Director of Public Prosecutions v Hendry

[2017] VCC 247

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

AT LATROBE VALLEY
CRIMINAL JURISDICTION

CR -16-01944

DIRECTOR OF PUBLIC PROSECUTIONS

v

DAVID WILLIAM HENDRY

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Latrobe Valley
DATE OF HEARING:
DATE OF SENTENCE:	8 March 2017
CASE MAY BE CITED AS:	DPP v Hendry
MEDIUM NEUTRAL CITATION:	[2017] VCC 247

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 A. J. Moore
For the Accused	Ms C. Woodward

HIS HONOUR:

1David Hendry, on indictment ending 435, you have pleaded guilty to one charge of negligently causing serious injury and one charge of failing to stop or render assistance after an accident.  Those crimes carry maximum penalties of ten years and ten years respectively.

2This offending occurred in November 2011. 

3You also have summary matters of exceeding .05 and driving whilst disqualified.  The exceed .05 carries a maximum penalty of 12 months and the drive whilst disqualified, two years.

4On indictment ending 345, you have pleaded guilty to one charge of extortion; one charge of intentionally causing injury; and one charge of attempted theft.  Those crimes carry maximum penalties of 15 years, ten years and five years respectively. 

5You also pleaded guilty to an uplifted charge of fail to appear, which has
a maximum penalty of 12 months. 

6On indictment ending 823, you have pleaded guilty to one charge of making threats to kill, which carries a maximum penalty of ten years' imprisonment, and two charges uplifted of failing to appear. 

7Firstly, pursuant to s.464ZF of the Crimes Act, I make an order that you provide a saliva sample for DNA purposes.  That order having been made, I must advise you that should you refuse to provide such a sample, police may use reasonable force to take it from you.

8You have pleaded guilty in the ultimate to these matters.  There has been
a considerable delay, brought about largely by you failing to appear. 

9Insofar as it is all concerned, having seen your record of interview in respect of at least one of the indictments, remorse is somewhat problematic, but I will give you the benefit of the doubt in respect of that.  You must also, of course, get the utilitarian benefit of the pleas of guilty.

10I will be going through the offending in a moment.  But it is important to note that certainly in charges in regard to Indictment No.435, which is the negligently cause serious injury and failing to stop, that you have prior convictions for exceeding the prescribed concentration of alcohol, a prior conviction for refusing to accompany police to a station for a test, you have got priors for drive whilst disqualified and on 8 March 2012, you were in fact gaoled for driving whilst disqualified and driving whilst exceeding PCA.  That, of course,
post-dates the offending of November 2011, but I am unaware as to whether that offending occurred prior to November 2011 or not.  However, those ones that are clearly prior matters, are of significance in the description of events that I am about to outline.

11On Indictment 435, the victim in the matter was a Christine Collins, who resided at Nareena. 

12At the time of the incident I am about to describe, you were not licensed to drive a motor vehicle and in fact had been disqualified in June 2009 from obtaining any licence or permit for a period of four years. 

13On Thursday 3 November 2011, you were at home, after having travelled earlier to Wonthaggi.  On the return trip, you drank approximately four stubbies.  On your return, you drank a further Johnnie Walker.  You and your partner had an argument, which resulted in your driving off in the motor vehicle. 

14At approximately 6.50 pm, you drove the vehicle north along McCartin Street in Leongatha.  You entered the roundabout at the intersection of McCartin Street and Bair Street to perform a right turn into Bair Street.  As you rounded the roundabout, you intentionally accelerated the vehicle, causing the rear tyres to lose traction.  You lost control of the vehicle and veered left across Bair Street and collided with the rear of the victim's vehicle, a Holden Rodeo. 

15At the time of the collision, she was walking between her vehicle and a Ford utility, which was parked in front of her vehicle.  The force of the collision pushed her vehicle forward and she became trapped between her vehicle and the Ford utility.  You fled from the scene.  You did not stop and did not attempt to render assistance to the victim.  You have pleaded guilty to doing that in circumstances where you were aware of her being injured. 

16She suffered serious injuries.  Those included a fractured rib, punctured lung, large haematoma on her left leg, multiple bruises over her body and soreness in multiple areas on her body.  She was taken by air ambulance to the Alfred Hospital. 

17Police attended the scene and spoke to several witnesses who knew your identity.  At 7.37 pm, police attended your address. You fled.  They pursued you through the rear of the property into paddocks behind that address.  You hid in long grass in an attempt to avoid police.  You were located at 8 o'clock.  You were requested to undergo a preliminary breath test, which showed that you had consumed alcohol.  You underwent a breath test, with a result of 0.137.

18When you were interviewed by police about this, you said that you had had an argument with your partner and accordingly, it is clear, the only inference open in all this is that you were driving with a licence that had been disqualified for some two years at that point, angry and clearly intoxicated. 

19You were placed under arrest and conveyed to the Wonthaggi Police cells, where you were lodged until sober enough for interview.  You were interviewed at the Wonthaggi Police Station at 2 am and I am not going to go through the details of that interview.  Suffice to say, you did not seem to show a great deal of remorse or concern for your victim but as I say, I will give you the benefit of the doubt in respect of that.  Clearly you exceeded .05 and you were driving whilst disqualified.

