Director of Public Prosecutions v Heke

[2014] VCC 2271

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR -14-01568

DIRECTOR OF PUBLIC PROSECUTIONS

v

NEVADA HEKE

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JUDGE:	HIS HONOUR JUDGE MAIDMENT
WHERE HELD:	Melbourne
DATE OF HEARING:	30 October 2014
DATE OF SENTENCE:	18 December 2014
CASE MAY BE CITED AS:	DPP v Heke
MEDIUM NEUTRAL CITATION:	[2014] VCC 2271

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. O'Halloran	Office of Public Prosecutions
For the Offender	Mr J. Torney

HIS HONOUR:

1Nevada Heke, you have pleaded guilty to an indictment charging you with intentionally causing injury and with damaging property.  You have also admitted a number of prior convictions and court appearances including an appearance before Her Honour Judge Cannon from which you were sentenced on 29 April 2013 by Her Honour.  I note that a number of your prior convictions and court appearances involve offences of a not dissimilar kind in the sense that they involved violence.  Unfortunately there are a number of contraventions of personal safety intervention orders. 

2The prosecution tendered and relied upon a prosecution opening upon the plea, which is Exhibit A.  That was read out, I am not going to repeat it in detail but it shows that on the afternoon of 5 March 2014 you followed your victim onto a train.   I am satisfied that you quite deliberately did that presumably out of some feeling, rational or otherwise, of being slighted by that person.  When the opportunity arose, or your inclination took over, you attacked him and caused him injury with your fists and your feet.  Indeed you sustained your attack after he was incapacitated.

3The charge of damaging property arose from damage that you did to the door and walls of a holding cell after you had been arrested in relation to these matters.

4Your victim sustained injuries which not might, on one view, have amounted to serious injuries.  That is not the charge for which I am sentencing you nor the one to which you have pleaded guilty.  I am conscious that although the injuries look particularly unpleasant from the photographs that I have been shown, I am not to be sentencing you as if you had pleaded guilty to the more serious charge of intentionally causing serious injury.

5I am satisfied that the attack was unprovoked in any real sense and was vicious and deserving of a term of imprisonment.  The criminal records suggest that you are a person who has an inclination towards violence.   That underscores the proposition that a substantial term of imprisonment is appropriate. 

6Ordinarily I would have been looking to a quite substantial term of imprisonment well in excess of that which I intend to impose.  It seems to me that this offence and having regard to your record requires attention to be given not just to denunciation and just punishment but to protection of the public and to deterring both you and others from committing offences of that kind in those circumstances.

7The prosecution also relied upon a victim impact statement.   I can only marvel at the restraint with which the victim has approached drafting that statement because it seems to me that in no way has he sought to exaggerate the effects upon him.  Rather he has downplayed them and has made it clear that he is the sort of person who bounces back from events such as this and indeed he has now bounced back up, according to the way in which he put it. 

8Whether that is a realistic assessment of where he is at present or whether the psychological effects of your assault upon him will have ongoing effects of which he is not aware, is a matter for speculation.  But offences of that kind are almost always bound to have a psychological overlay apart from the physical injuries which they cause.  I am bound to take into account the effect of the assault upon your victim.

9Your counsel provided me with an outline of submissions, which is Exhibit 1 and a number of other documents, which are Exhibits 2 through to 5.  They deal with your mental health history and your current state of mental health.  Today, although it has not been exhibited yet, I will add a further report from Dr Cidoni which I will mark as Exhibit 6 which is designed to bring me up to date.  It is dated 16 December 2014.

10You are now 23 years of age.  At the time of the offending you were 22 and you are, therefore, still at an age where the court is hoping that rehabilitation is still possible and that you may benefit from rehabilitative programs designed to facilitate your rehabilitation and to give you the tools necessary to stay out of trouble in the future.

11You were born in New Zealand.  You came to Australia at the age of 13.  Your parents separated when you were nine.  You apparently completed Year 10 at school and you have worked in various jobs including six months at a meatworks in 2011, which was apparently the longest period of employment that you have been able to maintain.  You have, apparently, a history of cannabis use and in recent times your usage has increased to a quarter of an ounce a day.  You have been drinking heavily since you were 18 and have also been using amphetamines, or ice, on some occasions.  You have not had any treatment up until now for your substance abuse issues.

