Director of Public Prosecutions v Henderson

[2023] VCC 1414

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MILDURA

CRIMINAL JURISDICTION

CR-23-00038

DIRECTOR OF PUBLIC PROSECUTIONS

v

CRAIG HENDERSON

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JUDGE:	HER HONOUR JUDGE TODD
WHERE HELD:	Melbourne
DATE OF HEARING:	27 July 2023 and 14 August 2023
DATE OF SENTENCE:	14 August 2023
CASE MAY BE CITED AS:	DPP v Henderson
MEDIUM NEUTRAL CITATION:	[2023] VCC 1414

REASONS FOR SENTENCE

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Subject:  CRIMINAL LAW

Catchwords:  Aggravated burglary; stalking; recklessly causing injury; threat to

kill; contravention of a family violence intervention order intending

to cause harm or fear; possession of a drug of dependence

Legislation Cited:           Crimes Act 1958 (Vic) ss 18, 20, 21A(1), 77(1); Family Violence

Protection Act 2008 (Vic) s 123A; Drugs, Poisons and Controlled ‘  Substances Act 1981 (Vic) s 73

Cases Cited:                   Filiz v The Queen [2014] VSCA 212

Sentence:  15 months' imprisonment in combination with a community

corrections order of 30 months' duration

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. Brown	Office of Public Prosecutions
For the Accused	Mr J. Lowy	Martin Middleton Oates Lawyers

HER HONOUR

1Craig Henderson, you have pleaded guilty to the following offences:  one charge of aggravated burglary with intent to assault knowing or recklessness to the person inside with a maximum penalty of 25 years' imprisonment;[1] one charge of stalking with a maximum penalty of 10 years' imprisonment;[2] one charge of recklessly causing injury with a maximum of five years' imprisonment;[3] one charge of making a threat to kill with a maximum of 10 years' imprisonment;[4] one charge of contravention of a family violence intervention order intending to cause harm or fear with a maximum penalty of five years' imprisonment;[5] and one charge of possession of a drug of dependence, namely methylamphetamine, with a maximum of one year imprisonment.[6]

[1]Crimes Act 1958 (Vic) s 77(1).

[2]Ibid s 21A(1).

[3]Ibid s 18.

[4]Ibid s 20.

[5]Family Violence Protection Act 2008 (Vic) s 123A.

[6]Drugs, Poisons and Controlled Substances Act 1981 (Vic) s 73.

2Turning first to the facts giving rise to your offending.  On your plea the prosecution tendered a summary of prosecution opening dated 24 July 2023 which sets out the circumstances of your offending.  That document is attached to and forms part of these reasons and I will summarise some of the facts giving rise to your offending here.

3At the time of your offending you had been in a relationship with TR for approximately two years but the relationship ended in late September 2022. 

4On 24 January 2022, the Magistrates' Court had made a family violence intervention order against you with a duration of 12 months.  The protected persons under the order were Ms R and her three children.  The conditions of the order were that you must not commit family violence, intentionally damage any property or threaten to do so, go to or remain within 200 metres of the protected person's home, work or school if affected by alcohol and go to or remain within five metres of a protect person if affected by alcohol.

5Over six days between 13 and 19 October 2022, you contacted Ms R by phone and by video call 123 times.  You left multiple voice messages and text messages.

6On 19 October 2022, Ms R awoke at about 6:00 am to get herself and her children ready for school.  You messaged her at 7:30 am 'You call or text me again, contact me ever, you had ya threesome in my bed, I'll cut your head off, you got it in writing, now fuck off'.

7There was a second message immediately after this reading 'You say anything at work I'll end you'.  This conduct gives rise to Charge 2 stalking.

8At approximately 9:11 am on the same day you walked to Ms R’s address.  You saw the window of her house open and climbed in.  You said to Ms R, 'You're fucked you cunt'.  This gives rise to Charge 1 aggravated burglary.

9Ms R, who had been sitting on the end of her bed when you entered, saw you and fled.  You gave chase.  You chased her out onto the street.  She slowed and turned towards you.  You tackled her causing her to fall backwards into the front garden of a nearby house.  As she fell, her head struck a terracotta plant pot which shattered from the impact.  Her neck struck a concrete garden edging next to the plant pot.  You then punched Ms R in the back of the head and to her ribs five to six times.  This conduct gives rise to Charges 3 and 5 recklessly causing injury and contravention of the family violence intervention order with intention to cause fear or harm.

