetamine this disorder severely impaired your judgement at the time of your offending.
35She saw appropriate psychological assistance as helping you deal with the symptoms of the post-traumatic stress disorder through the taking of medicine.
36She considered custody would be very onerous for you due to your mental health issues, and then the treatment of them through medicines. She thought your depression might deteriorate in prison.
37At paragraph 41 of her second report, Ms Mynard made a series of recommendations mainly for your psychological condition.
Discussion
Purposes
38Section 5(1) of the Sentencing Act 1991 sets out the purposes for which sentences may be imposed;
(a) to punish the offender to the extent and in a manner which is just in all of the circumstances;
(b) to deter the offender rather the person committing offences of the same or a similar character;
(c) to establish conditions within which it is considered that the offender's rehabilitation may be facilitated;
(d) to manifest the denunciation of the type of conduct the offender engaged in; and,
(e) to protect the community from the offender.
39Each of those sentencing purposes is relevant in your sentencing.
40Deterring you is called general deterrence, whether seen as a general principle, or as an application of a principle in Verdins case, this purpose of sentencing can have little relevance in your case. Simply, few would identify if a person is suffering a psychotic episode when offending.
41A somewhat similar consideration applies to denouncing your conduct. Objectively, it deserves some form of denunciation. But an onlooker, fully informed of your situation, may pay little regard to it.
42The sentencing purposes of deterring you, or specific deterrence and protecting the community from you are important. Your criminal history and your disappointing compliance of the drug treatment order means I must give significant weight to those purposes.
43Section 5(2) of the Sentencing Act sets out other matters to be considered where they are relevant to your case.
Maximum penalties
44The maximum penalties for the offences are;
(a) Theft, 10 years' imprisonment. For the offence of theft of the motor car, there is an obligation to suspend or cancel any licence or for them to drive a motor vehicle and disqualify you from holding such a licence or permit. The period is at my discretion;
(b) Common assault five years' imprisonment; and
(c) Attempted armed robbery, 20 years' imprisonment.
Nature and gravity of the offending
45In your attempt to take the car, you used an uncapped syringe to try and force the carer to drive it away. He was prevented from doing so by the bystanders.
46The circumstances of the fifth charge are reasonably common in the criminal courts, especially the Magistrates' Court. It is a relatively low-level example of the offence, even though most of the property stolen has not been recovered.
47The circumstances of Charge 6 are somewhat unusual. The stealing of an unlocked car with the keys in the ignition is not uncommon. Returning the car and its keys 90 minutes later is unusual. Overall, this is a relative low-level example of the offence.
48As to Charge 2, the assaults caused little injury. The disturbing aspect is your thrusting of the syringe at the victim. That aspect was undoubtedly frightening.
49As to Charges 4 and 5, the assaults upon the disabled person in your carer, the injuries were minor.
50With Charge 3, the attempted armed robbery, it included elements of the other charges. It did not progress beyond an attempt because of the prompt actions of bystanders prevented the movement of the car. It is a moderate example of this offence.
Guilty pleas
51Your guilty pleas came at an early time in the course of this proceeding. I am inclined to think they were entered at the earliest reasonable opportunity, given the need to investigate whether you were fit to stand trial and the defence of mental impairment.
52There are several benefits of your guilty pleas. They are an emphatic acknowledgement of your offending. They show the victims and the world in general that you committed these offences.
53Second, they relieve the victims will need to give evidence against you in a trial. I dare say for the disabled person in particular, this would be an arduous task.
54Third, you have assisted the criminal justice process. You have removed your case from those needing a jury trial and allowed others to move forward. This is avoided the delay and saved the time and expense of a trial. Generally, jury trials are complicated affairs involving 12 jurors and lasting weeks. Avoiding that is a considerable benefit to the criminal justice system.
