Director of Public Prosecutions v Henderson
[2025] VCC 720
•4 June 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CR-23-01860
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JAKE HENDERSON |
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JUDGE: | His Honour Judge Palmer | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 18 February 2025 | |
DATE OF SENTENCE: | 4 June 2025 | |
CASE MAY BE CITED AS: | DPP v Henderson | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 720 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Aggravated burglary – false imprisonment – offending in company - plea of guilty following sentence indication – early childhood trauma – mental ill health – substance abuse – intellectual disability - no criminal history - weighty mitigatory factors – youthful offender – reduced moral culpability – good prospects of rehabilitation
Legislation Cited: Crimes Act 1958; Sentencing Act 1991; DPP v Meyers [2014] VSCA 314.
Cases Cited:R v Siggins [2002] VSCA 97; Hogarth v The Queen [2012] VSCA 302; Grey v The King [2024] VSCA 75; Bugmy v The Queen (2013) 249 CLR 571; R v Mills [1998] 4 VR 235; Azzopardi v The Queen (2011) A Crim R 369
Sentence: 2 Year Community Corrections Order.
6AAA1 Year imprisonment with a Community Corrections Order.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr S. Lee | Office of Public Prosecutions |
| For the Accused | Mr J. Lavery | Rolfe Criminal Law |
HIS HONOUR:
Circumstances of offending[1]
[1] The detailed circumstances of offending are set out in the Prosecution Opening for Plea Hearing (14 February 2025); I have also viewed the relevant CCTV footage. I have read and considered the written submissions of the parties as supplemented by their oral submissions, and supported by tendered material, including emailed prosecution submissions with header Matter of Jake HENDERSON (10 July 2024); Outline of Defence Submissions at Application for Sentence Indication Hearing 3 July 2024); Outline of Defence Submissions for Plea (12 February 2025); Gina Cidoni, Psychological Assessment Report (27 October 2023); Dr Judy Tang, Neuropsychology Assessment Report (7 November 2024); and character references from Metut Rintranulux, Genelle Henderson, Shona Clark and Nicole Spagnolo.
Jake Henderson, on 14 February 2022, you and two other men – Daniel Copeland and Ahmed El-Sayegh – pulled up outside the Diggers Rest home of a 68-year-old pensioner, Luke Brekalo. You were looking for a marijuana crop.
Mr Copeland got out of the car first and went to the front door. He was dressed as a police officer, including having an imitation firearm. Mr Copeland pounded on the door, calling out “Victoria Police”, and claiming to have a search warrant.
Mr Brekalo came to the door. Mr Copeland told him to come out. Mr Copeland grabbed Mr Brekalo, and pushed him against the wall of the house, forcibly holding his hands behind his back. Mr Copeland then called out “I need the handcuffs”. You got out of the car and took Mr Copeland’s place in holding Mr Brekalo’s hands behind his back.
While you did this, Mr Copeland entered the house and began to search for a marijuana crop. There was none. After some time Mr El-Sayegh left. You continued to restrain Mr Brekalo outside the house. Eventually, Mr Copeland exited the house, got into his car and made ready to leave. You took Mr Brekalo into the house and then joined Mr Copeland in the car. You both drove off.
You have pleaded guilty to the following offences:
a.One charge of aggravated burglary (with intent to steal), contrary to section 77 of the Crimes Act 1958, the maximum penalty for which is 25 years imprisonment; and
b.One charge of false imprisonment (at common law), the maximum penalty for which is ten years imprisonment.[2]
[2] Crimes Act 1958, s 320. Because the two charges are founded on the same facts, an aggregate sentence is open: Sentencing Act 1991, s 9. Both Mr Copeland and Mr El-Sayegh have already been sentenced. Mr Copeland was sentenced to a period of four years and two months imprisonment; Mr El-Sayegh was sentenced to one year and eight months imprisonment, followed a two year CCO and a $500 fine. However, the prosecution accepts that their circumstances were so different from yours that the principle of parity has very little role to play in sentencing you.
