Director of Public Prosecutions v Lofthouse

[2019] VCC 561

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-02124

DIRECTOR OF PUBLIC PROSECUTIONS

v

GERALD LOFTHOUSE

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JUDGE:	HIS HONOUR JUDGE JOHNS
WHERE HELD:	Melbourne
DATE OF HEARING:	25 March 2019
DATE OF SENTENCE:	24 April 2019
CASE MAY BE CITED AS:	DPP v Lofthouse
MEDIUM NEUTRAL CITATION:	[2019] VCC 561

REASONS FOR SENTENCE
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Subject:

Catchwords:              Koori Court – Reckless cause injury – Attempted armed robbery – combination imprisonment and Community Corrections Order – Disadvantaged background.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P. Raimondo	Office of Public Prosecutions
For the Accused	Mr R. Backwell	Greg Thomas Lawyers

HIS HONOUR:

1Mr Lofthouse, you have pleaded guilty to one charge of recklessly causing injury and one charge of attempted armed robbery.  The maximum penalty for causing injury recklessly is ten years' imprisonment.  The maximum penalty for attempted armed robbery is 20 years' imprisonment.

2The facts of the matter are set out in Exhibit A which is the prosecution opening which forms part of these reasons for sentence.

3In brief terms, your victim, Mr Huang, attended a laundromat in Flinders Street, Melbourne, on Thursday, 16 November 2017.

4When he was there, there were two women there, one of whom was known to you in some way.  There was an altercation of sorts arising from your victim's querying of the woman in relation to returning a bag that he had had filled with clothing.  There was some swearing between the two.

5A few minutes after this minor altercation, you entered the laundromat.  CCTV footage shows you approaching the woman who was clearly known to you and she pointed at the victim, Mr Huang.  You walked directly up to the victim and stood maybe two or three steps away from him.  You were aggressive and yelled at him.  You said,

"What are you trying to do to my girlfriend?".

6You started waving a knife at the victim.  The victim raised his hand to try and protect himself and you swung the knife in an upwards direction.  The knife connected with the victim's palm and cut through the top of his hand between his middle and index fingers.  The laceration was about 2 to 3 centimetres long from the webbing between fingers back to his knuckles.

7As he was bleeding, both the woman that you had said was your girlfriend and you were looking at the shop window to see if anyone was coming.  The woman yelled out to you,

"Maybe he's going to call the police so grab his phone."

8You then said to the victim,

"Give me your phone."

9You were pointing the knife at the victim while you said this.  The victim moved his hand over his pocket where his phone was and held his pocket closed and did not hand over his phone.  You and the woman left.

10It is the conduct relating to the demand for the mobile phone which constitutes the offence of attempted armed robbery.

11The victim was transported to St Vincent's Hospital.  He was treated by plastic surgeons.  He had sustained a deep laceration to his right hand, second web space.  He remained in hospital for three nights after surgery and was treated with intravenous antibiotics, fluids and analgesic.  He was discharged on 18 November 2017 and has required ongoing treatment including hand therapy.

12You were arrested by police on 10 May 2018 and, when interviewed, you stated you did not remember anything about the incident as you were homeless and abusing alcohol at the time.  You did identify yourself on the stills from the CCTV footage.

Gravity of Offending

13In relation to the charges on the indictment, the purpose of your assault on the victim clearly seems to be related to a misguided attempt to show some support for your female friend who had clearly formed the view that she had been hard done by in some respect.

14It is also clear from all of the material before me that you were affected by alcohol at the time and were living a lifestyle at that time dominated by drinking alcohol.

15Notwithstanding a lesser maximum penalty, the injury charge is s more serious matter on the facts than the attempted armed robbery which appears to be an afterthought.

16A victim impact statement was tendered.  The victim impact statement demonstrated how devastating unlawful violent encounters like this are for members of the community.  Even more devastating is the fact of injury which required medical intervention at hospital.  The victim's family were understandably extremely distressed, concerned and worried which in turn placed additional stress on the victim.

