Director of Public Prosecutions v Henderson

[2017] VCC 1089

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

AT MILDURA
CRIMINAL JURISDICTION

CR 16-01018

DIRECTOR OF PUBLIC PROSECUTIONS

v

KATE HENDERSON

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JUDGE:	HIS HONOUR JUDGE M. P. BOURKE
WHERE HELD:	Mildura
DATE OF HEARING:
DATE OF SENTENCE:	9 August 2017
CASE MAY BE CITED AS:	DPP v Henderson
MEDIUM NEUTRAL CITATION:	[2017] VCC 1089

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'Doherty
For the Accused	Mr P. DeLorenzo

HIS HONOUR:

1Kate Henderson, you are the be sentenced for one charge of aggravated burglary.  The maximum sentence is 25 years' imprisonment.

2You pleaded guilty to this offence before me yesterday, 8 August.

3You were interviewed by police on 25 June 2015, effectively the day following the offence.  You made false denials.

4The matter was listed for contested committal on 10 June 2016, but settled.  At that time, you entered a plea of guilty to armed robbery.  Subsequently however, your solicitor, Mr Middleton, who did not represent you at committal, renegotiated the plea indictment to aggravated burglary, alleging intention of the lesser crime of theft.

5You receive the benefit of your plea of guilty,  which was early, and the level of cooperation  that short history of the proceeding shows.  Your plea has facilitated the interests of justice and expresses remorse.

6At your plea hearing, also yesterday, Mr O'Doherty for the Crown tendered a written Crown opening.  Mr Howard, for you, tendered the letter of your victim, Russell Malcolm, dated 20 November 2016, and the psychological report of
Dr Mirabel McConchie dated 2 December 2016.

7The circumstances of your offending are comprehensively stated in the tendered Crown opening, which is Exhibit A.  My own summary may therefore be short.

8In late June 2015, your long-time friend, Russell Malcolm again rented a room at your home in Mildura.  It is agreed that he had exclusive possession of his bedroom.  He went to bed on the night of 24 June and placed his wallet under the pillow.  He had won at the races.  You were aware of that and arranged that two co-offenders, Stones and Berry steal it from him.

9As it turned out, Berry, aged 16, entered the room and, using a knife, robbed him of the money.  You were nearby and received some of the proceeds.  $585 were stolen.

10Despite your plea at committal, I do not find that you expected or knew of the knife.  During the plea hearing, Mr O'Doherty read part of Mr Middleton's October 2016 letter to the Director of Public Prosecutions.  That letter seems to me a sound analysis of the lack of evidence that you did know of it;  that is the knife.

11As I have earlier stated, his offer on your behalf was accepted and you have pleaded to what I see to be the less serious circumstance of offending than you did at committal.  You will be sentenced on this basis.

12Russell Malcolm was offered the opportunity to make a victim impact statement, but declined.  His letter to court states that he has forgiven you and that your friendship remains.  You have made good approximately $160 of his loss.

13You are a 45 year old woman who suffers a chromosomal condition called Triple X Syndrome.  Mr Howard described in some detail the physical and developmental consequences of this.  Most significantly, as stated in
Dr McConchie's report, it has caused intellectual disability.  Her testing revealed a full scale intelligence quotient score of 63.  I accept that this disability played a role in diminished judgment in respect of your crime.

14The Verdins principles apply, not to remove, but to moderate the importance of such sentencing considerations as deterrence, denunciation and moral culpability.

15You are listening to this, are you not?

16I also accept that imprisonment would be considerably harder for you. 

17Your childhood development featuring nine primary and secondary school and, ultimately, attendance at a special school is consistent with this.

18You were raised in Geelong and then Melbourne, but came to the Mildura area in your early 20s.  You had a child, now 18, who is cared for within your sister's family in Melbourne.  Your sister attended court.  Your mother also lives in Melbourne.  Your family is supportive of you.

19The objectively viewed circumstances of this offending and those sentencing considerations earlier stated would in the normal course require imprisonment.  It was a treacherous act upon your friend and you must take responsibility for that.

20However, factors personal to you, including your plea, personal circumstances and disability balance against that.

21After taking into account the matters I see to be relevant, I have decided that the proper sentence is that of a community corrections order.  The Crown does not argue against that.

22I have read the report of Gabrielle McLeod of Community Corrections Services.  You are found to be suitable for such an order.

23I sentence you as follows.

24On one charge of aggravated burglary, I convict you and impose a community corrections order of two years' duration.  The usual terms apply.

25There are additional conditions as follows.

26That you perform 200 hours of unpaid community work over that period.

27That there be a condition related to treatment and rehabilitation in respect of mental health.

28That there be a condition related to programs, as directed, aimed at reducing reoffending and that there be supervision.