On 8 July 2024, I conducted a sentence indication hearing. At that time, the prosecution accepted that a combination sentence was open. However, your counsel submitted that I should impose an entirely non-custodial sentence. I indicated that if you were to plead guilty, I would impose a sentence of not worse than a combination sentence. You did not accept the sentence indication at the time.
Both parties now submit that a non-custodial sentence is appropriate. I agree. Accordingly, the main issues addressed during your plea hearing concerned the content and duration of the community correction order (CCO) I should impose. I also agree that your chances of successfully completing a CCO will be improved if you are supported by a Justice Plan.
Objective seriousness and moral culpability
Aggravated burglary is an inherently serious offence, as evidenced by its maximum penalty. In this case, the circumstance that made the burglary an aggravated burglary was the fact that Mr Copeland had with him an imitation firearm. Matters I have taken into account in determining the seriousness of your own offending include:
a.The offence was committed in company in the early hours of the morning;
b.There was a degree of premeditation and pre-planning;
c.Mr Copeland was disguised as a police officer;
d.Mr Copeland ransacked the house and stole valuable property, including jewellery (you are not being sentenced in relation to this theft);
e.You assisted Mr Copeland to do this, by detaining Mr Brekalo;
f.You held Mr Brekalo’s hands behind his back (as did Mr Copeland) – and thereby used force against him – but your actions were not otherwise violent, and there is no evidence of any physical harm to Mr Brekalo;
g.Your role was less than your co-offenders: Mr El-Sayegh was the “mastermind” of the crime, Mr Copeland the primary actor, and you assisted them while acting under their direction;
h.Mr Brekalo was in his own home, a place where he should have been able to feel safe; and
i.The crime has had a significant impact on Mr Brekalo causing ongoing fear, anxiety, sleeplessness and emotional distress. Understandably, it made him feel unsafe in his own home.[3]
[3] Victim impact statement of Luke Brekalo (24 July 2022).
Taking these matters into account, I find that your offending is serious, but not at the highest level of seriousness for an aggravated burglary.
Current sentencing practice
The principles which apply to sentence for offending of this kind are well-established:
a.General deterrence is a very important sentencing consideration for aggravated burglary in its most serious forms, including confrontational aggravated burglary;
b.People committing aggravated burglary can ordinarily expect significant terms of imprisonment; [4] and
c.In 2012, the Court of Appeal indicated that an increase in sentencing practice was necessary for this kind of offending (which means that pre-2012 cases should not be treated as examples of current sentencing practice).[5]
[4] R v Siggins [2002] VSCA 97 (Batt and Eames JJA, and O’Bryan AJA), [19].
[5] Hogarth v The Queen [2012] VSCA 302 (Maxwell P, Neave JA and Coghlan AJA); DPP v Meyers [2014] VSCA 314 (Maxwell P, Redlich and Osborn JJA); Grey v The King [2024] VSCA 75 (Walker and Boyce JJA), [70].
However, in your case the mitigatory factors are so weighty as to justify a departure from the norm.
Personal circumstances and other subjective matters
You were born in 2002 and are now 23 years old. You were 19 years old at the time of the offending. You had a very difficult childhood, including exposure to serious family violence and substance abuse in your formative years. You are no longer in contact with either of your parents. I accept that this early trauma continues to affect you and give this weight in the sentencing process.[6]
[6] Bugmy v The Queen (2013) 249 CLR 571.
Unsurprisingly, you have suffered from mental health issues, including diagnoses of post-traumatic stress disorder, major depressive disorder and generalised anxiety disorder. You also have neuropsychological conditions, including ADHD and a mild-intellectual disability. I accept that these issues would make a term of imprisonment weigh more heavily on you and that imprisonment might make them worse.[7]
[7] Tang report, page 11, [8] and [9]; R v Verdins (2007) 169 A Crim R 581, limbs 5 and 6.
