Director of Public Prosecutions v Joshua Luke Hocking
[2022] VSC 608
•14 October 2022
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2021 0091
| DIRECTOR OF PUBLIC PROSECUTIONS | Crown |
| v | |
| JOSHUA LUKE HOCKING | Accused |
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JUDGE: | Jane Dixon J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 9 September 2022 |
DATE OF SENTENCE: | 14 October 2022 |
CASE MAY BE CITED AS: | DPP v Joshua Luke Hocking |
MEDIUM NEUTRAL CITATION: | [2022] VSC 608 |
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CRIMINAL LAW – Sentence – Offence – Manslaughter – Plea of Guilty – Single stab wound – Excessive Self-defence – Significant criminal history for violent offending – Sentenced to 9 years with a non-parole period of 6 years and 6 months.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms K Churchill | Office of Public Prosecutions |
| For the Accused | Mr J Desmond | Emma Turnbull Lawyers |
HER HONOUR:
Joshua Luke Hocking, you have pleaded guilty to the manslaughter[1] of Geoffrey John McDonald who was killed by you on 14 October 2020.
[1]Arraignment and plea of guilty entered on 24 May 2022.
The maximum penalty for manslaughter is 25 years’ imprisonment.[2]
[2]Following amendments increasing maximum sentence from 20 years (level 3) to 25 years (level 2). In force 1 July 2020.
The Crown filed a written opening that was read aloud during the plea hearing.[3] Victim Impact Statements from relatives of Geoffrey McDonald[4] and written submissions were also filed by the Crown.[5]
[3]Dated 23 May 2022.
[4]Jordan Poyner, Josh Poyner and Sally Ann Poyner.
[5]Dated 24 August 2022.
On your behalf, Mr Desmond tendered Defence Plea Submissions,[6] a psychological report of Ian MacKinnon,[7] a bundle of testimonials[8] and a number of still shots from CCTV footage along with a single photo.[9]
[6]Dated 6 September 2022.
[7]Dated 20 August 2022.
[8]Exhibit D3 on the plea hearing.
[9]Exhibits D4 and D5 on the plea hearing.
Geoffrey McDonald, who was aged 47 at the time of his death, was an associate of yours who regularly bought methamphetamine from you. In the weeks before he was killed he bought drugs from you on credit on three separate occasions. He was late with payment and kept putting you off when you asked to be paid. On the last of those occasions, being 12 October 2020, he purchased $150 of methylamphetamine from you at your home and promised to pay you the next day. The following day, you sent a number of increasingly irate messages demanding payment, warning Mr McDonald to bring his boxing gloves.
In the early afternoon of 14 October 2020, you tried calling Mr McDonald on six occasions but the calls went unanswered. You also sent text messages saying you would be coming to his house and taking his property and that you would tell his wife that it was because of his drug debt. Mr McDonald replied that he was dealing with family issues. You tried calling him again before sending a further four text messages confirming you were coming to his home.
At 2:36pm, you drove to Mr McDonald’s home, at 5 Planet Court, Whittington, arriving there around 2:50pm. Mr McDonald lived at that address with his partner and her two sons. It should be noted that the yard of 5 Planet Court contained a great deal of scrap metal and items such as bicycles and spare parts. When you arrived, Mr McDonald was behind the high fence and gate that enclosed his front yard. His 17 year old stepson, Joshua, was inside the house playing video games.
CCTV captured your arrival out the front of the Whittington address. Mr McDonald met you at the front gate. On the CCTV footage you appear to speak briefly to Mr McDonald before returning to get something from your car. On returning to the gate, Mr McDonald appears to call his dogs away and allows you to enter. As you enter the yard you seem to reach for, but not grab, the drop-rod in the front gate.[10] A few seconds later, you appear to again unsuccessfully reach for the drop-rod,[11] before approaching Mr McDonald, and throwing a punch at his face. Mr McDonald appears to dodge the first punch,[12] but you advance on him and throw a second punch connecting with his face.[13] In the course of the ensuing struggle you appear to succeed in grabbing the drop-rod from the front gate.[14]
[10]CCTV, backyard view, timestamp 13:46:14; Photograph 3 of plea exhibit D4.
[11]CCTV, backyard view, timestamp 13:46:17; Photograph 5 of plea exhibit D4.
[12]CCTV, backyard view, timestamp 13:46:19; Photograph 6 of plea exhibit D4.
[13]CCTV, backyard view, timestamp 13:46:28; Photograph 8 of plea exhibit D4.
[14]CCTV, backyard view, timestamp 13:47:21.
