R v Halligan
[2008] VSC 279
•24 July 2008
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
No. 1715 of 2008
| THE QUEEN |
| v |
| ASHLEY DANIEL HALLIGAN |
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JUDGE: | HARPER J | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 14, 21 AND 22 JULY 2008 | |
DATE OF SENTENCE: | 24 JULY 2008 | |
CASE MAY BE CITED AS: | R v HALLIGAN | |
MEDIUM NEUTRAL CITATION: | [2008] VSC 279 | |
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CRIMINAL LAW – Sentence – Robbery – Plea of guilty – Cooperation – Frank admissions – Undertaking to give evidence against co-accused – Youth of offender – Prior convictions – Remorse – Community-based Order for 18 months – Effect of s 6AAA of Sentencing Act 1991.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr R.A. Elston SC | Solicitor for Public Prosecutions |
| For the Accused | Dr T.R. Sullivan | Dowling McGregor Thomas |
HIS HONOUR:
Ashley Halligan, you have pleaded guilty to one count of robbery. The offence took place in the early hours of Wednesday 23 January this year. The victim was a young man walking home after catching the last train from Sunshine. He was alone. You were with a group of young men. He was a stranger to those in the group. It seems that three things attracted the attention of your mates and you to him. First, the fact that no-one else was around. Secondly, it was likely that he would be easy to rob. And thirdly, you could assault and perhaps seriously injure him without you or your mates having any fear that he could hurt any of you in return.
This was the second time that evening that you and the cowards who are your mates had found such an easy prey. On the first occasion, the young men with whom you chose to keep company that night attacked a young male student. You were with them, but did not participate in the attack itself. The student died several days after being savagely beaten by your colleagues. Like the second victim, the young man who was killed in this dreadful way had done absolutely nothing to instigate the attack upon him, other than to be in the wrong place at the wrong time.
You were well aware of the savagery of the first attack, although you did not then know that the victim would die as a result. Despite your knowledge that you and those who attacked him had abandoned an innocent and badly injured man on the footpath, you did not then disassociate yourself from the really serious criminality of that night. On the contrary, when your mates, showing no remorse for what they had already done, suggested that another victim be picked out for similar treatment, you, as you told the police "went with the flow." You were afraid of being seen as a coward and, to use your words to the police, "you get hyped up."
Every young person is aware of the need to belong, and of the power of the pressure to conform. I understand that need, and have taken it into account in considering the factors that influenced your behaviour that night. But, at a different level, your fear of being seen as a coward was a sick joke. There is nothing brave about attacking a defenceless and innocent stranger. There is nothing brave about a savage, unprovoked and surprise attack by six or so young men on a single, unaccompanied victim. Far from being brave, this is contemptible cowardice at its worst. No bravery was required in those very early hours of Wednesday 23 January this year, except the courage to walk away from a pack of cowards. You could not summons that courage.
To your credit, however, you have shown remorse and significant bravery since these seriously criminal events. When on 28 January the police interviewed you about them, and again in a statement you made to the police on 7 February, you described both the first and the second incident and freely admitted your part in the second. That was to hit the victim in the face with his shoe and then throw the shoe away. You told Mr Crewdson, the psychologist whom you saw on 10 July, that you assaulted the victim in this way "to shut him up." You could not bear to listen to his terrified screams. You described the incident to Mr Crewdson as "Bad. The whole thing was bad."
And so it was. Your victim was treated at Sunshine Hospital for cuts to the head, nose and chin and severe pain in his back and right arm. A general practitioner also treated him for these injuries, and a chiropractor was consulted for back and neck pain, headaches, and stiffness in the lumbar spine. By sheer good luck he is likely to recover.
Your behaviour at and following the police interview gives rise to two of the three factors which together significantly reduce the penalty which would otherwise now be imposed upon you. The first factor is that in your interview and in the statement you made afterwards, you admitted your involvement in the second incident and, consistently with that admission, you at the first opportunity pleaded guilty to the robbery of the second victim. The second factor is that you have coupled the information you gave to the police with an undertaking that, if required by the prosecution, you will, at the committal and subsequent trial of those charged with involvement in the death of the first victim, give evidence in accordance with your statement of 7 February. The Director of Public Prosecutions acknowledges that such evidence is of significant material value in the prosecution of those involved in that death.
The third of the three factors is your age. You were born on 10 June 1989. On 23 January this year, therefore, you were 18 years and six months old. You are now 19. The youth of an offender must be a primary consideration for a sentencing court where, as in your case, that matter properly arises. In your case, as is usual with a youthful offender, rehabilitation is far more important than general deterrence. Your rehabilitation is therefore one of my most important concerns.
The first question is whether in your case rehabilitation is a realistic prospect. There is some reason to be pessimistic. You have already been before the Children's Court on separate occasions to answer two separate charges. The first such charge was a count of armed robbery. The prosecution allege that on 13 August 2005, you and two offenders aged 16 approached an 18 year old male in Surrey Hills. You threatened him with a knife and stole his wallet. You and your two colleagues shared between yourselves the $60 which represented the spoils you sought. The wallet was discarded.
On 8 November, the Children's Court deferred pronouncing sentence upon you until 13 February 2006. You were allocated a case manager in the meantime. In an extensive pre-sentence report, dated 8 February 2006, your case manager stated that you appeared to be extremely affected by the events themselves and by the legal proceeding that followed. She also recorded in your favour that you did not trivialise or justify the offence. Your case manager concluded her report by saying that you amply demonstrated remorse for your crime and empathy with your victim, and that you appeared consumed by shame and guilt.
