Director of Public Prosecutions v Hendrick
[2023] VCC 2230
•22 September 2023 5 December 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-22-01263
Indictment No. M11928556.3
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| KARL HENDRICK |
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JUDGE: | HIS HONOUR JUDGE TRAPNELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20 and 22 September 2023 | |
DATE OF SENTENCE: DATE OF REASONS: | 22 September 2023 5 December 2023 | |
CASE MAY BE CITED AS: | DPP v HENDRICK | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 2230 | |
REASONS FOR SENTENCE
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Subject:Criminal Law
Catchwords: Sentence – Common law assault – Threat to inflict serious injury – False imprisonment – Threat to kill – Persistent contravention of family violence intervention order – Related summary charge – Significant victim impact – Assault and threats occurred during one evening – Moderately serious offending – Drug and alcohol use – Relevant criminal history – Bugmy principles engaged – Guarded prospects of rehabilitation
Legislation Cited: Crimes Act 1958 – Sentencing Act 1991
Cases Cited:Bugmy v The Queen (2013) 249 CLR 571 – Marrah v The Queen [2014] VSCA 119 – Newton (a Pseudonym) v The King [2023] VSCA 22 – DPP v Herrmann [2021] VSCA 160 – Sabbatucci v The Queen (2021) 98 MVR 256, [2021] VSCA 340
Sentence: Total effective sentence
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr L McPhie | Ms A Hogan, Solicitor for Public Prosecutions |
| For the Accused | Mr M Radzaj | Giorgianni & Liang Lawyers |
HIS HONOUR:
1Karl Hendrick, on 20 September 2023 you pleaded guilty before me to an indictment containing two charges of common law assault (Charges 1 and 5),[1] one charge of make threat to inflict serious injury (Charge 2),[2] one charge of false imprisonment (Charge 3),[3] one charge of make threat to kill (Charge 4),[4] and four charges of persistent contravention of family violence intervention order (Charges 6, 7, 8 and 9).[5]
[1] Contrary to common law.
[2] Contrary to Crimes Act 1958 (‘CA’) s 21.
[3] Contrary to common law.
[4] Contrary to CA s 20.
[5] Contrary to Family Violence Protection Act 2008 (‘FVPA’) s 125A.
2You also consented to have this Court deal with[6] and you pleaded guilty to one related summary charge of contravene family violence intervention order (Summary Charge 8).[7]
[6] Pursuant to ss 145 and 242 Criminal Procedure Act 2009.
[7] Contrary to FVPA s 123.
3On 22 September 2023, on all these charges I convicted and sentenced you to a total effective sentence of 750 days’ imprisonment and I directed you serve a minimum non-parole period of 564 days’ imprisonment. The individual sentences and the orders for cumulation which comprise this total effective sentence were imposed by me on 22 September 2023 and are detailed at the end of these reasons for sentence. On all the charges I also sentenced you to serve a community correction order (‘CCO’) for a period of 18 months, commencing upon the completion of you sentence of imprisonment, and I ordered you perform 50 hours of unpaid community work, together with a number of treatment and rehabilitations conditions also detailed at the end of these reasons for sentence.
4Pursuant to s 6AAA of the Sentencing Act, I declared the sentence I would have imposed on you but for your pleas of guilty would have been a total effective sentence of three years’ imprisonment with a minimum non-parole period of two years.
5At the time of sentencing you, I indicated I would provide my reasons for sentence at a later time. These are those reasons for sentence.
6The maximum penalties for common law assault, threat to inflict serious injury and persistent contravention of family violence intervention order are all five years’ imprisonment. The maximum penalties for false imprisonment and threat to kill are both ten years’ imprisonment. The maximum penalty for the summary charge of contravene family violence intervention order is two years’ imprisonment.
The facts
Background
7The prosecution filed a Summary of Prosecution Opening for Plea, dated 21 September 2023, which it is agreed I can accept as a statement of agreed facts.[8]
[8] Ex P1.
8At the time of the offending, you were 50 years old. You are presently aged 51.
9The victims of these offence are, Mr Billy-Lee Johnson, DA and MP.[9]
[9] A pseudonym used to protect the identities of the second and third victims.
10At the time of the offending comprising charges 1, 2, 3, 4 and 5 on the indictment, you and MP were residing as housemates at an address in Lalor. You and MP had been living in an intimate relationship for approximately five months at that time. Prior to your relationship with MP commencing, she had been engaged to Mr Johnson. You were aware of their previous relationship but not of the fact they had been engaged.
11On 9 September 2021, after MP returned home, you and Mr Johnson left your residence, in a black Holden Cruise. You drove to one of your friend’s houses, Ms Kristy Heins, and stayed there until approximately 4:00 pm.
