Director of Public Prosecutions v Hutchinson

[2022] VCC 967

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-22-00208

DIRECTOR OF PUBLIC PROSECUTIONS

v

GREGORY HUTCHINSON

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JUDGE:	Karapanagiotidis
WHERE HELD:	Melbourne
DATE OF HEARING:	17 June 2022
DATE OF SENTENCE:	22 June 2022
CASE MAY BE CITED AS:	DPP v Hutchinson
MEDIUM NEUTRAL CITATION:	[2022] VCC 967

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW - SENTENCING

Catchwords:              Aggravated carjacking – theft – possess controlled weapon – commit indictable offence whilst on bail – plea of guilty – Worboyes – Verdins principles – COVID-19 pandemic – guarded prospects of rehabilitation – mandatory non-parole period considerations – conditions in custody.

Legislation Cited: ss 5, 6AAA, 10A, 10A(1), 10AC, 10A(2)(c), 10A(2)(c)(i), 10A(2)(e), 10A(2A), 10A(2A)(e), 11, 11(3) Sentencing Act 1991 (Vic).

Cases Cited:R v Males [2007] VSCA 302; R v Verdins & Ors [2007] VSCA 102; Tscherepko v The Queen [2010] VSCA 299; Worboyes v The Queen [2021] VSCA 169.

Sentence:                  Three years and four months’ imprisonment with a non-parole period of two years and three months’ imprisonment.

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APPEARANCES:	Counsel	Solicitors
For the DPP	N. Burnett	The Office of Public Prosecutions
For the Accused	S. Ranjit	Balmer & Associates

HER HONOUR:

1Gregory Hutchinson you have pleaded guilty to one charge of aggravated carjacking and three charges of theft. You have also pleaded guilty and agreed to this Court hearing the summary offence charges of possessing a controlled weapon and four charges of committing an indictable offence whilst on bail.

2The maximum penalties are as follows: aggravated carjacking, 25 years imprisonment; theft, 10 years imprisonment; possess controlled weapon, 120 penalty units or 1 year imprisonment; and for the summary charges of commit indictable offence on bail, 30 penalty units or 3 months imprisonment. 

Circumstances of the offending

3The full circumstances of your offending is set out in the summary of prosecution opening marked as Exhibit A on the plea.

4In summary, at the time of your offending, you were on bail, having entered an undertaking of bail on 27 September 2021.

5On Saturday 2 October 2021 at approximately 6.19pm, you attended the Coles Supermarket on Vaughan Street, Shepparton. It is believed that you stole a Cook and Dine kitchen knife valued at $8.00. This was captured on CCTV footage, though I note it is not the subject of a charge.

6At 6.25pm you entered the carpark that is connected to the Farm Fresh Supermarket. You entered this area via a damaged fence panel. This was also captured on CCTV footage. You remained there for a short time before opening your bag and removing a large kitchen knife. You unsuccessfully tried to remove the plastic security cover on the knife before placing it back into your bag. The knife was consistent with the one allegedly taken from Coles referred to in paragraph 5, and your possession of this item is the basis of Summary Charge 4.

7At approximately 6.33pm you exited the carpark and stood on the corner of Ashenden Street and Maude Street, Shepparton. At this time, the victim Mohd Mehat and his wife Sidi Hassen were travelling south along Maude Street in the victims black Honda Civic. Mr Mehat made a right hand turn and parked his vehicle on the northern side of the road, facing east, while his wife exited the vehicle and entered the Farm Fresh Supermarket.  Mr Mehat remained in his car with the window wound down and the keys in the ignition. 

8You appeared to watch Ms Hassen as she entered the supermarket and as she did so you approached the driver’s door of Mr Mehat’s vehicle and asked him for a cigarette.  He said no and you then reached into his car and attempted to remove the keys from the ignition.  Mr Mehat pushed and hit your arm causing you to retract your arm from the car.  You then reached into your bag and removed the large single bladed kitchen knife.  You raised the knife towards Mr Mehat, grabbed the door handle and yelled for him to get out.  He was scared, opened the driver’s door and ran from the car.  You entered the car and sat in the driver’s seat.  Mr Mehat ran to the front passenger side of the car and removed a shopping bag containing his passport and mobile phone.  You heavily accelerated leaving Mr Mehat on the footpath.  This constitutes Charge 1,  aggravated carjacking. 

