Director of Public Prosecutions v Hennessey

[2019] VCC 1696

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

AT BENDIGO
CRIMINAL JURISDICTION

CR-19-01392

DIRECTOR OF PUBLIC PROSECUTIONS

v

WILLEM HENNESSEY

---

JUDGE:	HER HONOUR JUDGE WILMOTH
WHERE HELD:	Bendigo
DATE OF HEARING:	15 October 2019
DATE OF SENTENCE:	17 October 2019
CASE MAY BE CITED AS:	DPP v Hennessey
MEDIUM NEUTRAL CITATION:	[2019] VCC 1696

REASONS FOR SENTENCE

Subject: Criminal law - sentence            

Catchwords:   plea of guilty to one charge of armed robbery – offender already sentenced for other offending committed soon after this offence but not detected until later – whether general and specific deterrence already met by existing sentence - further evidence of childhood deprivation disclosed – good progress whilst in custody – currently serving sentence in protection following sexual assault – totality.  

Cases Cited:Bugmy v R (2013) HCA 37

Sentence:18 months imprisonment concurrent with sentence presently being served. No change to parole period.

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr G. Hayward	OPP
For the Accused	Ms M. Walker	Melinda Walker

HER HONOUR: 

1Willem Hennessey, you have pleaded guilty to one charge of armed robbery which occurred on 23 November 2016 at Flora Hill near Bendigo.  The victim was working as an attendant at a Video Ezy store in Flora Hill at that time and just before 8 pm that evening, her shift was about to finish. 

2You came into the store wearing a hooded jacket with a beanie over the top and white socks on your hands.  You were carrying a tomahawk which you raised when you approached the counter behind which the victim was working.  You then went behind the counter and told her to 'Get all the cash.'  She opened the till and gave you the cash except for the coins.  You then demanded she give you the PlayStation PS3 video games.  She opened the drawer where they were kept and let you take them.  You placed 132 games in your back pack.

3The victim was expecting her mother to arrive and feared for her safety, so she told you to be quick because someone would be arriving soon.  At that point, a customer entered the store and she informed you of that and you ran off.  The customer rang 000 and the police arrived soon afterwards.  The whole incident was captured on CCTV.  You were then seen by a resident in a nearby street run into the yard of a house and discard items of clothing that you had been wearing.  The following day, that witness watched a news report on TV of the incident and reported her observations to Crime Stoppers. 
On 28 November, police located the items of discarded clothing and lodged them with the Forensic Science Centre on 17 December 2017, more than a year later.

4Swabs were obtained for DNA analysis from the clothing and a result was obtained on 14 February 2018, that there was extremely strong support for the proposition that you were a contributor to each of the three samples obtained.  That information was given to Detective Senior Constable Hazelwood on
3 March 2018, some 16 months after the offence.  It seems an extraordinary delay for which no explanation has been offered.  Fortunately, it has not caused you any disadvantage other than having had this one charge hanging over your head for a long time.

5On 24 July 2018, you were interviewed in prison where you were serving a sentence imposed by His Honour Judge Lacava of this court on 16 February 2018.  You denied the offending but you pleaded guilty at the stage of a committal case conference, which is regarded as an early plea.

6At the time, of the offence, you were subject to a Community Correction Order imposed by the Bendigo Magistrates' Court on 5 February 2016, following a breach of a Community Correction Order imposed on 21 July 2015 by that same court for a number of dishonesty and drug offences.

7Judge Lacava sentenced you to a total effective sentence of six years and six months with a non-parole period of four years and four months for an armed robbery, three thefts, a burglary, handling stolen goods and being a prohibited person possessing a firearm.  That last matter had been committed in October 2016 and the other offences in December 2016 about two weeks after the armed robbery for which I am sentencing you today.

8I turn now to your personal circumstances.  You are aged 30, you were 27 at the time of the offending with a history of long-term drug abuse and a significantly deprived childhood.  At the time of the offending, you had been released from prison after serving a sentence and were reunited with your partner and two young children. 

9While you had been in prison, your partner had lost her accommodation and had to live in a shed at her brother's premises.  Together you obtained a house in Melton but there was a waiting period and in the meantime, you and your family had to pay to live in motels and had very little social support.  It was in these circumstances that you committed the armed robbery on 23 November.  By that time, your partner was pregnant with your third child, which you explained in a letter of apology you had written to the victim, adding that you and your family were living on the streets and that the children were hungry.  Unfortunately, you were also using drugs at this time.

10Details of your early background were set out by a psychologist,
Mr Ian McKinnon, in his report dated 26 December 2017 and were relied upon by Judge Lacava in his sentencing remarks.  His Honour noted that your parents separated when you were aged two and your mother is said to have been a bipolar schizophrenic heroin addict, who abandoned you, leaving you on the streets at a young age.