12You messaged DA at 6:44 pm to advise her you were going to travel to her house from Ms Heins’s residence. DA responded at 8:32 pm to ask whether you were still coming. You drove to DA’s house with Mr Johnson in the car. You and Mr Johnson met DA and went inside her house. This was the first time Mr Johnson had met DA.
13You and Mr Johnson remained at DA’s house until the early hours of the morning of 10 September 2021. You both left in the Holden Cruise, with Mr Johnson in the passenger seat. Mr Johnson thought you were annoyed with him even when you stopped at Bayles General Store so Mr Johnson could purchase cigarettes for you. You were not talking and not answering his questions. You transferred $200.00 to Mr Johnson’s bank account so he could pay for the cigarettes and, later, drinks and petrol which were obtained from a BP service station in Berwick.
14You proceeded to drive to an underground carpark of a shopping centre. You took out a pipe and a zip lock bag containing a crystal-like substance which Mr Johnson believed to be methamphetamine. You inhaled smoke from the pipe and passed the pipe to Mr Johnson, telling him that he was ‘going to need this’. He inhaled some smoke. You and Mr Johnson were in the car park for approximately 15 minutes before leaving. There is no charge before this Court relating to this conduct and you will not be punished for it. It was led as part of the context for what later occurred.
15Between 9:34 am and 9:58 am, you and MP exchanged numerous text messages, including you:
·telling her, amongst other things, you needed to speak to her urgently;
·asking her who Jeremy is;
·wanting to clear things up with her;
·asking if she had been engaged to Mr Johnson at the start of the year;
·asking if she had cheated on Mr Johnson with Jeremy;
·telling her Jeremy was telling you that phone sex had been occurring while she had been engaged to Mr Johnson;
·telling her she should not have phone sex or sex with a friend;
·telling her you were asking her about Jeremy before you spoke to Mr Johnson and if Mr Johnson did not tell you, you would break his legs.
16You continued driving with Mr Johnson in the front seat. After about 20 to 30 minutes, you reached across and grabbed Mr Johnson by the throat with your right hand. Mr Johnson felt pain in his throat and he could not speak or breathe properly. You held his throat for about ten seconds and said words to the effect of, ‘Don’t fucking lie to me, were you and Mel engaged at the start of the year? Tell me the truth the first time, were you and Mel engaged, tell me or I’ll break your legs’. When you released your grip, Mr Johnson was not able to speak properly, however he could say ‘yes’. Mr Johnson suffered red marks to his neck and throat. These facts constitute Charge 1 and form part of the criminal conduct rolled-up in Charge 2 on the indictment.
17You then yelled at Mr Johnson, calling him a ‘dog’ and saying he and MP had lied to you. You also told Mr Johnson that MP would ‘cop it’ if she did not tell the truth. Mr Johnson felt he could not fight back and was trapped in the car. This marks the commencement of the conduct giving rise to the false imprisonment charge (Charge 3).
18As you were driving, you received a phone call and pulled over to the side of the road to answer it. You turned to Mr Johnson after answering the phone and told him to ‘fucking drive’. You continued to speak to a man on the phone and were messaging MP while you were still in the driver’s seat. You were telling the person on the phone that you had ‘just messaged Mel’.
19You got out of the driver’s seat and moved to the passenger seat. Mr Johnson felt he had no choice but to climb through the middle of the car and into the driver’s seat.
20Mr Johnson followed your demands and drove to Edmondson Street and Partridge Street in Lalor. He parked at a soccer field, halfway into some bushes, in order to smoke the pipe and wait for MP to reply. Once you arrived at the soccer field, you ended your phone call. You did, however, continue to message MP.
21Mr Johnson asked if he could get out of the car to take his jumper off, but you said ‘no’. When he attempted to get out of the vehicle, you grabbed Mr Johnson’s seat belt and held the release button the entire time you were in the car. You also locked the doors. Mr Johnson repeatedly asked if he could go home, but you refused his requests. You also told Mr Johnson that he was not allowed back at the house without him. Mr Johnson was aware that you would not let him out of the car and that he could not leave. The conduct involves the continuation of the false imprisonment of Mr Johnson (Charge 3).
22You made it clear to Mr Johnson that you were giving MP one chance to tell the truth and if she lied, you threatened to kill MP and break Mr Johnson’s legs. These facts form part of the conduct rolled-up in Charge 4 and form a further part of the criminal conduct rolled-up in Charge 2 on the indictment
23At 10:25 am you messaged MP saying, ‘Billy [Mr Johnson] has just told me the lot after I threatened him about lying to me and what I’ll fkn do him (sic)’. You and MP continued to message each other and you attempted to get MP to return home. You told Mr Johnson to drive to your residence because you believed MP would be present there.
24Upon arriving at your house, you sent Mr Johnson in to look for MP. Mr Johnson went inside but was unable to locate her. Mr Johnson believed that you would kill MP if she returned home.
