Director of Public Prosecutions v Hutchinson

[2014] VCC 1587

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-14-01227

DIRECTOR OF PUBLIC PROSECUTIONS

v

JAMES HUTCHINSON

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JUDGE:	HER HONOUR JUDGE CANNON
WHERE HELD:	Melbourne
DATE OF HEARING:	3 September 2014
DATE OF SENTENCE:	11 September 2014
CASE MAY BE CITED AS:	DPP v Hutchinson
MEDIUM NEUTRAL CITATION:	[2014] VCC 1587

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:  Sentence – Theft – Plea of guilty -  Armed Robbery – Reckless Conduct Endangering Life – Severe drug and alcohol abuse disorder – Adjustment disorder with depressive symptoms – Anti-social personality disorder with borderline features

Sentence:Total effective sentence of five years ten months, with a non-parole period of three years ten months – 142 days pre-sentence detention declared as being served – s.6 AAA Sentencing Act 1991 declaration – Ancillary orders

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms D. Hogan	Mr C. Hyland, Solicitor for Public Prosecutions
For the Accused	Mr M. McGrath	Robert Stary Lawyers

HER HONOUR:

1James Hutchinson you have pleaded guilty to one charge each of Theft, Armed Robbery and Reckless Conduct Endangering Life.

2Armed robbery has a maximum penalty of 25 years’ imprisonment whilst the other two offences have a maximum penalty of 10 years’ imprisonment. There is  a licence disqualification penalty attached to the theft charge as this occurred in respect of a motor vehicle.

3You have also pleaded guilty to driving whilst unlicensed which has a maximum penalty of 25 penalty units or three months’ imprisonment and one charge of  Carrying a prohibited weapon which has a maximum penalty of 240 penalty units or two years’ imprisonment.

4On 22 April of this year you were driving a car (1990 Toyota Corolla)  which you knew to be stolen, having received this from someone else. This gives rise to charge 1. You had an acquaintance, Marcia Gruescu with you.

5At about 6.45 am on this day you drove to Hampton Street, Brighton and parked the car down and across the road from a BP Service station. You were armed with a kitchen knife and a cloth shopping bag. You had covered your head with the hood of your top, and you wore sunglasses and covered your face with a scarf. You were also wearing gloves. You approached the counter of the BP Service station, produced the knife and pointing it at the attendant you shouted “Get all the cash! Get all the fucking money!” The victim was  shocked and did not move. You shouted at him again and pointed the knife close to his arm. The victim went to the till and gave you all the notes. You asked for more but there was no more so the victim showed you the till. You said, “Give me the smokes. The cash isn’t enough. Give me JPs Red 26.” The victim handed you all the cigarettes of this brand that he had, putting them in your cloth bag. You then ran from the store. The victim was terrified during the incident, which is recorded in his police statement. The incident was captured on CCTV.

6You returned to the stolen car and left the scene, with Ms Gruescu on board. At 6.48 am you were observed by a police officer, Mr Day.  Your car had its headlights off and you were driving at a fast rate of speed,   Light rain was falling. Mr Day went after you, and as he did so, he learned of the armed robbery you had just committed.

7He followed you north in Glencaim Avenue and activated the police car’s emergency lights and siren. You failed to stop. You crossed over Dendy Street and continued into Burwah Avenue before turning left onto Marriage Road heading west. You turned left onto Hampton Street, left onto Pine Street and left onto Walstab Street before turning right onto Marriage Road, all the while with Mr Day in pursuit. You continued along Marriage Road at a fast speed, in excess of 80 kilometres an hour, before turning right onto the Nepean Highway and speeding off south. You swerved onto the northbound lanes of the Nepean Highway directly into oncoming traffic. The northbound motor vehicles were held at a set of red lights at the intersection with Cummins Road. At this point Mr Day terminated the pursuit due to the risk involved with continuing it. You continued south in the northbound lane of Nepean Highway. A number of cars were swerving out of your way to avoid colliding with you.  The driver of a 2011 Toyota HiLux utility attempted to veer out of the way of your car, but your car struck the right rear-hand side of the tray on the utility, causing some damage. Your vehicle then struck a 2013 BMW wagon that was travelling behind the utility, causing the two vehicles to come to a stop. The wagon had some minor damage to its left rear wheel arch. At the time that you were driving you were not licensed to drive. The conduct just described gives rise to Charge 3 – Reckless conduct endangering life, and the summary charge 11 – unlicensed driving.