11His Honour noted that you had little or no formal education because of your unstable upbringing, that you have a very long history of polysubstance abuse, having at the age of 11 been injected with heroin by your mother and that you went on to abuse almost every conceivable type of illicit drug, as His Honour stated it.

12His Honour accepted your counsel's submission that your background could fairly be described as extremely troubled and unstable and he accepted
Mr McKinnon's opinion that you suffer from long-term Post-Traumatic Stress Disorder, complicated by significant developmental trauma, anger, drug abuse and other factors.

13I have been provided with a series of recently obtained Department of Human Services reports prepared for the Children's Court from 1998 until your case was closed on 16 June 2005, 11 days before your 16th birthday.  It seems that DHS first became involved when you were four years old but the first report refers to a protection application commenced when you were aged eight. 
Your mother had become frustrated with your difficult behaviour and had placed a skipping rope around your neck and tightened it.  You were admitted to hospital for three days and then attended at school holiday camp before returning to your mother and stepfather and then being placed in foster care.

14As a child, you were diagnosed with ADHD, requiring medication initially but this was not always administered when you were living at home. 
The Department continued to be involved with you for several years and in 2002, your mother relinquished her guardianship rights over you as she was suffering from depression and anxiety and could not cope with your behaviour.  You spent your childhood in nine different foster homes whilst returning to your family from time to time.

15You were described as a child who could be charming and delightful with many positive attributes, but you were a sad boy who missed his family although you did understand why you could not return home.

16At primary school, your behaviour was not problematic and you did very well academically and excelled at sport.  You started high school and even though you were regarded as a capable student, you did not settle well and you were expelled at the age of 14.  A plan for you to return to your family was developed, coinciding with their plan to move to Queensland. 

17Ultimately, this plan did not succeed.  At age 15, you returned to Victoria, your mother having rejected and abandoned you again.  During this period, your behaviour deteriorated both in Queensland and back in Victoria, partly it was believed because of your feelings of rejection.  You were homeless, avoiding contact with DHS, using drugs and offending.  The reports indicate that your mother remained in contact with the Department and wanted them to remain involved with you but you were keen for it to end when you were 16.  This did occur, as I said, in June 2005, at a time when you were missing and had not been reliant on the Department for about a year.

18The documentary material I referred to contains a notation that the Department considered you were resilient, actively seeking your own accommodation and providing for yourself.  It was noted that there were no indications of offending or of substance abuse, even though there had been a history of both in the recent past and the Children's Court order in place was allowed to expire. 
It seems that your whereabouts were indeed unknown and rather than having your own accommodation, you were couch surfing and using drugs at the time.

19At the age of 17, you became a father and a second child was born a few years later in a relationship that lasted from when you were 16 until you were 23.  Those children are now aged 11 and eight and they live with their mother in Adelaide.  You are in occasional telephone contact with them.

20Your offending history dates back to when you were 17, with an escalation of offending in 2015, resulting in a combination prison sentence and Community Correction Order.  It was the breach of that order that saw you serving a sentence in 2016, before your release in July of that year and the extensive drug use which followed.

21Throughout these years, you were anxious to know more about your biological father but his identity was not known.  Your mother had provided a name and indeed this was the name recorded on your birth certificate but she later told you that he was not your father, that your father was an Aboriginal man who had been abusive to her.

22Since then, you have identified as Aboriginal and in custody, you have participated in cultural programs and engaged with Aboriginal support services from which you have derived comfort.  Your three youngest children live in Bendigo and you hope to be able to keep them in touch with their heritage.

23You had hoped to have this case heard in the Koori Court but your eligibility was not able to be established.  You intend to continue your search to establish your background when you are released.

24The High Court case of Bugmy v R[1] established that the effects of a person's deprived and disadvantaged background do not diminish with time and should be taken into account in sentencing an offender with such a background as yours.

[1] 92013) HCA 37

25Armed robbery is a very serious offence and in the circumstances of this case, amounts to a fairly serious example of the crime.  Fortunately, the victim was not physically hurt but she was a vulnerable target and she is still badly affected emotionally by the trauma now after three years.  She has stated recently that she suffers from anxiety and experiences flashbacks and she still fears that you might come back and attack her again.  She lost her job due to the store having to close when business declined after the robbery and she suffered financially.  You have written a letter of apology to her which was translated into Cantonese, as I understand it, by another inmate.

26In sentencing you for this offence, I must take into account that because it was not included on the indictment before Judge Lacava, you lost the opportunity for some concurrency.  Your counsel, Ms Walker, submitted that taking into account the principle of totality, I should not order any cumulation at all.

