Director of Public Prosecutions v Henry (a pseudonym)

[2022] VCC 1185

IN THE COUNTY COURT OF VICTORIA

 Revised

Not Restricted

 Suitable for Publication

AT LATROBE VALLEY

CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

JAYDEN HENRY (A PSEUDONYM)

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Latrobe Valley
DATE OF HEARING:
DATE OF SENTENCE:	26 July 2022
CASE MAY BE CITED AS:	DPP v Henry (A pseudonym)
MEDIUM NEUTRAL CITATION:	[2022] VCC 1185

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. Moore	Office of Public Prosecutions
For the Accused	Mr V. Peters	McFarlane Criminal Lawyers

HIS HONOUR: 

1Jayden Henry[1], you have pleaded guilty to one charge of rape and one charge of persistent contravention of a family violence intervention order.  Those crimes carry maximum penalties of 25 years and five years respectively.

[1] A pseudonym.

2As I understand it, you are now 33 years of age.  You pleaded guilty to a settled indictment and I accept that there is, in these circumstances, appropriate remorse.  You must also of course get the utilitarian benefit of this plea of guilty.  This plea is also made in the times of Worboyes, a principle which I do not need to enunciate here, which should attract a noticeable discount in sentencing and the Court of Appeal have reaffirmed that in subsequent decisions. 

3You do have prior convictions though none of a sexual nature.  You have been incarcerated before for the breach of intervention orders which whilst I find that this one is at the lower end, those previous incarcerations show that specific deterrence is necessary in your situation.

4The set of circumstances I am about to describe are inherently serious, being the charge of rape.  It calls for the application of general and specific deterrence, denunciation and appropriate punishment.  However, in your situation as I will be indicating, I think that the principles enunciated in Bugmy and in Verdins apply very much in your set of circumstances.  I am aware that you have undergone your sentence and any further sentence will be undergone in protection.  I am aware that you have undergone that sentence effectively entirely during times of COVID and the difficulties that that has imposed upon prisoners:  the fear of contracting it in that confined space; the inability to do programs and all those matters are taken very much into account. 

5A brief summary of the offending is as follows and I note that the Crown opening is a tendered document and will be on file for anybody with a genuine interest.  The allegation is on 13 June 2020 at approximately 2.30 am in the morning, you raped the complainant, your then partner, even though there was an IVO in place by digitally penetrating her while she was asleep in her bedroom in Warragul.  What occurred was that you and her had been in a relationship for some time and indeed had two children together, aged four and three.  You were separated.  There was a family violence intervention order in place. 

6On Friday 12 June 2020, a number of conversations took place between you and your partner.  She said that she wanted her space that night and it is clear from the material that you had been spending nights there and she did not want you to come around.  You were living in separate houses.  She said you said there would not be sex. She did not want you to come around, and those conversations kept going on for some period of time.

7Ultimately, by the time she went to sleep you had been told that sex was not on and not to come around.  You at some stage during the night collected a plate of food that she had cooked for you and she thought you - I will not go into this - sorry, she finally went to sleep.  As I understand it, she'd taken some Seroquel.  Again, as I understand it, she has her own emotional problems and I will not be going into any detail about that.  You texted again later on including early in the morning saying you wanted to come and she did not answer.

8At approximately 2 o'clock in the morning, you entered the house through a loungeroom window, removing the flywire screen to gain access and you entered her bedroom.  You entered the bed with her, pulled down her legging and underwear and inserted your finger into her vagina.  She woke up and found you had your fingers inside her vagina and an argument then commenced.  She told you that you had ruined the daughter's birthday plans and you then grabbed her around the throat.  A number of these incidents give rise to the charge of persistent breach of intervention order.  One has to be careful in these circumstances not to allow the rape to amount to double punishment.

9In any event, there was then an argument and you tried to grab her phone and you then left the premises.  You were clearly, I would have thought, exercising a consciousness of guilt, using the complainant's phone to send a message to yourself saying that she was going to move the kids tonight; you then left the phone in the letterbox outside her address.  You had left the keys in the house so you could not drive away.  In any event, she went next door to her neighbour and was in a very upset state. 

10You later on returned to the premises and threw a brick through the window which is part of Charge 2 and after all this occurred, you again went there the next time or a couple of times later, had a shower and slept there. The children were at home.

11On 17 June 2020, she contacted police to say that you were on your way and it is through that that the allegation of the offending occurred.  You, in a record of interview, denied the offending.  However, as I have indicated, you have pleaded guilty to a settled indictment and I take all that into account.  There is no victim impact statement before me and I can understand that the victim under these circumstances does not wish to do that.

12You committed the offending whilst you were on a CCO and I daresay that will be dealt with in the Magistrates' Court.  I do not propose to take that into account in these circumstances.  I do not think it is necessary.  It is the sort of offending that calls for the application of general deterrence as I have said; almost always call for a form of custody.

13You have now bene in custody for some 768 days under the conditions that I have described.  I am aware of a couple of decisions from a matter not dissimilar as you from a while ago.  Matters of Clark and Nilfarta.  In the matter of Clark, there was digital penetration.  The accused was given two years three months with a minimum term of one.  That was after a trial and did not include obviously principles involving Worboyes.  Sorry, that was - Nilfarta was - yes, two three and one.  That was after a trial and did not include Worboyes.  Clark was a three-year sentence with 18 months for a penetration with a vibrator in front of some other person, done with the purpose of humiliating her.  That was three with 18 months' minimum.  Again, after a trial and again without the benefits of Worboyes.  I take those matters both by the Court of Appeal obviously very much into account as comparative sentencing in this situation.

