R v Japaljarri (formerly known as Brent Andrew Hocking)
[2000] VSC 466
•4 October 2000
| SUPREME COURT OF VICTORIA | |
| CRIMINAL DIVISION | Not Restricted |
No. 1518 of 1999
| THE QUEEN |
| v. |
| JAPALJARRI (FORMERLY KNOWN AS BRENT ANDREW HOCKING) |
---
JUDGE: | VINCENT, J. | |
WHERE HELD: | MELBOURNE | |
DATE OF SENTENCE: | 4 OCTOBER 2000 | |
MEDIUM NEUTRAL CITATION: | [2000] VSC 466 | |
---
CATCHWORDS: Murder – Burglary – Arson – Crimes committed for financial gain.
---
APPEARANCES: | Counsel | Solicitors |
For the Crown | Mr. G. Horgan | Office of Public Prosecutions |
| For the Accused | Mr. J. Smallwood QC | Victoria Legal Aid |
HIS HONOUR:
Japaljarri, formerly known as Brent Andrew Hocking, the jury empanelled upon your trial has found you guilty of the murder at Box Hill in the State of Victoria on 26 October 1993 of Phyliss Fielding Hocking, in addition to one count of burglary and a count of arson. On each occasion, your victim was your 79 year old grandmother Phyliss Hocking, the mother through adoption of your father. It is now my responsibility to impose sentence upon you.
You have admitted the commission of four prior offences arising from two court appearances between January 1991 and April 1992. For those crimes - causing damage to property intentionally (two charges) - having stolen goods in your custody - and receiving stolen goods - you were not required to serve any term of imprisonment. Save to the extent that they are indicative of your dishonest nature and a broader disregard of the rights of others, I do not consider that, viewed in the context of the present matters, they should be regarded as possessing significance when determining appropriate sentences in your case.
The background to and circumstances surrounding the commission of the crimes for which I must now impose sentence have been canvassed in the course of the trial and need only be set out in a relatively brief form at this stage.
In two respects only, namely, first the involvement of your father Phillip Hocking as the instigator of each of them, and second, the possibility that he may have been the actual killer of Mrs Hocking, has there been any controversy concerning those circumstances. I will return to the two aspects mentioned a little later.
The count of burglary relates to what may be appropriately described as an attack upon the unit occupied by your grandmother at No.7 Dunloe Avenue, Box Hill. On 16 July 1993, she arrived home to find that the unit had been burgled. Articles were strewn about, some of its contents had been damaged and alcohol had been splashed around. Mrs Hocking's stamp album, pieces of jewellery and some cash had been stolen.
In a recorded interview later conducted by investigating police members, you admitted the commission of this offence, claiming that your father asked to you break into the unit "so she'd go into an old persons' home, so he could get hold of her money earlier". I accept that there is a high degree of probability that this was the case; but it also appears to be reasonably clear that you approached the assignment with a minimal, if any, sense of guilt concerning truly outrageous behaviour.
The plan failed however because, despite her frailty and age and the sense of fear and vulnerability that your actions must have engendered in her, Mrs Hocking remained in her unit. I suspect that, in common with many elderly people, she wanted to live independently as long as she was physically able to do so. It does not seem that you were sensitive to the cruelty of taking that sense of independence from her.
The second count on the presentment relates to an arson attack which took place on 8 August 1993. In the early hours of that morning, and in the anticipation that she would be sleeping soundly inside, you were driven by an acquaintance of yours Phillip Royal to your grandmother's unit. Upon arriving there, you used a spray can to paint the words "fuck off poofs" on Mrs Hocking's garage door. You did this to divert the attention of the police from your objective and accordingly yourself, by raising the possibility that the attack may have been directed against a gay couple who resided in an adjoining unit. You then threw a petrol bomb through the front window of the unit, causing it is to erupt in flames and sustain considerable damage.