25Mr Johnson told you that he could not find MP, but you did not believe him and you entered the house to search for her yourself. You remained aggressive and made comments to Mr Johnson whilst you were both in the kitchen. While you continuously called Mr Johnson a ‘dog’, you grabbed him around the throat with your right hand. You eventually let Mr Johnson go. These facts comprise Charge 5 on the indictment.
26You told Mr Johnson that you were going to ‘punch the fuck out of Mel until she’s dead’ and told him, ‘as soon as Mel gets home you fuck off to 7/11, I’m going to punch the fuck out of her until she’s dead’. You had a shower and began packing your belongings, repeating to Mr Johnson, ‘as soon as Mel gets home, you fuck off because she’ll be gone’. These facts form a further part of the conduct rolled-up in Charge 4 on the indictment.
27You warned Mr Johnson that if he called the police, he and MP would ‘get put in the boot…if not by [you] then by someone [you] know’.
28As you left the house, you said the following to Mr Johnson: ‘If I really want to be a cunt, I’ll be back to rob the joint in a couple of weeks’. You also sent a message to MP at 3:56 pm saying that she ‘got off easy’ and that she should ‘ask billy what he received for fkn lying and hiding shit from [you] that made [you] look like a public fkn idiot and a fk witt to be around’.
29After several attempts, Mr Johnson was able to call MP. He warned her not to come home but to meet him at the Epping Police Station.
Report to police and your arrest
30On 10 September 2021, Mr Johnson and MP provided statements to the police and have since made additional statements.
31On 11 September 2021 at 6:56 am, you sent a message to MP saying that you would be on your way home. MP advised the police that you had returned to the address.
32At approximately 11:30 am, police attended the Lalor address. You were arrested and found in possession of a black Telstra mobile phone, which was seized. You were taken to Mill Park police station and interviewed.
Record of interview
33During your interview with police you denied all allegations put to you. You made the following statements:
(a) There had been no arguing, yelling or threats.
(b) On 9 September 2021, Mr Johnson had told you that he had to come clean, and that MP had been lying about their previous relationship, as well as her previous relationship with a person named Jeremy.
(c) The messages to MP were not threatening in nature.
(d) You stayed at a friend’s house on 10 September 2021.
(e) You denied allegations of violence being committed by you and said that Mr Johnson had asked you to slap him to leave mark.
(f) You denied attending Endeavour Hills and DA’s residence on 9 September 2021.
(g) You admitted to transferring money to Mr Johnson to purchase cigarettes.
(h) You alleged that Mr Johnson had taken your phone and could have sent messages to MP referring to breaking Mr Johnson’s legs.
Circumstances of other offending included on the indictment
34Regarding the circumstances of other offending included on the indictment as Charges 6, 7, 8 and 9, on 23 February 2021, the Dandenong Magistrates’ Court made a final family violence intervention order (‘FVIVO’) listing DA as the protected person and you as the Respondent. This order was made with your consent. The order expires on 22 February 2025.
35The FVIVO was a full no contact order with the following conditions:
(a) Not to commit family violence against DA.
(b) Not to damage DA’s property or threaten to do so.
(c) Not to attempt to locate DA or keep her under surveillance.
(d) Not to publish on the internet, by email or other electronic communication any material about DA.
(e) Not to communicate with DA by any means.
(f) Not to go to or remain within 200 metres of any place where DA lives works.
(g) Not to get another person to do anything you cannot do under the order.
36On 11 September 2021, a full no contact interim FVIVO was made with the same conditions as the listed above, in which MP is the protected person and you are the Respondent.
37On 8 November 2021, you contravened the FVIVO where MP is the protected person, by calling DA from Karreenga Correctional Centre and asking her to contact MP. This breached the condition to not get another person to do anything you cannot do under the order and forms the basis for Summary Charge 8.
38Between 9 November 2021 and 7 February 2022, you breached the FVIVO where DA is the protected person, by calling her from Karreenga Correctional Centre 24 times (Charges 6, 7 and 9). Charge 8 relates to a contravention of the FVIVO where MP is the protected person where you rang DA eight times from 9 January 2022 to 26 January 2022 asking her to contact MP.
Victim Impact
39Two victim impact statements (‘VIS’) were tendered, one by Mr Johnson and one made by MP. I have had regard to the aspects of both VIS that are relevant to your offending.
40DA did not prepare a VIS. Nonetheless, where no victim impact statement is relied upon, a sentencer may draw reasonable inferences from the known circumstances regarding the likely impact of an offence upon any victim.[10] DA would have suffered considerable distress and anxiety as a result of your conduct and had a right to feel protected and safe.
