Director of Public Prosecutions v Hennessey

[2018] VCC 99

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

AT BENDIGO
CRIMINAL JURISDICTION

CR 17-01290

DIRECTOR OF PUBLIC PROSECUTIONS

v

WILLEM HENNESSEY

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JUDGE:	HIS HONOUR JUDGE LACAVA
WHERE HELD:	Bendigo
DATE OF HEARING:	2 February 2018
DATE OF SENTENCE:	16 February 2018
CASE MAY BE CITED AS:	DPP v Hennessey
MEDIUM NEUTRAL CITATION:	[2018] VCC 99

REASONS FOR SENTENCE
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Subject:         1 charge of armed robbery
  3 charges of theft
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:      6.5 years' imprisonment, 4 years and 4 months non-parole

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms M. Mahady
For the Accused	Mr D. Langton

Pages 1 - 10

 

 

HIS HONOUR: 

1Willem Hennessey, you have pleaded guilty to one charge of armed robbery for which the maximum penalty is imprisonment for 25 years.  You have also pleaded guilty to three charges of theft for which the maximum penalty for each charge is 10 years' imprisonment, and one charge of burglary for which the maximum penalty is also 10 years' imprisonment, and one charge of handling stolen goods for which the maximum penalty is 15 years' imprisonment, and one charge of being a prohibited person - you possessed firearms for which the maximum penalty is a fine of 1200 penalty units or 10 years' imprisonment.

2With the exception of Charge 7, which relates to possession of the firearms which occurred on the 8 October 2016, the remaining offences all occurred between 8 and 12 of December 2016.

3You have admitted a lengthy prior criminal history from 11 previous court appearances both in Victoria and Queensland commencing when you were approximately 19 years of age.  Importantly, this offending occurred whilst you were subject to a community corrections order originally imposed in the Bendigo Magistrates' Court on 21 July 2015 for a string of dishonesty and drug related offending.  You breached that community corrections order and the breach was dealt with in the Bendigo Magistrates' Court on 5 February 2016.  The breaches alleged were proven and you were re-sentenced on some of the charges to an aggregate sentence of 6 months' imprisonment with 19 days pre-sentence detention and the community corrections order was varied.  This offending for which I sentence you occurred a short time after your release from prison and whilst you were on a community corrections order.

4From my observations, most of your prior convictions are for dishonesty offences of one kind or another and appear to be drug related.  There are also prior convictions for drug offences.  You have some prior convictions in Queensland for offences involving acts of violence but they were about 10 years ago.

5The circumstances of your offending are contained in the Summary of Prosecution Opening tendered in evidence and read in open court by the prosecutor Ms Mahady.  It was accepted by your counsel, Mr Langton, as being accurate and as forming a proper factual basis upon which I can proceed to pass sentence upon you.  It is not necessary that I here set out that which is set out in the summary except in an abbreviated way.

6Shortly before 8 December 2016 you stole a Mazda CX9 vehicle from a house in Bendigo (Charge 1).

7In the early hours of the morning on 8 December you were in contact with your co-accused McLoughlin via Facebook.  You invited him to join with you to rob your drug dealer, Ross, of cash and drugs.  McLoughlin agreed to do this with you and you picked him up and first drove to another drug dealer, Carr, whom you told of your plan.  He provided you with a quantity of the drug ice.  You and McLoughlin then drove to Melton where you injected the ice.  You handed McLoughlin a sawn-off shot gun and told him of your plan to meet Ross and when you gave an agreed signal McLoughlin was to get out of the stolen Mazda and point the shotgun at Ross and demand he hand over his belongings including drugs and cash.  McLoughlin said he did not want to do it but you threatened to bash and shoot him if he did not do what he was told.  McLoughlin told you he had never used a gun before whereupon you showed him how to use the gun and McLoughlin discharged one round as practice.

8You both met Ross and his partner outside an address in Kurunjang at 4.25 am.  Ross believed he was there to sell you ice.  After meeting with Ross and his partner you then lured Ross out of his car towards the Mazda where McLoughlin lurked with the loaded shotgun and when you gave the agreed signal McLoughlin exited the Mazda and pointed the shotgun at Ross and yelled "Give me everything".  As he did so, you punched Ross to the face and you ran towards his car.  Ross continued to advance towards McLoughlin who fired a shot hitting Ross in the knee causing him to fall to the ground.

9You fled the scene in the Mazda whilst McLoughlin escaped in the vehicle Ross had arrived in.  You both left Ross at the scene bleeding heavily in the arms of his female companion.

10The Mazda was later located at an address in Bendigo where you were living.  A search of that address located shotgun cartridges in a bedroom and a later search of the house occupied by the drug dealer, Carr, located a shotgun and cartridges.  Forensic testing of the shotgun found DNA evidence and you could not be excluded as having contributed to this DNA. Charge 7.

11In a further episode of offending on 12 December, you and another co-offender Coombes, stole a Ford Territory from outside the Bendigo Town Hall. Charge 3.

12You fitted a stolen registration plate to the Ford Territory. Charge 6.