12

The reports demonstrate that you suffer from a mental illness which has exhibited psychotic symptoms.  There is an issue between the psychiatrist,

Dr Sullivan and Dr Cidoni as to whether the psychosis, or psychotic episodes, are triggered by your cannabis use or whether your psychosis has its origins in cannabis use.  That difference of opinion has not been resolved.  However I am not inclined to postpone the sentencing of you in an endeavour to resolve that issue.

13It seems to me that you are a person who requires a good deal of assistance if you are to have a hope of leading a more fulfilling and trouble free life.  It seems to me that the public is best protected by making orders which facilitate your rehabilitation and aim to treat both your substance abuse issues and you mental health issues with a view to giving you the tools to maintain an honest and hardworking lifestyle. 

14The difficulties of achieving that are not to be underestimated.  Your counsel has, quite properly, conceded that the offending conduct, coupled with your prior convictions leaves the court with no option other than to impose a significant period of imprisonment.  But on the urging of your counsel I adjourned the matter on the last occasion to have you assessed for suitability of a Community Corrections order which would be designed to take effect once you have completed the term of imprisonment that I am bound to impose.

15The report is guarded in its assessment of you but nevertheless finds you suitable for a Community Corrections order with a number of conditions which are designed to assist you with the problems that I have just outlined.

16Now as I indicated during the course of the plea hearing and this morning with your counsel, I have in mind to impose a term of imprisonment and I have already indicated that I have in mind a period of 12 months which would require you to serve more time than you have served up to date but not a lot more.  Then at the end of that time to impose a three year Community Corrections order with conditions that you be subject to supervision during that period and also that you submit to assessment and treatment for drug abuse or dependency, alcohol abuse or dependency, mental health assessment and treatment which may include psychological, neuro-psychological, psychiatric treatment in a hospital or residential facility.

17It is also suggested, and it seems to me to be appropriate, that where indicated you also submit to any program that addresses factors related to your offending behaviour over and above those which I have already referred to.

18I cannot make that order unless you consent to the order.  I understand that you have indicated your willingness to consent to the order.  Do you consent, Mr Heke?

19MR TORNEY:  May I approach, Your Honour?

20HIS HONOUR:  Yes. 

21MR TORNEY:  Yes, Your Honour, my client indicates that he consents to the matters.

22HIS HONOUR:  Yes all right.  I take into account your plea of guilty given at the earliest reasonable opportunity and that significantly reduces the sentence that I would otherwise have imposed.  I also seek to reflect in the sentence or it seems to me to be appropriate moderation of the sentence by reference to the Verdins principles, all of them it seems to me other than that concerned with risks that your mental impairments may deteriorate as a result of your term of imprisonment.

23It seems to me that, having regard to the period that you have already been in custody and the period that I have a mind to impose that that risk is not sufficient to engage that particular principle.  But otherwise I accept that the sentence should be modified by reference to the other Verdins principles.

24Clearly had those principles not applied I would have imposed a much more significant sentence upon you than that which I propose.  Doing the best I can to balance all the sentencing considerations including the effect of your conduct upon your victim I am ready to impose sentence upon you.

25For the offence of intentionally causing injury I sentence you to imprisonment for a period of 12 months.  For the offence of damaging the cell on 6 March 2014 I sentence you to 14 days imprisonment.  That will be concurrent with the period of 12 months that I have sentenced you to for the offence of intentionally causing injury. 

26In addition I order that you be the subject of a Community Corrections order for a period of three years with a condition that you be subject to supervision during that period.  That you submit to, and participate in, assessment and treatment for drug abuse or dependency, for alcohol abuse or dependency and in relation to your mental health issues.  Also that you submit to, and participate in, any programs that addresses factors related to your offending behaviour. 

27Now I understand that it has been discussed with you as to which of the Community Corrections centres you will be required to report to.  That would be the Carlton Community Correction Centre.  Mr Torney, I assume that that is right, is it?

28MR TORNEY:  Yes.  Yes, that's the most central one, Your Honour.