9Mr Mehat called 000 and police attended the scene. Your offending was caught on CCTV footage. 

10Between 6.53pm and 8.40pm you drove the vehicle to three petrol stations and put fuel in the car without paying, in the amounts of $56.22, $28.90 and $20.00. 

11On 4 October 2021 through internal investigative measures you were identified by a police member. On 5 October 2021 you attended the Melbourne West Police Station.  You told the police that you stole a vehicle which was in Haig Street, South Melbourne.  You said it was a black Honda but that you were unable to recall the registration.  Police attended at Haig Street and located Mr Mehat’s stolen vehicle with the keys in the ignition.  Police also located a Cook and Dine plastic knife security cover in the car.  At 3.57pm you were arrested by police and they located in your possession a number of items, including a large Cook and Dine kitchen knife with a single silver blade and black handle. 

12You gave a no comment record of interview and were remanded in custody where you have remained. You have therefore served a total of 259 days in pre-sentence detention.

Gravity of the offending

13The seriousness of your offending is reflected in the maximum penalty set by Parliament and the statutory regime that applies to such offending. Aggravated carjacking is a Category 1 offence. Pursuant to s 10AC of the Sentencing Act1991 (Vic) in sentencing for the offence of aggravated carjacking I must impose a term of imprisonment and fix, under s 11 of the Act, a non-parole period of not less than three years unless I find under s 10A of the Act that a special reason exists. Further, s 11(3) of the Act requires that a non-parole period must be at least six months less than the term of the sentence. I will return to the application of these provisions in your case shortly.

14Your offending is serious; you approached Mr Mehat who was in his car alone waiting for his wife to return.  You brandished and raised a knife and demanded he get out of his car, which he did, out of fear.  Your offending is also aggravated by the fact that you were on bail at the time. 

15I accept that your offending was likely to have involved little, if any, planning.  It was relatively unsophisticated. It lacks aggravating features that sometimes accompany this type of offending; you were not in company; you were not disguised in any way; while you brandished the knife you made no other attempt to use it or to inflict any type of injury; no physical force was used on your victim and it was a relatively short-lived, isolated incident.  I accept that there are more serious examples of this type of offence.  In all the circumstances, your offending is clearly serious. You used a knife which is capable of causing significant injury and fear. Overall, I regard your offending as sitting at the lower, mid-range for this type of offending. 

Plea of guilty

16As I’ve already noted, you attended and effectively handed yourself into the police and made partial admissions.  You entered a plea of guilty at the earliest opportunity, namely at the committal mention stage, and no witnesses were cross-examined.  I accept that your plea of guilty represents an acceptance of responsibility on your part and is indicative of remorse. I also recognise the significant utilitarian benefit of your plea and accept that it warrants a real and tangible sentencing discount[1]. Further, I accept that your plea is indicative of remorse. 

[1] Worboyes v The Queen [2021] VSCA 169.

Personal circumstances

17Your personal history was canvassed by your Counsel and in the reports of forensic psychologist Carla Ferrari of 23 May 2022 and Associate Professor Warrick Brewer of 8 June 2018.

18In summary, you are 41 years of age.  You were born in Shepparton and are the eldest of three children.  Your parents separated when you were around 10 years of age, then reunited and separated again when you were 15. You remained living with your mother and maintained only some sporadic contact with your father.  Your father had substance abuse problems and you witnessed domestic violence in the home growing up.  You recall your younger sisters waking you up in the middle of the night and handing you a cricket bat to intervene in the fights between your parents.  You recall being the protector of your younger sisters. 

19You had a good relationship with your mother until your mid-20s but your substance use and lifestyle choices affected this and you have had no contact with her now for years.  She currently cares for your daughter after intervention by the Department of Families, Fairness and Housing. 

20You were schooled until the middle of Year 10 and you experienced attention, learning and behavioural problems at school. Upon leaving school you completed a three year plastering apprenticeship.  You have subsequently been employed in various labour roles on a casual basis including seasonal work and in abattoirs.  You’ve had difficulties maintaining long term employment and you reflect that your substance use and time in and out of custody has affected your work stability.