8You left the car, and ran off, with Gruescu following you for a time. She then walked off and hid behind a tree. You were chased by police, who caught up with you and you surrendered after Mr Day drew his firearm and demanded that you get onto the ground.

9You were arrested and, when searched, a miniature axe was found down the front of your pants. This gives rise to Summary charge 14 – Possess prohibited weapon. It was not disputed that this was in your possession for personal protection rather than for any purpose related to the armed robbery.

10The knife and sunglasses used in the armed robbery were found in the stolen car.

11Ms Gruescu was also arrested but charges against her were subsequently withdrawn.

12You were taken to a police station and were found to have a blood alcohol level of .024, and methamphetamine was found in your system. You told police that you had taken heroin, ice, methadone, and ‘Benzo’.

13After being assessed at the Alfred Hospital you returned to the police station and gave a ‘no comment’ record of interview.

14You were remanded in custody and have remained there since this time.

15Mr Hutchinson, your offending, in particular charges 2 and 3 on the indictment, is serious and calls for a punishment which is just in all of the circumstances, and your offending must be denounced. Insofar as the armed robbery is concerned, there was a crude level of pre-planning in that you parked away from the service station, and you also took steps to prevent your identification. You also offended against a soft target early in the morning,  a person who was trying to make an honest living and who was terrorized by you.

16In respect of charge 3, you embarked on the dreadful course of conduct, driving on a weekday morning, on some major roads, at a time when, no doubt, traffic would have been rather busy.  Not only did you drive in a dangerous and erratic fashion. but you actually collided with two cars. It was most fortunate for motorists in the vicinity, and for you, that even more serious consequences did not result  from your appalling driving. I was told that at the time of the offending you were affected by alcohol, methylamphetamine and benzodiazepine.  You had taken ice and had taken your entire methadone allowance for the Easter period. The fact that you were so affected heightens the potential dangerousness of your actions. In saying this, I have not factored in this aspect as an aggravating feature of your offending, and I am mindful that your blood alcohol level was not high in itself. However, I put you on notice, Mr Hutchinson:  there is a definite link between your substance abuse and committing crimes, if you didn’t know this by now. If you continue to abuse substances and commit crimes, then your decision to engage in such drug and/or alcohol abuse may well be treated as an aggravating factor in the future.

17In respect of the offences before me, you had been released from jail, having been denied parole on two occasions. Therefore, you were released after serving the head sentence, without any supervision. You sought accommodation through St Kilda Community Housing and took up an offer of a room in Grey St, St Kilda. Inevitably, you returned to alcohol, then commenced using ice in February this year. At this time you met Katelyn Eldridge and embarked on a relationship a short time later.

18You committed the offences for which I now sentence you in order to obtain money to buy drugs.

19When arrested, you spent two weeks five days in various police cells rather than in a proper remand centre. I factor in that time in custody for this period was more onerous than if you were appropriately incarcerated.

20Strong weight must be given to general deterrence, especially insofar as charges 2 and 3 are concerned, in a bid to deter others from offending as you have. 

21You have a lengthy and most concerning criminal history and a number of prior matters are especially relevant to the offences now before me.

22You have a prior conviction for armed robbery for which you were sentenced in this court in 2005 by His Honour Judge Gebhardt. You were only 17 years old at the time and were sentenced to 12 months in a Youth Training Centre. In taking this matter into account I have factored in that it was some time ago and was committed when you were quite young. You also have a prior conviction for robbery in 2008, and two prior convictions for reckless conduct endangering life, the second of these being December 2005.  You have numerous prior convictions for theft, including theft of a motor vehicle and unlicensed driving. In addition to theft you have a number of convictions for other dishonesty offences including burglary, and one instance of aggravated burglary on the basis of a person being present. You also have a number of drug related and other offences including criminal damage and arson. As the learned prosecutor indicated, you have breached various Court-imposed dispositions which had afforded you an opportunity to remain in the community, being a good behavior bond, a community based order and a suspended sentence.

