R v JH
[2012] VSC 13
•24 January 2012
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
No. 0133 of 2011
| THE QUEEN |
| v |
| JH |
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JUDGE: | T FORREST J | |
WHERE HELD: | Melbourne | |
DATES OF HEARING: | 28-30 November, 1, 2, 5-7, 9, 12-14 December 2011 | |
DATE OF SENTENCE: | 24 January 2012 | |
CASE MAY BE CITED AS: | R v JH | |
MEDIUM NEUTRAL CITATION: | [2012] VSC 13 | |
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CRIMINAL LAW – Sentence – Two counts of aggravated burglary – Two counts of theft – Young offender – CNK v The Queen – 12 month Youth Supervision Order and 182 days’ detention at a Youth Justice Centre.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr Maitland Lincoln Mr Paul D’Arcy | Office of Public Prosecutions |
| For the Accused | Mr Philip Skehan | Clerk Meldrum & Hyland |
HIS HONOUR:
Two young men broke into the Hickford family home at Kialla early on Friday 17 December 2010. Bill Hickford, then 62, woke up and disturbed them. One young man fled. The other stayed and set about Bill Hickford with a knife. He stabbed Mr Hickford to the face, to the forehead, to the neck, to the upper chest and to the abdomen. In all, Mr Hickford was stabbed 20 times. By rights he should have died. Without early and expert medical intervention he would have died. I am satisfied that Mr Hickford’s attacker either intended to kill him or, at the very least, intended to cause him really serious injury.
Bill Hickford will forever bear the physical and emotional scars of this attack. He and his partner Joanne Dawson will never feel safe in their own home again. I have heard from both Mr Hickford and Ms Dawson by way of victim impact statements to this Court. The damage that has been occasioned to both of them is profound and enduring.
The young person responsible for this appalling crime will escape punishment for it. The jury by its verdict has concluded that it is not satisfied that you, JH, were responsible for attacking Mr Hickford. Your co-offender, AS, denies that he was responsible and has been indemnified from prosecution in return for giving evidence that you in fact were Mr Hickford’s assailant. The jury was not satisfied that his account was truthful.
I am required to sentence you only for the offences to which you have pleaded guilty – namely two counts of aggravated burglary and two counts of theft. I propose to sentence you on the following factual basis:
· You and AS devised a plan to break into and steal from houses at 11 and 14 Pedder Court, Kialla;
· You and AS broke into 11 Pedder Court. At the time you did so you either knew there was a person present at that address, or you were reckless as to whether a person was in fact present;
· At that address you participated in the theft of an IBM laptop computer, a Fuji digital camera and case, a wallet containing $30 cash, a pair of Fox motorcycle gloves, a Billabong baseball cap and a pair of Nike shoes;
· You and AS broke into 14 Pedder Court a short time later. At this time you either knew there was a person present at that address, or you were reckless as to that fact;
· At that address you participated in the theft of a Rolex wristwatch, a Nokia mobile telephone and a wallet containing $900 cash;
· You took no part in the vicious assault on Bill Hickford and you left once it became apparent that you had disturbed an occupant of the house. I interpose that this is exactly the same basis upon which AS was sentenced.
AS pleaded guilty to equivalent counts – that is, two counts of aggravated burglary and two counts of theft. He was sentenced in the Children’s Court by an experienced and thorough magistrate. I have read his Honour’s reasons for sentence. He noted that AS had spent 86 days of pre-sentence detention at a Youth Justice Centre. He noted that AS had no prior convictions and that he was entitled to significant credit for giving an undertaking to give evidence against you at your trial.
In relation to aggravated burglary and theft at 11 Pedder Court, AS was sentenced to be released on a Youth Supervision Order for 12 months. In relation to the aggravated burglary and theft at 14 Pedder Court, AS was convicted and sentenced to 86 days detention at a Youth Justice Centre. This was, in effect, time already served by AS at the time that he came to be sentenced.
His Honour, the sentencing magistrate, referred to the different process that is undertaken in the Children’s Court, as compared to adult courts, which he said had been ‘recently affirmed’. This is no doubt a reference to the case of CNK v The Queen,[1] a recent decision of our Court of Appeal which considered various aspects of the sentencing of children by adult courts. Relevantly to your position JH, I take no account of the adult sentencing principle of general deterrence in fixing your sentence. The charges you have pleaded guilty to are all matters within the jurisdiction of the Children’s Court. You come to be sentenced in this Court because you have been tried (and acquitted) of a charge that can only be heard in this Court. In sentencing you, I regard myself as bound to sentence you in accordance with the provisions of the Children, Youth and Families Act 2005 (Vic) (“the Act”). I have the power to impose any sentence which the Children’s Court itself might impose under the Act.
[1][2011] VSCA 228.