Mr McDonald is seen to grab a length of conduit[15] and further fighting takes place but it quickly subsides. Mr McDonald can be seen taking the drop rod from you and the two of you appear to stand and talk together for a while. You follow Mr McDonald into his garden shed, still talking. You remain in the shed with him for a short period and when you leave the shed you have nothing in your hands.[16] Mr McDonald also has nothing in his hands when he leaves the shed.[17]
[15]CCTV, backyard view, timestamp 13:47:24; Photograph 17 of plea exhibit D4.
[16]CCTV, backyard view, timestamp 13:51:54.
[17]CCTV, backyard view, timestamp 13:52:01.
You then are seen walking towards the front gate with Mr McDonald following closely behind.[18] At one point you bend down to retrieve your sunglasses which had earlier fallen to the ground.[19] A neighbour’s CCTV camera shows you returning to your car from Mr McDonald’s residence and you appear to reach into your car to retrieve something via the front passenger side door.[20] The CCTV shows that Mr McDonald shut the front gate after you went back to your car and he secured the drop-rod in place before returning to the garden shed. Mr Desmond submitted, on instructions from you, that you told Mr McDonald that you were not leaving until you were paid, (despite Mr McDonald saying his wife was due home) and that you were going to get your cigarette lighter from the car.[21]
[18]CCTV, backyard view, timestamp 13:52:11.
[19]CCTV, backyard view, timestamp 13:52:38.
[20]CCTV, front yard view, timestamp 14:47:09.
[21]Transcript of plea hearing, 9 September 2022, p 30 [19]-[21].
Moments later, you are seen to come back through the gate into the front yard.[22] Meanwhile, Mr McDonald emerges from the garden shed and appears to be armed with a length of conduit, wielding it as he paces towards you.[23] You respond by grabbing something from a pile of assorted items in a nearby trailer. It is not disputed by you that you grabbed a knife from the trailer.[24]
[22]CCTV, backyard view, timestamp 13:52:38.
[23]CCTV, backyard view, timestamp 13:52:38.
[24]It was not suggested by the Crown that the knife had been brought there by you.
Mr McDonald can be seen to strike you with the length of conduit, and the pair of you commence fighting and struggling.[25] Mr Desmond submitted that Mr McDonald can be seen swinging the conduit at you three times on the CCTV footage.[26] Mr McDonald appears to grab your right wrist, but you break free and swing your right hand in towards Mr McDonald’s head.[27] It is accepted by you that you had the knife in your hand at the time. You did not make contact that time but the fight continued and you are seen to take another swing, this time managing to stab Mr McDonald near the base of his neck.[28] You immediately let go and the CCTV footage shows visible blood on Mr McDonald’s neck. You can be seen to flee through the gate[29] to your car and drive off, without stopping to help Mr McDonald in any way.
[25]CCTV, backyard view, timestamp 13:52:42.
[26]Photographs 43, 45 and 46 of exhibit D4 on the plea hearing.
[27]CCTV, backyard view, timestamp 13:52:46.
[28]CCTV, backyard view, timestamp 13:52:50.
[29]CCTV, backyard view, timestamp 13:52:57.
The evidence discloses that after being stabbed Mr McDonald held onto the back of his neck while bleeding heavily. He used his mobile phone to call 000 for an ambulance, reporting that he had been stabbed. He sat on a step trying to stem the bleeding. His stepson, Joshua came out and assisted Mr McDonald by speaking to the 000 operator and following their directions. Joshua called his mother, Sally Anne Poyner to come home. Meanwhile, a neighbour, Jessica Riters arrived and rendered assistance. Between 3:12pm and 3:15pm police and ambulance attended. Mr McDonald was taken to the University Hospital in Geelong but was pronounced dead at 3:49pm.
Statements taken by police from neighbours included reference to sounds of fighting being overheard, and to a male voice (probably your voice) being heard to mention money owed. A voice believed to be Mr McDonald’s was heard to offer to try and make payment that afternoon, but the offer was rebuffed.[30] A person meeting your description was seen by neighbours fighting with Mr McDonald and then returning to the car outside before the fight resumed a minute later.[31] The neighbours observations are broadly consistent with what can be seen in the CCTV footage and what is known about the source of the dispute.
[30]Jake Brett-Riters.
[31]Seen by Jake Brett- Riters and Abbey Meade.