27Mr Hayward for the prosecution submitted that I can consider what sentence might have been imposed and that there should be some cumulation.

28His Honour Judge Lacava did take into account your background with reference to the matters set out by Mr McKinnon in his report.  I was provided with additional material and have been made aware that while in custody, you were sexually assaulted and placed in protection, as a result, where you have remained.  Although it is true as Mr Hayward submitted that you might not remain in protection, I should take into account the possibility that you might serve the remainder of your sentence in that manner.

29Totality is the overriding principle which should apply to this sentence.  Protection of the community, seen as being achieved through both general deterrence and specific deterrence is also important but I can venture to say with respect that the sentence that you are already serving adequately covers those requirements for the crimes for which you were then sentenced and it is certainly a moot point as to whether those principles would be further served by any cumulation of the sentence I shall impose.

30The armed robbery for which you were sentenced to four and a half years' imprisonment was a very serious example of the crime involving violence and injury.  By contrast, the offence for which I am sentencing you was less serious and while a terrifying threat with a weapon was used, there was no other form of violence and no physical injury.  On the other hand, it is a separate episode of offending and ordinarily would attract some cumulation.

31I take the view that there should be no cumulation given the importance of totality and the unusual circumstances of this case.  Those circumstances include your childhood deprivation, about which more detail has now been disclosed, and that evidence should serve to mitigate both general and specific deterrence because your moral culpability is somewhat reduced.

32Your resort to drug use over the years can be explained by your exposure to drugs from an early age and the extreme emotional hardship which likely increased your reliance on them.

33Your prospects for rehabilitation are enhanced by your acceptance of your wrongdoing and your remorse.  Although your relationship with Ms Morgan may not have survived, you still wish to have a future role in your children's awareness of their Aboriginal heritage.  You are still a relatively young man with excellent intelligence and you have a plan for your future occupation once you are released. You are being prescribed methadone and you are currently on a dose of 40 grams per day, reduced from 100 grams initially, which is a significant reduction Accordingly, your prospects might be described as guarded but improved.

34Now, I am not going to ask you to stand because  you are there on the screen and that is adequate, Mr Hennessey.

35[2]I sentence you to two years' imprisonment, to be served concurrently with your present sentence.  Therefore, there is no need to fix a new non-parole period. (See paragraph 53: sentence of imprisonment is amended to 18 months)

[2] See paragraph 53

36I will not make a declaration under s.6AAA of the Sentencing Act as the declaration made by Judge Lacava remains unchanged.

37The prosecution seeks an order for disposal of clothing.  Ms Walker, I did not hear whether there was any opposition to that.

38MS WALKER:  No, Your Honour

39HER HONOUR:  Unopposed.  I make that order. 

40HER HONOUR:  Now, Ms Walker, unless you need that link open longer to ‑ ‑ ‑ 

41MS WALKER:  No, I have made arrangements for Mr Hennessey who will be calling me in a moment but thank you for that opportunity.

42HER HONOUR:  All right.

43MS WALKER:  I do not need to speak to him.

44HER HONOUR:  All right.  Thank you, Mr Hennessey, we are going to close the link now.  So that is the end of the hearing today.

45OFFENDER:  Thank you.

(Short adjournment.)

46HER HONOUR:  Yes, Ms Walker.

47MS WALKER:  My apologies, Your Honour, it is just that I was just preparing to explain to Mr Hennessey the effect of the sentence and clarifying it with my friend.  We just wanted to confirm what Your Honour's intention was because that sentence will commence today, the two years  then expires on 16 October 2021.  His eligibility for consideration for parole release is on 10 April 2021.  So that means that he will eat into six months of that parole time.  So he will not become eligible until this sentence is expired.  And it also means that the parole time, if he is, and I know that Your Honour has not taken this into consideration but if he is to be considered for parole, he would be on parole for 20 months rather than 26 months, which was the original sentence of His Honour Judge Lacava.

48So if Your Honour's intention was not to interfere with the non-parole period that His Honour imposed, then in my respectful submission, the sentence would have to reflect the end date being the April date which would be an effective sentence of 18 months.

49HER HONOUR:  Eighteen months, yes.  Thank you for bringing that to my attention and I think the tenor of the sentencing remarks allows me to do that.  There is no difficulty at all to change it from two years to 18 months.

50MS WALKER:  As the court pleases.

51HER HONOUR:  Do you have anything to say about it, Mr Hayward?

52MR HAYWARD:  I do not.

53HER HONOUR:  All right.  I will correct everything to reflect that, thank you.

54MS WALKER:  Thank you, Your Honour.

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