Director of Public Prosecutions v Henderson
[2012] VCC 1987
•6 December 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-12-01931
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JAMES HENDERSON |
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JUDGE: | HIS HONOUR JUDGE MASON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 4 December 2012 | |
DATE OF SENTENCE: | 6 December 2012 | |
CASE MAY BE CITED AS: | DPP v Henderson | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1987 | |
REASONS FOR SENTENCE
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Subject: Plea - sentencing
Catchwords: Aggravated burglary, theft, reckless conduct endangering a person, summary charge of drive whilst exceeding the prescribed concentration of alcohol, summary charge of driving whilst disqualified
Legislation Cited: Sentencing Act 1991, Road Safety Act 1986
Cases Cited: R v Tsiaras [1996] 1 VR 398, R v Verdins & Ors (2007) 169 A Crim R 581
Sentence: Total effective sentence 38 months, 24 months non-parole.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr N. Goodfellow | Office of Public Prosecutions |
| For the Accused at hearing For the Accused at sentence | Ms O. Harris Mr D. Gibson | Victoria Legal Aid |
HIS HONOUR:
1 James Henderson, you have pleaded guilty to one charge of aggravated burglary, one charge of theft, two charges of reckless conduct endangering person, one summary charge of drive whilst exceeding the prescribed concentration of alcohol and one summary charge of driving whilst disqualified.
2 The maximum penalties for these offences are:
- for Aggravated Burglary, 25 years’ imprisonment;
- for Theft, 10 years’ imprisonment;
- for Reckless Conduct Endangering Person, 5 years’ imprisonment;
- for a second offence of Drive Whilst Disqualified, which is the case here, 240 penalty units or 2 years imprisonment;
- for a second offence of exceeding the prescribed concentration of alcohol, which is the case here, 60 penalty units or 6 months imprisonment.
3 You are now aged 34, having been born on 30 May 1978, and you were the same age at the time of offending.
4 You have a substantial history of prior offending, commencing in 1995 when you were 17 and continuing regularly until 2010, when you were last sentenced for burglary, theft and other offences and received a total effective sentence of three years and six months' imprisonment with a non-parole period of 22 months. Over the intervening period you have received many sentences of imprisonment and have participated in reformative programs and community-based dispositions.
5 The circumstances of your offending on this occasion are as follows.
6 On 10 July 2012, at around 1.55 am, you entered a residential address in Winton Road, Malvern East. There was one person resident inside.
7 Whilst at the premises you stole a set of car keys and an amount of cash from a wallet. The cash included $90 in New Zealand currency and $260 in Australian currency. You then used the keys to steal the resident's car.
8 The thefts were reported to police, who discovered you driving the car a short time later. You had two passengers. When police activated the emergency lights you sped away and a pursuit commenced. It ended when you crashed into a tree. You fled, but were subsequently arrested and taken into custody.
9 You were breathalysed at the Prahran Police Station and recorded a breath alcohol concentration of 0.090. At the time of driving you did not have a valid driver's licence. Your licence had been cancelled on 18 November 2010 for a period of three years.
10 You participated in a recorded interview with police and made admissions to entering the property and taking the above items. You then said that you collected two associates and proceeded to obtain some heroin.
11 A Victim Impact Statement was tendered which articulates the understandable anxiety experienced by the victim together with the damage and inconvenience of his property loss.
12 You entered a plea of guilty at committal mention.
13 I now turn to your personal circumstances.
14 As I noted earlier you are now aged 34 and were 34 at the time of this offending.
15 Your personal circumstances are set out in detail in the psychological report of Dr Aaron Cunningham. In summary they are as follows.
16 You were born and raised in Mornington, Victoria. You have described your parents in positive terms. Financial difficulties resulted in the loss of your father's hairdressing business and the family home. This placed a strain on your parents' relationship.
17 You left home at age 15 with no plan and lived on the streets. You had begun drinking alcohol at 13 and using cannabis by 14. You have stated that you were a “depressed kid” and alcohol fitted your mood. You felt you were addicted to alcohol straight away and began a pattern of binge drinking. Between 15 and 19 you experimented with hallucinogenic drugs. You became a regular user of heroin at 22 and you have been an addict since then.
18 You state that you cannot shake the habit and use heroin to numb emotional pain, but that it only causes further depression. You accept that heroin has destroyed your life and that your periods of incarceration have been the longest periods of time that you have not used heroin.
19 You have participated in a number of rehabilitative programs, including in-patient and out-patient treatment. You have, however, always relapsed. You have previously been treated on the Suboxone program and are currently receiving treatment on methadone.