21In 2005 you were involved in a motor vehicle accident and you’ve not worked since this period.  You were assessed by a number of specialists as part of your TAC claim. 

22You have had several intimate relationships that also have been impacted by your drug use and periods of incarceration.  You have a 14 year old son who is currently cared for by his maternal aunt.  You have had no contact with him for years but you are hopeful of reconnecting.  From another relationship you also have a 12 year old daughter, who has lived with your mother since December 2020.  Apparently there is currently an intervention order in place protecting your ex-partner and your daughter. Your last relationship was for approximately two and a half years and was marked by substance use and criminality.   

23You have previously been diagnosed with depression, anxiety and post-traumatic stress disorder (“PTSD”) through the TAC process.  You’ve been treated on anti-depressant medications and currently receive Seroquel in custody.  Last year you were admitted into a psychiatric hospital for two days after threatening to self-harm.  In the past whilst intoxicated or under the influence of drugs you have attempted suicide and self-harm. 

24In 2018 you were diagnosed with an acquired brain injury (“ABI”) and reported memory problems, mood changes, impulsivity and taking longer to process information. 

25You have experienced several traumas in the past, ranging from your exposure to domestic violence as a child and being a Crown witness in a homicide case in the more recent years.  You are currently a protected prisoner and you’ve had numerous issues with other offenders during previous incarcerations.  

26You have a long-standing and entrenched history of drug use and addiction.  At approximately 15 years of age you began using alcohol and cannabis.  In your late teens or early 20s you started using amphetamine and MDMA recreationally with friends and gradually your amphetamine use became a daily habit.  You continued to smoke and intravenously use methamphetamine.  From the age of 26 you started using heroin intravenously.  You are currently prescribed methadone in custody.   You report that your longest period of abstinence from drugs in the community is three months after you completed residential treatment in Odyssey House more than ten years ago. 

Prior criminal history

27Your prior criminal history is extensive, dating back to 1999.  You have been before the Courts in relation to drugs, dishonesty and violence offending.  You have been sentenced to various dispositions, including fines, community based orders, suspended sentence and imprisonment.  You have breached the majority of these with further offending.  In August 2014 you were sentenced by this Court for charges including intentionally cause injury and threat to kill and were sentenced to two years and five months’ imprisonment with a minimum non-parole period of 17 months’ imprisonment. On that occasion you were sentenced as a serious violent offender. In December 2016 you were sentenced to 12 months’ imprisonment on charges including possess weapon and assault emergency worker.  In June 2018 you were sentenced for dishonesty matters, assault, criminal damage, breach of intervention order to one year and two months’ imprisonment with a minimum non-parole period of six months’ imprisonment.  In December 2019 you received 24 months’ imprisonment with a non-parole period of 18 months’ imprisonment for charges including burglary, theft, and reckless cause injury.  You were last sentenced on 6 July 2021 for use methamphetamine and breach of an intervention order to a straight six months’ imprisonment.  Very soon after your release you committed the current offending. 

28While you are not to be resentenced for your prior history, it is concerning and it informs an assessment of your rehabilitative prospects and the need in your case for general deterrence. 

Applicability of mandatory non-parole period provisions

29As I have already referred to, Charge 1, aggravated carjacking is a Category 1 offence. On your behalf Mr Ranjit submitted that a special reason exists pursuant to s 10A(2)(c), namely that at the time of committing these offences, you had impaired mental functioning that was causally linked to the commission of these offences and substantially and materially reduces your culpability. He also relied upon s 10A(2)(e), namely that there are substantial and compelling circumstances that are exceptional and rare. The prosecutor, Ms Burnett, did not concede that you suffer from impaired mental functioning or that any such condition meets the required threshold test. Overall she submitted that your offending was substantially caused by your drug use at the time and not by reason of your identified impairments. She also did not concede that there are substantial and compelling circumstances that are exceptional and rare in your case to enliven the relevant provision.

30In relation to s10A(2)(c) Mr Ranjit relies upon the reports of Ms Ferrari and Associate Professor Brewer.

