R v Hilliar
[2020] VCC 677
•22 May 2020
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
CR 19-01526
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| GRACE HILLIAR |
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| JUDGE: | HIS HONOUR JUDGE MURPHY |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 15 May 2020 |
| DATE OF SENTENCE: | 22 May 2020 |
| CASE MAY BE CITED AS: | R v Hilliar |
| MEDIUM NEUTRAL CITATION: | [2020] VCC 677 |
REASONS FOR SENTENCE
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CRIMINAL LAW – PLEA – Aggravated burglary – Theft – Possessing a drug of dependence – Some expressions of remorse – Early Plea – No prior convictions – Long history of drug addiction – History of abuse – Self-help – Familial estrangement – Specific deterrence – Denunciation – General deterrence – Low-self-esteem – Long-term mental health issues – Reasonable prospects of rehabilitation – Fork in the road case – Younger offender – Community interest in the rehabilitation first time offenders – Crimes Act 1958 – Drugs, Poisons and Controlled Substances Act 1981 – R v Turnbull and Newman (1997) 1 VR 146 – R v De Simoni (1981) 147 CLR 383 – Farah v The Queen [2019] VSCA 300 – Andrick v The Queen [2010] VSCA 238 – R v Abdi and Anor [2020] VSC 225 considered.
CRIMINAL LAW – SENTENCE – Total Effective (State) Sentence 158 days imprisonment – 158 days of pre-sentence detention declared – 2 Year community corrections order – 6 month period of intensive compliance – s6AAA, s39 Sentencing Act 1991 – Boulton v The Queen (2014) 46 VR 308 applied.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr D. Gray | Ms A Hogan, Solicitor for Public Prosecutions |
| For the Accused | Ms G. Connelly | Law & Advocacy Centre for Women |
HIS HONOUR:
1Grace Hilliar, you have pleaded guilty to one charge of aggravated burglary, the maximum penalty is 25 years' imprisonment[1], one charge of theft, the maximum penalty of ten years' imprisonment[2], and one charge of possessing a drug of dependence, the maximum penalty is five penalty units.[3]
[1] Contrary to s 77 of the Crimes Act 1958
[2] Contrary to s 74 of the Crimes Act 1958
[3] Contrary to s 73 of the Drugs, Poisons and Controlled Substances Act 1981
2The circumstances of the offences were set out in the prosecution opening which was read in open court on the plea. I incorporate them by reference.[4] In brief outline at the time of this offending you were operating as a prostitute using a social media platform known as 'Skout' under the name of Marnie.
[4] Exhibit A.
3The offending occurred on 26 February 2019. Late the previous evening the complainant, who was a glazier by occupation and lived above his factory premises in Coburg North, engaged in conversations with you on that platform. In the course of those conversations he disclosed that he owned several motorcycles that he raced. It was agreed between the two of you that you would meet him at the premises the following morning.
4In a printed social media document before the Court he refers to 'just puff and chat, hang unless we feel it'.[5] You and four male co-offenders arrived from the south eastern suburbs of Melbourne to Coburg North in a vehicle bearing stolen numberplates.
[5] Exhibit 4
5When you arrived at about 9 am that day you were dropped off and the co-offenders waited nearby. When you were led into the premises by the complainant you went upstairs and telephoned one of the co-offenders and left the phone running so that he would be aware of what was happening. You told the complainant that you had left something in a friend’s car and asked if it was okay for the friends to drop it off. You asked to view his motorcycles and at that point you asked him to leave up the roller door up so that the friend could drop this item off. At about 9.25 a.m. the two co-offenders arrived outside the premises while you and the complainant were looking at the motorcycles.
6They entered the premises and after walking through the door one co-offender pulled a shot-gun from a bag and pointed towards the complainant. He was then told to get on the ground and his arms were tied behind his back. At that point you went upstairs and proceeded to steal an Apple iPhone, a MacBook and an iPad and a small safe.[6]
[6] Charge 2.