20 Your employment has been intermittent and your accommodation scattered, reflecting your unstable life through addiction.
21
Several medical reports relating to your mental health were tendered on your plea. Unsurprisingly, Dr Cunningham diagnosed substance use disorder. In 2010 Mr Patrick Newton, psychologist, diagnosed you with poly-substance dependence co-morbid with schizo-affective disorder as diagnosed by
Dr Cidoni, whose report of 2007 was also tendered. A 2009 report by Dr Mark Hall, a Western Australian psychiatrist, also diagnosed you as suffering schizophrenia.
22 Your life story is tragic. It seems very likely that you have been suffering from mental illness manifesting in depressive episodes since your youth. Undiagnosed, you resorted to self-medication through alcohol and drugs, and became chronically addicted. You have wrestled and struggled with that addiction and your mental illness ever since.
23 In mitigation I accept that you cooperated with the police investigation and entered pleas of guilty at the earliest stage. The principles set out in the cases of Tsiaras and Verdins apply to reduce your moral culpability, to reduce the significance of denunciation as a relevant sentencing objective and to moderate specific and general deterrence. A sentence is likely to weigh more heavily on you because of your condition.
24 The objective gravity of the circumstances of this offending and your long history of re-offending calls for a sentence of imprisonment, principally for the need to give appropriate consideration to the principles of denunciation and specific as well as general deterrence.
25 Because of your personal circumstances and the mitigating factors of your mental health, the sentence I intend to impose has been moderated. However, the sentence imposed must reflect the serious nature of the offending, including the contextual danger to the public as a result of your flight from police and the fact that the offending occurred within a few months of your release from prison and whilst on parole.
26 In discussion on submissions I expressed the view that the range of appropriate sentence submitted by the prosecution, being four to six years' imprisonment with a non-parole period of between three and four years, was too high. Whilst objectively it might be considered an appropriate range given the circumstances and repetitive nature of your offending, I do not consider that the range is appropriate as a total effective sentence when consideration is given to the assumption that you will be required to serve the full term of the sentence you are currently undertaking, as well as the sentence I intend to impose.
27 Whilst your prospects of rehabilitation are remote, they should not be considered unachievable, and should not be extinguished by a sentence that does not give you hope or crushes your motivation.
28 Mr Henderson, could you please now stand.
29
On Charge 1 of aggravated burglary you are convicted and sentenced to
24 months' imprisonment.
30 On Charge 2 of theft you are convicted and sentenced to 18 months' imprisonment.
31 On each of Charges 3 and 4 of reckless conduct endangering person you are convicted and sentenced to 12 months' imprisonment.
32 On the transferred Summary Charge 10 of drive whilst exceeding the prescribed concentration of alcohol you are convicted and sentenced to three months' imprisonment.
33 On transferred Summary Charge 12 of drive whilst disqualified, you are convicted and sentenced to three months' imprisonment.
34 Charge 1 is the base sentence.
35 I direct that six months of the sentence imposed on Charge 2, three months of each of the sentences imposed on Charges 3 and 4, one month of the sentence imposed on the transferred Summary Charge 10 and one month of the sentence imposed on the transferred Summary Charge 12 be served cumulatively on the sentence imposed on Charge 1 and on each other. The sentences are otherwise concurrent.
36 The total effective sentence is 38 months' imprisonment.
37 I direct that you serve a period of 24 months' imprisonment before being eligible for parole.
38 I declare that the period that you have already spent in custody in this matter, namely, ten days not including today, be reckoned as a period of imprisonment already served under this sentence, and is to be deducted administratively.
39 For the purposes of section 6AAA of the Sentencing Act, but for your plea of guilty the total effective sentence that would have been imposed is four and a half years’ imprisonment, with a non-parole period of three and a half years.
40 At the plea hearing the Crown sought a disposal order which was consented to, and I have made that order today.
41 Your conviction for theft of a motor car has enlivened sub-section 89(4) of the Sentencing Act, and pursuant to that section I further order, since you do not currently hold a driver's licence, that you are disqualified from obtaining a driver's licence for a period of 24 months, effective from today.
42 Similarly, your conviction for drive whilst exceeding the prescribed concentration of alcohol has enlivened section 50 of the Road Safety Act. Pursuant to that section I further order, since you do not currently hold a driver's licence, that you are disqualified from obtaining a driver's licence for a period of 24 months, effective from today.
43 You may be seated, Mr Henderson.
44 Any other matters from either counsel?
45 All right, we will be back here at 10.30. Thank you very much, gentlemen.
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