31Ms Ferrari indicates that you reported that when released from custody you were feeling overwhelmed and relapsed into alcohol and substance use.  You were not linked into any services and were unable to secure a prescription to continue your methadone.  The closest methadone prescriber in the Shepparton area was 30km away and was the sole doctor for two separate clinics, with therefore limited availability.  You decided that you needed to travel to Melbourne to access services and impulsively stole a vehicle to carry out your plan.  You also reported experiencing interpersonal stress during this period.  You felt helpless and that you had no other option to obtain your methadone script and seek support which was not available to you in Shepparton. 

32Ms Ferrari offers the following opinions:

(a)   Based on your self-report, psychometric assessment, clinical presentation at interview and available collateral information, the following diagnosis were indicated: PTSD, major depressive disorder, recurrent, moderate; generalized anxiety disorder; stimulant use disorder (amphetamine type) (remission); opioid use disorder (on maintenance therapy) and alcohol use disorder; borderline/antisocial personality disorder and acquired brain injury.

(b)   Your early life experiences contributed to the development of Major Depressive Disorder and Generalized Anxiety Disorder and your substance use served to self-medicate these untreated symptoms.

(c)   The motorbike incident, for which you were sentenced in 2005, gave rise to, and/or exacerbated, your PTSD which likely pre-existed due to your own fractured childhood. Your PTSD has been reinforced through other traumatic experiences including another motor vehicle accident when you were 25 years of age and sustained physical injuries and an acquired brain injury. 

(d)   Your individual conditions are significant and their combined weight contributed to your complex and multifactorial psychiatric profile and diminished cognitive, emotional and behavioural functioning.

(e)   Negative affective states inherent in your psychiatric conditions can also alter cognition and behaviour, impairing the ability to rationalize, consider alternative responses, and impact decision-making, which can therefore increase the risk of offending behaviour.

33I have also considered the report of Associate Professor Brewer though I note that this is dated 8 June 2018 and relates to different offending. He provides:

(a)   Your overall general intellectual ability was estimated to fall within the borderline range.  Your reading age was the equivalent of an 11.8 year old child.

(b)   Your IQ at the time of assessment reflected significant reduction from premorbid (prior to the impact of anxiety, substance abuse and acquired brain injury) estimates which place your ability within the average range. 

(c)   Your overall cognitive profile was consistent with the impact of a mild-moderate acquired brain injury.  In the main, this was likely due to your history of substance use but he also noted that the further impact of multiple assaults and associated loss of consciousness should not be underestimated.

(d)   It is likely that your mental health and substance abuse issues would compound the impact of your ABI, hence leaving you more vulnerable than similar aged peers with PTSD and substance abuse diagnoses that are not suffering an ABI.

34I accept that your offending occurred within a context where you were struggling in the community. You had just been released from a straight six month sentence.  Prior to the imposition of that sentence you had only been in the community for one month after being released from the two year sentence imposed in late 2019.  You very quickly relapsed into alcohol and substance use, mainly methamphetamine and GHB in the context of reconnecting with ‘the same people, doing the same things’.

35I am satisfied, on the evidence before me, that you suffer from a mental impairment as defined in s 10A(1), in the form of an acquired brain injury and additionally the clinical disorders, as outlined in detail by Ms Ferrari in her report.

36It is difficult to disentangle the effects of drug use from your impaired mental functioning caused by your ABI and/or medical health conditions.  The latter however does not need to be the sole cause of your offending; rather it needs to be causally linked to the offending and to substantially and materially reduce your culpability.  It seems likely that your drug use would have exacerbated the impact of your underlying ABI and your mental health conditions.

37Behavioural changes common following an ABI include disinhibition, aggression and cognitive inflexibility. Mr Brewer in his report noted that higher level executive inefficiencies, which you were assessed as suffering from at the time, include impulsivity and reduced self-monitoring. Ms Ferrari further observes that emotional dysregulation commonly associated with your various conditions - including depression, anxiety, BPD and PTSD - impairs problem solving and healthy information processing.  There are traits of impulsivity, poor problem-solving, risk-taking behaviour and self-regulation issues which are inherent in [your] psychiatric profile and ABI which impact your cognitive, behavioural and emotional functioning.  Your mental health conditions have resulted in increased alcohol and substance use as a form of self-medication which also reduces self-inhibition and can manifest as impulsive, reckless, poor decision making and impaired judgment. 

