Director of Public Prosecutions v Jones

[2022] VCC 1009

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT SHEPPARTON

CRIMINAL JURISDICTION

CR 22-00638

DIRECTOR OF PUBLIC PROSECUTIONS

v

ETHAN JONES

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Shepparton
DATE OF HEARING:	28 June 2022
DATE OF SENTENCE:	28 June 2022
CASE MAY BE CITED AS:	DPP v Jones
MEDIUM NEUTRAL CITATION:	[2022] VCC 1009

REASONS FOR SENTENCE

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Brennan	Office of Public Prosecutions
For the Accused	Mr L. Waugh	Slater & King Lawyers

HIS HONOUR:

1Ethan Jones, you have pleaded guilty to one charge of armed robbery.  That crime carries a maximum penalty of 25 years' imprisonment.  You are now 28 years of age and were 27 years of age at the time of the offending.  You pleaded guilty at the earliest opportunity and indeed made admissions voluntarily within a couple of hours of the offending taking place.  You obviously get the benefit of remorse, and I accept that in your situation - which is unusual, in my experience - that remorse is genuine, and in some sense, you expressed it to the victim at the time, and I will be going through the impact statement in a moment.

2You also, of course, get the utilitarian benefit of that plea of guilty in these times of COVID, bearing in mind the decision of Worboyes.  That benefit must be one that is demonstrable.  The system is way behind in terms of trials, and a plea such as this takes at least some of the pressure off the circumstances.  I note with interest that you have no prior convictions, and I sentence on that basis.

3The circumstances of the offending were that at approximately 11.50 am on 28 January 2022 - which, I note, is about six days after you started seeing the psychologist, Mr Powell, so that must have worked, but in any event - you were in Benalla on a mission to get a quote for a roofing contract or a painting contract, as I understand it.

4You were seen to get out of your vehicle and walk along Bridge Street East.  You were captured on CCTV walking past the Good Vibes Wholefoods Store.  You continue on Bridge Street East out of view of the camera.  You then come back and walk towards that store and come into the view of the cameras.  You were then seen entering the store and you spent two or three minutes browsing.

5The victim in the matter, Freya Hubbard, was standing on a stepladder and writing on a chalkboard situated behind the service counter.  You were behind her.  You approached the counter.  She stepped down from the stepladder to greet you.  You lent over the service counter with your arms folded across your chest, and she observed a small knife in your right hand.  You said, 'Give me the cash from the register'.  She shook her head and stepped back.  You then said, 'I don't want to hurt you.  COVID's been really shit'.

6She has then taken all the money out of the till and put it on top of the scales.  It amounts to about $200 all up, as I understand it.  You then took the notes from the scales and said, 'COVID's been really shit.  If things turn around, I'll bring them back, I promise'.  You then left the store.  She then called Triple 000.  Police then commenced investigations.

7You, after that, went and apparently bought fuel, had some food, went home, told your mother what you had done - with whom you live, as I understand it - and then went and handed yourself in to the Shepparton police.  That was within three hours of the offending taking place.  That is a pretty unusual set of circumstances.  You had spent all the money in that time.

8It is a situation where, when one looks at these things objectively - and I resent, as a judge, having to do these things when the victim is present, but it has to be seen as at the lower end of armed robbery per se.  It certainly was not at the lower end as far as she was concerned.

9Today, here in court, Ms Hubbard very courageously and very eloquently read out her victim impact statement as to what the effect of all this has been on her.  She talks about the anxieties caused at work, the pleasure it has taken out of her life, the way that she feels that it has changed her.  She says that she hopes that that will not last forever and - again, very courageously - she is continuing to work and endeavouring to get over it.  I hope that as you sat in that dock and listened to that, that you fully understood the implications of what you had done to another person.

10Judges have an advantage in these courtrooms of being able to sit at the top and see people.  I indicate to you - and you would not have been able to see it - that as Ms Hubbard was reading her victim impact statement, your mother became visibly distressed.  I hope you understand that and fully appreciate that if that is how your mum feels, imagine how Ms Hubbard feels.  And that is why you cannot do this sort of thing.

11It is a situation where it has to be regarded as serious.  It calls for the application of general deterrence so that likeminded people are deterred from doing it, specific deterrence - in your situation, I accept, of far less significance.  Denunciation is obvious, and the punishment must be appropriate.

12I then turn to matters personal to you.  The first matter is that after the armed robbery, you did three days in custody - I am assuming in the cells at Shepparton, which is not a pleasant experience, so I am told, and I hope that has had a very salutary effect upon you.

13I then go into your background, but first on the circumstances of this day, I accept that because of COVID, work had been - 'desultory' might be the appropriate expression.  You were out of money.  You got Benalla, realised you had no money for petrol and no money for food or anything else.  You then resorted to this behaviour to get money to achieve those purposes.