13The owner of the Ford Territory had left the keys in the ignition and these keys enabled you to gain access to his house in Ironbark - Charge 4 - where you stole a number of items of electronic equipment and jewellery. Charge 5.

14Self-evidently your offending in these charges is very serious.  You were clearly the leader and principal offender in the armed robbery charge.  It was all your idea.  You stole and provided the car that was used.  You introduced the weapon and you showed McLoughlin how to use it.  You provided the ammunition.  When McLoughlin wanted to withdraw from your plan, you intimidated him and threatened him with violence.  You lured Ross from his car to where McLoughlin was and you gave the signal for the armed robbery to commence.  Your plan involved a threat of violence with a gun.  Whilst I accept it was not part of your plan to shoot Ross and injure him, nonetheless the armed robbery was a violent one involving the use of a gun, in my opinion putting your offending above mid-range for this kind of offending.

15McLoughlin has pleaded guilty to one charge of armed robbery and one charge of recklessly causing serious injury.  He was sentenced by Judge Patrick on 18 September 2017.  Her Honour sentenced him to a term of imprisonment of three and a half years on the armed robbery charge and with a measure of accumulation he received a total effective sentence of four years' imprisonment and Her Honour fixed a non-parole period of two years and three months before he becomes eligible for parole.

16Your counsel submitted, correctly, that in sentencing you on the armed robbery charge I must have regard to the parity principle.  I am mindful of the sentence imposed by Judge Patrick upon McLoughlin on the armed robbery charge.  However, there are a number of features that distinguish you from McLoughlin.  Although, like you, McLoughlin has a lengthy criminal history and a deprived and difficult upbringing, at the time of offending he was aged 20 and he was aged 21 when sentenced as a youthful offender. 

17You were older being aged 27 at the time of offending and you are now approaching 29 years of age, and whilst still relatively young, you are not a youthful offender.

18McLoughlin was correctly sentenced on the basis you were the principal offender and the mastermind of the armed robbery who provided the means and plan to carry it out.

19You intimidated and threatened McLoughlin into offending with you but in my view he played the lesser role even though he fired the shot during the course of the armed robbery.

20In my judgment, you cannot have a justified sense of grievance if you receive a higher sentence on the armed robbery charge than that imposed on your co-offender.  Your involvement in this offence is in my mind deserving of sterner punishment than your co-offender.

21Your offending in the other charges is also serious.  In Charge 3 you took the opportunity to steal a vehicle belonging to a volunteer worker who had left his keys in the ignition and you accessed his house - Charge 4 - and stole a number of items that I was told, and accept, were subsequently recovered.  This was offending all designed to assist your drug habit but from the victim's point of view was no doubt traumatic.  Not only did you steal his car but you went to his house and entered the sanctity of his home and stole from him.

22Charge 7 is also a very serious matter.  You possessed guns.  Given you supplied the shotgun and ammunition that was used in the armed robbery, you cannot have possessed these guns for any legitimate purpose.

23You have pleaded guilty to the charges and that is to your credit.  By your pleas of guilty you have saved the time and costs of what might have been two trials.  You were initially charged with armed robbery and with having shot and injured Ross on a joint criminal enterprise basis.  You offered at an early time to plead guilty to the armed robbery charge if the charge relating to shooting Ross was not proceeded with.  This offer was at first rejected but subsequently accepted by the prosecution.  I treat you as having indicated that you would plead guilty at the earliest opportunity.  For that you are entitled to a reduction in sentence and this reduction will be reflected in the sentence that I will shortly pass.

24Further, I treat your pleas of guilty as evidence of some remorse for your offending.

25I turn to some matters related to your background and personal circumstances.  Mr Langton provided a written outline of submissions which I marked as Exhibit 1, and he relied upon a psychological assessment of you dated 26 December 2017 from Ian Mackinnon which I admitted into evidence as Exhibit 2.  Mr Langton conceded appropriately that your offending was serious and the only available disposition that I could impose is a sentence of immediate imprisonment with the fixing of a non-parole period.  He submitted in all the circumstances I should allow for you to have a lengthy period possibly on parole so that you can get back to your family.

26Mr Mackinnon set out much of your background history and Mr Langton relied upon this without specifically going through that part of the report.

27At your age of two your parents separated.  Your mother is said to have been a bi-polar schizophrenic heroin addict. She abandoned you leaving you on the streets at a young age.  You have two half-sisters with whom you have no contact.

28You are in a relationship with Ms Morgan who gave evidence and you have three young children with her.  You also have two older children from a previous relationship who reside in Adelaide.

29You have had little or no formal education brought about by your wholly unstable upbringing.  You completed Year 6 and you have completed further courses whilst in custody on previous occasions.  You have relevant certificates in traffic management and according to Mr Mackinnon’s report you have work available to you in that area when released.

30You have a very long history of poly substance abuse.  You were injected by your mother with heroin at age 11 and went on to abuse almost every conceivable type of illicit drug.  I accept that evidence.

