Director of Public Prosecutions v Heffernan

[2014] VCC 1561

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT BALLARAT
CRIMINAL JURISDICTION

CR-14-00654

DIRECTOR OF PUBLIC PROSECUTIONS

v

AARON HEFFERNAN

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JUDGE:	HIS HONOUR JUDGE GUCCIARDO
WHERE HELD:	Ballarat
DATE OF HEARING:
DATE OF SENTENCE:	16 September 2014
CASE MAY BE CITED AS:	DPP v Heffernan
MEDIUM NEUTRAL CITATION:	[2014] VCC 1561

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P Bourke
For the Offender	Mr H Roberts

HIS HONOUR: 

1Aaron Heffernan, you have pleaded guilty to 34 charges of burglary and 30 charges of theft as well as a charge of attempted burglary and four related summary charges. 

2The prosecution opening was tendered as an exhibit and will be retained on the file.  It is a detailed document which outlines each of the offences charged and their circumstances. 

3For the purposes of this sentence I will state a brief summary of the offending.  Between 16 January and 20 November 2013 you committed 34 burglaries and one attempted burglary.  These were linked by investigators in a targeted police operation which dealt with these burglaries in the Ballarat area.  The burglaries appeared to fall into the modus operandi of a burglary for which you were charged in August 2013. 

4The burglaries were committed during the daytime in Ballarat and surrounding areas on private homes.  You would frequently knock on the door.  You would enter from the rear of the premises.  Entry was gained by a screwdriver used to force the seal of a window, a door, or breaking a glass panel as to create access to a lock.  You would target then the master bedroom which would be ransacked with bedside tables, robes and cupboards opened and searched. 

5The type of private dwelling was very similar in appearance; well-kept with unrestricted but relatively unexposed access with the open or unlocked gate to the back of the premises on a lot of occasions. 

6Observations made by witnesses in the vicinity of the houses at the relevant times were of a person fitting your description and that of your vehicles.  Your mobile phone's location from 8 October onwards was determined to be close to the burglaries at the premises which you burgled immediately prior, after or at the time of the burglary. 

7The summary sets out each burglary and the instances of theft attached thereto.  There are notable matters pertaining to your offending.  You committed these burglaries during daylight hours.  You stole phones, computers and technology items, jewellery, domestic items and cash.  On a few occasions nothing was stolen.  On another occasion you attempted to enter and were not successful.  On another occasion some of the cash stolen was left behind in the premises.  On at least two occasions you came face to face with the proprietors in their own homes. 

8On 9 October 2013 you entered the property and told the owner you had used water for your car, and upon the owner returning later in the afternoon, found her home burgled by you.  On 3 November, a day in which you committed five burglaries netting over $60,000 in value, you entered a home at about 1 pm from the back, having knocked on the front door, and then proceeded to walk through the house, calling for anyone, looking for directions.  You ran into the owner in the front room when you fled via the back door. 

9On seven occasions you made enquiries with the next-door neighbours, asking purportedly for directions or after a particular person, in order to perform a reconnaissance on the properties before you entered them. 

10By 20 November you were under police surveillance in Mount Clear when you entered premises and stole a quantity of coin, after which you were observed to go to the bank and endeavour to change them for notes.  You then returned home for a short while and texted your co-accused, Jessica Young, "I can't make money sitting at your house all day.  Sometimes you have to let me do what I have to do". 

11You then attended another home at which you stole $450 in jewellery and cash.  You were seen by police inside that house.  You were arrested in the laundry of that place and jewellery and cash were recovered from your person. 

12A week before, on 14 November, you committed three burglaries; at least one of which was committed after you attended the Ballarat Magistrates' Court.  You committed one burglary on that day with your sister.  You asked her to knock on the door, which she did, before you entered the home.  This was after the two of you had gone to court that morning. 

13On your arrest your black Honda Astra was searched and a stolen Apple iPod was found.  You drove this car or a white Ford station wagon or a dark coloured Jeep or four-wheel drive to many burglaries.  Property like a camera and a vacuum cleaner were found at the house of Jessica Young, your co-accused.  She told the police you had given her these items as well as about $5,000 in cash.  She told the police you referred to committing burglaries as "going to work". 