Following the offending you drove straight to your mother’s house, where you were staying at the time. You phoned your girlfriend, Kayla Collins, telling her you were sorry and that you had ‘fucked up’. You were crying when you called her. You did not elaborate but asked to speak with your mother. You told your mother to turn off the home security cameras. When you arrived home, you told Kayla not to look at you. You showered, changed your clothes, packed a bag and organised a friend to pick up yourself and Kayla. You spent some days avoiding police but on 19 October 2020, police located you and arrested you.
Meanwhile, on 15 October 2020, Dr Sarah Parsons conducted a post-mortem on Geoffrey McDonald. She found that there was a 2.1cm long stab wound on the occipital scalp, just to the right of the midline. The length of the wound tract was hard to estimate but found to be about 8.01 centimetres.[32] The vertebral artery had been cut. Dr Parsons concluded that the stab wound was the cause of death, most likely as a result of severe blood loss.
[32]Based on a CT scan provided by Dr Parsons although she noted the difficulty with measurement because of the location of the wound.
Mr McDonald’s partner Sally-Ann Poyner and her two sons filed victim impact statements that I have taken into account in sentencing you.
Sally Ann Poyner’s life was irrevocably changed as a result of the death of Mr McDonald. He was a great source of support for her raising her two sons whilst she was also working. She sold the house and she and her sons moved from the premises where the stabbing happened as they could not bear to remain there after what happened. Life is much harder for Ms Poyner and her family now without her partner.
Joshua was exposed to the trauma of the aftermath of the stabbing and also experienced profound grief and the loss of a loyal and supportive father figure. He feels these events will affect him for the rest of his life.
Sally-Ann Poyner’s second son Jordan expressed the feeling that no one should have to go through the experience of losing a beloved father figure in the way he did and he will always miss his stepfather who taught him so much and was always there for him.
As to the procedural history of this matter, you were originally charged with murder,[33] and later foreshadowed an intention to rely on self-defence. In April 2021, you were committed to this Court by way of straight hand-up brief from the Magistrates’ Court and a subsequent s 198B examination was heard in this Court in May 2021. When your trial was listed before me, this year, I heard and rejected an application for a ‘Judge Alone’ trial.[34] Following my ruling, the Crown accepted your offer to plead guilty to manslaughter and you were arraigned on that charge and pleaded guilty on 24 May 2022.
[33]On 19 October 2020.
[34]On 13 May 2022.
You had originally offered to plead guilty to manslaughter on 26 October 2021 and I have taken that factor into account in considering the timing of your guilty plea. The fact that you could have conducted a trial relying on a claim of self-defence means that your plea attracts significant weight for its utilitarian value.[35]
[35]Mr Desmond referred to DPP v Bryan [2014] VSCA 54, as a case where the availability of a viable defence was considered to be especially relevant to the entry of a guilty plea.
The weight to be given to your guilty plea is also increased since it was made during a time of increased pressure on court lists due to the COVID-19 pandemic.[36] Your plea of guilty has facilitated the course of justice in a number of different ways.[37]
[36]Worboyes v The Queen [2021] VSCA 169, [35]-[39]; and see Biba v The Queen [2022] VSCA 168.
[37]For example, sparing witnesses from needing to give evidence and saving Court time and public expense.
I also accept that your time on remand has been made more difficult due to the COVID -19 pandemic which restricted custodial visits, meant more time spent locked down and resulted in fewer opportunities for the delivery of rehabilitative programs. You have spent a large part of the pandemic in custody, including periods where there was alarm at the risk that COVID-19 might spread within prisons. Subjectively, you have referred to feeling that there were staff shortages, and feeling that you were locked down for days on end, unable to make calls or get canteen. With your past experience of prison life, the effects of the pandemic on conditions in custody have been very apparent to you.
Turning to the objective gravity of your offending I observe that manslaughter is an offence that can invoke a wide range of appropriate sentences.[38] However, this was a serious example of the offence due to the fact that you used a bladed weapon in the struggle with the deceased, and you were the first to initiate violence, between yourself and Mr McDonald, punching him in his front yard when you were initially let in the gate. Your sole motive was a petty dispute over an unpaid drug debt. Although the actual stabbing was not a planned event, you deliberately sought out Mr McDonald at his premises to confront him about his drug debt.
[38]On the topic of current sentencing practices for manslaughter, a report from the Sentencing Advisory Council published in 2021 shows that a wide range of penalties have been imposed in the period from 2015-2016 to 2019-2020, although sentences have tended to increase over this period.
However, I do accept that following the initial fight there was a cessation of fighting and some kind of verbal dialogue for a while. The fight re-ignited when you re-entered the yard, after going to your car for something. At that stage you were approached by Mr McDonald wielding a length of conduit. He was much taller than you, being around 6 foot tall, whereas you are only 5 foot 2 in height.
