STATE OF TASMANIA v MANDY MAREE JONES
AND ADAM LEE HODGETTS MARTIN AJ
COMMENTS ON PASSING SENTENCE 18 OCTOBER 2019
Ms Jones and Mr Hodgetts, both of you have pleaded guilty to the crime of aggravated armed robbery committed on 2 November 2018. In addition, Ms Jones you have pleaded guilty to aggravated burglary. Both crimes were committed on 2 November 2018, that is both crimes to which you Ms Jones has pleaded guilty, committed in the company of Phillip Maxwell Milburn.
At the time of the offending, neither of you had met the victim, but he was well known to Mr Milburn who had previously been in a relationship with the victim’s daughter.
At about 11.30pm on 1 November 2018, Ms Jones and Mr Milburn attended at the victim’s address where you, Ms Jones, rang the front doorbell a number of times. You had a bandana over your face to disguise your appearance and Mr Milburn was standing behind you holding a pillowcase which covered the lower half of his face.
When the victim answered the door, you, Ms Jones, said “we’ve got to talk to you” and started to enter. The victim did not recognise either of you and said “get out of my fucking house”. He then kicked you in the stomach and pushed you backwards so he could shut and lock the front door.
The victim’s premises were in Deloraine. You and Mr Milburn drove back to Launceston to collect Mr Hodgetts. In the meantime, the victim called police who attended, but they left at about midnight.
Mr Hodgetts, you told police on 6 November 2018 that you received a couple of phone calls from Ms Jones at about 2am on Friday 2 November. You told police that she said she wanted you to come with them as someone owed her money and that you were going to play the role of intimidation. In the case of Ms Jones I am not going to make a finding that it was Ms Jones who telephoned you, but in your case, and it does not matter whether it was Ms Jones or Mr Milburn, I accept that you were telephoned by one of them and persuaded to accompany them.
It was about 4.30am on 2 November 2018 when all three of you re-attended the victim’s premises in Deloraine. Ms Jones went to the rear of the house and climbed in through an unlocked window, after which you opened the front door to let the men in. The house was in darkness. At that time Ms Jones was in possession of a Maglite torch and there was a bandana across her face. Mr Milburn was in possession of a wooden baseball bat and wearing a balaclava. Mr Hodgetts was wearing a t-shirt wrapped around his face.
Entering the victim’s home, with intent to commit the crime of stealing, amounted to the offence of aggravated burglary.
The victim woke to see a torch light in the lounge-room, and when he made his way to the lounge-room Mr Milburn grabbed him to prevent him from moving. An altercation occurred during which the victim was struck on the head and face four or five times by either the wooden baseball bat or the Maglite torch; it could have been both. He was knocked to the ground. The victim has been unable to identify who hit him, but he described you, Ms Jones, as the main aggressor and leader throughout the offending. In these circumstances I am unable to make a finding as to who used a weapon to strike the victim.
While the victim was on the ground he was tied up with rope. He lost consciousness briefly, but when he awoke he saw a huge pool of blood and vomit.
There is a debate between the offenders, and I am here also having regard to the sentencing remarks in connection with Mr Milburn, as to precisely who did what in terms of ransacking the house. A large amount of property was removed including a mobile phone, hand tools, power tools, household electronics including a television, jewellery, cameras, the victim’s wallet and keys.
After the property had been gathered up, Mr Hodgetts and Mr Milburn left in the vehicle that had been driven to the premises. Ms Jones drove away in the victim’s vehicle. Within a short time, the victim managed to untie himself and used his computer to send a message to a friend for help. Police arrived a short time later.
As a consequence of the attack, the victim sustained a 2 cm laceration to the scalp which required staples. He also sustained a 1 cm laceration between his eyebrows which was stitched and there was bruising to his body.
At about 8.45am police attended the address of Mr Milburn where they found both Ms Jones and Mr Milburn. All of the victim’s property was located at that address. The victim’s vehicle was found about 300 m away.
After being arrested, you Ms Jones, participated in an interview during which you made full admissions. You said it was not your idea and that you could not remember going to the premises on the first occasion. You admitted going through the rear open window, but claimed that the men pushed you through the window. You admitted letting the men in and walking through the house. In that interview you claimed that the victim ran at you, but was stopped from further attacking you. This claim is not accepted by the State and I am not able to make any finding as to whether that event occurred or not.