7You had earlier texted one of the co-offenders as to what was in the residential section of the premises. Separately two other co-offenders had entered the next-door property and confronted the occupier with a firearm. He pretended to have a heart attack and feigned collapse. They then left the premises and he called 000.
8The police arrived shortly thereafter and at that point you were standing outside the premises talking to the four co-offenders in their car. The car sped away at that point and you were found in possession of a backpack containing the stolen property, including the key to the safe, the safe having been taken away in the car.
9You were arrested by the police and gave a fabricated account in a record of interview. Subsequently you were placed in police custody and you provided what I accept as a truthful account to an undercover operative who was placed in the cells with you. This included admissions that the earlier account was false. You gave names of two of the co-offenders, their ethnicity and the circumstances in which you came to be involved with them.
10The genesis of the offending, on your account, was that the complainant had allegedly assaulted and robbed you during a previous engagement with him in November the previous year. He had stolen around $180 from you, some tablet drugs, and some methamphetamine. When you identified him making further contact the night before the offending you with your co-offenders then formed the view to set him up, and effectively get back at him.
Characterising the seriousness of the offending.
11The offence of aggravated burglary covers a continuum of criminal behaviour. At its heart is the entry as a trespasser with criminal intent. Here the entry was premised on there being consensual sexual services. It did not turn out that way. The victim of the invasion has not given a victim impact statement. However he would have been shocked by what happened.
12On the other hand, the extent to which you were responsible for the conduct after your entry under false pretences to the premises was the subject of contention on the plea.
13Your counsel emphasised that on the authority of R v Newman And Turnbull[7] and R v De Simoni[8] you are not to be sentenced for offences for which you have not been charged. Thus while the complainant was the subject of an armed robbery by your two accomplices, and an aggravated home invasion, you are not charged with those offences and you cannot be punished for the conduct.[9]
[7] (1997) 1 VR 146
[8] R v de Simoni (1981) 147 CLR 383
[9] Counsel for the accused also referred the Court to the cases of Farah v The Queen [2019] VSCA 300, Andrick v The Queen [2010] VSCA 238 and R v Abdi and Anor [2020] VSC 225.
14Mr Gray, however, the learned Crown prosecutor, put that the overall conduct of the event is relevant to your moral culpability. As he submitted, this was a planned event in that you attended in the company of the co-offenders. You contacted one of those co-offenders when you were in the premises in order to advise him of the items that were available to be stolen.
15The theft is enhanced because you knew that the other co-offenders were available to assist you in the theft once you had obtained access under false pretences to the property. I accept the submission of your counsel however that you are not to be sentenced on the basis that you had any involvement or awareness of the use of a firearm by one of the co-offenders.
16Mr Gray submitted that the offending here should be characterised as a mid-level aggravated burglary. On the other hand Ms Connolly submitted that this was at a much lower end and effectively a technical aggravated burglary.
17Having weighed the competing submissions I am of the view that your conduct in relation to Charge 1 should be placed on the lower end of the range as your entry into the premises was effectively under false pretences. The second count, the theft, is more serious in that it was planned and was effectively in company, and did occur in the residential section of the complainant's premises. Against this, the property except the safe was recovered. In relation to the third charge the amount of drugs, cannabis, was a minor amount.
18Overall the course of conduct here makes the offending of some seriousness and you must carry significant moral culpability for it. While you conceded to the undercover operative that the offending was your idea, given your lack of prior convictions, I am prepared to give you the benefit of the doubt on the issue of the execution of the offending. This is reflected in the fact that you are not to be sentenced for the more serious offending perpetrated by the other individuals who attended with you on that morning.
Prior convictions.
19The prosecution does not allege any prior convictions against you although you were dealt with for one matter as an antecedent for an assault offence where you were granted a non-conviction disposition. Thus you come before the court effectively as a first offender aged 26.
Personal circumstances.