14On 20 November police interviewed you and you told them that you attend Ballarat once a week to see your two children and then return to Melbourne.  You denied being in Ballarat in the days prior to your arrest and any involvement with burglaries you said was "unlike me". 

15It is noteworthy that the burglary charge for which you were charged in August 2013 you committed in April 2013 on the tenth.  On that day you had committed three burglaries which are covered in this indictment. 

16The first of the summary offences, dated 11 April 2013, relates to your possession of rubber gloves and two screwdrivers for use in the commission of burglaries.  The second charge relates to the day of your 20 November 2013 arrest and relates to the same kind of items; gloves and screwdriver.  The third is a charge of resisting arrest on that day, and the fourth relates to dealing with proceeds of crime between September and November, namely jewellery which you pawned.

17Although each offence is properly charged individually, it can be said properly that the majority of the charges relate to what is really a crime spree; a criminal course of conduct from mid-September 2013 to the end of November 2013.  There is one count in January 2013, an attempted burglary in April 2013 and three burglaries occur, as I have said, on 10 April 2013.  The rest occurring between September and November, on 18 days, each a few days apart, ten days on which you committed single burglaries on that particular day and eight days in which you committed two or more burglaries, culminating on 3 November in which you committed five and on 14 November in which you committed three, including after the court appearance. 

18

You had been bailed in August 2013 and so these burglaries past

16 September were all additionally committed whilst you were on bail.  This is an aggravating feature of your offending.  In my view, each burglary or attempt is properly viewed within this period of criminal conduct as discrete and serious offending, each of which will warrant some moderate cumulation. 

19As for the thefts, in my view, they follow the burglaries in each instance, except for Charges 24, 31, 36 and 51 where nothing was stolen, and while properly recognising that each theft is a crime separately committed, a moderate amount only of cumulation will be appropriate in the circumstances. 

20Burglary and the consequent theft of property from private homes of citizens is a social evil which the law regards as a serious offence.  It is a fundamental right of living our community that people should feel safe and secure in their own homes, and so burglary is a violation of that right.  The community rightly looks to the court to address this breach of privacy and security and the sanctity of the home.  Domestic burglaries carried out during the day may be less heinous than night time intrusions, but they nevertheless have the potential to inflict upon vulnerable occupants fear and terror. 

21Your offending demonstrated a degree of premeditation and planning.  The adoption of effective tools of entry, the use of gloves, reconnaissance of homes and their vicinity, the targeting of particular homes, and once inside, the targeting of particular items, coupled on a few occasions with brazen confrontation with you on their property which you were prepared to face and deal with by lies and bravado. 

22The predominant sentencing purpose must be general deterrence.  I am strongly of the view that those who are likeminded to partake in conduct of this kind must anticipate stern punishment from the court.  This criminal behaviour, particularly conducted over a period and in circumstances, must be denounced and punished. 

23I received victim impact statements from many of the occupants.  The disruption caused to the lives of the homeowners is the least of the impact; apart from many costs of repair and security, the trauma of re-entering a home that has been ransacked is a serious matter, as reflected in these statements.  There is continuing unease, disquiet and anxiety.  The distress of the invasion is made worse by the loss of property; particularly items of sentimental value which are irreplaceable.  These are ongoing and consequential costs, of course, to the community as well, but these victims have written of an invasion in terms which makes clear their trauma and distress, and I take these statements into account. 

24The values of items stolen are to some extent quantifiable, and the sentences will reflect the relative nature of the different values.  However, memories, photographs and certain family items are not able to be valued, but not for that reason, must be considered less in assessing the gravity of the offending. 

25Your conduct had potential for considerable financial benefit to you, and over this relatively short time you stole over 150,000 worth of goods.  It was only due to your ineptitude that you were not able to exact that value.  Though by disposing of most items, you did not realise that value.  Nonetheless, you gained substantially from this conduct. 

26I take your prior criminal history into account.  In 2005 when you were 18 you were placed on a community based order for attempted burglary and theft.  After you had been fined on an earlier occasion that year for attempted theft and being unlawfully on the premises, a year later in August 2009 in this court you were placed on another community based order for attempted robbery and armed robbery.  In 2008 at age 21 you were convicted for burglary, theft and entering a building with the intent to steal as well as arson.  You were sentenced to 19 months with a non-parole period of eight months.  In 2006 the community based order for attempted robbery and armed robbery was breached and in 2009 you were ordered to serve time concurrently.  Again in 2009 you received a 42 day sentence for burglary and theft. 