During the interview you denied hitting the victim, but said you tried to hit him to fight him off. Someone hit the victim, it appears with a baseball bat, but you said it was not you and would not say who had possession of the baseball bat. You admitted having a torch, but said you did not tie up the victim. You claimed that you kept asking the victim if you could take him to hospital. This is not accepted by the prosecution, and from what I have heard in the totality of the submissions and reference to the victim’s evidence, I am satisfied that you did not keep asking the victim if you could take him to hospital.
You denied that you issued orders and ransacked the house, claiming that you were with the victim as he was hurt. That claim is not accepted by the prosecution, and I am unable to make any specific finding about who removed property from the house. In my view, that is not a significant matter. It appears likely that, in some way or another, all of you played a role, but who precisely picked items up and took them out of the house is not a matter about which I am able to make a specific finding.
Ms Jones, you were asked if you had demanded money from the victim and said you did all the talking because the victim would have recognised Mr Milburn’s voice. Your counsel accepted in submissions that it would have appeared to the victim that you were the one in charge and the main aggressor because you had agreed to take this role.
As to the removal of the property, you claimed that you did not put anything in the car, but you admitted that you drove the victims vehicle away from the premises. You said you were told by one of the other men that the keys were in the ignition. You drove to Mr Milburn’s premises, where you helped unload the property. Then you moved the car around the corner. You said that you were not keeping any of the property and there was no discussion about whether you would get anything.
Your claim about the property does not sit well with the photos of the property on your phone. When you were asked if you took the photos in order to sell the property, you said “probably not I, as such” and said that you did not take all the photos.
Finally with respect to your interview with police, you said that you felt terribly sorry and the “biggest fool”, but had not hurt the victim.
Mr Hodgetts, in the Crown facts it is stated that at some stage you said to Ms Jones that the complainant was losing a lot of blood and they should do something about it. The Crown facts continue that no action was taken by you to assist the victim or his bleeding. Your counsel has pointed out that in the course of his evidence at the preliminary examination the victim said this, or words to this effect: the guy with shorts spoke about the amount of blood I was losing, and whether something should be done about it. That was the only time one of the males spoke. In all the circumstances I am satisfied that you did speak about the complainant losing a lot of blood.
Continuing with the events concerning you Mr Hodgetts, on 6 November 2018 you handed yourself in to the Launceston police station and made full admissions in the interview that followed. As I mentioned, you said you became involved after receiving the calls in the early hours of 2 November, and at the request of one of the others you drove the vehicle to Deloraine. You told police that you went with the full intent of just standing at the door and not being aggressive to anyone. However, this is not accepted by the State. On our own admissions you were going there to be “the fellow that was like intimidation”. When it was put to you that you did not have to go inside the house, you responded that you didn’t want to.
I am satisfied you were told that you were needed for the purposes of intimidation. In those circumstances, you knew that you would be required to be inside the house; you knew that there were two offensive weapons being taken; and that you were all disguised. So, you were in your own way, an active participant in this criminal enterprise.
I accept that you did not know that Ms Jones and Mr Milburn had been to the premises earlier that night, until Ms Jones told you during the drive to Deloraine. As I mentioned, you did not know the victim and you had never been to his house. You told police that Ms Jones went through the window and let you in through the front door. The house was dark. You told police that you heard a man’s voice say “you’re fucked”, and that Ms Jones went “completely ballistic”. As I said, it is accepted by Ms Jones that she would have appeared to be the aggressor as she was the one who was speaking and behaving in that way, but I am not prepared to make a finding against Ms Jones that she went completely ballistic.
You were unable to see what was happening and you told police that when the lights came on you saw an elderly man in front of you; you thought he was hurt. It was at that time that you took hold of the bat and walked out. You are not sure, but you think you took the bat from Mr Milburn. You were very concerned about the amount of blood. You were asked to tie up the complainant but you refused, and in the interview you admitted removing the TV and two suitcases from inside the house.
I accept that you were worried about the conduct of Ms Jones. You told police that you were following her around, but I find it difficult to accept that that was your primary activity.
Having regard to all of the material before me, I do accept that you played a lesser role. In substance, you kept guard although you obviously helped remove some property. It is obvious also from the facts that you were not involved in the first visit to the house nor were you involved in the planning. So to this extent, you played a lesser role.
In the interview you told police that you took Mr Milburn back with you to Launceston and that you did not end up with any of the property. I accept that. You also told police that you wished it had never happened and, following the submissions of your counsel, I accept that you are remorseful. In your case I accept you thought there was money owed, possibly in connection with drugs, but that you came to the realisation that it was nothing to do with drugs when you saw the victim and took note of his age.