I accept your claim that your actions on this occasion were also carried out at your father's request and partly to assist him in his endeavours to secure access to your grandmother's assets. The point should also be made at this stage that you anticipated some financial benefit from your involvement. Again your plan went awry as the deceased had recently had smoke detectors fitted in the premises and she had left her key in the front door. Probably with some difficulty, bearing in mind that she used a walking frame or a walking stick on occasions, she managed to escape from the burning unit.
In your recorded interview with members of the Homicide Squad the following conversation took place relative to this activity:
"Q.Alright. So, what conversation did he have with you about - about how the fire now - leading up to the fire?
A.That I should just throw a petrol bomb through there and make sure it lights up and the house will burn down.
Q. Did he say for her to be at home?
A. Yeah. Yeah. To do it at night-time when she's asleep.
Q. And did he say what - did he at that stage say that he wanted to kill her or do you know or is that ... ?
A. Yes.
Q. Something that wasn't discussed?
A. No. That was discussed.
Q. What - was basically said there?
A. He wanted me to burn the house down and she would pass away.
Q. As a result of?
A. The fire."
You clearly appreciated, as this passage indicates, that, if you followed your father's directions your grandmother could well die. Although you have not been convicted of attempting to murder her and, as a matter of sentencing principle are not to be sentenced on that basis, it is nevertheless appropriate to have regard to your level of appreciation of the possible consequences of your actions as an aggravating circumstance and relevant to the assessment of your degree of culpability when determining an appropriate sentence for the commission of the offence of arson in the particular circumstances of your case.
From the perspective of Mrs Hocking, the situation at the time of the fire must have been truly terrifying. She was, according to the evidence, in indifferent health and, as I have indicated, unsteady on her feet to the extent that she required the aid of a walking stick and on occasions used a walking frame. It would, I think, be reasonable to assume that she was probably asleep when she was awakened by the sound of a smoke detector and then found it necessary it make her way out of a burning building, almost certainly with some difficulty and in a state of considerable fear and alarm.
With respect to this offence, there are three comments that should be made at this stage. First, and perhaps the most notable feature of your conduct is the extraordinary callousness with which you acted. You were, it seems, untouched by any sense of remorse occasioned by your earlier behaviour. Second, this crime was committed after some deliberation and premeditation and a degree of preparation and planning was involved. Third, and I have already adverted to this aspect, the crime was committed for no better reason than to obtain access to her assets.
Because her unit was rendered uninhabitable, Mrs Hocking moved into your father's home at 2 Dunloe Avenue. This was the location of your final and fatal attack upon her. It seems that your father was incensed by the failure of the arson attack and became even more determined to have his mother killed. To this end, your further assistance was obtained and a plan devised.
On 26 October, in company with your two companions, Scott Willis and Phillip Royal, whose roles in this matter have not fully emerged, you visited a local video store. After hiring some videos the three of you went to your father's business premises which were located not far from the house in Dunloe Avenue. Your companions then left after agreeing to pick you up later in order to take you home to the house in Kew in which you were all residing.
I think that it is likely, as you claim, that you were driven by your father to his home and some joint activity then undertaken to create the impression that burglars had been disturbed. He then left and returned to his business premises.
You remained in the house lying in wait for your grandmother, who in accordance with a regular practice of which I have no doubt both your father and yourself were well aware and had been incorporated into your plan, was attending an elderly citizens group organised by the local Council. You were armed with a steel bar of some kind. At approximately 2 p.m., and as expected, Mrs Hocking returned home. Immediately after she entered the house you emerged from behind a door and without warning struck her savagely over the head with the bar. You delivered at least three more such blows to the back of your grandmother's head before she fell to the ground where you again hit her. Your intention was to kill her and you continued your assault until you were satisfied that you had achieved your objective. You then left the home leaving Mrs Hocking either dead or very close to death.
You were then driven home by Scott Willis and Phillip Royal who were waiting for you in a nearby street. Upon arrival at your residence you washed the clothing that you had been wearing and Scott Willis later disposed of them in a collection bin.