27These antecedents are relevant because they provide an indicator of your moral culpability, the existence of a proclivity for crimes of dishonesty, the need for community protection and the proper assessment of your prospects of rehabilitation.  These priors, in my view, indicate the need for specific deterrence, having regard to the apparent failure of previous penalties to moderate and change your behaviour. 

28I take into account your plea of guilty.  It was made at an early stage and there was no contest at the committal.  I will accord the plea discount which I am bound to by law.  I accept your plea as an acceptance of responsibility for wrongdoing, although practically inevitable and despite your denials to the police.  The plea has a utilitarian value, being having avoided a long trial. 

29I accept that in a rudimentary way you are remorseful for your actions, although such expressions by you are probably not the full contrition which remorse usually conveys.  You have minimal insight into your offending behaviour according to a forensic psychologist, David Ball, and while you acknowledge the criminality of your behaviour, you basically indicated you did what you did to survive, as you saw it. 

30Mr Ball provided a report dated 10 September 2014 for the court.  You appeared of dull intellect but with no significant anxiety or mental illness or any evidence of cognitive impairment, although by his estimation your IQ would fall on the borderline range, according to Mr Ball.  You are prone to impulsivity, poor judgment, failure to learn from previous mistakes. 

31You are now 27.  You are in good physical health although you have been on antidepressants to deal with your current situation.  You come from a dysfunctional family.  Your parents separated when you were 13.  Your mother re-partnered.  As a child you were diagnosed, I was told, with ADHD and you were medicated.   You left home at 16, left school at year 10 and you have been in receipt of a pension from that age.  You did not achieve academically and you were suspended and expelled from schools.  Your only employment was crushing rocks between 2010 to 2012.  Although single, you have fathered two children who are eight and ten. 

32You started drinking at age 14 on a daily basis.  You have misused prescription medication and methylamphetamines.  You were so using in 2013. 

33You told Mr Ball that the offending was related to your endeavour to support an ex-partner and the children.  He found that you believed that in order to survive you must be assertive, self-reliant and competitively strong.  This belief is in the context of low self-esteem, anger and disinhibition due to drug use.  He diagnosed severe stimulant use disorder and severe alcohol use disorder in early remission in a controlled environment like you have been recently forced into by reclusion.

34You have an antisocial personality disorder, coupled with a persistent depressive disorder.  His assessment of your rehabilitative prospects is that this task presents "with a number of challenges" which can only be met with structured treatment.  He noted a continuing rise of antisocial features within your personality in which you have developed a resentful moodiness and low tolerance for frustration. 

35In my view, these factors make your rehabilitation very guarded.  However, I take these factors into account as I take into account your participation in the courses which you have undertaken and which certificates of completion were tendered, particularly the cycle educational relapse prevention program which you completed in May of this year, specifically targeted to drug use. 

36You are close to your father who is a carer for a grandchild, given its mother, your sister, cannot look after it.  Your sister was also involved in the offending and received a non-custodial disposition.  You speak to your father often and his support may be the positive element which will assist you in the period to come. 

37You are functionally illiterate and hope to address that in custody.  You also, I was told, intend to move away from these areas of your past activity.  Your relationship with Ms Young, I was told, is now over.  I was told that that may enable you to forge some new life. 

38I do not intend for this sentence to be a crushing sentence, particularly in view of your age.  But with a view to the principle of totality, the sentence will be what, in my opinion, is a proper response to your criminality.  It is clear also in your case that any drug addiction or related disorder I do not consider a mitigating factor, as it does not reduce your moral culpability, and the continued choice you make of resolving your lifestyle and your problems with the premeditated commission of burglaries and thefts requires general and specific deterrence as significant considerations. 

39There are here no Verdins like aspects to consider, nor was it argued by your counsel on your plea. 

