Director of Public Prosecutions v Henriquez
[2020] VCC 711
•26 May 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-19-00760
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JOSE HENRIQUEZ |
---
JUDGE: | HER HONOUR JUDGE LAWSON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 18 May 2020 | |
DATE OF SENTENCE: | 26 May 2020 | |
CASE MAY BE CITED AS: | DPP v Henriquez | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 711 | |
REASONS FOR SENTENCE
---
Subject: CRIMINAL LAW – SENTENCING
Catchwords: Robbery and related summary charge of committing an indictable
offence whilst on bail – early plea of guilty – combination sentence
imposed
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr D Plummer | Abbey Hogan, Solicitor for the Director of Public Prosecutions |
| For the Accused | Mr J Miller | Leanne Warren & Associates |
HER HONOUR:
1 Jose Henriquez, you have pleaded guilty to one charge of robbery and one related summary charge of commit indictable offence whilst on bail. The charges are serious and that is evidenced by the maximum penalties that have been prescribed by law; 15 years’ imprisonment for robbery and 30 penalty units or three months’ imprisonment for the summary charge.
2 You have also admitted your extensive prior criminal history spanning a period from 5 February 2010 to 4 June 2018. I can see from your prior criminal history that you have spent a lot of your adult life in custody and I have taken that into consideration. I have accepted that your past criminal offending is a reflection of a combination of things, namely your very profound disadvantages and dysfunctional upbringing, as well as your chronic and longstanding addiction to illicit drugs, and I will talk a bit more about that later.
3 At the time of this offending you were subject to a Community Correction Order that had been imposed at Melbourne Magistrates’ Court on 4 June 2018 and the fact you offended in breach of order is a factor I have taken into account.
4 I will now sentence you on the basis of the summary of the prosecution opening that was read at the plea hearing.
5 In essence, the offending was committed in company with your former girlfriend Bianca Bonney (“Bonney”). You are no longer in a relationship with her. She has also been charged with respect to the robbery but her matter has not proceeded because she is currently unwell and is being treated at Thomas Embling Hospital.
6 The victim is Darren Borg Jamieson. You did not know him, but he was previously known to Bonney.
7 The robbery occurred on 23 July 2018 and it occurred at or near the Greater Discount Chemist, Sunshine. You were there with Bonney to collect some methadone. So was Borg. Whilst you were waiting in line, there was a short exchange between yourself and Borg. He then drank his Methadone and left the chemist and walked to a nearby bus terminal. He then began to walk back towards a nearby bottle shop. He saw you and Bonney. Bonney was yelling out to him, so he tried to walk away. Bonney was holding up a stubby in the air, threatening him, calling him names and threatening to smash him. Borg was then seen by a witness running along the road and he was being followed by you and Bonney and at that stage, you were both riding bicycles. Borg tried to enter a shop but was prevented from doing so by being physically restrained by you. All the while, you and Bonney were asking him, 'Where’s the gear?' You dragged Borg towards a nearby bench seat and pulled off his backpack. He told you that he did not have any gear. You both then checked his pockets. Whilst doing so, he said that he could not breathe and was asking for help. Bonney eventually took his backpack. He told her that it contained important personal documents and wanted the backpack to be returned, but that did not occur.
8 You both rode off with the backpack that contained an Optus prepaid touch screen mobile phone, personal documents, a charger, umbrella and a blanket, and that constitutes Charge 1, robbery.
9 You were subject of a bail order at the time of the robbery and therefore you are charged with the summary charge, commit indictable offence whilst on bail.
10 Borg reported the robbery to the Sunshine police.
11 On 30 July 2018, you were arrested by police and taken into custody. You initially denied any involvement in the offending in the record of interview, but after you were shown some CCTV footage that depicted the incident, you agreed that the person depicted looked like you and then admitted to police that you were involved.
12 Robbery is a crime of violence against the person and any robbery is serious and must be condemned. In the spectrum of very serious offending that this charge encompasses, I consider that this offending falls at the lower end of seriousness.
13 However, Mr Henriquez, you must understand that this sort of behaviour, conduct in a public place against a vulnerable person, is not appropriate and on behalf of the community, I formally denounce your behaviour.
14 Your conduct would have caused the victim to be upset. There was no victim impact statement filed but common sense does dictate, having regard to the circumstances of the incident, that he would have been quite shaken by the way in which you and Bonney attacked him and took his bag.
15 In sentencing you, I must emphasise general and specific deterrence and also the protection of the community.
16 I have had regard to the contents of a report prepared by Ms Jane Lofthouse, neuropsychologist, dated 8 May 2020 and I note that she has assessed you as having a mild to moderate intellectual impairment. Given her findings, I consider that that does warrant some moderation of moral culpability and your mild to moderate intellectual impairment is also a factor that I have taken into account as being a factor that would make imprisonment more burdensome for you compared to someone else who did not have that disability.