20I now turn to your personal circumstances which were set out in your counsel’s comprehensive submission and in the report of Mr Simmons.[10]
[10] Exhibits 1 and 2.
21You were 25 years old at the time of the offence, and are now 26. You are the youngest of five children from a blended family.Your father, who was an organisational psychologist, gave evidence on the plea hearing. You attended a number of schools eventually leaving school during Year 10.
22A significant matter in your childhood was that you were the subject of sexual abuse by a cousin which, within the family was not addressed. You were also involved in a number of difficult and abusive relationships, and at the age of 18 had a daughter. She has a disability and is being cared for by your parents who are now in their 60s.
23It appears that you did not go into tertiary education. On the plea it was indicated that you had been involved in a number of jobs in the youth work area, you also had a business in graphic design which ceased after your equipment was stolen, and then for a couple of years prior to this offending you were a prostitute.
24In his evidence your father was somewhat apologetic for the failure of the family to address the sexual offending by your cousin. Relations with your parents have been fraught and you have been unable to reside with them.
25Your father however, was emphatic that you appear to have changed significantly as a result of your period on remand when you were abstinent from drugs.
Report of Mr Simmons.
26Before the court was a comprehensive report of a well-known forensic psychologist, Mr Simmons. He canvasses your background and in particular your patchy school record, with attendance at a number of schools, that left you finally leaving school in Year 10.
27Further he indicates that you had a number of unsatisfactory relationships including some physical and sexual abuse. Ultimately as a result of one short term relationship when you were aged 18 you bore a daughter who is now aged eight and as I indicated is being cared for by your parents.
28You have had a significant history of the use of illegal drugs commencing with cannabis when you were aged 12 and then moving to prescription drugs and later you commenced using amphetamines. You have experimented with heroin and also with Suboxone. Your alcohol consumption is more limited.
29He is of the opinion that there is evidence of borderline personality traits and a diagnosis of post-traumatic stress disorder (PTSD) having its genesis in abuse as a child and while as a sex worker. Difficulties with your family led to low self-esteem and difficulties in relationships. He notes that despite the difficulties you have not engaged in prior offending and appear to have used substances as a form of self-medication. He notes that interventions for your difficulties have been very limited.
30He is of the opinion that you would benefit from therapy to address your PTSD and this should be done before attempts to address your substance abuse problems. In addition you would benefit from therapy to explore difficulties generally with life, relationships, employment and finding a stable life.
31His opinion is that you have some prospects of rehabilitation given your limited prior offending, expressions of remorse and the fact that you have attempted to maintain employment for yourself over the years.
Matters in mitigation.
32Your counsel put a number of matters in mitigation which I take into account. You have pleaded guilty. It was an early plea you are entitled to the benefit of that as it has facilitated the course of justice and obviated the need for a committal and trial. I also accept that the plea is some evidence of remorse and this is confirmed in the report of Mr Simmons.
33I note that the community corrections assessment is found that you are of high risk of reoffending. In the event that you are able to address your psychological problems identified by Mr Simmons, and to find a stable housing and address your drug abuse problems, then I would regard your prospects of rehabilitation as reasonably good. You come from a good family but through no fault of your own are estranged from your parents. Your use of drugs as self-medication for your psychological problems has lead you into bad company and a degrading occupation.
34You have the benefit of support from the Law and Advocacy Centre for Women at RMIT and I have considered a report from them.[11] They have directed you to Launch Housing which is attempting to find stable accommodation for you. You have the incentive that when you have obtained stable housing and addressed your drug issues you will be in a position to resume custody of your daughter. I regard this as a major incentive for you to rehabilitate and it is obviously in the community's interests.
[11] Exhibit 3
Purposes of sentencing.
35In sentencing you there are competing considerations. Considerations of punishment and denunciation as well as specific and general deterrence loom large. A countervailing consideration is the interests of the community in your rehabilitation.
36It was the strong submission of your counsel that as you come before the court as a first offender the emphasis should be on your rehabilitation. In particular it was submitted that a disposition that would allow you to remain in the community was called for.