Somebody struck the victim, it appears in all probability, with the baseball bat. Human blood was detected on the torch with DNA matching that of the victim and you, Ms Jones. Possible blood was detected on the baseball bat, but it was not suitable for DNA analysis. As I said earlier, it may well be that the Maglite torch was used as well, and as I also said, the prosecution concedes that it cannot prove beyond reasonable doubt which of the three offenders physically assaulted the victim, but each of you are criminally responsible as you were acting in pursuance of a joint criminal enterprise. I would add there, however, that I am satisfied that it was not Mr Hodgetts who applied actual physical violence to the victim.
The crime was aggravated by the fact that there were three of you acting in company and two of you were armed with dangerous or offensive weapons. It was aggravated by the fact that bodily harm was caused to the victim at the time the robbery was committed. It is also aggravated by the fact that it occurred in the home of the victim in the early hours of the morning. This was a time at which the victim was entitled to feel safe in his own home. As it turned out, such a feeling was delusional in this case. The sanctity of the home is highly regarded by all reasonable thinking members of our community and invasions like this are not only too common, but they cause grave disquiet amongst all members of our community. It was a very serious offence, and in addition it has had a very significant impact on the victim.
In his victim impact statement, the victim has explained that during the offending he felt completely helpless and thought he was going to die. Not surprisingly, he was terrified.
The wound in his scalp required three staples and he was unable to wash his hair properly for about a month. In addition, he was bruised below his right eye which was sore for over three months and had bruising down his back which was sore for approximately two weeks. He needed help bathing.
From the victim’s perspective, the attack has forced him to rely on help from people rather than being independent and it has had a ripple effect on his family and friends in a negative way. Previously they would walk into his house day or night, but they now need to announce their presence. The victim is on alert to defend himself.
Initially the victim could not stay in his own home. He felt very scared and, when he fell asleep, he had frequent nightmares. He still experiences anxiety if there is an unusual or unexplained noise and, during some nights, he experiences extreme fear and feelings of being unsafe in his own home. The victim has become hyper-vigilant when outside in the evening and does not like going outside. He feels like he is waiting for something bad to happen.
The victim’s sleep has not returned to normal and there are occasions when he remains awake until 4.30am, jumping at noises and feeling extremely scared. He feels safer sleeping during the daylight hours and this has an impact on activities which he previously enjoyed.
The victim has started counselling in the hope that he will obtain strategies to help with his trauma and anxiety. In his words, “The crime was a massive invasion of my privacy. I have a right to feel safe in my home and now I do not.” This victim and all members of our community have a right to feel safe in their home and your crime and similar types of crimes invade that feeling and destroy it.
As to matters personal to you Ms Jones, you are now 46 years of age. Normally you live in Queensland with your long-term partner and a 26 year old son. The family is financially secure and is about to open a business in Queensland.
Prior to your involvement in this crime, you cared for both your partner and your son and supported the family by growing vegetables and selling them from home. Both your partner and son have mental health problems and you have been caring for both of them.
Ms Jones, you have had an extraordinarily sad and disturbing history. You were born in Ulverstone and your mother separated from your father when you were very young. You were largely raised by your mother and step-father, but your childhood was marred with significant physical and sexual abuse, neglect and torture at the hands of both family and non-family members. There were several foster placements and a disrupted education.
You have memories of what happened to you from the age of 5, but from reading hospital notes you have become aware that the abuse started when you were aged 3 months. Counsel properly decided not to go into the details, but gave one example. At the age of 5 you were locked in a cage with greyhounds for nine days and sexually abused. You were also sold to men by your mother at the age of 12.
You are an aboriginal woman, but you are seen in the family as white because of your appearance. There was great emotional and mental isolation from the family. You remember being given potions in an attempt to make your skin darker, and you believe this has a direct correlation to your gastrointestinal problems which has resulted in surgeries and chronic pain syndrome.
As a consequence of the trauma and dysfunction attending your upbringing, you were only able to cope with school until grade 8. An attempt at grade 9 was quite unsuccessful.
Despite your upbringing, in your early teens you decided it would not take control of your life and you obtained employment. You have undertaken various manual jobs over the years. Sadly, while employed, you commenced a relationship with a man who became violent towards you. You had your first child at the age of 17 and you have born 5 children. One of the children died in utero after a family violence incident, and the surviving twin is the 26 year old who now lives with you.