Mr Skehan, on your behalf, argued that principles of equal justice or parity led to the conclusion that any sentence I impose on you ought use the sentence imposed on AS as a touchstone or reference point. I consider that there is force in this argument. AS pleaded guilty to the same offences to which you have pleaded guilty. He was sentenced on the same factual basis as you. Like you, he had no prior convictions. The only significant distinguishing factor between you and AS is that AS, by undertaking to give evidence in your case, received a discount on the penalty that would otherwise have been imposed. The discount was not quantified by his Honour but is often as high as 50% of the otherwise appropriate sentence.
You were arrested on 23 December 2010 and were then detained in a Youth Justice Centre for 182 days. Mr Skehan submits that ordinary principles of equal justice dictate that the period in detention that you have already served, approximately double that served by AS, is a fair reflection of your position as it compares to AS’s. The only material distinction, he argues, is that AS received a discount for his undertaking to give evidence and you are unable to claim such a discount. In those circumstances, the argument proceeds, any distinction between AS’s sentence and the one I ought to impose upon you is already reflected in the fact that you have served approximately double AS’s sentence. Again, I consider there is force in this argument.
You are now 18 years old. I have asked for a pre-sentence report from Youth Justice and have received a comprehensive and helpful report from Lori Hodgson, Team Leader, Hume Region. You have grown up in a chaotic environment, characterised by your mother’s polysubstance abuse and extreme domestic violence occasioned upon her, initially by your father and then other males in her life. Your father was imprisoned for assaulting your mother and died of a drug overdose on the day of his release. You were then four years old. Your mother remained a polysubstance user and you lacked proper maternal care. She re-partnered when you were seven, and this relationship was also characterised by drug use and domestic violence. Even as a very young boy you were required to cook, clean, shop and at times even bathe your mother.
This lack of parental support was graphically illustrated throughout most of your trial. Youth Justice provided you with a hotel room in the city. You lived there by yourself and attended the Supreme Court to face an attempted murder charge alone.
To your great credit, you are uninterested in illicit drugs, having seen the harm they can do. Consistent with your unstable home life, your schooling has been correspondingly unstable. You attended many different primary schools, as the family moved around. You attended secondary school from Year 7 to halfway through Year 9. You are of slight build, look younger than your years and were physically and emotionally bullied at school.
You attended the local Adult Community Education Centre for a time after leaving school and then took up casual employment in the Shepparton area. You were employed at McDonalds when these offences occurred.
On 18 January this year, you undertook an entrance exam for a pre-apprenticeship automotive course, although I am told that this application has not been successful and it may be that you are successful at the next intake in May. You have recently obtained your learner driver’s permit and it may be that your employment prospects are improved when you obtain a driver’s licence.
It is the opinion of Lori Hodgson that, as a consequence of your unfortunate upbringing, you would benefit greatly from programs designed to reduce the risk of re-offending, in particular psychological assessment and treatment. This would be aimed at enabling you to understand better the impact of your actions upon others.
In your evidence, and indeed in your presentation throughout the trial, I formed the view that you were quite intelligent. I also formed the view that you were remorseful for your part in the events of this evening.
The sentencing of young offenders is of vital concern to the community. It is in the community’s interests that young offenders, if possible, be offered the opportunity to reform. If those offenders can be diverted from anti-social conduct at an early age then the benefits to the community and to the offender are obvious. This approach results in the aspect of rehabilitation assuming, in normal circumstances, significant weight in the factors that go to determine the eventual sentence. As the Court of Appeal explained in R v Evans,[2] this can lead to dispositions which would be regarded as “entirely inappropriate in the case of older and……..more mature individuals.”
[2][2003] VSCA 223, [44].
I consider in the circumstances that I have outlined that I must give significant weight in this exercise to the sentencing aspects of rehabilitation and parity, or equal justice. For the purposes of clarity I re-state that I cannot, and do not, sentence you for the attack on Bill Hickford. That egregious criminal conduct must remain unpunished.
I sentence you as follows:
1.On Counts 3 and 5, that is the aggravated burglary at 11 Pedder Court and the theft at that address, I impose an aggregate sentence upon you. You are convicted and released on a Youth Supervision Order for a period of 12 months.
2.On Counts 4 and 6, that is the aggravated burglary at 14 Pedder Court and the theft at that address, you are convicted and I impose an aggregate sentence of 182 days’ detention at a Youth Justice Centre. I declare that you have already served 182 days by way of pre-sentence detention.
I declare pursuant to s 362A of the Act that but for the pleas of guilty I would have sentenced you on counts 3 and 5 to an aggregate of 9 months’ detention at a Youth Justice Centre and on counts 4 and 6 to an aggregate of 9 months’ detention at a Youth Justice Centre. I would have directed that 3 months on counts 3 and 5 be cumulative on the sentence imposed on counts 4 and 6, which would have led to an effective sentence of 12 months’ detention at a Youth Justice Centre.