17 I have had regard to your personal history and background. You were born in El Salvador and came to Melbourne as an infant. You are now 36. You have lived in Melbourne most of your life.
18 You were raised by your single mother. You have one brother and a
half-brother. You have never had a relationship with your father.
19 Your mother re-partnered in Australia and in your formative years, you were subjected to physical, mental and sexual abuse by your stepfather. Those experiences explain to a large extent your dependence on drugs over the years and criminal history. I have applied the Bugmy[1] principles and I have given full weight to the effects of your profound childhood deprevation in the formulation of sentence.
[1][2013] HCA 37
20 There were difficulties experienced at school and you stopped school partway through Year 12.
21 You have a chronic, longstanding history of polysubstance abuse commencing from an early age, namely 13, starting with cannabis and progressing to heroin by age 16. You have been prescribed Suboxone over long periods and also currently you are taking Methadone. Methamphetamines have also been a problem for you these past three to four years.
22 You have not been formally diagnosed with any psychiatric illness, but
Dr Remy Glowinksi, a consultant psychiatrist, has diagnosed an established and significant anti-social personality disorder. He doubts you have a major mental disorder and confirms that you have a substantial polysubstance abuse and dependence disorder focused on amphetamines and heroin, and he recommends treatment be focused on your substance use problem.
23 Ms Lofthouse describes you as being a person of low-average intelligence with marked memory deficits, attention fluctuations and slow processing as a result of an acquired brain injury. She says there were many factors that have placed you at risk of such a traumatic brain injury, including motor vehicle accidents, drug overdoses and chronic drug use dating back to your early adolescence. In her view, the contribution of each of those is hard to determine and she says that your response to her testing indicates the presence of a mild to moderate acquired brain injury.
24 Her view is that your chronic and long term drug use is the major factor in destabilising your behaviour and placing you at risk of impulsive action, ill‑considered problem solving and violent actions and they are likely to have contributed in a significant manner to the behaviour that led to these charges. However, she did not believe that your intellectual impairment would affect your capacity to understand the nature of your charges.
25 Ms Lofthouse recommends one-on-one treatment interventions that take into account your condition and she recommends programs to address your criminal offending and to give you an opportunity to develop strategies for the future, including dealing with your anger issues as well as drug use.
26 Having regard to her recommendations, that is why I have put in the conditions that I have in your Community Correction Order that are directed to each of those things. Namely, treatment and assessment for drugs, for mental health and other offending behaviour.
27 You have made very good progress this time in custody. You have been regularly attending Narcotics Anonymous meetings and you have a sponsor in the community who is prepared to help you when you are released from prison.
28 During the plea hearing, you spoke directly about your experience in custody. You told the court of the many programs that you were able to complete before all programs stopped due to the COVID‑19 pandemic. Those programs have focussed on drugs and coping and addressing offending behaviours.
29 You have benefited greatly from the one-on-one treatment with the psychologist in prison and also assistance from the psychiatric nurses in custody.
30 Importantly, you are open to having further assistance in the community upon your eventual release.
31 Your mother lives in Williams Landing and she is willing to support you and will allow you to live with her upon your release. There has been regular contact with her throughout the time you have been in custody. You also have a general practitioner in the community with whom you have had a strong therapeutic relationship over the years.
32 He has prescribed you Methadone or Suboxone in the community so you will re-engage with him as well.
33 You understand that you have greatly tested your mother’s patience over many years and you are looking forward to having a direct conversation with her to apologise to her for your conduct. You expressed sorrow to everyone who has been affected by your crimes over the years and you said openly that you could not believe how you ended up living the life that you have lived.
34 I am satisfied that currently you have good insight into your offending behaviours and the relationship between those and your drug taking and there is a real need for you to stop taking any drugs in the future. I consider currently that you are genuinely committed to change.
35 In formulating the appropriate sentence, I have had regard to those factors as well as all the other matters highlighted by Mr Miller.
36 The prosecution accepts your plea of guilty to the charges were entered at an early stage and your pleas have real utility. Through your plea, you have spared the State the cost and inconvenience of a trial and that is particularly important these days with the COVIC-19 pandemic.
37 I have also had regard to the consequence of the declaration of the pandemic in terms of increasing the burden of imprisonment upon you. You have had no personal visits and all the programs have ceased, and you have spent less time out of your cell.
38 It is accepted that the pandemic is causing additional stress and concern for prisoners and their families.
39 In those circumstances, you have facilitated justice and your sentence will be discounted accordingly.
40 I consider that you are genuine in your expressed remorse and that was brought home by how you spoke at the plea hearing.
41 Having regard to your efforts that you have made whilst in prison, I consider that you do have reasonable prospects to make good your stated aim of not taking any further drugs and not reoffending. Your rehabilitation prospects are reasonable.