[10] See R v Miller [1995] 2 VR 348, 354 (Southwell, Ormiston and McDonald JJ); R v Lomax [1998] 1 VR 551, 559–560 (Ormiston JA, Winneke P and Hedigan AJA agreeing); R v Rankin [2001] VSCA 158 [10] (Winneke P, Vincent JA and O’Bryan AJA agreeing); MA v The Queen [2012] VSCA 214 [83] (Neave JA, Bongiorno JA and Whelan AJA agreeing).
Mr Johnson
41Mr Johnson’s VIS was read aloud in Court by the prosecutor.
42Your offending impacted Mr Johnson physically and emotionally. He had a sore throat for days after your offending and could not eat properly. He has also been left feeling severely broken and hurt. As a result of what you did to him, Mr Johnson suffers from PTSD, depression, anxiety and agoraphobia. He has found it hard to retain employment because he is not as energetic as he used to be and is afraid to go outside. He has also attempted to commit suicide.
43Mr Johnson has nightmares on a weekly basis, does not eat as much anymore and now uses medication to treat his sleep issues and depression. He has also been afraid to make friends since the incident. Moreover, he has lost his friends and family and is now afraid for his life.
MP
44MP’s VIS was read aloud in Court by the prosecutor.
45As a result of your offending, MP suffers from anxiety and has flashbacks regarding what happened all the time. She is unable to sleep through the night, and has not been able to go to work as much because she cannot cope. She suffers from constant panic attacks and headaches that usually occur when she thinks about the incident. Due to her poor mental health, she regularly feels unable to leave home and cannot see her friends, something she would often do prior to your offending.
46MP has also been unable to continue her Disability Certificate IV course because she is too tired and struggling mentally. She noted in her VIS that she is fearful you may come and find her upon your release from custody. She feels she is not the bubbly and happy person she used to be.
Offence seriousness
47Common law assault is a moderately serious offence, carrying a maximum penalty of five years’ imprisonment. I consider your offending conduct falls in the mid-range of seriousness for offences of this type.
48False imprisonment is a serious offence carrying a maximum penalty of 10 years’ imprisonment. Factors that may increase the gravity of, and an offender’s culpability for, this offence include any premeditation or planning, the length of the period of detention, violence, threats, fear or harm to the victim or their family, any breach of trust, isolating the victim, motive, vigilantism or exposing the victim to serious risks to health and safety.[11] I consider your offending conduct falls in the lower range of seriousness for offences of this type.
[11] Buchwald v The Queen [2011] VSCA 445 [194] (Redlich and Hansen JJA); R v Zaydan [2004] VSCA 245 [84], [85] (Batt JA); DPP v Saltmarsh [2013] VSCA 290 [39] (Maxwell P, Priest and Coghlan JJA); Harvey v The Queen [2021] VSCA 84 [43] (Beach, Niall and Whelan JJA); DPP v Muliaina [2005] VSCA 13 [21]–[22] (Chernov J); R v Dent [2005] VSCA 134 [13] (Warren CJ); R v Casey [2005] VSCA 135 [46] (Warren CJ); Judge v The Queen [2021] VSCA 315 [93] (Priest and Kyrou JJA).
49I accept that you choked Mr Johnson while he was detained in the car. You also threatened the lives of Mr Johnson and MP, whom you continued to aggressively text throughout the period of the false imprisonment. However, I also accept, as your counsel submitted, that the offending occurred over one evening and Mr Johnson was detained for a ‘modest’ period of time. Moreover, the offending appeared to be unplanned and you did not carry a weapon or choke Mr Johnson to a point where he lost consciousness.
50In relation to Charge 4, making a threat to kill is a serious criminal offence, as indicated by the maximum penalty of 10 years’ imprisonment. Making a threat to inflict serious injury (Charge 2) carries a maximum penalty of five years’ imprisonment. When assessing the gravity of threat offences I need to consider the following factors:
(a) The impact on the victim and the fear created.[12]
(b) Any planning and premeditation.[13]
(c) The use of stand-over tactics.[14]
(d) Persistence and duration in threats.[15]
(e) The use of weapons.[16]
(f) A breach of trust.[17]
(g) The number of victims or individuals threatened and the relationship between them.[18]
(h) Whether the purpose of the offence is to deter the enforcement of a legal right.[19]
[12] Latorre v The Queen [2012] VSCA 280 [191] (Maxwell P, Bongiorno JA and Kyrou AJA) (‘Latorre’).
[13] Aitkin v The Queen [2017] VSCA 103 [103] (Weinberg and Kyrou JJA) (‘Aitkin’).
[14] Latorre 352 [191]; Aitkin [101].
[15] Latorre 352 [191]–[192]; Aitkin [55], [91], [101], [103], [109].
[16] DPP v Oksuz [2015] VSCA 316 [11], [107], [112] (Redlich and Kyrou JJA and Croucher AJA).