You have also had substance abuse issues, and these may have contributed to your offending. Nevertheless, I accept that your neuropsychological and mental health conditions contributed to your offending and reduce your moral culpability.[8] I also accept that these conditions make you a relatively poor vehicle for general deterrence, and mean that specific deterrence should be moderated. [9]
[8] Tang report, page 11, [7]; R v Verdins (2007) 169 A Crim R 581, limb 1.
[9] R v Verdins (2007) 169 A Crim R 581, limbs 3 and 4.
However, there appears to be little need for specific deterrence in any case. To your credit, you have no prior criminal history. When you were arrested in May 2023, investigators found several illegal items in your possession. These were dealt with in the Magistrates’ Court, by way of diversion. [10] You were released on bail, and have not engaged in any further offending. In my view, the subsequent offending also has very little relevance to your prospects for rehabilitation.
[10] See Prosecution Opening for the Purposes of a Sentence Indication (2 July 2024), [64].
You are a young offender. That means I must give greater weight to your rehabilitation.[11] Your prospects seem positive. Since your arrest, you have developed a number of significant protective factors. You have found stable accommodation, with a supportive family friend (who came to court to support you). You have stopped using drugs. You have become seriously committed to your training in martial arts, and have found a coach and mentor who can support and guide both in your sport and in your life. Your mentor – Robert Minniti – gave very positive evidence about you in court, including the voluntary work you do with him.
[11] R v Mills [1998] 4 VR 235; Azzopardi v The Queen (2011) A Crim R 369.
You are lucky to have found such support; but it is also to your credit that you have taken advantage of these opportunities and have been a person that other people found rewarding to support. It is clear that you are prone to being easily influenced. At the moment, those influences are entirely positive.
Your guilty plea, although not the earliest, has saved the courts, witnesses, prosecuting agencies and the community as a whole time, money, inconvenience and uncertainty. Your plea also shows your willingness to accept responsibility for your offending and is suggestive of remorse. I will therefore reduce your sentence because of your plea.
I am very concerned that imposing a term of imprisonment on you could jeopardise your rehabilitation. Ms Cidoni says that the impact of imprisonment on you could be “devastating”, hindering your rehabilitation and reintegration on release.[12]Imprisonment would obviously also expose you to negative influences.
[12] Gina Cidoni, Psychological Assessment Report (27 October 2023), [98]-[99].
Ordinarily, the importance of general deterrence means that you would be required to serve some period of incarceration. However, in your case I am unwilling to take the risk of diminishing your prospects for rehabilitation. For that reason, I have decided to impose a non-custodial sentence.
At the plea hearing, I had you assessed for a CCO, [13] including a Justice Plan. [14] The parties agreed that there was no need to have you assessed for drug, alcohol or offending behaviour related conditions. Given the voluntary work you already do, and the risk that undertaking unpaid community work through the Department of Corrections might expose you to bad company and negative influences, I have decided not to impose a community work condition.
[13] See DFFH, Justice Plan (26 May 2025); DFFH, Disability Overview Report (26 May 2025).
[14] See Forensicare, Mental Health Community Corrections Screening Program (3 June 2025); and Corrections Victoria, Community Correction Order: Assessment Outcome Report (2 June 2025).
Consent to CCO
Before I can impose a CCO, you need to consent to it. If I cannot impose a CCO because you do not consent, then the only adequate sentencing option available to me would involve a term of imprisonment.
The CCO I intend to impose will be of two years duration. I will now explain the conditions that would be included in a CCO, so you can decide whether or not you consent. [Read from draft CCO].
If you breach the CCO by committing further offences, you can be charged and a sentence of imprisonment is one of the options that can be imposed for that breach. You can also be re-sentenced for the offence which is currently before me. That might include imposing a term of imprisonment. I will make an order that any breach by you of this CCO be brought back before me.
Do you consent to the imposition of a community correction order? [Yes].
Orders
If you had not pleaded guilty, I would have imposed a combination sentence, including a term of one year imprisonment. Because you pleaded guilty, I am instead imposing a CCO of two years duration.
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