40In my view, the charges of burglary where nothing was stolen should still carry the same sentence as the other burglaries, as a penalty reflecting the criminality involved in this offence, in my view, is exactly the same for one where a substantial amount is consequently stolen as one in which nothing is stolen.  Despite the aggravation of the offence being committed on bail, in my view, the sentence for each burglary is a proportionate sentence to the criminality involved.

41On each of the 35 charges of burglary you will be convicted and sentenced to two years' imprisonment on each. 

42

On Count 3 of the attempted burglary, you are convicted and sentenced to

12 months' imprisonment. 

43As for the thefts, in my view here, the moderate and varied cumulation reflects the amounts stolen, which will vary in some cases, and in this sense it will be a combination with the burglary charge which pertains to it and it will be a proper reflection of the total criminality of your conduct. 

44In relation to the thefts, on Counts 2, 11, 19, 30, 33, 35, 40, 44, 48, 50 and 53, you are convicted and sentenced to 12 months' imprisonment on each. 

45On Counts 5, 7, 9, 13, 21, 23, 26, 28, 42, 46, 55 and 59, you are convicted and sentenced to nine months' imprisonment on each. 

46

On Counts 15, 17, 57, 61, 63 and 65, you are convicted and sentenced to

six months' imprisonment on each. 

47On Count 38, you are convicted and sentenced to 15 months' imprisonment. 

48On the related summary offences on going equipped to steal, you are convicted and sentenced to one month imprisonment on each of the two charges; 13 and 94. 

49On the resist police, Charge 97, you are convicted and fined $400. 

50On Charge 126, dealing with proceeds of crime, you are convicted and sentenced to three months' imprisonment. 

51All of those sentences on the related summary charges are to be concurrent with the base sentence which will be on Charge 1, the burglary. 

52I order that one month of each of the 34 burglary charges from two to 64 be cumulative on Count 1; that is, 34 months. 

53I order that Charge 3 of attempted burglary be concurrent on the sentences for burglary, so in relation to the burglary that makes a total of 58 months. 

54I order that on Counts 15, 17, 57, 61, 63 and 65, they also be concurrent with the sentences for burglary.  Those are theft counts. 

55I order that on Counts 2, 11, 19, 30, 33, 35, 40, 44, 48, 50 and 53, that two weeks of each of those sentences be cumulative on the sentence for burglary and I order that on Counts 5, 7, 9, 13, 21, 23, 26, 28, 42, 46, 55 and 59, one week of each will be cumulative, which I calculate at three months. 

56I order that two weeks of Charge 38 be also cumulative on the sentence.

57That is a total effective sentence of 67 months; five years and seven months. 

58I order a non-parole period of three years and eight months. 

59I declare that you have served 298 days, excluding today.

60I will sign the orders for compensation and for the disposal of certain items.  I will sign the individual compensation orders today. 

61MR ROBERTS:  As Your Honour pleases. 

62MR BOURKE:  As Your Honour pleases.

63HIS HONOUR:  Are there any orders that were foreshadows in relation to any of the cars that were involved in the commission of the offences?

64MR BOURKE:  No.  That has been considered, Your Honour, and no order is sought.

65HIS HONOUR:  Yes.  I do not think there is anything else that I need to do. 

66But for your plea, Mr Heffernan, I would have sentenced you to six and a half years with a non-parole period of four and a half years. 

67You can remove Mr Heffernan.  Thank you. 

68If you gentlemen want me to run through those numbers again, I can.  In effect there are - in relation to the burglary, each burglary carries a conviction and sentence of two years.  Count 1 is the base sentence; two years or 24 months if you like.  In relation to the theft there are three groups; one group of counts to which I have sentenced to 12 months, one group to which I have sentenced to nine months and one group to which I have sentenced to six months, and Count 38 which I have sentenced for 15 months. 

69The counts which carry a six months' imprisonment I have made concurrent, and they were counts where the sums were low sums, below a thousand dollars in any event.  I have then made concurrent also the charges where nothing was stolen and I think there was something like four of those, and I can again repeat those if you wish. 

70MR ROBERTS:  Which counts were those, Your Honour? 

71HIS HONOUR:  I will go through them.

72MR ROBERTS:  Thank you, Your Honour.

73HIS HONOUR:  They were Counts 24, 31, 36 and 51.  So they are burglary charges and they did not carry any theft charges accompanying them.

