Director of Public Prosecutions v Hensel

[2024] VCC 124

IN THE COUNTY COURT OF VICTORIA

AT BENDIGO

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-21-01245

DIRECTOR OF PUBLIC PROSECUTIONS

v

KIMBERLEY HENSEL

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JUDGE:	HIS HONOUR JUDGE TIWANA
WHERE HELD:	Bendigo
DATE OF HEARING:	2 February 2024
DATE OF SENTENCE:	22 February 2024
CASE MAY BE CITED AS:	DPP v Hensel
MEDIUM NEUTRAL CITATION:	[2024] VCC 124

REASONS FOR SENTENCE
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Subject:Criminal Law – Sentence  

Catchwords:              Aggravated burglary – Recklessly causing injury – Victim former partner of offender – Forced entry into victim’s house – Victim awoken by a bang and a kick to his face – Limited but relevant criminal history – Diagnosed with Persistent Depressive Disorder, Post-Traumatic Stress Disorder, Generalised Anxiety Disorder and Substance Use Disorder – Low risk of reoffending.

Legislation Cited:      Crimes Act 1958; Sentencing Act 1991.

Cases Cited:DPP v Hensel [2013] VCC 1142; R v Verdins (2007) 16 VR 269.

Sentence:                  Six months’ imprisonment followed by a Community Correction Order for a period of 18 months.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr D R Cordy	Office of Public Prosecutions
For the Accused	Mr C Pearson	Law & Advocacy Centre for Women

HIS HONOUR:

1Kimberley Hensel, you have pleaded guilty to an indictment containing two charges. Charge 1 is an offence of aggravated burglary, contrary to s 77(1) of the Crimes Act1958. This offence carries a maximum penalty of 25 years’ imprisonment. Charge 2 is an offence of recklessly causing injury, contrary to s 18 (1) of the Crimes Act 1958. This offence carries a maximum penalty of 5 years’ imprisonment.

2An agreed prosecution summary of your offending dated 1 February 2024 was read aloud in Court.[1]

[1]Exhibit A.

3Your victim, Mr Robertson, resided alone at an address in Charlton. You had known him for some 30 years. You had been in a relationship with him in your teenage years and again between July 2020 and November 2020.

4On 18 December 2020, you told two of your friends that you were sick of the victim ‘talking shit’ about you and that you wanted to talk to him. You also told your friends ‘maybe if I have a couple of other people there to witness you know, then maybe he’ll think twice about talking shit about me to people around here cause it’s gunna get back to me.’

5Sometime between 10:00pm and 11:00pm on 18 December 2020, the victim returned to his home. He shut the front door and placed a wedge under it from the inside in order to lock it. Shortly after he fell asleep on the couch in the lounge room.

6At around midnight you arrived at the victim’s home with the two friends you had been talking to earlier. You forced entry into the house by pushing the front door. The victim was awoken by a bang and a kick to his face. You stood above him, screaming at him. You then stomped on his head with your right foot and punched him with your right fist while saying ‘you fucking dog cunt’ and ‘I’ll have you run out of town by daylight, you black cunt, this is my town.’ The victim curled up covering his face to protect himself. While doing this, he felt you punch his head, face and nose, and stomp on his lower back. He stood up in order to defend himself while you continued to punch him. Having heard other voices and fearing a group attack, he ran through his home towards the back door. You followed him. One of your friends told you ‘that’s enough.’ The victim ran into his bathroom and closed the door. He waited in the bathroom until you and your two friends had left.

7He attempted to call his mother and godmother, but his calls were not answered. He then called your mother whom he had known for 30 years. While crying, he told her that he had been assaulted by you. Your mother drove to the victim’s house, arriving there five minutes later. While crying, the victim told her that you had kicked the front door while he was asleep on the couch and that he had been woken up by being hit or kicked by you. Your mother observed blood on the victim’s face and nose, a swollen lip, a scratch to the left side of his face and cuts to his nose and eye. She drove him to hospital. Your mother called 000. Police arrived at the hospital and photographed the victim’s injuries. The photographs showed cuts under his nose and left eye, and a swelling above his right eye.