At your trial, you attempted to raise the possibility that your victim may have survived your attack and could have been killed by your father a little later during the afternoon. Understandably, the jury regarded your contentions and arguments as fanciful against the background of the established and largely uncontroverted facts, which included your own confessional statements.
Mrs Hocking's body was "discovered" by your father a few hours later. She had died as a result of head injuries sustained as a consequence of the infliction of multiple blows which had been delivered with at least moderate force. She suffered extensive skull fractures and brain injury. Other injuries were sustained from blows to the trunk, upper limbs, right wrist and left hand as she attempted to fend off your attack.
The deceased's murder remained unsolved for many years until the police began to reinvestigate the matter in 1998 when they were contacted by persons who told them that you had admitted that you were responsible.
When interviewed by the police, and as I have earlier indicated, you provided a simple, although appalling, explanation for the commission of your crimes. You assert that your father, who, like yourself, always seemed to be in some sort of financial difficulty, wanted Mrs Hocking driven out of her unit into a nursing home so that he could then access her money. To this end, he enlisted your help and as consideration for your efforts you were to receive a carpet steam cleaner for use in your struggling carpet cleaning business. When the initial plan failed, it was decided to kill her.
There are many disturbing features associated with your case.
I observe in this context that it took more than five years before your involvement in Mrs Hocking's death was reported to the police. A number of people knew that you were responsible. It is likely that some knew in advance what you were planning to do, yet did nothing to stop you. Scott Willis and Phillip Royal provided you with assistance on the day you killed Mrs Hocking and Mr Royal was with you on the occasion when you threw the petrol bomb at the deceased's unit. Although he stated in court that he thought that it was a dreadful act, he did not disassociate himself from you.
If not for a man named Matthew Vincendese you may never have been held accountable for your crimes. When he remarked, jokingly, in conversation with you during 1998 that his financial situation might be improved if his grandfather was "knocked off", you suggested, quite strongly, that this would not be a good idea, given that you had done the same to your grandmother five years earlier and that it had brought you nothing but bad luck. Following this conversation, he spoke to your wife, who revealed that she also knew what had taken place, and they decided to contact the police.
You will understand that the crime of murder which you have committed is, for practical purposes, the most serious known to our law. Its significance arises from the fundamental importance that is attributed in our society to the life of each of those who dwell in it. In this context your particular offence constitutes a serious example of this crime.
You killed a frail elderly woman who had assisted you financially and who relied upon you as a member of her own small family. In monetary terms your grandmother's life was regarded as less valuable than a steam cleaner, and in social terms as tradeable for your father's approval. I do not think that it would be an over‑reaction to describe your conduct as despicable and deserving of very substantial punishment.
Further, the crimes of arson and burglary are also regarded by the law as serious offences. I have already directed attention to some of the aggravating features associated with each of them in the circumstances of your case.
Through the sentences which are handed down upon those who commit such offences, and to the extent that it is consistent with the application of other relevant sentencing principles, the courts must endeavour to deter like-minded persons from acting as you have done on each of the three occasions involved. They must, in addition, and where appropriate, effect just retribution upon perpetrators and by their sentences express the clear denunciation of our society of conduct of this kind.
Nevertheless, these are not the only considerations to be taken into account and each occasion and each offender must be viewed in the light cast by all of the circumstances relevant to the individual offence and perpetrator.
As far as your background is concerned, I note that you are now aged only 27 years and were quite young at the time of the commission of your offences. You are still married to Kathleen Andrews, who gave evidence in the trial, although I understand that your personal relationship is now over. With respect to your early years, you spent most of that period in Mirboo North with your mother and sister, your father having left the family, somewhat suddenly, before your sister was born. When you were aged six years with your mother and sister you moved to the Northern Territory where your mother had obtained a teaching position. Each year, accompanied by your sister, you would return to Victoria to spend time with your father, and when you were nine years of age you spent a period of three months living with him and his family.