[17] Aitkin [91], [102].
[18] Latorre 352 [191]–[192].
[19] Ibid 346–47 [162].
51As previously outlined, your actions have had a profound effect on MP and Mr Johnson, two people you were close to. Nonetheless, I accept that the threats to DA and MP were sent over text message and you also did not use weapons when threatening any of your victims. Moreover, these threats all occurred on one evening. Overall, I consider these offences to be lower range examples of offences of this nature.
52In relation to Charge 6, Charge 7, Charge 8, Charge 9 and Summary Charge 8, Courts have the responsibility to shield vulnerable members of the community and breaching the family violence intervention orders in which MP and DA were protected persons should be condemned.
53I find your moral culpability for this offending conduct overall is relatively high. Just punishment, general deterrence and denunciation must be given significant weight in sentencing you for these offences.
Personal circumstances
54You were born on 2 September 1972 in England and you are the youngest of three children. You were 49 years old at the time of the offending and are now 51 years of age. You are the father of two children, aged 26 and 24 years.
55According to your counsel, your childhood can be characterised by the physical abuse you faced from your alcoholic father. Your sister was also removed into State care at the age of 12. Your father died in 2008 and you have had no contact with your biological mother, whom you believe died in England.
56You were in a relationship with DA for 16 years. You began dating MP in 2021 and lived with her.
Education and employment history
57You finished Year 11 at Dandenong Technical School before enrolling in a boilermaker course at Chisholm Institute. While studying you managed your father’s chicken farm and completed a boilermaker apprenticeship when you were 22 years old.
58Your employment history is extensive. You worked on Department of Defence contracts with Australian General Engineering and for approximately three years you were a metal fabrication foreman with ADECO. You were then a foreman with KW Metal and also acted as a contractor for several years. You were also a welder at EBLI Engineering in Moorabbin.
59For five years you took on additional work cutting asparagus for three to four months of the year in order to support your family after the birth of your children.
60In 2021, you began aluminium welding at a fencing company, working four hour shifts. However, you stopped prior to your spinal surgery, in relation to injuries that I will now explain.
Physical health
61Your counsel tendered several documents at the plea which relate to your physical health. I have had regard to the Patient Health Summary printed on 26 October 2021,[20] the three letters from Dr Craig Timms dated 28 December 2018,[21] 6 February 2020[22] and 25 August 2021[23] and the ‘Clinical Notes’ from Justice Health beginning on 9 February 2023.[24]
[20] Ex D2.
[21] Ex D3.
[22] Ex D4.
[23] Ex D5.
[24] Ex D6.
62When you were 18 years old, you were involved in a motorcycle accident wherein you sustained a back injury. As a result, you experience ongoing pain and have developed bone spurs.
63At 27 years old, you were hit in the head with a fence post as you attempted to break up a fight between work colleagues. You were hospitalised and spent 4½ months undergoing rehabilitation. Your counsel submitted that you also sustained an acquired brain injury.
64In 2016, while driving to your job at EBLI Engineering, you were involved in a motor vehicle collision. According to Dr Timms’s report, you were flown to the Alfred Hospital Trauma Centre suffering from internal haemorrhaging, lacerations and a spinal fracture. Dr Timms reports that due to the pain in your spine and your limbs, you were unable to return to work.
65You continue to suffer from chronic and severe pain and Dr Timms reports you remain completely incapacitated from employment. You underwent one of two planned spinal operations on 23 July 2021.
66While in custody, during physiotherapy your sciatic nerve was pinched. You are currently on the waiting list to visit a neurosurgeon in relation to this injury and have been prescribed Endep and meloxicam.
67The clinical notes from Justice Health outline that you suffer from restricted movement and difficulty walking due to sciatic nerve pain. Your sleep has also been affected due to the pain and you are only sleeping about 5 hours a day.
68Your clinical notes also note that you are asthmatic and you self-reported on 3 April 2023 as usually smoking about 10 to 12 cigarettes a day.
69I accept that by reason of your physical injuries and other conditions a custodial sentence will be more burdensome on you than a prisoner of normal physical health.
Drug and alcohol use
70Your counsel submitted that you infrequently consume alcohol. However, at 18 years old you were introduced to cannabis and regularly smoked until you were 27. In 2015, an acquaintance introduced you to methylamphetamine. While you have only ever consumed methylamphetamine orally and not intravenously, following your car accident in 2016 you increased your consumption.
Prior criminal history
71You have an extensive prior criminal history, extending back to 24 March 2014, which comprises a range of drug, family violence, driving, damage to property and assault offences.