10Ms R experienced pain and bruising on the back of her neck.  During this you said to Ms R 'I'll fucking kill you, I'll fucking you, you cunt'.  You then left her lying on the ground and began to walk away.  As you left you said to Ms R 'I'll fucking kill you and I'll be back'.  This conduct gives rise to Charge 4 making a threat to kill.

11Following the incident on 19 October 2022, Ms R contacted the police.  Parts of the incident at Ms R' address were captured on CCTV including you entering through the window, chasing her to the next door front garden, leaving the scene and then Ms R contacting Triple Zero while rubbing her head and her neck.

12At approximately 3:15 pm you were found by police and arrested.  You were taken to Mildura police station where you exercised your right to silence in a police interview.

13At the police station your belongings were searched and police found a small ziploc back in the front pocket of your backpack containing a white crystalline substance.  This gives rise to Charge 6 possession of methylamphetamine.  It is not suggested that you possessed the drug for the purposes of trafficking.

14You have admitted a range of prior convictions including wilfully damaging property, contraventions of a family violence intervention order, unlawful assault, possession of methylamphetamine, assault of a police officer and making threats to kill and unlawful assault.

15I note that charges of wilfully damaging property and the intervention order contraventions, the latter by attending at premises while affected by alcohol, related to Ms R.

16Turning now to my assessment of the nature and gravity of the offending.  Gravity of any particular aggravated burglary is to be assessed in accordance with the circumstances of the entry and the gravity of the offence which the offender intended to commit once inside. 

17In this case by your plea you have admitted that you intended to assault Ms R upon entry to her house, that assault ultimately occurred outside the premises on the street after she fled and you chased her down, which is the subject of a separate charge.

18At the time of your entry into the house you were subject to a family violence intervention order.  Your attack on Ms R was in the wake of a recent dissolution of a relationship during which time she had every right to be safe from you.  Your offending appears to be fuelled at least in part by lack of sleep and regular drug use, facts which do not excuse what you did in any way but may provide some context for this extreme behaviour.

19While your offending on the day of the aggravated burglary was brief, it was agreed at the plea that all the events were over in a period of approximately two minutes.  It occurred in the context of the breakdown of an intimate relationship. 

20Your behaviour is an example of uncontrolled male violence against a female partner in the wake of a separation of a kind that the courts have repeatedly and clearly condemn, saying:

'Offending of this nature is too often perpetrated by men whose response to the breakdown of a relationship is one of possessive, violent rage.  It goes without saying that such a response, to what is a common human situation, is utterly unacceptable.  This Court has made it clear that such offending will attract serious consequences and even harsher penalties where it involves the breach of an order which exists for the victim's protection.'[7]

[7]Filiz v The Queen [2014] VSCA 212 [21].

21You entered the home in daylight hours and did not do so violently in that you used an open window.  No children were present by the time you had arrived.  You had been living in the house until approximately two weeks before these events. 

22It was put on your plea and I accept that at the time of your entry you did not believe yourself to be trespassing though you now accept that this belief was not reasonably held.  Your acts were unplanned; you were inside the house for a period of seconds not minutes and you have not attempted to contact Ms R subsequently.

23I must also consider your relentlessly contacting, otherwise known as stalking, Ms R in the days before your commission of the aggravated burglary which is I note the subject of a separate charge.

24In relation to the charge of recklessly causing injury, there was no medical evidence of injury and I accept that the sensory experience of pain puts the injury at the lowest end of the scale, however the manner of the infliction was sustained and frightening.

25Overall I find your offending on the aggravated burglary fits into the lower to mid-range of what is always a very serious offence.  The other charges fit within the lower end though I do note that you were subject to an intervention order at the time and had prior convictions for breaching an order in relation to the same victim.

26Turning now to your personal circumstances.  You are 47 years old and you were 46 at the time of the offending.  You are the second of three children.  Your father was employed in transportation and bricklaying and your mother cared for the children.

27Growing up you recall that for several your father was dependent on alcohol and would discipline you with a strap or a jug cord or an open hand hit.  You otherwise describe your upbringing as good.  Your mother is described as affectionate.

28You attended school to the end of Year 12.  You were an average student and you were suspended on one occasion for fighting.  You left the family home when you were 18 years old to move to study IT at university however you did not pass any subjects.

29Following that year at university you became a transport worker and drove interstate road trains for many years.  Prior to your arrest you were employed as a yard worker at James Transport.  You have a long history of stable employment in the transport industry.  You are now employed as a billet in the laundry at your remand centre and you also work in the gardens.