17The ongoing stress and anguish caused by these sorts of crimes on law abiding members of the community is not surprising.  It is very serious offending.  I am satisfied that you understand that it is very serious offending.

18I am also satisfied that you are ashamed of your actions and that you have a degree of empathy and understanding for the impact on your victim.  There are indicators of some remorse in your case including your plea which was entered at a stage prior to the cross-examination of witnesses at a committal hearing, your conduct on remand but more importantly, your presentation and interaction during the sentencing conversation in this Koori Court proceeding and my observations of you throughout. There was an expression of remorse in your community corrections order assessment.

19I will turn briefly to your personal circumstances.

Personal Circumstances

20You are 44 years of age, born in Melbourne and raised in Bairnsdale.  You have two brothers.  Your parents are deceased.  You completed Year 8.  You were placed in residential care at age nine where you were subjected to some physical abuse.  Unfortunately, at age 13, you were also sexually assaulted.  You were placed in youth detention as a teenager.

21You have four children from two relationships.  At the time of these offences, as I have previously stated, you were homeless and leading a lifestyle dominated by alcohol abuse.

22You started drinking alcohol at the tender age of ten years.  You engaged in cannabis use from a young age, daily use from the age 13.  You also used amphetamines for a period.  At the time of the offending, you were intoxicated and were also taking Valium.

23Two reports were tendered on your behalf at the plea hearing; the first being a psychological report from Ms Gina Cidoni.  Ms Cidoni reported your account of the offending.  You stated to her that you were intoxicated, you thought Gwen was in trouble and you went to help her.  You threatened the victim with a knife and told him to leave Gwen alone and you told Ms Cidoni that you did not intend to hurt him but the injury occurred when he put his hand out.

24At the time you were living on the streets of Melbourne with your partner, Gwen, sleeping under the bridge at Kings Way.

25Ms Cidoni went into some detail about your developmental years, your personal circumstances.  I will not reproduce that in these sentencing reasons.

26In her opinion, you presented as a very reduced man with intellectual and memory testing indicating some concern about cognitive function and the possibility of an acquired brain injury.

27Subsequent to that, a report was sought and then tendered at this hearing from Martin Jackson.  It is a comprehensive report which was relied upon on your plea, the contents of which I accept and in summary, without going into the detail contained therein, it notes your borderline functioning.

Sentencing Considerations

28You consented to having the charges heard in the Koori Court and in doing so, you agreed to participate in a process that involved appearing before Elders from your aboriginal community.  I was told a little of your connection to the Aboriginal community, in particular, your connection to Narungga Country in South Australia and also Point Pearce.

29It was obvious to me from the way you participated in the process of the sentencing conversation that you were genuinely sorry for what you had done and that you also have a degree of insight into the issues in your life that you need to address.  Clearly alcohol dependency and abuse is one such issue and an important one for you to address in order to avoid reoffending.

30I consider that your participation in the sentencing conversation revealed not only your insight into your offending behaviours, but as I have noted, also a degree of contrition and remorse.

31Participation in the process is not easy.  You were challenged by the Elders and respected persons about your offending and pressed on details of your personal circumstances.  You were very open and listened carefully.  As I have stated by my observations of your presentation and interaction, you are clearly ashamed of your offending.

32Particular emphasis during the hearing was placed upon the need for you to have some stability in your life and in particular housing, but also work.  The circumstances of housing and employment that remove you from negative influences and the temptations of resorting to an alcohol-driven lifestyle are important in your case.

33I was told that you have engaged whilst on remand with the Aboriginal men's group at Marngoneet and tendered on your behalf was a letter from Thomas Joes, Aboriginal Wellbeing Officer at Marngoneet Correctional Centre.  He notes that you have been a regular attendee of the Aboriginal Men's Group and have always been open with sharing your story with the group and talking about what your goals are for when you leave custody.

34Mr Joes also notes the courses you have completed whilst in custody.