42 You have been in continuous custody since 30 July 2018 at Ravenhall Prison. On 7 October 2019, at the Sunshine Magistrates’ Court, you were sentenced to 12 months' imprisonment and 240 days was reckoned as time served. That was in relation to a consolidated plea hearing.
43 Because this particular matter was not resolved prior to the imposition of that term, you lost the opportunity for some concurrency in sentence and I have taken that into account and have had regard to the principles of totality.
44 For a time you were held at the Moroka Forensic Mental Health Unit during the time you have been in custody. You were fully supported by mental health workers who encouraged you to participate in the various programs. You were able to do that and you were able to complete the programs.
45 This is a case where I think you should be afforded another opportunity to be released on a Community Correction Order, notwithstanding your history in the past with Community Corrections being a bit patchy. I think that you are in a better frame of mind to take up this opportunity. By your own behaviour that you have demonstrated in gaol that shows you can be responsive to help, I consider that there is good prospects that you will complete this order.
46 You are at a crossroads in your life and if you do not take up this opportunity, you really are facing a lifelong sentence of being in and out of gaol. Some people describe that as being institutionalised. The order that I am proposing is to give you an opportunity to build on what you have achieved this time in gaol.
47 Notwithstanding your lengthy history of offending and the time you have spent in custody, I do consider that there is real hope for you in the future. But it is good that you have got the support of your sponsor and your mother and your brothers.
48 You have told me that you need to break away from old associates and you are no longer seeing your former girlfriend, so that is good. You are confident with your sponsor's assistance that you will be able to continue to attend the NA meetings and stay drug free.
49 I will make the formal orders. There is no need for Mr Henriquez to stand.
50 The formal court orders are:
On the one charge of robbery and the summary charge of commit indictable offence whilst on bail, you will be convicted and sentenced to 342 days' imprisonment to follow a Community Correction Order of 12 months with supervision and treatment in respect to drugs, mental health and other offence behaviour programs as deemed appropriate.
51 I have been informed that through Mr Miller that Mr Henriques understands the nature of such an order and consents to the making of an order, and he understands the consequences if he were to contravene the order.
52 I make the following s6AAA declaration. But for your plea of guilty I would have imposed a term of imprisonment of two years and six months to serve
18 months.
53 That completes my orders. We will just generate the CCO now. Mr Henriquez, I will get you to sign that once I have signed it. It is important that you use the next 12 months to map out your progress and keep going with the support that you are getting in the community. See how you go and break the cycle.
54 I can tell you there have been other people in not a dissimilar situation to yours who have come into my court and I, in particular, will never forget one man who spent up until he was almost 50 I think in gaol, going in and out all the time. I put him on a two year community correction order. He told me he did not think he would ever get through it, but we got him through it and his life changed dramatically. It is extraordinary just what you can do.
55 OFFENDER: (Indistinct words.)
56 HER HONOUR: It is a little bit different currently with the COVID-19 pandemic and the limitations on movement around the community. So perhaps,
Mr Miller, you can spend a bit of time just going through those before your client's release tomorrow.
57 Look, I do appreciate that you have made a huge effort whilst you have been in gaol and you have responded well to the treatment that has been given to you. You were obviously in a bad place when you first went into gaol, but that is all the more reason why I am confident that you will get through this order and if there is any difficulties along the way, always talk to your Community Correction officer. They are there to help too.
58 OFFENDER: Thank you, Your Honour.
59 HER HONOUR: But I do appreciate how open and honest you have been with the court and you have thought deeply about your situation, so all the best.
60 OFFENDER: Thank you.
61 HER HONOUR: Mr Miller is just going down to sign the order, Mr Plummer. Are there any other ancillary orders?
62 MR PLUMMER: I believe there was a draft disposal order filed yesterday, Your Honour.
63 HER HONOUR: I make that disposal order sought. That concludes the matter.
64 MR PLUMMER: Your Honour pleases.
65 HER HONOUR: Mr Miller is just going through all of the conditions.
66 MR PLUMMER: Yes, Your Honour.
67 HER HONOUR: That is signed?
68 MR MILLER: Can I just check? I know that Your Honour intended to do this, but I did not hear you say as you were pronouncing your order that it was 342 days with 341 served.
69 HER HONOUR: I have not done the declaration of pre-sentence detention. That is 341 days.
70 MR MILLER: Thank you, Your Honour.
71 HER HONOUR: It will be made clear on the order that that is the case and that the intention is he be released tomorrow morning.
72 MR MILLER: As Your Honour pleases.
73 HER HONOUR: We will let Central Records know. You are quite right. PSD was 341 days. So did you hear that, Mr Plummer?
74 MR PLUMMER: Yes, Your Honour. Thank you.
75 HER HONOUR: I think that concludes the matter now. Thank you for your assistance and all the best.
76 OFFENDER: Thank you very much.
- - -
0
0