30Contrary to what was written in the psychological report it was submitted that you have had a number of serious relationships in your adulthood.  None of the previous relationships were attended by complaints of violence

31During the relationship with Ms R you lived with her and her three children from a previous relationship.  When you had arguments you would often return to live at your mother and father's house.  You are now single and without children.

32Turning now to the impact on your victim.  Ms R wrote her victim impact statement which was tendered on your plea.  She suffered from pain and disturbance to her sleep after what you did to her.  She has lost a sense of safety and worries about the future.  She worries about the effect on her children in particular.  She should never have been made to feel this way by you.  I will take into account the effect of what you did on her when I sentence you.

33Turning now to matters in mitigation.  You pleaded guilty and this is a very significant matter in mitigation of your sentence.  You have spared your victim from having to give evidence in court.  You have saved the costs, human and financial, of a trial and I regard your plea as particularly valuable in relation to the charge of recklessly causing injury given the state of the evidence.

34Moreover you have pleaded guilty when even though the worst of pandemic is over, the backlog of trials in its wake is still significantly affecting the administration of justice in Victoria and you will therefore receive an additional and palpable benefit for pleading guilty in this context.  I make it clear that if not for this feature, your sentence would have been significantly more onerous.

35Further I accept that some remorse in here as in your plea, importantly, you have not made any attempt to minimize or to excuse your behaviour.  You have expressed appropriate shame about what you did and I accept that you are remorseful.

36A psychological report authored by Ms Christine Kennedy was tendered on your plea.  I have taken its contents into account generally as context for you.  You were diagnosed with stimulant and alcohol use disorder in early remission.  It was submitted, and I accept, on the basis of this material I can find that you are neither delusional nor suffering from mental illness or anti‑social personality traits that would otherwise impede positive conclusions about your rehabilitation.

37Turning now to your prospect of rehabilitation.  You have a significant and longstanding dysfunctional relationship with alcohol and drugs.  Your ability to grapple with your misuse of substances underpins everything about your rehabilitation. 

38You have a long history of stable work and on your plea a letter was tendered authored by Mr Sean James, the General Manager of James Transport who describes you as a valuable employee with the ability to work well with others and to be efficient and diligent.  Your conduct in that environment causes Mr James and his brother Aden, who wrote a separate letter, to keep open fulltime employment for you subject to strict conditions.

39A range of certificates from courses you have completed in custody were tendered and you have used your time in goal, it would seem, purposefully.

40You have an affectionate relationship with your family and your parents attended the plea hearing.  You will live with them once you are released.

41Helpfully, you have been horrified by your experience of prison, your first experience of incarceration which you describe as a ‘waking nightmare’.  You are not part of an entrenched criminal milieu, nor do you see yourself as being of your current circumstances.  If you are genuine about grappling with your substance use issue, there is every reason to conclude that your prospects for rehabilitation are very good.

42I have regard to a range of sentences for the charge of aggravated burglary, some of which had some similar features to your case.  No case is exactly like yours, but I have had regard to the general sentencing landscape in arriving at your sentence.

43Turning now to some of the sentencing principles.  General deterrence is important where offences are committed in a familial context because a person should be able to leave a relationship without fear of reprisal.

44Because of your offence history I do regard this sentence as having a role for specific deterrence and it appears that your time in custody so far has been appropriately experienced by you as dreadful.  This sentence must also be punitive and serve to protect the community.  I regard the community to be best protected by your rehabilitation during the next phase of your sentence.

45I have also had regard to the principle of totality in arriving at this sentence.  I am cognizant of the charges arising on 19 October 2022 were in the context of the same relatively brief transaction.  However, the different acts give rise to particular criminal responsibility and warrant a degree of cumulation.  This is true also for the breach of the intervention order charge and would also warrant a degree of additional punishment notwithstanding that the same acts give rise to more than one charge.

46Turning now to the submissions of the parties.  Your counsel submitted that a sentence that combines imprisonment on a time-served basis (then at 281 days), was sufficient to achieve each of the sentencing purposes. 

47Counsel for the prosecution submitted that while a ‘combination’ sentence was appropriate, the time served was at that stage insufficient in the circumstances of this case.

48Today I am going to sentence you to a combination sentence, though you will have to serve a further period of imprisonment before commencing what will be a lengthy and demanding corrections order.

49I note finally that for reasons not attributable to you, the sentencing hearing had to be delayed and I take this delay, brief as it was, into account.

50Turning now to the disposition.  On Charge 1 aggravated burglary you are convicted and sentenced to 10 months' imprisonment in combination with a community corrections order of a duration of 30 months.