14In terms of matters personal to yourself, I have been given a report from Dr Cunningham in relation to a different matter which clearly outlines your background.  I do not think that there can be any serious dispute that Bugmy and Verdins both apply.  I should go through some detail I think.  That report is also on file so that anyone with a general interest in the matter can be referred to the detail of it. 

15You, at the time of that report, were a 31-year-old male.  You had seen massive family violence between your parents.  You are an Aboriginal person of Wuruddjeri descent which as I understand is from up around Newcastle, further into Western New South Wales.  You left home at around the age of nine years and travelled around the bush when your parents fought.  You have effectively ceased relationships with your parents though your mother has apparently contacted you in more recent times. 

16You finally left home at the age of 13.  Your parents were separated and your mother was suffering emotionally following that.  After that, you had long periods of homelessness, sleeping rough and in squats.  You met your partner while she was also - both of you were homeless.  You were involved in commercial burglaries.  That shows up from your prior history.  And she was involved in prostitution though obviously in this situation it is in no way, shape or form a criticism of her.

17In 2017, you were the victim of a serious assault whilst living in a squat.  You were doused with petrol and set aflame.  You were treated in hospital and discharged once you had been put into a rehabilitation ward.  At that point of time, you had been using amphetamine for a significant period though you were able to cease use of that and you again tried to settle down with your partner.  As I have indicated, there are two children from that and that has all occurred after your amphetamine use apparently ceased.  You do still have a problem with cannabis but there is not much I can do about that at this stage.

18You told Dr Cunningham that you were an 'emotional wreck' and become paranoid.  You knew or you understand that you needed help and therapy but there is little that I can do about that in the circumstance. 

19I am instructed from the Bar table that you will live in a caravan park with a friend upon release.  The two children are now, somewhat understandably I suspect, in the custody of your law-abiding sister and she works for Corrections.  She has a partner and it is anticipated at least that the children will remain with her.  The intervention order is still in place as I understand it or has been renewed.  So it is going to be a matter between you and DHHS as to what contact you can have with those children.  I accept that your sister is a very sensible person and I am sure that if you can get yourself some treatment, these matters may ultimately - will be resolved. 

20You completed Year 10.  You were diagnosed with ADHD.  As I have indicated, you were addicted to amphetamine for about a decade.  You do not have an intellectual disability but you do have problems with gaol in the sense that you - after a very violent assault on you you were a Crown witness for the people responsible for it and the perpetrators were incarcerated, whether it be for that or not I do not know, but you have spent - as I understand it - the entire period of your pre-sentence detention in protection and I would assume will continue to do so.  You have had the fear that your previous evidence for the Crown will be discovered and that you would be killed.

21You have severe flashbacks and terrible dreams of yourself from 2017 and it is clear from the report that being incarcerated makes you feel ill which arises from that 'tenfold' and you 'use Seroquel and escitalopram' and clearly the Lexadon for - Seroquel is an anti-psychotic and they used to be used for sedation.  I do not know.  You have had obsessive compulsive behaviour from a young age and I take that into account.

22In summary, Dr Cunningham opines that you have a post-traumatic stress disorder and I have got no doubt that that is the case.  He said, 'He presents with distressing recollections of prior trauma, feelings of hopelessness and helplessness, irritability and outbursts of anger, sleep disturbance, difficulty concentrating and reckless and self-destructive behaviour.'  As I say, I put that on top of Verdins and it is a very difficult set of propositions to argue with.

23He then goes on to explain what those diagnoses are and as such, I accept all the legs of Verdins to a certain extent at least are engaged and certainly the principles involved in Bugmy.  The prospects of your rehabilitation if you can stay sober and living in a relatively protected environment, I am sure your sister is endeavouring to provide it for you, should be pretty good.  Even though you do have a very significant criminal history, you have clearly reached an age where people do turn it around.  I do not know how much connection you have with culture or that world, so it would be an important thing I would have thought.

24The risk of you reoffending in a sexual way I think is low indeed.  Your general risk of reoffending may be higher than that but that is not really my concern here. 

25So taking all those matters into account and the general principles of sentencing, on Charge 1, you are sentenced to be imprisoned for a period of 24 months; on Charge 2, 12 months. 

26I direct that six months of the sentence imposed on Charge 2 be served cumulatively on the sentence imposed on Charge 1.  That gives a total effective sentence of two and a half years. 

27I direct that 768 days be reckoned as having been served under that sentence and I direct that a minimum of two years be served before becoming eligible for parole. 

28So that you understand the benefit of having pleaded guilty and in these situations, I say that but for your plea of guilty you would have been sentenced to imprisonment to a period of four years with a minimum term of three. 

29Now, there is no other orders I need to make, gentlemen?

30COUNSEL:  No, Your Honour.  

31HIS HONOUR:  All right.  Thanks for that, Mr Peters. 

32MR MOORE:  Your Honour has declined to exercise your discretion ‑ ‑ ‑ 

33HIS HONOUR:  Sorry, yes.  There is no application for me to exercise it but I put it on transcript that in this situation where there is no suggestion of being predatory, children are not involved and there is no prior sexual offending, can I exercise my discretion not to put him on the Sex Offenders Register.

34MR MOORE:  Your Honour pleases.

35MR PETERS:  Your Honour pleases.

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