35As I have noted and as the reports tendered on your behalf acknowledge, a key to your rehabilitation is your ability to avoid resorting to the abuse of alcohol as a lifestyle.  Had you not been living a lifestyle involving homelessness and the abuse of alcohol, it is unlikely this offending before the court would have occurred.

36Your degree of moral culpability for leading a lifestyle dominated by drinking must be viewed in light of the fact that you were introduced to alcohol at the tender age of ten and were exposed to negative influences regarding alcohol abuse in the years that followed.

37The materials before me indicate the significant disadvantages you had in your developmental years and its relationship with your offending.

38You do have prior convictions although on my assessment of that history, the matter before this court is by far the most serious that you have faced.

39I take into account the serious nature of these offences and the significant impact upon your victim.  I also take into account your pleas of guilty, the disadvantage I have noted and its connection to your lifestyle and in turn your offending.  I have had regard to general deterrence, denunciation and just punishment.

40In your case, Mr Lofthouse, I am going to impose an aggregate sentence and I do so because of the close connection between the two offences, it being one course of conduct driven by one purpose.

Sentence

41In relation to Charges 1 and 2, I sentence you to be imprisoned for 349 days.

42In addition, I impose a community corrections order of 18 months' duration.  That order will have the following conditions that you perform 100 hours of unpaid community work over 18 months as directed by the regional manager.

43I also order supervision; that you be under the supervision of a community corrections officer for a period of 18 months; that you undergo assessment and treatment including testing for alcohol abuse or dependency as directed by the regional manager; you must participate in programs and/or courses that are consistent with the achievement for the purpose of treatment and rehabilitation, that may include employment, educational, cultural and personal development programs as directed by the regional manager.

44You will also be subject to judicial monitoring and the first of those will be on 24 October 2019 at 9.30 am in this court.

45Up to 50 hours of treatment and rehabilitation satisfactorily undertaken can be counted as hours of unpaid community work for the purposes of the unpaid community work condition.

46I declare that pursuant to s.18 of the Sentencing Act, you have served 349 days of pre-sentence detention.

47Had you not pleaded guilty, I would have imposed an aggregate sentence of three years with a non-parole period of two years.

48Do you consent to engage in the community corrections order, Mr Lofthouse?

49OFFENDER:  Yes, Your Honour.

50HIS HONOUR:  All right.  Well, I will sign this and then it can be handed to you.

51I make the order pursuant to s.464ZF based on the reasons that it was unopposed, that the seriousness of the matters before the court and also your history and I must warn you that the order is for a buccal or buccal swab which is a swab of the inside of the mouth that you must attend the officer in charge at the police station.

52You will be given details of that within four weeks of the date of the sentence and if you do not comply and voluntarily provide the sample, reasonable force can be used to obtain the sample.

53I also make an order for compensation pursuant to s.86 of the Sentencing Act in the sum of $2,804, payable to the victim. I have signed those.

54I have signed the community corrections order.  Now, it is for Mr Lofthouse to sign it.

55All right.  Mr Lofthouse, given that you will be living in Port Melbourne, you must attend the Melbourne Justice Service Centre which is in the city, 50 Franklin Street, Melbourne.  You will get a copy of the Community Corrections Order.

56MR BACKWELL:  May I approach the dock, sir?

57HIS HONOUR:  Yes.  Thank you, Mr Backwell.

58Yes.  All right, Mr Lofthouse, now, the effect of the sentence is that you have served the custodial part but you will have to go down and be processed and then you will be on your community corrections order.

59I have imposed a condition that you come back before me in six months to see how you are going on it.

60OFFENDER:  Yes.

61HIS HONOUR:  All right.  Thank you, Mr Backwell.  Thank you, Mr Raimondo.

62MR BACKWELL:  If Your Honour pleases.

63MR RAIMONDO:  If Your Honour pleases.

64HIS HONOUR:  We will adjourn to 10.30.

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