29Take a seat now and that order is going to be prepared.

30Mr O'Doherty, I think you handed up to me or perhaps Mr Howard or I think it was you, the record of interview from the depositions.

31MR O'DOHERTY:  Yes.  I did.

32HIS HONOUR:  I will return that to you.

33MR O'DOHERTY:  I did hand that up, Your Honour.

34HIS HONOUR:  Good, thank you.  All right.  You can come out of the dock and stand just near Mr Delorenzo out there.

35Yes, I am going to explain to you the order.  It runs for two years starting today.  The usual terms apply.  They are that you must not commit another offence for which you could be imprisoned during that time.  You must comply with a regulation, which prohibits you from attending any program or appointment or the like under the order affected by alcohol or drugs or in possession of illegal drugs.  You must report to and receive visits from Community Corrections. At the outset, you must report to the Community Corrections Centre at Mildura in Madden Avenue within two days of today.  You must let a community corrections officer now within two days of a change of address or job.  You must not leave Victoria without first getting permission to do so.  You must obey all of their lawful corrections.

36The additional terms are that you perform 200 hours of unpaid work over the two years, that you be under the supervision of a community corrections officer, that you undergo mental health assessment and treatment as directed, and that you participate in programs as directed that address factors related to this offending.

37Do you understand that?

38OFFENDER:  Yes, I do.

39HIS HONOUR:  Yes, and do you agree to it?

40OFFENDER:  Yes, I do.

41HIS HONOUR:  All right.  I will get you to sign it and then I will sign it.  I will sign it now and we will produce a copy for you and then you may go.  Yes, there is a compensation order.

42MR O'DOHERTY:  464 order.  Yes.

43HIS HONOUR:  Yes.  There is further.  Just take a seat for a moment.  Look, on this compensation order, do you seek the whole $585 or something lesser?

44MR O'DOHERTY:  Well, that is what is sought, Your Honour.

45HIS HONOUR:  Well, I mean, I accept.  I do not see why I should because it was not challenged that she has made good $160 of it.  That will mean that execution of this will delete or subtract that figure.

46MR O'DOHERTY:  Yes. 

47HIS HONOUR:  All right.

48MR O'DOHERTY:  But I think she ‑ ‑ ‑

49HIS HONOUR:  Or should we do it now?

50MR O'DOHERTY:  Well, Mr Howard consented to the order being made, if you recorded it.

51HIS HONOUR:  All right.  Well, I mean, that should not prevent me.

52MR O'DOHERTY:  That does not mean much.

53HIS HONOUR:  That does not prevent me from - wouldn't it be better just to subtract it?

54MR O'DOHERTY:  Yes, just take the 160 off.

55HIS HONOUR:  Yes.  I think it would be safer.

56MR O'DOHERTY:  Yes.  We will take the 160 off.

57HIS HONOUR:  I will hand it back down and you can ‑ ‑ ‑

58MR O'DOHERTY:  We will just alter it.

59HIS HONOUR:  It might be better if Mr Davy does the arithmetic.

60MR O'DOHERTY:  He will re-pen at the Bar if he can.

61HIS HONOUR:  Yes.  All right.  Now, there is another order.  Just stand up.  Come forward.  I am making an order that you supply a sample of your saliva.  All right.  The reasons why I am doing that is the seriousness of this offence, that you have prior convictions and as I understand it, it was not opposed.

62Now, that means this.  You need to make arrangements to go to the Mildura Police Station at during a period a month after today, before the next four weeks runs.  All right?  So, you have got to do it within eight weeks effectively.  You follow that?

63OFFENDER:  Not particularly.

64HIS HONOUR:  Yes.  Well, Mr Delorenzo can help you with this.  Yes, you supply a sample of your saliva by using a cotton swab.  Does not sound difficult to me.  Yes, put it inside your mouth.  If you cooperate in that, that is the end of it.  If you do not, a sample of blood may be taken by injection and reasonable force used.  All right?

65I have stated my reasons for making the order.  Mr Howard said yesterday that you did not oppose that, which is one of the reasons, but not the only reason why I have made it.  All right?  So, I am going to sign that order now.

66Yes.  Now, have you got the amended - I am making an order that you pay back Russell Malcolm what was stolen from him, less than $160 that you have paid back.  Now, that is $425.  I will sign that now.

67All right.  I will hand those down.  Now, has Ms Henderson got a copy of her order?  You are going to give it to her?  I will leave the Bench now whilst that happens.  All right.  I will come back shortly.  I do not know whether you wish, Mr O'Doherty, for the relevant people to come into my chambers to ‑ ‑ ‑

68MR O'DOHERTY:  Yes.  I will do that, Your Honour.  Yes.

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