The objective gravity of your crime is made worse though by the fact that after you managed to stab Mr McDonald , you chose to save your own skin rather than stopping to help him. You then evaded police for some days before you were arrested.
Mr Desmond pointed out that the entire interaction lasted no longer than 6 minutes and 20 seconds and after the initial scuffle about 5 minutes of verbal dialogue occurred before the final fatal confrontation. Mr Desmond also submitted that during the argument about the drug debt you were also complaining that Mr McDonald had been telling your brother that you had poisoned his dogs, which was untrue.
I accept that the objective gravity of the offence is tempered by circumstances of provocation and excessive self-defence. Mr Desmond emphasised that during the final fatal struggle, when both yourself and Mr McDonald were armed, you reacted spontaneously. Although your actions were disproportionate to the threat posed by Mr McDonald, you had little opportunity for calm reflection during the unfolding struggle.
While I accept that submission, the fact remains that you did not need to return inside the gate after going to your car and you could have avoided an escalation of the conflict by staying away from Mr McDonald.
Unfortunately, Mr Hocking, this is not your first time standing sentence before a court charged with a very serious offence. Your adult custodial history commenced when you were in Queensland at the age of 18 in 2004. You were sent to prison for 18 months for robbery with violence[39] and attempted stealing.[40] By 2006 you were back in Victoria, and you were dealt with at Geelong Magistrates’ Court for various low level criminal and driving offences. A pattern developed of you committing those kinds of offences and then appearing before the local court in Geelong and being sentenced to fines or short custodial sentences.[41]
[39](With circumstances of aggravation).
[40] Bundaberg District Court 20 April 2004 (offence date 13 October 2003).
[41]Including suspended sentences.
That pattern continued until 2011. At that time, when you were only 25, you received a stern sentence from Judge Mullaly in the County Court for the crimes of aggravated burglary, recklessly cause serious injury and related offences.[42] Those crimes were committed jointly with two other offenders and involved a violent retaliatory attack with weapons on the victim at his home. A further 2011 assault and 2014 threat offence resulted in prison sentences being ordered to be served fully or partly concurrently with Judge Mullaly’s sentence.
[42]7 years and 8 months imprisonment with a minimum term of five years and two months.
Since completing the above sentences you again presented before the Magistrates’ Court in Geelong in October 2019 for a range of matters including assault-related and family violence offending.[43]
[43]Offences included make threat to kill, harass witness, contravene FVIO, recklessly cause injury and unlawful assault, among other offences.
Whilst you have already served your sentences for the crimes I have mentioned and are not to be punished afresh for those crimes, your prior criminal history informs the purposes of sentencing for the current offence. I will come to the purposes of sentencing a little later, but note that your history of violence and weapons offences gives rise to considerations of specific deterrence and community protection.
Your personal history is very much tied to a persisting pattern of juvenile detention and adult imprisonment. During your early childhood, you were raised by your parents in Geelong. You have two younger siblings: a brother and a sister. Your parents separated before you turned ten and your mother could not control you. You missed the presence of your father and in your own words began to ‘run amok.’ You were sent to a boys home as a juvenile and had a disrupted upbringing and education due to poor behaviour. You experienced little by way of family life in your teen years. You had some work in your teens as a stable hand and jockey but could not maintain it. Your lifestyle became chaotic due to drug abuse and problems with anger management.
A psychological report produced to Judge Mullaly in the County Court[44] described that drug use and anti-social traits had become ingrained. Judge Mullaly described your prospects for rehabilitation as painting a bleak picture, noting though that you had previously completed parole.
[44]From Dr Cidoni.
You were assessed for the current plea hearing by forensic psychologist, Ian MacKinnon, and his report was tendered on your plea.
It appears that you have not made much progress since 2011. This may in part be the result of having spent so much of your adult life in prison. It seems that when you have not been locked up you have worked from time to time as a concreter. However, you were unable to work during 2020 due to the pandemic. You were residing at your mother’s house and staying intermittently at hotels with your girlfriend having lost your place in a shared housing arrangement.
Mr MacKinnon noted that you are now aged 37 and you do not suffer from any major psychological disorder. He diagnosed you as having been afflicted by a substance abuse disorder at the time of the offending, noting that you have used a variety of drugs over the course of your life and that prior to the current offence you were habitually taking ice and smoking cannabis. You have been confined since your arrest and currently are not addicted to drugs.