29HIS HONOUR:  All right.  That will be the centre that you will be required to report to.  Upon release from custody you will be required to report to that centre, the address of which will be in the order, within two clear working days of your release.

30You probably are aware, but I will repeat anyway, that you must comply with the terms of the order.  If you breach the order you are liable to imprisonment for up to three months for breaching the order.  But you are also liable to be brought back to this court and re-sentenced for these offences.  To that extent it is like having a suspended sentence hanging over your head because if you were to be brought back there would be a real risk that the court will take the view that more severe punishment would need to be imposed. 

31There are a number of other conditions and I have already outlined some of those.  It is important that you understand what those conditions are and how you need to comply with them.  When you report for your first appointment they will be explained to you in more detail but essentially when you are required to keep an appointment, you must keep it, unless you have a good excuse for not doing so.  You must obey directions, all lawful directions and you must participate in these programs which are designed to help you.

32If you approach it with a view to actually getting some help rather than as further punishment, there is a real chance that these orders will be of assistance to you.  They are designed to be of assistance to you.  The court, is concerned to protect the community and it is the purpose of this order, in that respect, to try and help you stay out of trouble in the future.

33If the drugs and alcohol and your mental health issues can be addressed satisfactorily then that will help you to stay out of trouble.  In many respects this order that I have just made may be seen as lenient.  You may or may not see it that way and it will be hanging over your head for quite a long time.  Three years is a long time for a 23 year old to contemplate but I urge you to approach your participation in this Community Corrections order with a positive attitude.  Because if you do that then it will hopefully keep you on the straight and narrow and enable to you get back to work and lead a more settle life, find a decent property to live in and have a happier life.

34Now I have also been asked to make orders, I think we discussed them on the last occasion with no opposition, to the disposal and compensation orders; is there, Mr Torney?

35

MR TORNEY:  In relation to the disposal order certainly not, Your Honour. 

 

in relation to the compensation order Mr Heke was in receipt of government benefits.

36HIS HONOUR:  Look, it's not expected that he'll be able to meet that order in the near future.  I think that it's appropriate to make it nevertheless unless you have good argument to the contrary.

37MR TORNEY:  No, Your Honour.

38HIS HONOUR:  He may win the lottery for all we know and be able to pay it off immediately.

39MR TORNEY:  Yes, Your Honour.

40HIS HONOUR:  But those that are charged with enforcing these orders will no doubt take into account his circumstances at the time that issue arises.

41MR TORNEY:  Yes, Your Honour.

42HIS HONOUR:  So no other orders apart from those orders?

43MR O'HALLORAN:  No further orders, Your Honour, no.

44HIS HONOUR:  No.  Thank you very much.  All right you can take a seat for a moment, Mr Heke.

45MR O'HALLORAN:  Is Your Honour minded to declare the PSD?

46HIS HONOUR:  Yes.  I should have done that, shouldn't I?

47MR O'HALLORAN:  And if Your Honour's minded to make a s.6AAA declaration.

48HIS HONOUR:  I need to do that too.  Quite right, thank you.  I declare - you told me what the PSD was again, what was it?

49MR O'HALLORAN:  287.

50HIS HONOUR:  287, thank you.  I declare pre-sentence detention of 287 days as time to be reckoned as served on the sentence that I have just imposed upon you and deduct it administratively from the time you will actually have to serve.  So it's 12 months less 287 days that you will actually have to serve. 

51But for your pleas of guilty to these offences I would have sentenced you to 18 months' imprisonment and I would not have made a non-parole period.  All right, yes, I will sign those ancillary orders.

52Mr O'Halloran would you accompany Mr Travis to - sorry, Mr Torney, I'm sorry, to your client and ensure that he understands what he's being asked to sign.

53MR TORNEY:  I certainly will, Your Honour, and I do tender the most up to date report of Dr Cidoni dated 16 December.

54HIS HONOUR:  Yes thank you.

55#EXHIBIT 6 -    Report of Dr Cidoni dated 16/12/14.

56That order is now in place and I have signed the drafts of the orders for disposal and compensation.  Nothing else?

57MR O'HALLORAN:  Nothing, Your Honour.

58MR TORNEY:  No, Your Honour.

59HIS HONOUR:  Thank you.

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