20A victim impact statement has been filed on behalf of your victim and that articulately outlines the long-term and immediate damage that this has caused to her.  She has now had ongoing medical attention for an extended period of time.  She was unable to walk properly for six months.  That caused real difficulties in her personal situation and in terms of employment.  She was unable to work for six months.  She said that her life was overall interrupted enormously, emotionally, physically and financially for an extended period of time. 

21She has had subsequent surgery and it would appear on the face of it, that the odds are that in the future, she will require further surgery.  Certainly the injuries cannot be said to be at the highest level one sees in a situation such as this.  Some people are quadriplegics, but they are certainly serious injuries.

22Insofar as the moral culpability is concerned, as I said, you do not get - well
I have not said it yet, but I will now.  You do not get sentenced for what has happened in the past, but you, with a number of prior convictions for driving whilst drunk, elected to drive in this situation and I think that the moral culpability in your situation has to be regarded as high.  This is not some momentary indiscretion, it is a total disregard for the safety of others because of your drunkenness and anger.

23I regard this as a serious example of dangerous driving causing serious injury and also it is a matter where you took off being aware that she was injured and indeed, you claimed to the police that you ran away because some "dickhead" was chasing you as a witness.  Clearly when police arrived at your house, you hid from them as well, so I treat that reason for leaving the scene with no credibility at all.

24The next indictment, that is, 345, relates to circumstances where a person, as
I understand it, is now your partner, had been employed with another person by a Mr Bunn, on a dairy farm in Bena.  The employment only lasted a couple of weeks and it had been terminated.  You had gone to the premises, claiming that your, as I understand it now, partner had been underpaid or too much tax had been taken out or something along those lines.  In any event, you apparently threatened legal action and left. 

25You and a Mr Vine, who has already been sentenced for this offending, went back to the premises on 13 July 2012.  Mr Vine became instantly aggressive towards Mr Bunn and threatened to burn his house down, to let the milk out of the vats and to cut his calves' throats if he did not sign a cheque. 

26He continued to refuse, which resulted in both Vine and you grabbing hold of him and throwing him up against the wall of the house.  He was then slung to the ground while you constantly demanded that he sign a cheque.  He also says he was thrown against a concrete flower box several times.  He attempted to walk away back to the dairy, when you prevented him from leaving and pinned him against the wall.  At that point in time, a Mr Vine entered the house, removed the cheque book from a kitchen table and said, "I've got your cheque book and you're going to sign it." 

27It was further asserted that Vine remove the cheque from the book which he had written out to Brown's Plumbing and placed this in his pocket.  It is further alleged that Vine grabbed hold of Mr Bunn and dragged him inside the house, while you pushed him from behind.  Vine again demanded that he write out
a cheque.  Upon that refusal, Vine grabbed him by the throat and pushed him up against the wall and threatened to bash him.  You threatened to stab him.

28He said that these demands continued over half an hour, until Vine issued an ultimatum that, "He would count to ten and if Bunn did not sign the cheque, he would belt the living crap out of him."  He said that he counted to ten, but he still did not sign and said he did not have any money in his account.

29At that point in time, you suggested that he sign over his car.  Fearing further assaults, he wrote on a piece of paper, signing his vehicle over to your now partner.  He was able to leave and went back to the milking shed, where his employee rang the police.  Police spoke to you later and you handed over the note regarding the car. 

30Mr Vine has already been sentenced for this matter and received an overall sentence of 18 months, with a minimum term of nine months. 

31He was older than you.  Probably be fair to say, was more threatening than you, but you were complicit in it all.  He has more prior convictions than you and there are some for violence.  In the overall circumstances here for reasons of totality and parity, even though he pleaded guilty at the earliest reasonable opportunity, I think that you should receive a lesser sentence than what he received and only a portion of that will be cumulative upon the sentence I will be imposing on the earlier indictment that I have referred to.

32The third indictment, that is 823, involves a situation with the former partner of your brother.  After some text messaging, apparently starting over you believing that she had told police about you not reporting on bail, whatever it might be, and a bit of mutual abuse, you attended at her property. 

33When you arrived, you punched loudly at the front window and yelled threats at her.  The recollections of those present as to the precise words used by you are somewhat different, but there can be no doubt that you were threatening to kill her and doing so repeatedly. 

34A Mr Pearce, who was inside, began to walk outside to try and calm you down, but a Ms Cairn, who was also there, thought she had a best chance of calming you down.  She opened the door and asked you to be quiet because her daughter was inside.  You yelled back that you did not care who was there.  She observed you to be frothing at the mouth.  You came right up to her face and said, "I don't give a fuck who's in there, she brought up my kids."  You continued to yell and scream, before eventually leaving, carrying on as you walked away.  That gives rise to the charge of threat to kill and as I said, carries a maximum penalty of ten years' imprisonment.