It seems that during your childhood you were diagnosed with ADHD,[45] which may help explain, to some degree, your difficulties in your teen years. Currently you have reactive depression[46] but Verdins factors[47] did not form a plank of the plea made on your behalf.
[45]Exhibit D2. Report of Ian Mackinnon, dated 20 August 2022, p 3.
[46]Treated in custody with medication.
[47]R v Verdins (2007) 16 VR 269; Defence plea submissions, dated 6 September 2022, p 6.
Unfortunately, constitutional factors arising from the revolving door of past terms of imprisonment have played into the commission of the current offence. Mr MacKinnon found you to be institutionalised, observing that you have never managed to develop appropriate vocational or social outlets. You admitted having trouble walking away from fights due to having been in gaol most of your life and finding it hard to adjust when you get out. You told Mr MacKinnon that everything was going badly for you in the leadup to the offending. You were injecting ice, and in your words you were ‘stressed out’ by your unstable living circumstances. You decided to chase the deceased for the money owed to you. Mr MacKinnon also observed that because of your small stature you have had a tendency to overreact when challenged.
Despite your troubled upbringing, you appear to have repaired your family ties with your parents and two younger siblings and you receive some emotional support from them. You have had relationships with women when at large in the community and you have contact with a 15 year daughter from a past relationship.
Through your counsel you have apologised to Geoffrey McDonald’s family for your crime and expressed regret for your actions.[48] Whilst your conduct immediately after the stabbing was self-serving, I accept that you are now remorseful as is evident in a limited way through your plea of guilty and in your discussions with Mr MacKinnon.
[48]Exhibit D1, Defence plea submissions, dated 6 September 2022, p 7.
The Court received letters written by your parents, your father’s partner and your aunt expressing their belief in a positive side to your character. They will help you cope with the sentence imposed by this Court and will assist you when you return to the community after serving your sentence.
Although your criminal history suggests that rehabilitation from a life of drugs and crime will be a challenge for you, it is possible that as you mature you will be more willing to make the most of any structured supervision and support offered to you. Mr MacKinnon says that your risk of reoffending is ‘likely to be significantly reduced’ if you can abstain from abusing substances. Programs provided through the parole system and through organisations that assist former prisoners with housing, employment and counselling will be important to your rehabilitation.
Mr MacKinnon thought you had a reasonable level of motivation regarding such opportunities in the future. Together with input from your family, this may provide a way forward for you whereby you can learn to manage negative emotions without endangering others.
It is crucial that you use your time in prison to reflect on the fact that your actions ended the life of Geoffrey McDonald and left a huge hole in the lives of those who loved him. I also observe that all criminal homicides have a reach beyond the direct victims and contribute to a loss of confidence in the safety and security of the community as a whole.
Counsel for the Prosecution and for the Defence each put forward some past manslaughter sentences aimed at providing general guidance regarding current sentencing practices.[49] I have taken those sentences into account along with the increased maximum penalty fixed by Parliament. I have also considered other sentences that appear somewhat comparable.[50]
[49]From the Crown: DPP v Tiba [2011] VSC 13; DPP v Harrison [2021] VSC 601; DPP v Volpe [2021] VSC 353; DPP v Edwards [2019] VSC 7234; DPP v Frost [2019] VSC 672; DPP v Tate [2011] VSC 173 (noting that these sentences pre-date the increased maximum penalty for manslaughter).[50]See, for example, the cases referred to in R v Volpe [2021] VSC 353, some of which were put forward by the Crown, but I would add DPP v Devey (No 2) [2021] VSC 121 and R v Garrard [2020] VSC 154.
Each of the key purposes of sentencing referred to in s 5 (1) of the Sentencing Act 1991 (Vic) have application to you. Just punishment, specific and general deterrence, denunciation and community protection must all be reflected in your sentence. It is also important that conditions for rehabilitation are facilitated and this factor has informed the fixing of the head sentence and the non-parole period.
I am also cognisant of the principle of parsimony in s 5(3) of the Sentencing Act.
Sentence
Joshua Hocking, on the charge of manslaughter, in light of all the above factors, I sentence you to a term of nine years’ imprisonment. I fix a minimum non-parole period of six years and six months. I declare 725 days as time already served under this sentence, not including today pursuant to s 18(1) of the Sentencing Act.
Pursuant to s 6AAA of the Sentencing Act, I declare that, had you not pleaded guilty to the offence before the Court, I would have imposed a sentence of twelve years with a minimum term of ten years.
I will sign the Disposal Order in this matter.
From the Defence: DPP v Yucel [2019] VSCA 53.
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