55Fourth, for crisis addressed in Worboyes v The Queen[5] and other cases has abated. On 5 May 2023, the World Health Organisation declared the virus no longer constituted a public health emergency. More recently, this Court announced it and overcome the backlog of cases created by the pandemic. It had reached the pre-pandemic levels of pending cases. But in another respect, the virus still disturbs the smooth running of jury trials in this court, principally through the unavailability or loss of jurors. Pleading guilty still benefits the system identified in the case of Worboyes, but to a much lesser extent.
[5][2021] VSCA 169.
56Overall, your guilty pleas entitle you do a sizable discount on the sentences which would have been impose if you had pleaded not guilty to the charges but had been found guilty after a trial.
Bugmy
57The principal in Bugmy's[6] case applies but has been overtaken by the explanations of your current psychological state by the psychiatrist and the psychologist.
[6]Bugmy v The Queen [2013] HCA 37.
Verdins
58The principles stated in Verdins[7] case are most applicable to you. At the time of your offending, you were influenced by the effects of your disorder, especially the symptoms of your schizophrenia, or schizoaffective disorder. By whatever diagnostic label, you were profoundly affected. Despite the taking of appropriate medicines, you are still affected by some of the symptoms of the disorder. Analytically, each of the principles applies to moderate your sentence.
[7]R v Verdins [2007] VSCA 62.
Delay
59As your counsel submitted it has taken a considerable time for this proceeding to reach this stage. The offending occurred on 2 January 2021. The police believed or knew of your involvement within days where they obtained a search warrant and searched your residence and found evidence in the form of your runners. Yet you were not charged until 12 December 2022. You were not responsible for the delay. By then you are in custody. In paragraphs 31-36 of her outline of submissions, your counsel has set out the results of sentences imposed for further offending and following the cancellation of your drug treatment order.
60The delay probably deprived you of the possibility of concurrency and is something I should weigh in your favour.
61However, what those court proceedings show, together with your other criminal history and your psychological state, are your prospects of rehabilitation are very uncertain, bordering on poor. Your principal disorders sit somewhere on the schizophrenia spectrum. With regular medication, you are reasonably stable but intermittently you have symptoms of psychosis, particularly hearing voices and referential ideas. In the days when courts sentenced you to non-custodial sentences, you contravened nine such sentences involving suspended sentences and community-based orders. More recently, a drug treatment order was imposed but ultimately cancelled.
62
Your counsel submitted I should consider a sentence combining imprisonment with a Community Correction Order. I will not adopt that solution because I am not satisfied you could successfully negotiate conditions of an appropriate
Community Correction Order.
Current sentencing practices
63The Director provided several documents. Relevant to the issue of current sentencing practices, I received two judgments of the Court of Appeal[8] and a sentencing snapshot for the offence of attempted armed robbery prepared by the Sentencing Advisory Council.
[8]R v McNamara [2006] VSCA 267 and DPP v Spiteri [2006] VSCA 214.
Sentence
64On Charge 1, a charge of theft, I sentence you to two months' imprisonment.
65On Charge 2, a charge of common assault, I sentence you to three months' imprisonment.
66On Charge 3, a charge of attempted armed robbery I sent you to 15 months' imprisonment.
67On Charge 4, a charge of common assault essentially three months' imprisonment.
68On Charge 5, a charge of common assault I sentence you to three months' imprisonment.
69On Charge 6, a charge of theft of a motor vehicle, I sentence you to six months' imprisonment. Additionally, I will suspend your licence to drive a motor vehicle for 12 months.
70The sentence on Charge 3 is the base sentence. One month of the sentence on each of Charges 2, 4 and 5 and three months of the sentence on Charge 6, these serve communicably upon themselves and upon the base sentence. The total effective sentence is 21 months imprisonment. I will set a non-parole period of 14 months imprisonment.
71I declare the 423 days of your pre-sentence detention as time served under my sentences today, that figure excludes today.
6AAA
72If you had pleaded not guilty, and had been found guilty by a jury, then I would have sentenced you a total of 28 months' imprisonment and set a non-parole period of 21 months' imprisonment.
Disposal order
73I will make the disposal order in the terms of the draft order.
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