72Relevantly, you have been convicted of persistent contravention of a family violence intervention order on numerous occasions, beginning on 2 December 2015. On this occasion, at the Dandenong Magistrates’ Court you were convicted and sentenced to a Community Correction Order (‘CCO’) for 12 months. Under the CCO, you were required to undergo treatment and rehabilitation, including a mental health assessment and offending behaviour programs. Concerningly, you were convicted of contravening the CCO on 21 December 2015 and the order was varied.
73You have been given many opportunities to complete a CCO but several contraventions have been proven against you, including, on 11 August 2017, 19 February 2018, 19 March 2018, 17 September 2018 and 11 March 2021.
74Clearly, in light of your past criminal history, specific deterrence and protection of the community need be given significant weight.
Mitigating circumstances
75You pleaded guilty to the present charges on 20 September 2023. While this is a relatively late plea, I accept it has utilitarian benefit, particularly in the COVID-19 environment.[25] Importantly, you have saved the witnesses the further trauma of having to give evidence in court. Your plea also indicates your acceptance of responsibility for your offending conduct and a willingness to facilitate the course of justice.
[25] Worboyes v The Queen (2021) 96 MVR 344, 356–7 [22], [34]–[39], [2021] VSCA 169 (Priest, Kaye and T Forrest JJA); Chenhall v The Queen [2021] VSCA 175 [29]–[30], [33]–[35] (Priest, Kaye and T Forrest JJA); Tran v The Queen [2021] VSCA 278 [59] (Kaye and T Forrest JJA); Rossi v The Queen [2021] VSCA 296 [13]–[16], [19] (Priest and T Forrest JJA).
76While I accept you are undoubtedly regretful for the situation in which you find yourself and the effect this has had on you, there is insufficient evidence before me to make a finding in your favour that you demonstrate true contrition and remorse for your offending conduct, beyond what is evident from the plea itself.[26]
[26] See Barbaro v The Queen (2012) 226 A Crim R 354, 364–365 [32]–[38] ((Maxwell P, Harper JA and T Forrest AJA).
77I also accept you have been serving a sentence in custody and, given much of this time has been spent in COVID-19 conditions, this has meant the time you have spent in custody to date has been more onerous on you than it otherwise would have been.[27] I also accept you will experience a greater level of custodial hardship as a result of COVID-19 restrictions which apply to all prisoners in this State for the foreseeable future.
[27] See eg The Queen v Madex [2020] VSC 145 [52] (Incerti J); R v Kelso [2020] NSWDC 157 [45] (Norrish QC DCJ); Brown (aka Davis) v The Queen [2020] VSCA 60 [48] (Priest and Weinberg JJA); Astbury v The Queen (No 2) [2020] VSCA 158 [33] (Kaye, Niall and Weinberg JJA).
78Your counsel submitted that because you come from a socially disadvantaged background, the principles discussed by the High Court of Australia in Bugmy v The Queen[28] are engaged in your case. I accept this is so.
[28] (2013) 249 CLR 571 (‘Bugmy’).
79You have been exposed to, and are a victim of, violence in the home and your upbringing was deeply compromised by the abuse you suffered at the your father’s hands.
80Your counsel relied on the authority of Marrah v The Queen (‘Marrah’)[29] and Newton v The King (‘Newton’).[30] In Marrah, the Victorian Court of Appeal confirmed the relevance of a disadvantaged background, stating that:
Circumstances of deprivation, abuse and other social disadvantage occurring during an offender’s formative years are more than matters of historical significance to the administration of justice. The effects of such social disadvantage do not generally diminish with the passage of time and are likely to have profound and lasting consequences…Though they do not provide an excuse for offending behaviour, they must be given due weight in the sentencing calculus.[31]
[29] [2014] VSCA 119 (‘Marrah’).
[30] [2023] VSCA 22 (‘Newton’).
[31] Marrah [16] citing Bugmy [24] (Redlich and Tate JJA).
81Importantly, the Court held in Marrah that when sentencing I should not consider that an ‘offender’s social disadvantage has the same mitigatory relevance for all of the purposes of punishment’[32] and social disadvantage does not ‘diminish the need for the sentence to vindicate the dignity of a victim and reflect the community’s disapproval of the offending’.[33]
[32] Ibid.
[33] Ibid.
82In Newton, the Victorian Court of Appeal considered the Bugmy principle and said:
Whether, and to what extent, social disadvantage warrants a reduction in moral culpability in a particular case falls to be assessed by reference to the nature and circumstances of the offence, the nature and severity of the disadvantage suffered and whether the effects of the disadvantage can be seen to be in any way explanatory of the offending.[34]
[34] Newton [36]-[37] (Beach and Macaulay JJA).
83As the same Court observed in DPP v Herrmann:[35]
The significance of the ‘general’ approach enunciated in Bugmy is that the relevance of deprivation to sentencing does not depend on proof of such a nexus. ... ‘the impact of disadvantage is complex, multilayered, non-linear and not easily “diagnosed” or measured’. The High Court’s recognition that serious childhood deprivation is likely to make an offender less morally culpable than ‘an offender whose formative years were not marred in that way’ reflects the principle of equal justice.[36]
[35] [2021] VSCA 160.