At the age of 6, your son who was living with his father at the time, was killed in a horrific arson attack on the home. The son who now lives with you witnessed his brother die in that fire and has never recovered. He now suffers from depression.
It is not surprising that after the death of your son in 1998, you entered a period of deep depression. You lost custody of your baby daughter. This exacerbated your depression and you struggled to come to terms with the loss of the children. In reality you have never recovered from that. Your partner at the time segregated you from society generally, and you were forced to home school both boys.
It is to your credit that you now have a good relationship with all of your children, two of whom have moved interstate.
I have been provided with a report from a psychiatrist who saw you in May 2019. He had access to various materials concerning your offending and your psychiatric history. You reported to the psychiatrist a long history of self-harm and substance misuse.
In the psychiatrist’s view, there was no evidence of significant cognitive impairment and you did not present as depressed or possessing psychotic features. However, you described nightmares and flashbacks related to physical and sexual trauma you had endured as a child.
You told the psychiatrist that although you had smoked cannabis, after the death of your son you developed a significant amphetamine habit, which in later years morphed into methamphetamine use.
Over the years, a number of diagnoses have been made of your psychiatric condition, which is unnecessary to detail. You told the psychiatrist that you developed imaginary friends as a way of coping with the neglect and trauma that you endured as a child. This appears to have continued in your adult years. At times you have received a diagnosis of conversion disorder, which is a mental health condition in which a person has physical/neurological symptoms that cannot be explained by medical evaluation and are normally better understood in the context of ongoing psychological/psychiatric problems. The psychiatrist reported that your presentation is complicated by nightmares and flashbacks. In his view, currently, a more appropriate diagnosis might be complex post-traumatic stress disorder.
In the view of the psychiatrist, your problems with personality dysfunction are significant and undeniable. You expressed remorse to the psychiatrist, and I accept that you are sorry for what you did. You told the psychiatrist that your renewed use of illicit substances had an effect on your judgment prior to the offending.
In the opinion of the psychiatrist, it is likely that imprisonment will have an adverse effect on your mental health, but services are available to attempt to ease and reverse those effects.
As to the offending, your counsel told me that you were threatened in the way of a threat to the physical welfare of your child. You told the psychiatrist that you committed the offence as a consequence of threats made to the health of your son. Ms Jones, I do not have any evidence, apart from the submission of counsel, that some threat was made to your son, and I am unable to be satisfied on the balance of probabilities that this was the true state of affairs. In my view, that claim does not sit well with your undertaking such an active role.
I accept, however, that you were to be the speaker and main aggressor because the victim knew Mr Milburn. Through your counsel you have accepted that you were shouting demands and, as I said, from the victim’s perspective it would have appeared that you were the lead and main aggressor. I cannot make a finding as to who was the leader in this overall enterprise, except that it was not Mr Hodgetts.
Both of you, and Mr Milburn, have attempted to play down the precise roles that you played. It makes it very difficult for a Court, but I am satisfied that Mr Hodgetts was not the leader. But as to whether the whole event occurred because of Mr Milburn or you Ms Jones, I am unable to make a specific finding.
At the end of the day it does not matter that much because all three of you willingly took part, as I said, disguised and knowing that two were armed. I reject the suggestions that you Ms Jones, stayed with the victim because he was injured and kept asking him if you could take him to hospital.
Mr Milburn was sentenced on 26 June 2019 and the facts presented to the sentencing judge included assertions about your role, Ms Jones, which are not part of the case before me. I will impose sentence on the basis of the material presented to me and the findings that I have spoken about.
Your counsel told me that you used drugs from a young age, but that you were able to live a normal and productive life in Queensland drug free. Unfortunately, when you went to stay with Mr Milburn after an argument with your son, you fell back into using drugs, and you were using methamphetamine at the time of this offending. It is an extraordinarily insidious drug.
As to the future, obviously you will not find it easy to succeed in rehabilitating yourself. Drugs coupled with your psychological issues, remain significant obstacles. You have a record of prior offending which also suggests that your prospects are not good. However, as I said, I accept that you are remorseful and that you have pleaded guilty for which you will be given credit, and that is a start.
Notwithstanding that you are finding prison difficult because of flashbacks and nightmares, and problems accessing medication, there are also positive signs from your conduct whilst in prison. You are working as a cleaner and undertaking a TAFE course in hairdressing. You are completing a certificate in responsible service of alcohol. You have also started a choir. So, Mr Jones there are positive signs and no doubt when you get back to Queensland, you will be in a better position to continue efforts at rehabilitation. But, it must be said, there is a long way to go.