37The learned Crown Prosecutor, on the other hand, submitted that the seriousness of the offending here called for a sentence of imprisonment with a non-parole period. He submitted that having regard to the seriousness of the offending and the contents of the community corrections assessment that you are of high risk, then a prison sentence, with a non-parole period would best achieve your rehabilitation into the community, and all the interests of sentencing.
Consideration.
38It is always in the community interests that offenders who reach maturity without lapsing into criminality should, in the event that they do lapse into serious crime, in appropriate circumstances be given an opportunity for redemption if at all possible.
39Here, it is necessary to consider your background in the light of your present predicament. First it is not disputed that you suffered childhood sexual abuse. Your father conceded this in evidence and also conceded that it was not properly addressed within the family. Within your psychological profile it remains an issue to be addressed.
40Next, perhaps unsurprisingly, your educational achievements have been unsatisfactory and you have no vocational qualifications. At one stage you did work in graphic design and in youth groups, however in more recent times you have been operating as a prostitute. Mr Simmons notes that you have generally been employed, albeit recently as a self-employed prostitute.
41Your drug use remains a problem and needs to be addressed. On the report of Mr Simmons you require therapy to address your PTSD and also to address long-standing personal difficulties. You also need to address your substance abuse problems and engage in a socially productive life.
42On the plea your father gave evidence effectively conceding some failures on the family's part in your upbringing. I found his evidence insightful. He conceded that you have struggled whilst on bail and have been unable to reside with your parents. To their great credit they are looking after your eight-year-old daughter.
43It is clear that you are at a turning point in your life. You are a somewhat young offender. You have been the subject of sexual abuse in the past, you have had relationship problems, and you have been self-medicating through the use of drugs. Notwithstanding all these difficulties you come before this Court with minimal criminal involvement.
44In the Community Corrections assessment the assessor opined that you have some insight into your behaviour and have as an aim to be in a position to parent your daughter. You have pleaded guilty and I find there is some remorse.
45You have had the assistance of the Law and Advocacy Centre for Women and they are seeking to assist you in obtaining secure housing through Launch Housing and alcohol and drug support. They have also sought to link you with CASA but you have not commenced any course with CASA and you were put on a waitlist there when you were on remand.
46They are also seeking to place you in a graphic design course, and according to their report remain available to assist you. The chronology of this matter is that following your arrest you were remanded in custody and you were released on bail about ten months ago.
47Thus it is nearly ten months that you have been in the community and in that period there has been a considerable investment in your future, but there is more work to be done. Much of that investment would be set back by returning you to prison at this stage. It is in the community interest that the steps that you have already taken be reinforced if at all possible.
48I note that many community corrections services are under great strain in the present pandemic, as is the prison system. Both are operating in a sub optimal environment, and services in either environment are probably not as effective as in normal times. I have had regard to the comparative difficulties in the fine balance between further custody and a continuation of your liberty in the community.
49The learned Crown prosecutor disputed that a combination sentence was within range. While I respect his submission I am unable to accept it. The Sentencing Act provides by way of community corrections order an opportunity for a court to establish a tailored disposition to encourage, even in the case of serious offending as indicated in Bolton[12], in appropriate cases the rehabilitation of offenders which is always in the long-term interest of the community.[13]
[12]Boulton v The Queen (2014) 46 VR 308
[13] Ibid [115]
50In your particular case it is clearly in the long-term interests of the community that you obtain stable accommodation so that you can relieve your parents of the need to parent your own child. It is also in the interests of the community that the psychological problems emanating from your disrupted upbringing are addressed so that rather than self-medicating on illegal substances and engaging in an occupation fraught with criminality, you obtain some educational qualifications and move into the mainstream workforce.