[36] Ibid [45] (Maxwell P, Kaye, Niall, T Forrest and Emerton JJA). See also Jawahiri v The Queen [2021] VSCA 287 [73(s)] (Priest and T Forrest JJA).
84Your counsel further submitted, I do not need to find the level of your social disadvantage to be ‘profound’ in order to apply the Bugmy principle in this case. He referred me to Sabbatucci v The Queen (‘Sabbatucci’)[37] where the Victorian Court of Appeal opined the sentencer must evaluate whether the disadvantage warrants the offender being viewed as ‘less morally blameworthy’ than someone who commits the same offence but does not have the same disadvantaged or deprived background.[38] According to Sabbatucci, forming this conclusion does not depend on my being satisfied the circumstances here establish ‘profound disadvantage’ or ‘profound deprivation’ because in every case, ‘it will be a question of fact and degree’.[39]
[37] [2021] VSCA 340 (‘Sabbatucci’).
[38] Ibid [22] (Maxwell P and Emerton JJA).
[39] Ibid.
85Undoubtedly, your father’s physical abuse of you has led you into a life of illicit drug taking and crime and has contributed to the circumstances surrounding your commission of a number of offences, including the present offences. Your experience of growing up in these circumstances is relevant to my determination of appropriate sentences in your case, notwithstanding your long history of offending.[40]
[40] Bugmy 594–595 [43]–[44] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ); cf 598 [56] (Gageler J).
86These complex factors must also inform the weight I give to specific deterrence and protection of the community in your case, because you are a person who is not easily specifically deterred by reason of your social disadvantage. Nonetheless, I will have to give some weight to specific deterrence if only to encourage you, upon release from custody, to rehabilitate yourself.
87Moreover, these personal factors mean I must moderate the weight I would otherwise have given to general deterrence, denunciation and the punitive aspects of the sentences I impose on you.
Rehabilitation
88At the plea hearing, there was evidence regarding the recent effort you have put into your rehabilitation. Prior to being remanded in custody on the present matters, your engagement with CCOs had been very unsatisfactory. However, your counsel told me you have now moved away from anti-social peers who influenced your non-compliance. It is encouraging you have now gained insight into the reasons behind your past offending behaviour and you have expressed a firm desire to reintegrate into the law-abiding community.
89Whilst in custody, you have taken a number of positive steps towards your rehabilitation. You have successfully completed a number of educational and other programs as follows:
(a) Four units towards a Certificate I in Access to Vocational Pathways.
(b) An eight module ATLAS remand/sentenced program.
(c) A unit in Providing First Aid.
(d) A twelve-hour AOD program conducted by Caraniche.
(e) A six-hour AOD and Ice Effects program conducted by Caraniche.
(f) A VicRoads Intensive Drink/Drug Drive Behaviour Change program.
(g) Two units in the Specialised Cleaning Short Course.
(h) Several units towards a Certificate II in Construction Pathways.
(i) Two units towards a Certificate II in Food Processing.
(j) Two units towards a Certificate II in Kitchen Operations.
You have also obtained a Construction Induction Card.
90Despite my finding that you lack genuine contrition and remorse, there is sufficient evidence before me to find your prospects of rehabilitation are somewhat less guarded than I would otherwise have been assessed them to be. It appears to me that you may be turning a corner in your life, provided you continue to engage in programs that treat your mental health, drug problems and physical injuries. Much will depend upon your abstaining from illicit drug abuse and keeping away from criminally oriented peers upon your release from custody.
Application of sentencing principles
91I have had regard to current sentencing practice in relation to these offences as informed by the decisions of the High Court of Australia in R v Kilic[41] and DPP (Vic) v Dalgliesh (a Pseudonym)[42] and the Victorian Court of Appeal decisions in DPP v Zhuang[43] and DPP (Cth) v Thomas.[44]
[41] (2016) 259 CLR 256, 266–268 [21]–[25] (Bell, Gageler, Keane, Nettle and Gordon JJ).
[42] (2017) 262 CLR 428, 444–447 [47]–[58] (Kiefel CJ, Bell and Keane JJ), 452–455 [78]–[85] (Gageler and Gordon JJ).
[43] (2015) 250 A Crim R 282, 292 [30]–[31] (Redlich, Priest and Beach JJA).
[44] (2016) 53 VR 546, 606–609 [173]–[183] (Redlich, Santamaria and McLeish JJA). See also Williams (a pseudonym) v The Queen [2021] VSCA 35 [21]–[25] (Priest and Kyrou JJA); Russo v The Queen [2021] VSCA 244 [53]–[56] (Emerton JA, Priest JA agreeing).