14Whilst a psychological report from Mr Powell has been tendered on your behalf, which talks about disassociation, it seems to me that, casting my memory back, a number of the things that you did on that day would strongly suggest that that was not the case.  You made decisions, you were apologetic to her at the time, you made a calculated decision as to whether there were other ways of getting money and you determined in your mind that this was what you were going to do.  I accept that at that moment in time, you may not have understood the full impact on the victim as to what you were about to do, but I have no doubt that you knew what you were doing and clearly intended to do it.

15I do not need to go into discussion about Verdins and all those sorts of things.  The Crown has conceded a community corrections order, but for various reasons I think are not objected to by the Crown - if I can use that neutral term - I am going to impose a heavy fine.

16Your circumstances are extremely unusual, to say the least.  You are a descendant of Romani gypsies.  I do not know whether you are still involved in that sense.  Your mother, I accept in this courtroom, is Aboriginal.  For some reason or other, Koori Court, when assessing you, did not even speak to her, and I am unhappy about that and will have something to say about it later in another place.

17But the fact of the matter is it is a fairly unusual, if I can say that, family situation to come from.  Your mother and father married and went back to England, and you have siblings.  They then returned to Australia and were living the life, as I understand it, of Romani gypsies and were living at a caravan park at one stage up around Newcastle.  You have Aboriginal connections in that area.

18What then occurred was that in a dispute between your family and another Romani family, it turned into an absolute free for all, and a number - in fact, virtually your whole extended family at that point, from what I can gather - were given very significant gaol sentences.  A man ended up dead.

19I do not have to go into the detail of all that, and it is not matters that have been put before me.  They are matters I am aware of from my own knowledge, and I understand your counsel may not want me to go into the details, and I will not do it.  But if you, at the age of 11, were in that caravan park when that took place, or saw any of that - if you have not got post-traumatic stress disorder, to use the vernacular, I would be surprised.

20But in any event, after that, you took up roofing or painting rooves, and you have endeavoured to eke your existence out.  You currently live with your mother and your stepfather.  You still have contact with your father, but your main contacts are your mother and your sister.  You clearly have depression, I accept that on the day, you were overwhelmed by the situation in which you found yourself.  But I have made it very, very clear that I am certainly not treating it as dissociative in the legal sense that that expression has.

21You have been at the age of 16 diagnosed with Crohn's disease.  You had surgery in respect of that on at least three occasions, and each occasion has necessitated many months of convalescence.  As anyone would be aware, that condition is a very serious one indeed and has an adverse effect and undoubtedly, I suspect, will continue to have an adverse effect on your life.  In terms of the potential of custody in this matter, I point out that that would almost in itself be sufficient to justify, in your situation, a non-custodial sentence.

22But in any event, you completed Year 10 and you worked on and off in cleaning and painting rooves, as I have indicated, since you were about 16.  When you were 21, you applied to join the army, which you had wanted to be in since you had been at school, and you did well in the aptitude test but were rejected on account of your Crohn's disease, which is just an example of the way in which it affects you.

23You began seeing a psychologist prior to this offending taking place, and I accept parts of that report, in that I accept that you do have a depressive disorder.  In my understanding, you had been taking antidepressants for some period of time that had been prescribed by your GP.  Unfortunately, as I am told, two weeks prior to the offence, you stopped, abruptly, taking those antidepressants, and I accept that that could have a significant effect on how you are able to control yourself or think clearly in the circumstances in which you found yourself.  And I think that is probably something I could almost take judicial knowledge of in this age that we live in.

24So they are your personal circumstances, described in a very limited way, and I understand that there would be much more to it than I am being told.  The prospects of your rehabilitation should be good.  You have never done anything as stupid or as dangerous as this before.  I think the risk of you reoffending in this way in the future is very limited indeed.  I think you now should realise the consequences of what would happen if you ever did offend in this way again:  it would be a custodial sentence and a very significant one.

25However, as you have now heard and, I hope, fully understand, the consequences of what you did - leaving alone the offence against the community, what you did to this young lady and, as I said, continues to happen to her - are very serious indeed.  I note that you have spent that three days in custody, and what I am going to do in these circumstances - bearing in mind that you are unemployed and this will not be a light penalty in any way, shape or form - is to fine you with conviction - and I am aware that is a penalty in itself - the sum of $5,000.

26I make no further orders.  It does not call for a 6AAA application, and you will explain to him how that all operates.  Now, if he is going to do that currently without him working, that means he is going to be doing it for a fair while.  And just so the victim understands, that is the punishment that is involved, and there is a lot of community work - is effectively what will occur, all right.  There are no other orders I need to make, gentlemen?

27COUNSEL:  No, Your Honour.

28HIS HONOUR:  All right.  As I have said, that is extempore, so if I have left anything out - I am pretty sure I have not, but if I have, I will be adding it when I revise.

29MR BRENNAN:  Yes, Your Honour.

30HIS HONOUR:  All right, all right.  Yes, good luck, Ms Hubbard.

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