It seems that you became very attached to your father, in spite of the way in which he appears to have treated the family, and were very influenced by him throughout your life. Your mother later married her present husband. He was, it seems, and at least as far as you were concerned, a strict man and you had difficulty coping with the discipline that he imposed. In consequence you left home at the age of 15 years. You obtained employment as a computer operator with the Northern Territory Department of Treasury; the youngest person, I have been informed, ever employed in such a position. Whether there may be some exaggeration in the description of this employment I am uncertain as it appears that you are given to the generation of grandiose claims about yourself. I note that in a book you produced, titled Tribal Elders, which was tendered by your counsel, Mr Smallwood, in the course of the plea made on your behalf, you have written about a "highly successful business in Melbourne". Unfortunately, as we know, the setting up of the enterprise could hardly be described as successful. In any event, you left the public service job some months later. You then engaged in various employments and met your future wife before arriving in Melbourne in late 1992. You re-established your relationship with your father and started the small carpet cleaning business. You had practically no capital and barely adequate cleaning equipment. You entered into a partnership with Scott Willis who had a van, however, it required expensive repairs and money was borrowed from your grandmother for this purpose, part of which was repaid to her.
Following Mrs Hocking's death you went to Cairns and eventually moved to Central Australia where you spent some time living in an Aboriginal community with your wife and family. With the assistance of your wife you redeveloped an art gallery at the settlement known as Lajamanu located on the northern fringe of the Tanami Desert, from which you sold the work of local Aboriginal artists. You were also involved in community activities and it is somewhat ironic that the local police commended your efforts in reducing juvenile crime.
In determining an appropriate sentence to be imposed upon you I have had regard in your favour to your age at the time and to the social environment in which you were living when you committed these offences. Not only were you using large amounts of cannabis, and living with people who Mr Horgan, the prosecutor, described as possessing no moral sense whatsoever, but you were also under the influence of your father. Enough has already been said of his character and his degree of control over you. I have also taken into account in your favour the fact that you are prepared to give evidence against your father should he ever be charged in relation to Mrs Hocking's death.
I have read the references from people who knew you whilst you were working at the Art Centre in Lajamanu, and I have noted that whilst in prison you have been able to discover and develop your own artistic talent.
In view of these factors, and in particular your age, I think there is a realistic prospect that with increasing maturity you could be successfully rehabilitated. This prospect must be taken into account in your favour.
I accept in your favour that as time has passed you probably have developed some sense of remorse, although I also consider that your confessional statements to the police were in part motivated by a sense of anger against your father and a powerful desire that he should be held to account for his involvement and the trouble that he had occasioned for you.
I am familiar with and have had regard to the range of sentences that have been imposed by this Court over recent years in respect to the crimes of murder, arson and burglary, bearing in mind that each case must be considered in the light cast by its own particular circumstances, including those of the individual offender.
Although your offences were related, they were separate in character and time and represent distinct occasions of criminality. In that situation I consider that a degree of accumulation is required in the proper exercise of the sentencing discretion. However, I also consider that having regard to the principle of totality and to the relationship between the three offences that some concurrency in the sentences is appropriate.
Ultimately I have arrived at the view that:
For the murder of Phyllis Fielding Hocking (that is Count 3 on the presentment) you should be sentenced to a term of imprisonment of 17 years.
For the fire bombing of her home (represented by Count 2 on the presentment) you are sentenced to a term of imprisonment of five years, three years of which is to be served concurrently with the sentence imposed on Count 3.
For the burglary of your grandmother's home (that is Count 1 on the presentment) you are sentenced a term of imprisonment for a period of 18 months, 12 months of which is to be curved concurrently with the sentences imposed on Counts 2 and 3, and the balance to be served cumulatively upon them. This creates an effective sentence of 19 years and six months. I fix a non-parole period of 15 years.
I declare that the period of pre-sentence detention, which I understand is 592 days, be reckoned as having been served under the sentence impose and I direct that this declaration and its details be entered in the records of the court.
---
0
0