You had, between 15 August 2005 and the date of your sentence the following 13 February, plenty of time to reflect on what you had done at Surrey Hills and what you must not do again. You also had the assistance of your case manager and others. Perhaps the pre-sentence report accurately recounted the results of that reflection. The magistrate thought so. At the Children's Court on 13 February the matter was adjourned without conviction to 10 August 2007, on condition that you entered into a bond to be of good behaviour in the meantime, and pay the sum of $240 into the court fund.
Nevertheless, ten months later, you returned to the Children's Court charged with possession of a controlled weapon without excuse. I do not know the details of this charge, but according to Mr Crewdson you were found with a knife belonging to a cousin of yours. You were sentenced without conviction to pay a fine of $100.
It may be that this second incident in the Children's Court is inconsistent with the remorse you exhibited to your case manager after the first. But I do not know enough about it to determine whether that inconsistency exists or not. I am therefore prepared to proceed on the basis that the second Children's Court charge does not throw doubt on the sincerity of the remorse which your case manager was prepared to accept in relation to the first.
What is nevertheless certain is that your early encounters with the law, and with the people who attempted to assist you to avoid further trouble, did not have the desired result. Otherwise, you would not have joined the cowardly pack of which, on 23 January this year, you were a member. You joined them just the same. As you told the police, the idea was "probably to rob" and that the physical attacks were "unprovoked."
You now face a critical point in your life. You have given the undertaking to which I have already referred. You must honour that undertaking. You must also continue to demonstrate the courage which you have shown in giving that undertaking and determine that you will never again be induced to join in unlawful behaviour. The occasions for getting "hyped up" as you did on 23 January have gone for good. This time remorse must be demonstrated by results. Your rehabilitation depends upon it.
Mr Crewdson believes that your remorse for your part in the events of 23 January is genuine. As I understand him, his evidence is that that remorse appears not only to be genuine but, in addition, to be based upon more than the fact that you now face a conviction and punishment. Your remorse is grounded, Mr Crewdson believes, on the far more significant basis of contrition. In other words, you are, Mr Crewdson thinks, genuinely sorry for the pain and hurt you helped to inflict on an innocent man earlier this year. If Mr Crewdson is right, it is a matter for deep regret that that remorse did not cause you to divorce yourself from your companions after the first attack. But it must be said in your favour that your plea of guilty and your undertaking to the court are each consistent with real and meaningful remorse.
In those circumstances, I am prepared to proceed on the basis that the prospects for your rehabilitation are good. I also take into account the difficulties that you have faced in your childhood, in particular in relations with your father. Your need for his approval, and your perception that he has never really given it to you, have been a source of much difficulty in your life so far. It is not surprising that your encounters with the courts have created much additional tension between you and your father, tension increased by differences between what he would like you to become and what you wish for yourself.
You are, according to Mr Crewdson, creatively intelligent. Your interests do not have much in common with those of your father. It is to be hoped that he will realise that the best gift he can give you is the freedom to fully develop your creative talents in lawful and productive ways. If he is prepared to give you that freedom your relationship with him may flourish as it should.
I have given careful consideration to the sentence I should impose. Had you not given the undertaking to which I earlier referred, and taking into account the seriousness of this robbery with its accompanying violence following shortly after a similar incident witnessed by you involving those in whose company you were that night, then - putting aside your age for the moment - I would have sentenced you to two years' imprisonment. Having regard to your undertaking the sentence would have been reduced to 18 months' imprisonment, with a further reduction to reflect your plea of guilty.
But a youthful offender is not to be sent to prison if such a disposition can be avoided, especially if he is beginning, as I believe you are, to appreciate the effect of your past criminality. Parliament has said that a suspended prison sentence is not to be imposed unless the sentence of imprisonment, if unsuspended, would be appropriate in the circumstances. Given your youth, I do not think that a sentence of imprisonment, if unsuspended, would be appropriate.
Other alternatives are a Youth Justice Centre Order or a Youth Residential Order. Neither your counsel nor the prosecution supports either of these two options and, apart from other considerations, the undertaking you have given leads me to the conclusion that I should impose a lesser penalty.
The remaining alternative, it seems to me - and provided you consent - is a Community-based Order, adjusted so as to reflect your plea. You have been assessed as being suitable for such an order. It has the benefit that it will enable you to receive the support of a psychological assessment and, if appropriate, treatment, something from which, in Mr Crewdson's opinion, you will benefit. A Community-based Order is a less severe sentence than any other I would have imposed had you not given the undertaking to give evidence in accordance with your statement. I intend to impose that lesser sentence because of your undertaking, and I direct that this fact and the undertaking, together with its details, be noted in the records of the court.
There remains for determination the period of duration of the Community-based Order assuming that you are prepared to enter into that order. I will hear counsel about this.
[Discussion ensued].
The Community-based Order will be for a period of 18 months, reduced from two years because of your plea of guilty, with 150 hours of unpaid community work. The order will necessarily contain those conditions which are set out in s.38 of the Sentencing Act. The program conditions will be as follows:
(1) That Mr Halligan perform unpaid community work for a total of 150 hours, as directed by the regional manager, for a period of 18 months.
(2) That Mr Halligan be under the supervision of a Community Corrections Officer.
(3) That he submit to medical, psychological and psychiatric assessment and treatment as directed by the regional manager; and
(4) Finally, that he undergo assessment for programs to reduce re-offending and participate in such programs as directed by the regional manager.
The Community-based order is imposed with a conviction, and I will direct that the records of the court note that fact. The regional centre is Sunshine. The period of 18 months will start from today, 24 July 2008, and will end on 23 January 2010.
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