I should add in this context, that part of the basis of my view that there are some prospects are the referees who speak highly of you. It is obvious that to those who know you, you possess good qualities. Hopefully those good qualities will prevail in the future.
Mr Hodgetts, you are 39 and single. You are the father of four children aged 12 to 22 years. There are two children in care and the other two live in Tasmania. You have weekly contact with them.
At the age of 2 your father deserted you because he thought you were not his biological child. You now have some contact with him. Through the ages of 5 to 15 you suffered physical abuse at the hands of your step-father who was an alcoholic. Your mother was very supportive of you and remains so. You are your mother’s carer and you help particularly with the cleaning and the shopping, but you are otherwise unemployed. You have no assets or savings and you are paying off $6000 in fines at the rate of $50 per fortnight.
As to your health, you suffer from hypertension and obstructive sleep apnoea. In order to sleep properly you need a sleep apnoea machine and you are worried about access to that machine if you are serving a sentence of imprisonment. I will be imposing a sentence of imprisonment today which you will be required to serve. I make it clear to the prison authorities that I expect that they will make your sleep apnoea machine available to you without delay. Without the machine there are debilitating effects from your condition and, quite frankly, it is commonly known that a sleep apnoea condition can be quite dangerous. So in these circumstances it is the responsibility of prison authorities to make sure you have access to your machine.
Mrs Ansell, I think it would be of assistance in this regard if you could make sure the Office of the Director informs the appropriate authorities of that position.
Mr Hodgetts you suffer from a mixture of anxiety and depression. This was exacerbated by the sudden death of your 3 year old nephew. In addition, you suffer from blood pressure difficulties.
I accept, when it comes to this offending, as I have said, that you were not the instigator. Your counsel has told me that you agreed to go because you had been friends with Mr Milburn since childhood and you did not want him to get into trouble. You feel that your lack of sleep over the previous two days affected your ability to think rationally. It was a spur of the moment decision, in ignorance of the true reason for the crime and in ignorance of the fact that Mr Milburn and Ms Jones had been there previously.
You have appeared in the court’s previously. I note there is no history of dishonesty and there is only one offence involving any form of violence, and that was a common assault in November 2004 which occurred in domestic circumstances. Although you have not previously served a sentence, there were three suspended sentences imposed in the past. As I said earlier, I accept that you are sorry for what you did and that you are determined to rehabilitate yourself.
Having regard all of the matters that have been put to me on behalf of each of you and the seriousness of your offending I have decided that the only appropriate sentence is a period of imprisonment.
Ms Jones, your plea was delayed somewhat by issues concerning your psychological condition, so I treat it as a reasonably early plea.
Mr Hodgetts you are not able to obtain the benefit of an early plea.
I have also had regard to the sentence imposed upon Mr Milburn. As I have said, Mr Hodgetts was not involved in the planning and played a lesser role. In comparing Ms Milburn and Ms Jones, it is not appropriate for me to undertake some form of detailed analysis of plusses and minuses. Looking at it broadly, their roles were much the same. Mr Milburn has a worse record of offending. Ms Jones was very active in the commission of the crime, but she has a very unfortunate and distressing previous history.
Consistency in sentencing between offenders is an important feature of the criminal law, and unless there are distinguishing features, generally speaking, offenders should receive the same sentences when they have committed crimes jointly. But, in this exercise, it is not appropriate to engage in a detailed analysis of plusses and minuses. Overall, it appears that balancing the circumstances of the offending and matters personal to each of Mr Milburn and Ms Jones, including pleas of guilty, it would not be appropriate to distinguish between them.
Ms Jones, you are convicted and I impose a single sentence of three years and nine months’ imprisonment commencing 29 March 2019 and you will be eligible for parole after you have served half of that sentence.
Mr Hodgetts, as I have said, you were not involved in the planning and you played a lesser role, but yours was not an early plea so you do not get the benefit that was received by Mr Milburn and Ms Jones of the early plea. Again, balancing these matters as best I can, I need to bear in mind in all of these exercises the importance of imposing sentences that are appropriate to the criminality of the conduct. I have determined that the appropriate sentence is one of three years’ imprisonment commencing 17 October 2019, and you will be eligible for parole after serving half of that sentence.