74MR ROBERTS:  Sorry, could you just explain ‑ ‑ ‑

75HIS HONOUR:  So the three groups of theft charges were ones where I convicted and sentenced to 12 months, then nine months, six months and one count in which I sentenced to 15 months.  The six months charges, if I can call them that, I made concurrent.  The Count 38 which had 15 months, I ordered that two weeks of that be cumulative.  I ordered that two weeks of the charges that carry 12 months be cumulative on each, and that one month on the counts which carry nine months ‑ ‑ ‑

76MR BOURKE:  One week.

77HIS HONOUR:  Sorry, one week, be cumulative.  If you add those to the 58 months which pertain to the burglaries ‑ ‑ ‑

78MR ROBERTS:  Sorry, I beg your pardon, Your Honour.  I just did not get all those numbers down on the four charges for which Your Honour did not impose any cumulation.  Twenty-four, 36.  I did not catch the other two, I do beg your pardon. 

79HIS HONOUR:  Just pardon me for a moment.

80MR BOURKE:  They are burglary counts, Your Honour.

81HIS HONOUR:  Those four do carry a sentence each and I have cumulated a month for each of those.  The ones that are concurrent are Counts 15, 17, 57, 61, 63 and 65.  Those are the ones that are concurrent.  Each of the other theft counts carry either a two week or a one week concurrency which give a total of 67 weeks, which is five years and seven months. 

82If you want me to repeat the breakdown of the theft counts, I can do that so that you have those three groups.  I will do that now. 

83MR BOURKE:  I am content I have got those count numbers, Your Honour. 

84HIS HONOUR:  Yes.

85MR BOURKE:  The enquiry at the Bar table is, Your Honour has dealt with I think four counts of burglary that did not have a theft with them.

86HIS HONOUR:  Yes.  They still carry the two year sentences with one month cumulation.

87MR BOURKE:  Right.  And those counts are, Your Honour?

88HIS HONOUR:  Those counts are 24, 31, 36 and 51.  But they are only noted in as much as they do not carry a theft accompanying charge.

89MR BOURKE:  Yes.  So they are dealt with as the other burglary counts are ‑ ‑ ‑

90HIS HONOUR:  Correct.

91MR BOURKE:  ‑ ‑ ‑ one month cumulation.

92HIS HONOUR:  Correct.

93MR BOURKE:  Yes.

94HIS HONOUR:  And the only concurrent times that I have ruled in relation to the thefts are the charges where I nominally signed a six month sentence because of the amount involved.

95MR BOURKE:  Yes, Your Honour. 

96MR ROBERTS:  Thank you for that clarification, Your Honour.

97HIS HONOUR:  Yes, thank you.  Yes, the attempted burglary charge is the only one where there is a 12 month sentence.  I think that is Count 3.

98MR BOURKE:  It is, Your Honour.

99HIS HONOUR:  Yes.  Where I've imposed - sorry, 15 months' imprisonment, not 12.  Yes, if I said 12 in relation to Count 3, it should be 15 months.  I will try and have those orders signed for you today, Mr ‑ ‑ ‑

100MR BOURKE:  Thank you, Your Honour. 

Note to revision : After delivering this sentence it was brought to my attention that I had made an error in the calculation of the period of incarceration, because I had equated each 4 weeks of the sentence  to one month which, given that one week is 7 days means that in fact ‘one month ‘ is in fact an erroneous measure of time in arriving at a total.

In response to this I informed both prosecution and defence of this matter and announced in open Court the correct reckoning in relation of the sentence, which would have to enumerate the days cumulated rather than months. The sentence is unaffected as far as the Burglary charges are concerned.

The Base sentence is of 24 months and the cumulation of one month on each remaining Burglary charge amounts to 58 months. To this are added 2 weeks (14 days) each cumulative for 12 charges of theft, that is 168 days, plus 1 week (7 days) each cumulative for the other 12 charges of theft, that is 84 days incarceration, making a total of 58 months and 252 days. This does not effect the non parole period or the declared period of pre sentence detention.

I have added this note as the in Court correction was neither recorded by the Transcript Services nor by Court equipment.

F.R Gucciardo

Judge of the County Court

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