23In your  favour, because of your early plea of guilty, I allow for a significant discount in the sentence you would otherwise receive, as you have saved the witnesses, especially the victims, the time and trauma of giving evidence and you have saved the community the significant expense of contested proceedings.

24I take into account your background, which is a most unfortunate one. You were placed in a foster home when only 18 months. This occurred because your mother was a heroin addict and your father had been sentenced to a five year term of imprisonment. You remained in foster care until you were 12 years old, having been placed with 22 different families during that time. One of the families with which you were placed was particularly cruel and neglectful toward you.  You were subjected to physical abuse, isolation, and poor nourishment, leading you to steal others’ lunches at school. I was also told that during your childhood a Salvation Army officer tried to sexually assault you. When you were seven you became aware that your foster parents were not your biological parents. When your father was released from jail, your two older siblings went to live with him. However, you only saw your father once a year. Therefore, from an early age you were separated from your natural parents and siblings. It does not appear that you have ever tried to take legal action against the State or others for the poor treatment you have suffered in the past, which is something which may well have been open to you. His Honour Judge Gebhardt detailed the extreme difficulties under which you laboured as a child, and there is reference to these in the report of Dr Barth, psychologist, and in your Counsel’s submissions.

25It is somewhat unsurprising that you turned to drugs and alcohol, commencing with chroming when you were only 12 years old. You then went onto cannabis, then ecstasy, then ice. You started drinking alcohol when you were 13, but this did not become significantly problematic until you were 19.

26You have engaged in self-harm when in juvenile detention and experienced suicidal ideation when you were 17, and again in 2004 when you presented at a hospital with anxiety, drug and alcohol problems, and self-harming issues.

27You have limited education, having left school when only 13, and having attended a number of different schools.

28In short, your childhood  was marred by rejection, neglect, abuse, and dislocation.  It is a dreadfully sad story.  There is no doubt about that.

29However, as Judge Gebhardt said to you in 2005:

You have to go now beyond the past and learn to make choices and decisions, for you cannot rely forever upon the damage done to you by the State.

30While getting beyond such damage, no matter the culprit, might be easier said than done, it is essential that you do so in order to lead a productive life in the community. If you fail to deal with substance abuse and committing crimes as a way of life, you face the real prospect of spending most of your life, however long that may be, in jail.

31You have a child, Dante, who is now eight years old. He is with a foster family, having been placed in care at an early stage in his childhood – just like you. When he was only four, a 12 year old boy in another foster family made sexual advances toward him, and he was removed. You currently see Dante once every three weeks for an hour’s visit.

32Due to your bad experiences whilst in foster care and the incident involving Dante when he was four, you have concerns for your son’s welfare. However, I was told by Mr McGrath that there is nothing to indicate that the present foster family is undesirable in any way. There has been a proposal that Dante move with the  family to the USA, as the foster father has a work opportunity there. In June of this year you were ordered to attend a conciliation meeting in respect of the future care of Dante. I take into account that although you have not had Dante in your full-time care for some time, that your limited contact with him and the stress of him perhaps living overseas will make time in jail harder for you than for someone without these difficulties. If you wish to be a role model for your son and maximise his chances in life, rather than repeat history which your parents set in train for you, you would do well to finally abstain from drugs, alcohol and a life of crime.

33You are now 26 years old and have a limited work history. However, you have a capacity to work, having done so as a labourer and a forklift driver for limited periods in the past.

34You have also shown a capacity to abstain from drug use in the fairly recent past, and to do what you could to earn an honest living and obtain stable accommodation. One of your best efforts was in conjunction with the Brosnan Centre in 2007. However, I understand that in November of that year you were admitted to hospital after seeing the perpetrator of your childhood abuse.

35Another brave effort on your part was in 2010, when you were in a stable relationship, living with your then girlfriend and her mother. You had removed yourself from drugs and you were working. However, I was told that the Department of Human Services insisted on you disclosing to these people your drug issues and criminal history in order to gain access to your son. Unfortunately, this led to the end of that relationship, and an eventual return to substance abuse and committing offences.