31In his written submissions Mr Langton said that your background could fairly be described as extremely troubled and unstable.  I accept that to have been the case.

32I was also told and accept that prior to your remand you were assaulted and suffered a head injury at the hands of associates of the victim in the armed robbery and whilst in custody you have been sexually assaulted at the hands of inmates also associated with your victim.  Because of this you were moved from Port Phillip Prison to the Melbourne Remand Centre and you have now served 431 days pre-sentence detention.

33Mr Mackinnon thought your intelligence level fell within the normal adult range and your cognitive functioning and short and long term memory were also normal.  He thought you suffered from long term post-traumatic stress disorder which is complicated by a long term history of significant developmental trauma, anger management, associated poly-substance abuse and other factors.  He also thought you suffer from depression for which you are medicated whilst in prison.  I accept all of this evidence. 

34I do not accept the submission that your post-traumatic stress disorder impaired your capacity for rational judgment at the time of the offending.  The fact remains you injected yourself with Ice shortly before the armed robbery and you are a long term drug user.  All of the offences here occurred because you are a drug user.  It cannot properly be said that your thinking was impaired by your post-traumatic stress disorder when it would in fact have been impaired or influenced by drugs.  In my view, your moral culpability for all of this offending is high and this is not a case where application of the principle of general deterrence ought properly be modified or reduced.  Your drug use explains your offending but it in no way excuses it.

35You expressed remorse to Mr Mackinnon and I accept you are remorseful to some extent, not so much for the victim's sake but you regret the harm your offending has caused you and your family because of your incarceration.

36Your partner, Ms Morgan, gave evidence on your behalf.  She told me she has been with you for six years and you have three children aged six and the youngest is less than 12 months old.  She was born whilst you have been in custody.  Your partner spoke highly of you as a father and a provider who loves his children.  It was obvious to me that because of her young age of 20 years and having three children as a single mother she is struggling.  She is living with friends in temporary accommodation and she finds it hard to get by.  I accept that evidence but it does not establish exceptional circumstances caused by your custody such that I should reduce any sentence I impose.

37In sentencing you the sentence I impose must properly address deterrence both general and specific.  You have many prior convictions and this offending occurred whilst you were on a community corrections order.  Specific deterrence must be appropriately reflected in the sentence.  So too denunciation of your offending.  The sentence must also have regard to your prospects for rehabilitation which I assess as poor should you remain a drug user outside of a prison setting.  I was told and accept you have not used drugs whilst in prison but your history suggests that without proper treatment you will have difficulty staying away from drugs outside of a prison setting.  Above all the sentence I impose must reflect just punishment.

38The prosecution submitted your offending was of a high level justifying a term of imprisonment with the fixing of a non-parole period.  Mr Langton did not disagree as I said earlier.  He asked that I fix a longer than normal period on parole.  Having regard to your prior criminal history and your level of offending here I can see no reason why I should make orders providing for an early release on parole.  Such an order would dilute the purpose of the total effective sentence I will impose for what amounts to two episodes of serious offending.

39On Charge 1, theft of a motor vehicle, you are convicted and sentenced to a term of imprisonment of 1 year.

40On Charge 2, armed robbery, you are convicted and sentenced to a term of imprisonment of 4 and a half years.

41On Charge 3, theft of a motor vehicle, you are convicted and sentenced to a term of imprisonment of 1 year.

42On Charge 4, burglary you are convicted and sentenced to a term of imprisonment of 3 years.

43On Charge 5, theft of electrical appliances and jewellery you are convicted and sentenced to a term of imprisonment of 1 year.

44On Charge 6, handling stolen goods being a motor vehicle registration plate you are convicted and sentenced to a term of imprisonment of 3 months.

45On Charge 7, being a prohibited person possess firearms, you are convicted and sentenced to a term of imprisonment of 18 months.

46I direct that 18 months of the sentence imposed on Charge 4, and 6 months of the sentence imposed on Charge 7 cumulate upon the sentence imposed on Charge 2 making a total effective sentence of six and a half years. 

47In deciding appropriate accumulation I have taken the view that the offending in Charges 1 and 2 should be viewed as one episode of offending and the offending in Charges 3, 4 and 5 as a separate episode of offending whilst the offending in Charge 7 stands alone.

48I direct that you serve a minimum term of 4 years and 4 months imprisonment before being eligible for release on parole.

49I declare there has been 431 days pre-sentence detention and that 431 days be reckoned as having been already served under the sentences passed this day and be entered into the records of the court and deducted administratively.

50For the purposes of s.6AAA of the Sentencing Act 1991 I state that had it not been for your pleas of guilty to the charges I would have imposed a total effective sentence of 8 years and I would have fixed a minimum term of five and a half years imprisonment be served before you would be eligible for parole.

51The prosecution has sought the making of disposal orders and forfeiture orders and they not being opposed, I have signed them.  Are there any questions arising out of that?

52MS MAHADY:  No, Your Honour.

53MS PARKER: No, Your Honour.

54HIS HONOUR:  Very well.  Thank you.  thank you Mr Hennessey.  I will now terminate the transmission.

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