38According to Ms Ferrari, ‘The influence of [your] untreated mental health, substance use, and [your] ABI converged on [your] poor decision-making to engage in criminal misconduct as a means to an end, as a result of [your] poor problem-solving, impulsiveness, cognitive inflexibility, desire to escape [your] surroundings, and an underlying motivation to seek help to reduce [your] reliance on substances by recommencing [your] methadone script’.

39She opines that a number of factors are causally linked to your offending behaviour. Your ABI and complex, untreated mental health conditions have played a significant role in your current offending, as well as your continued recidivism; [your] mental health is chronically impaired with severe repercussions for [your] decision-making, judgement, and conduct.

40I consider that your offending is consistent with, or reflective of, impulsive, cognitively inflexible, reckless and poor decision making. On the evidence, I am satisfied that your ABI and your complex, untreated mental health conditions, were significant causative factors in your offending and I am satisfied of the requisite link. It follows that I accept in your case that a special reason exists pursuant to s 10A(2)(c)(i).

41Further, in relation to s 10A(2A) while it appears clear that you were under the influence of drugs at the time of your offending, I’m not able to determine on the evidence that your impaired mental functioning was substantially caused by self-induced intoxication in this instance.

42Given my finding, I don’t consider it necessary to determine the application of s 10A(2A)(e). Your Counsel relied on a combination of factors in support of this submission. I can indicate that I am not entirely persuaded that in your case, even when considered in combination, these matters would have been capable of amounting to a special reason in the statutory sense.

43I should note here that notwithstanding my satisfaction that a special reason applies in your case, after consideration of all relevant factors, including the objective seriousness of your offending, I consider that a term of imprisonment comprising a head sentence and non-parole period is the only appropriate sentence.

Verdins principles

44I am satisfied that your cognitive impairments at the time of the commission of your offence enliven limbs 1-4 of the Verdins[2] principles, which, to a degree, reduces your moral culpability and has a bearing on the type of sentence that should be imposed and the punishment that is just in all the circumstances.  I also accept that it calls for some moderation of the principles of general and specific deterrence.

[2] R v Verdins & Ors [2007] VSCA 102.

45I note that in relation to limbs 5 and 6 the prosecution accepted that they have some application in your case. I accept, based on Ms Ferrari’s opinions, that imprisonment will likely weigh more heavily on you than on an individual without your conditions and may also lead to a exacerbation of your conditions, including your depression, anxiety and PTSD.  

Conditions in custody

46You are currently held, Mr Hutchinson in very restrictive conditions.  You are endorsed as a long term management prisoner and have been housed at the Banksia Unit placement since late December 2021.  You are awaiting a vacancy in Sirius East but this has not been progressed because more recently you have been maintained on a handcuff regime.  Your classification is considered necessary given your poor and threatening behaviour towards others, including previous threats to injure staff if not placed in restrictive environments. The fact that you are held in a highly restrictive management regime, even though it appears that you have been placed in such a regime because of your own conduct, is still a matter of relevance that the court can, and will, have regard to as agreed between the parties.[3]

[3] R v Males [2007] VSCA 302; Tscherepko v The Queen [2010] VSCA 299.

47In her report Ms Ferrari opines that in people such as yourself, who suffer from MDD, GAD, PTSD, ABI and Cluster B personality traits, there is potential for significant mood fluctuation, behavioural disinhibition, and impulsivity that may be triggered by the volatile nature of imprisonment.  She opines at paragraph 134 that you are at higher risk of inappropriate or disproportionate responses due to poor emotional regulation and impulsive behaviour, which can result in unintentional sanctions and higher vulnerability to experiencing issues with other offenders.

48I note that during Mr Brewer's assessment in 2018 you were also being held in ongoing 23-hour lockdown and isolation. He opined that with respect to your very likely compromised underlying personality structure, the high degree of structure in prison can usually serve to be therapeutic.  However, he considered that your conditions of lockdown significantly outweighed any such benefit.

49I take into account the highly restrictive regime that you are currently being held under.  As discussed between Counsel today I do though give it reduced weight in the circumstances.