36As I have previously alluded to, you have struggled with your mental health. You have experienced nightmares and intrusive memories of your childhood. In 2008 whilst in custody you were prescribed anti-psychotic medication for the first time. I take into account the report of Dr Barth, dated 31 August 2014 in this regard. He is of the view that you have a severe drug and alcohol use disorder, that you have depressive symptoms, including transient thoughts of suicide. He said that, as at the time he saw you, your depressive symptoms were sufficient to warrant the diagnosis of Adjustment disorder, with mixed disturbance of emotions and conduct. He also noted that you were at risk of developing more intense symptoms upon being sentenced, but I did not hear Mr McGrath to rely on this aspect, which is somewhat speculative at this stage.

37Dr Barth went on to say that you lacked “the fundamental emotional, interpersonal and behavioural mechanisms to participate effectively in society” and that you displayed, to quote him again, “a pervasive disregard for the rights of others and society”. He said that your dysfunctional interpersonal and behavioural adjustment met the criteria for Antisocial Personality disorder with Borderline features. He said that you needed extensive psychological support if you were to have any hope of abstaining from drugs and criminal behaviour;  that non-directive treatment approaches would have virtually no prospect of successfully addressing your substance abuse and criminal offending. With your consent, I am providing a copy of this report to the prison authorities in the hope that Dr Barth’s concerns can be addressed.

38I note that you have completed drug programs whilst in custody before, but apparently to no effect in the long term. Unfortunately, the lengthiest program offered is  a 40 hour program which, as I understand it, you have completed twice.

39You are currently in a relationship with a young woman, Katelyn Eldridge, who visits you regularly in jail, and you are still in contact with Colleen Edwards from the Brosnan Centre, who has assisted you and visited you in jail in the past.

40You have not been able to complete any rehabilitative programs whilst on remand, but hope to complete a course at Marngoneet prison to address violent behaviours. You also wish to complete any sentence imposed by me at the Judy Lazarus Centre in a bid to obtain some job skills so as to assist you with employment and general stability in the future. I understand that the Centre is available to minimum security offenders who are less that 12 months from release. I do hope that you can avail yourself of this, as you are in obvious need of all the help you can get before being released from jail.

41In all of the circumstances, being those to which I have referred for a good deal of my sentencing remarks, I am afraid that I regard your prospects of rehabilitation as poor, and I must give significant weight to specific deterrence and protection of the community.

42Your Counsel submitted that you and the community would benefit from a longer than usual parole period to maximise your chances of successfully returning to the community, and also to maximise your chances of obtaining parole, allowing perhaps for some initial rejections. I do not regard the second of these arguments as valid. While I am of the view that you and the community would benefit from a lengthy parole period, your eligibility for this is a matter for the Parole Board and will no doubt be influenced by a number of factors, including any progress you make in prison. Further, because of your offending on this occasion, and because of the weight I have to place on relevant sentencing factors, I am not persuaded that a longer than usual parole period can be justified in your case. However, you are still a fairly young man and not completely beyond any hope of reform. In this regard, it is to be hoped that the contents of Dr Barth’s report can be taken on board by all concerned with you during the sentence which I impose. I am also mindful of the fact that a sentence ought not be crushing, so as to give you some prospect of hope for the future.

43Would you please stand up, Mr Hutchinson.

44In relation to all the offences before me you are convicted.

45I make orders for disposal and restitution in the terms set out in the draft documents, which orders are not opposed by you.

46You are sentenced to the following periods of imprisonment.

47Charge 1: two years, and I direct that you be disqualified from obtaining a drivers licence for a period of four years.

48Charge 2:  three years three months, which will be the  base sentence.

49Charge 3:  two years six months.

50In respect of the summary charges,

51Charge 11:  three months imprisonment.

52Charge 14:  one month imprisonment.

53I direct that four months from the sentence imposed on charge 1, seven months from the sentence on charge 3, and one month from the sentence on summary charge 11 be served cumulatively with each other and with the base sentence, producing a total effective sentence of four years three months. I direct that you serve two years ten months before becoming eligible for parole.

54If not for your pleas of guilty I would have sentenced you to a total effective sentence of five years ten months, with a non-parole period of three years ten months.

55I declare that you have already served 142 days by way of pre-sentence detention. 

56Take a seat for a moment, please, sir. 

57Is there anything arising from those sentencing remarks, counsel?

58COUNSEL:  No, Your Honour.

59HER HONOUR:  Yes.  Thank you.  If you might remove Mr Hutchinson, thanks.  We will now adjourn.

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