92While current sentencing practice is relevant to the sentence I impose on you, it is only one of a number of sentencing considerations I must take into account in imposing a just sentence in your case.[45]
[45] See DPP (Vic) v Dalgliesh (a Pseudonym) (2017) 262 CLR 428.
93Moreover, it is difficult to gauge more than a general yardstick from so-called ‘comparable cases’, given the wide range of offending conduct that can constitute these offences and the myriad of personal circumstances pertaining to individual offenders. Nonetheless, to the extent I have been able to gain assistance from comparable cases, I have sought to do so in your case.
94The basic purposes for which a court may impose a sentence are just punishment, denunciation, deterrence, both specific and general, protection of the community and rehabilitation. In sentencing you, I must have regard to a range of factors, such as the seriousness of the offences, your culpability for them, the effect of your offences on the victims and your personal circumstances.
95Moreover, because of your prior criminal history, real weight needs to be given to specific deterrence and protection of the community. As I observed earlier, I assess your prospects for rehabilitation as being somewhat guarded, however if you reengage with counselling and other relevant programs, your prospects will continue to be optimistic.
96In sentencing you for this crime I am required to balance the interests of the community in denouncing your criminal conduct with the interests of the community in seeking to ensure that, so far as possible, you are rehabilitated and reintegrated into society.
97After balancing all relevant sentencing considerations in your case, on 22 September 2023 I imposed on you the sentences and other orders set out below:
On Charge 1 (common law assault) – convicted and sentenced to 450 days’ imprisonment.
On Charge 2 (make threat to inflict serious injury) – convicted and sentenced to 90 days’ imprisonment.
On Charge 3 (false imprisonment) – convicted and sentenced to 60 days’ imprisonment.
On Charge 4 (make threat to kill) – convicted and sentenced to 120 days’ imprisonment.
On Charge 5 (common law assault) – convicted and sentenced to 300 days’ imprisonment.
On Charge 6 (persistent contravention of family violence intervention order) – convicted and sentenced to 60 days’ imprisonment.
On Charge 7 (persistent contravention of family violence intervention order) – convicted and sentenced to 60 days’ imprisonment.
On Charge 8 (persistent contravention of family violence intervention order) – convicted and sentenced to 60 days’ imprisonment.
On Charge 9 (persistent contravention of family violence intervention order) – convicted and sentenced to 30 days’ imprisonment.
On Summary Charge 8 (contravene family violence intervention order) – convicted and sentenced to 10 days’ imprisonment.
I directed that 30 days of the sentence imposed on Charge 2, 20 days of the sentence imposed on Charge 3, 40 days of the sentence imposed on Charge 4, 100 days of the sentence imposed on Charge 5, 30 days of the sentence imposed on Charge 6, 30 days of the sentence imposed on Charge 7, 30 days of the sentence imposed on Charge 8, 15 days of the sentence imposed on Charge 9, 5 days of the sentence imposed on Summary Charge 8, be served cumulatively upon the sentence imposed upon Charge 1 and upon each other.
Making a total effective sentence of 750 days’ imprisonment.
I directed that you serve a minimum of 564 days’ imprisonment before being eligible for parole.
I declared the period you had been in custody (at that time) in respect of these offences, namely 741 days (not including the day of sentence), be reckoned as period of imprisonment already served under these sentences, which was to be deducted administratively.
Additionally, on Charges 1, 2, 3, 4, 5, 6, 7, 8, 9 and Summary Charge 8, I sentenced you to a Community Correction Order (with conviction) for a period of 18 months commencing upon the completion of your sentence of imprisonment. The following treatment and rehabilitation conditions applied:
Under the Sentencing Act s 48C, you are to perform 50 hours of unpaid community work over 18 months.
Under Sentencing Act s 48CA, I determined all hours satisfactorily completed under the treatment and rehabilitation conditions of the order are to be counted as hours of unpaid community work.
Under Sentencing Act s 48D(3)(a), you are to undergo any assessment and treatment (including testing) for drug abuse or dependency.
Under Sentencing Act s 48D(3)(e), you are to undergo any mental health assessment and treatment.
Under Sentencing Act s 48D(3)(f), you are to undergo any program that addresses factors related to your offending behaviour.
Under Sentencing Act s 48D(3)(g), other treatment and rehabilitation – you are to successfully complete a men’s behaviour change program and you are to attend Narcotic and Alcoholic Anonymous meetings as directed by the regional manager or his/her nominee.
Under Sentencing Act s 48E, you are to be under supervision for 18 months.
Under Sentencing Act s 48K, I imposed a judicial monitoring condition. A judicial monitoring hearing is to be conducted in Melbourne on 20 December 2023 at 9.30 am. I directed you may appear remotely at that hearing.
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