Prospects of rehabilitation

50As to your prospects of rehabilitation, I accept that they are guarded. You will require significant assistance to treat and manage your mental health conditions and also overcome your long standing drug problem. You have an extensive and relevant criminal history, dating back to 1999.  Over the last decade you have served several sentences of an approximate combined period of some 8 years. I was told that you typically serve out your entire sentence without being released on parole and then return to the community without any supports or interventions.  Ms Ferrari opines that incarceration has not proved a deterrent in the past because key criminogenic risk factors were not able to be addressed within the prison system.  You are assessed as a high risk of recidivism without appropriate interventions though it’s noted that you do present with some insight into your mental health and that you’re motivated to engage with treatment.

51In her report Ms Ferrari makes a number of recommendations, including psychological interventions, psychiatric referrals, specialised AOD counselling, eligibility for support under the National Disability Insurance Scheme (“NDIS”), and transitional support.

52I also accept that you that you are at risk of becoming institutionalised. Therefore in your case, I take into account in sentencing you the purpose of preventing recidivism and institutionalisation and facilitating your reintegration into the community. 

Sentencing considerations

53The basic purposes for sentencing are punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community.  The application of Verdins principles, as I have previous canvassed, reduces your moral culpability and bears upon the appropriate sentence to be imposed.  General and specific deterrence, while moderated, still clearly have an important role. Community protection also needs to be given considerable weight, given your prior criminal history, complex mental health and cognitive conditions, escalation in offending and risk of recidivism.

54I take into account the sentencing guidelines referred to in s 5 of the Sentencing Act 1991 where relevant to your case. I have also had regard to the current sentencing practices for aggravated carjacking.

55There was no dispute between the parties in your case that a term of imprisonment is warranted for your offending and in fact is mandatory, given aggravated carjacking is a Category 1 offence.  In all the circumstances, as I’ve already indicated, I consider that the only just and appropriate sentence is a substantial term of imprisonment, structured by way of a head sentence and a non-parole period.

Sentence

56You are convicted and sentenced as follows:

57Charge 1, you are sentenced to three years and four months’ imprisonment.

58On Charges 2, 3 and 4, you are sentenced to one month imprisonment on each charge.

59For the breach bail charges, which are Charges 6, 8, 11 and 13, on each charge, you are sentenced to 14 days’ imprisonment. 

60On the charge of possess controlled weapon, Charge 4, you are sentenced to seven days’ imprisonment.

61All terms of imprisonment imposed are to be served concurrently with the base sentence which is Charge 1.  I indicate broadly that the breach bail offences are all concurrent because, as I’ve stated, I consider the fact that you were on bail at the time of your offending to be an aggravating factor.

62I am prohibited from speculating as to whether you will be released on parole and it is not my decision to make. It does seem to me that the most effective means of protecting the community and maximising your rehabilitative prospects is by way of a structured release that can assist and support you in your reintegration back into the community.  Each time you are released into the community, particularly on straight-release with no supports, your tendency to be overwhelmed is reinforced. Given your underlying mental health and cognitive profile which limits your capacity to problem-solve and think logically and rationally, you relapse into maladaptive pattern of behaviour, specifically substance use to alleviate your feelings of distress.  I note here that it may be of assistance for these reasons to be provided to the Parole Board. 

63In terms of a non-parole period, taking into account all the matters that I have already referred to, I am setting a non-parole period of two years and three months' imprisonment.

64Pursuant to s 18, I declare that you have served 259 days imprisonment.

65And in accordance with s 6AAA, I indicate that but for your plea of guilty, I would have sentenced you to five years and four months' imprisonment, with a non-parole period of three years and eight months.

66I make the forfeiture order that has been sought, along with the disposal order which were unopposed in the terms that were applied for by the prosecutor.  Is there anything further Ms Burnett, that I need to deal with?

67MS BURNETT:  No, Your Honour, thank you.

68HER HONOUR:  All right, Mr Ranjit?

69MR RANJIT:  Nothing further from me Your Honour, the court pleases.

70HER HONOUR:  All right.  Mr Hutchinson, I'll give you a moment on the link now to speak to your counsel Mr Ranjit.