35The driving matters are, in my view, obviously serious.  They are all serious.  Each of these matters calls for the application of general and in your situation, specific deterrence, denunciation and appropriate punishment.  In view of your history, in terms of driving and in view of the consequences of your actions on this day, it is my view that community protection has to play a significant part in this sentencing process as well.

36You have been clearly drinking and driving for a long time and one could fairly assume that a consequence such as this was inevitable and something that you had clearly disobeyed court orders in terms of driving.  A very significant gaol sentence is the only sentencing option open in my view. 

37It was tentatively put at the outset that perhaps a combination order, but as indicated clearly, I think that this offending, taken in total and indeed the first indictment by itself, is clearly cause for a greater penalty to be imposed in those particular circumstances. 

38I have, tendered on your behalf, a letter from your now partner, some submissions from your counsel, as well as a report from Dr Carla Lechner. 
I have clearly read that report and taken the contents of it into account and as summarised in brief form in your counsel's submissions. 

39You clearly were brought up in a circumstance of no father.  You were the victim, it would appear, of some abuse, at least, at the hands of step-fathers and you had no real male role model in your life.  I accept, on the material before me, though it is self-reporting, that you began drinking at a very early age.  You are, as I understand it, there is a number of members of your family, virtually estranged from all of them.  You have not seen the four children that you have, for a period of something in the order of 12 months.  You had been in an
on-and-off relationship for over 12 years with one particular woman and finally separated from her in late-2015.

40You level of education really goes to Year 7 or somewhat into Year 8.  As your counsel has pointed out, you have endeavoured, over the years, to work and you estimate that you have worked for approximately 70 per cent of the time that has been available. 

41I accept that you have been abusing alcohol from a very early age and I accept that it would appear that the dispositions imposed by courts did not encourage any treatment.  You are 31 years of age and you never sought any yourself. 

42The report from Dr Carla Lechner says you have an alcohol abuse disorder, major depression and I take that into account, in terms of you undergoing
a sentence.  There is a possibility of an acquired brain injury, but there is no evidence of that and I was not asked to explore it any further.  You are clearly not of the highest order, insofar as intelligence is concerned, though you are not intellectually disabled.  I take those matters into account. 

43It is clear that you have anger issues and are totally irresponsible when intoxicated. 

44As I said, community protection has to play a part in this sentencing process.  You have reached an age where some people who have had lives such as yours, are able to turn around and it is going to be a matter for you on a parole situation to endeavour to get the correct programs and to endeavour to get your life back into place.  The circumstances here are such that, as I said, serious offending and a very significant custodial sentence is the only option, in my view.

45I have taken into account questions of totality and as much as can be done in these circumstances, endeavoured to avoid a crushing sentence.  People who drive like this, whilst intoxicated, even when they have no prior convictions at all, are otherwise of blameless character and cause consequences such as this to totally innocent victims, get significant sentences.

46Accordingly, you are sentenced as follows:  Sorry, before I say that.  The prospects of your rehabilitation are entirely up to you and the risk of you
re-offending, I would have thought without treatment and only being abstinent from alcohol now because you are in gaol, could not be regarded as low. 

47On Indictment 435, on the charge of negligently causing serious injury, which
I regard as a, as I said, very serious example of it, four years.

48On failing to stop when you were aware of the person on the footpath, three years.

49I direct that one and a half years of the three to be served cumulatively on the four, which gives, on that indictment, five and a half years. 

50The summary matters of exceed .05, six months concurrent. 

51Drive whilst disqualified, three months concurrent.

52There will be a loss of - disqualified from any licence to drive is cancelled.  Disqualified on negligently cause serious, for two years.  On fail to stop, five years.  On exceed .05, 26 months.  And on driving whilst disqualified, six months.  That is a total, because of concurrency, of five years loss of licence.

53On Indictment No.345, on the charges of extortion, intentionally cause injury and attempted theft, an aggregate of 12 months. 

54On the charge of fail to appear, three months.

55On the charge of attempted theft, licence is cancelled and disqualified from obtaining one for a period of three months.  Again, that will be concurrent.

56On Indictment 823 of threat to kill, six months.

57On the two charges of fail to appear, three months.  If I did not say it before, the charge of fail to appear on Indictment 345, is three months as well.  All those fail to appear sentences are to be served concurrently.

58That means on Indictment 435, there is a total effective sentence of five and
a half.

59On Indictment 345, a total of 12.

60On Indictment 823, a total of six. 

61I direct that four months of the sentence on Indictment 345, and two months of the sentence on Indictment 823, be served cumulatively upon each other and upon the sentence imposed on Indictment 435.

62That gives an effective head sentence of six years and I direct that you serve
a minimum term of four years before becoming eligible for parole. 

63I direct that 133 days be reckoned as having been served under this sentence and whilst it is a bit artificial in a situation such as this, I say that, pursuant to s.6AA, but for your pleas of guilty to all these matters, you would have been sentenced to be imprisoned for a period of nine years, with a minimum of six. 

64Any other orders I have to make? 

65MR MOORE:  No.

66HIS HONOUR:  No, all right.  Take him now, thank you. 

67Yes, thanks.  Thanks, Ms Woodward.

68MS WOODWARD:  As Your Honour pleases.

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