51A community corrections order, and giving credit for the 158 days you have spent on remand, in my opinion, weighing all the competing considerations does provide an avenue for you to be given a final chance. The order that I am proposing includes an intensive period to allow your reclamation from drugs to be reinforced as well as to have your psychological problems addressed through appropriate therapy.[14]
[14] pursuant to section 39 of the Sentencing Act 1991.
52At appropriate intervals you will be the subject of judicial monitoring. I have also noted that you can be brought back before me on short notice so that I may monitor your progress.
53As I have indicated in the course of the plea I see it in the community interest that you be given this one opportunity, a fork in the road in your life, to lead a law-abiding life away from the criminogenic associations in drugs and prostitution.
54The long-term protection of the community will be most enhanced by your successful reclamation rather than further imprisonment, particularly in this current environment. On the other hand, as I have indicated, in the event that you failed to comply with the community corrections order then absent good reason I will have no hesitation in cancelling the order and imposing a further prison sentence on you.
55Your counsel submitted that as this offending involved a closely related course of conduct then substantial or full concurrency should be accorded the two individual offences. As these offences were effectively a course of conduct I regard it as appropriate to impose an aggregate sentence.
Sentence
56On the charges of aggravated burglary, and theft, you are sentenced to an aggregate sentence of 158 days' imprisonment and a two year community corrections order to commence this day. I declare that you have served 158 days' imprisonment.
57On the charge of possessing a drug dependence, cannabis, you are convicted and fined $500. I declare that had you not pleaded guilty I would have imposed a total effective sentence of three years' imprisonment with a non-parole period of two years.[15]
[15] Pursuant to s6AAA Sentencing Act 1991
Community Corrections Order
58I must explain the community corrections order to you. You have been provided with a copy of it and your counsel I would ask that she explain it to you as well. Essentially I am not requiring you to go back to prison, I am placing you on a community corrections order for two years from today.
59The terms of that order are that you be under supervision of the Office of Corrections for that two year period, you are to report to and receive visits from the Secretary. You have got to the report to the office at 59 Franklin Street within two business days.
60You have got to advise them of changes of address and you have got to accept their supervision and obey their instructions. You are also to undergo treatment and assessment for drug abuse and dependency as they direct and alcohol abuse or dependency as they direct, mental health assessment as they direct for psychological or psychiatric treatment.
61That might include something to address the sex abuse that you have suffered, so you have also got to participate in programs or courses that they arrange for you. For the first six months of this order you are under what is called an intensive compliance period which means that they are intensively monitoring and supervising you.
62In that period you are to undertake weekly drug screens and you are also to obtain a mental health care plan and get into counselling with a psychologist. I have made a notation on the order that there is liberty to apply to bring you back before me on short notice.
63So in other words if you deliver to them a dirty drug screen they will drag you right back in here in front of me. I will be around, do not worry, I will remind you what I said to you today and last week, that if you fall off the wagon on this Community Corrections Order, if it is serious enough it will be cancelled and you will be sent back to prison. Do you understand?
64OFFENDER: Yes, Your Honour.
65HIS HONOUR: Then the Community Corrections Order, a term of that is that effectively you are under a good behaviour bond. If you commit an offence carrying a term of imprisonment that of itself breaches the order and that carries a penalty of three months' imprisonment and it triggers the opportunity for the order to be cancelled by me.
66So I would ask you to consent to the order and if you feel, 'Look, I can't do this', go back to see your solicitor and they can come back to me and I can cancel the order and re-sentence you. That can be done, but it is all a matter for you. You are a 26 year old and so your life is in your own hands but we are giving you all the supervision and support and this advocacy centre mob up in RMIT, they are helping you. They are available. You ring them up and engage with them and they will book you into support services so I would ask counsel to have this explained to the accused and get her to sign it.
67Is there any other matter I have not addressed, Mr Gray?
68MR GRAY: I don't believe so.
69MR GRAY: As the Court pleases.
70HIS HONOUR: I thank both counsel for their comprehensive submissions in this matter and thank Mr Hilliar for giving his evidence the other day and adjourn the court sine die.
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