51On Charge 2 stalking you are convicted and sentenced to three months' imprisonment and a community corrections order of a duration of 30 months.

52On Charge 3 causing injury recklessly, you are convicted and sentenced to four months' imprisonment in combination with a community corrections order of the duration of 30 months.

53On Charge 4 making a threat to kill, you are convicted and sentenced to three months' imprisonment in combination with a community corrections order of the duration of 30 months.

54On Charge 5 contravention of a family violence intervention order intending to cause harm or fear, you are convicted and sentenced to three months' imprisonment again in combination with a community corrections order.

55On Charge 6 possession of a drug of dependence methamphetamine you are convicted and fined $400.

56I make the following orders for cumulation.  Charge 1 is the base sentence.  One month on each of the sentences on Charges 2, 4 and 5 and 2 months of the sentences on Charge 3 will be served cumulatively upon each other and upon the sentence on Charge 1, making a total effective sentence of 15 months' imprisonment in combination with a community corrections order of 30 months' duration.  I make one community corrections order for all of the offences. 

57Pursuant to s 18 of the Sentencing Act1991 I declare that you have served 300 days pre-sentence detention to be reckoned as time already served under this sentence. 

58Pursuant to s 6AAA of the Sentencing Act I declare that had you not pleaded guilty I would have sentenced you to a term of imprisonment for three and a half years with a non-parole period of two and a half years. 

59I make the order for the disposal of the methylamphetamine and Zoloft as sought.

60So Mr Henderson, you have got a little more time to serve before going on your CCO but I am now going to read through the conditions of the Community Correction Order which will be for the duration of 30 months.  Once I have read through these conditions I am going to allow you an opportunity to speak to your counsel about them and I will be asking your counsel to confirm that you consent to undertaking that order.

61You will first be subject to the standard conditions of a Community Correction Order. That means that you must not commit any other offences that are punishable by imprisonment during the 30 month period.  Let me be clear about this.  If you do, you will be brought back before court before me and re‑sentenced for these offences and absent very powerful reasons, you should expect that that will involve your further imprisonment.

62You must report to the Mildura community corrections service within two days of your release from custody.  You are required to advise your supervisor in the Corrections office of any change of address where you are living or working and you must do so within two clear working days.  It is a term of all Community Correction Orders that you must submit to visits as directed and obey all the instructions and directions of a community corrections officer.  You are not leave the State of Victoria without their prior permission and that is for the entire 30 months.

63The following are the special conditions that I will attach to the order.

(1)  You must submit to supervision as directed.

(2)  You must submit to assessment and treatment for alcohol and drug dependence.

(3)  You are required to submit to mental health assessment and treatment.

(4) I require you to perform 150 hours of unpaid community work over the term of the order but pursuant to s 48CA of the Sentencing Act I direct that time spend in treatment and rehabilitation programs be credited towards those hours.

64So I am requiring you to do unpaid work, Mr Henderson but if you are attending for treatment or participation in group sessions, that also goes towards those hours.

65Mr Lowy, what I might do is just before I get your client's consent which we can do verbally over the AVL, I might give you a moment with him to confirm that he understands the community corrections order and that he undertakes to fulfil its conditions.

66MR LOWY:  Yes, Your Honour.

67HER HONOUR:  Thank you, I'll stand down briefly.

(Short adjournment.)

68MR LOWY:  Thank you for that time, Your Honour, Mr Henderson consents to the making of the community corrections order.

69HER HONOUR:  Good and have you had an opportunity to step him through what it will require?

70MR LOWY:  I just got his consent but I've spoken to him about community corrections orders before.

71HER HONOUR:  Good.

72MR LOWY:  He understands.

73HER HONOUR:  All right, good.  Mr Brown, have I missed any orders?

74MR BROWN:  No I don't believe so, Your Honour.

75HER HONOUR:  All right.  Thank you for your assistance, counsel.

76MR LOWY:  Thank you.

77HER HONOUR:  We'll adjourn.

78MR LOWY:  Oh there's just one further matter, Your Honour.

79HER HONOUR:  Yes.

80MR LOWY:  Could I request a certificate for last Monday please?

81HER HONOUR:  Yes of course.

82MR LOWY:  Thank you.

83HER HONOUR:  I can do that.  I'll make, I think it's s 17 of the Appeals Costs Act?

84MR LOWY:  I believe so.

85HER HONOUR:  For the day that the court adjourned the further plea and sentence hearing.

86MR LOWY:  Thank you.

87HER HONOUR:  Thank you.

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