8You were arrested on 19 December 2020. During your police interview, you agreed going round to the victim’s house with two others in order to confront him about the rumours he had been spreading about your drug use and poor parenting. You denied forcing entry or kicking the victim, but accepted that you had punched him twice in the face.

Victim impact

9There is no victim impact statement in this case. However, it is clear that your victim was extremely terrified. He was crying on the phone to your mother and after her arrival at his house.  

Criminal history

10You have a relatively brief but relevant criminal history. On 21 August 2013, you were sentenced by this Court in respect of an aggravated burglary and intentionally causing injury. On that occasion, His Honour Judge Maidment, sentenced you to a wholly suspended term of imprisonment.[2] In 2018, you were sentenced to an adjourned undertaking for a number of offences including negligently dealing with proceeds of crime, commit indictable offence whilst on bail, fail to answer bail and driving matters. Having contravened the undertaking, you ultimately complied and completed the relevant period. You have some other dishonesty matters including stealing and shop theft. You have not been sentenced previously to a term of immediate imprisonment or a Community Correction Order (‘CCO’).

[2]DPP v Hensel [2013] VCC 1142.

Background

11You were born in Geelong, where you were raised by your mother and maternal grandparents. Your parents separated when you were very young. You have never had any contact with your father who is now deceased.

12You attended a number of different primary and high schools. Having completed year 12, you commenced an apprenticeship as a chef which you gave up after eight months. You then worked part time at boarding kennels and in a confectionary store. You ceased employment when you had your first child in 2004. In 2012, you worked as a hairdresser for two years. In 2017 you were employed on a horse and cattle farm, and in 2019, you worked as a labourer for farmers. This employment continued until your arrest and charge for this offending in December 2020.

13You are now 41 years old and the mother of five children. Your eldest aged 19 resides with your mother. Your next three children, aged between 11 and 16 live with their paternal grandmother.

14Your youngest child is only 16 months old. He lives with his father with whom you have maintained a relationship.  

15At the time of the offending, your alcohol consumption was excessive. Since the offending you have cut back drastically. From the age of 15 until recently, you have used illicit substances, including cannabis, heroin and methamphetamine. You have undergone various drug and alcohol counselling in the past.

Objective gravity and sentencing purposes

16The offending you committed in December 2020 was grave. Along with two friends,[3] you went to the victim’s home late at night, and forced entry in order to assault him. He was asleep in his home where he was entitled to feel safe. I was told that you were drunk on the night in question and were upset that the victim was painting you in a bad light. That is no excuse. It did not entitle you to behave in this outrageous manner. Having entered his home, you attacked a vulnerable man who was asleep. The attack involved you kicking him, stomping on his head and punching him. The assault was vicious and was accompanied by verbal aggression. The offending left your victim terrified and he broke down when speaking to your mother.

[3]It is not suggested they were involved in the offending.

17This offending occurred against a backdrop of similar offending in 2013. Any sentence must denounce your conduct and give effect to deterrence, both general and specific.

Matters in mitigation

18You remained on bail in respect of this matter until you breached it and were remanded in custody on 31 October 2023. This has been your first experience of custody.

19I am told that you have been drug free since being remanded and are focused on rehabilitating yourself. You have taken the opportunity to complete a number of programs, some of which relate to good parenting skills. You have also completed courses relating to relationship building, work place safety, jobs and careers, food and safety. You have attended Narcotics Anonymous sessions.[4]

[4]See certificates – Exhibit 3.

20I accept that your time on remand has been more burdensome knowing that you are not present for your 16 month old child.

21You have not been in any trouble for over three years since this offending, which is obviously a positive fact.

22I have had regard to Ms Cidoni’s psychological assessment report dated 11 February 2023.[5] The pertinent matters in Ms Cidoni’s report reveal:

·        You have been diagnosed with Persistent Depressive Disorder, Post-Traumatic Stress Disorder, Generalised Anxiety Disorder and Substance Use Disorder (in remission).

·        Ms Cidoni states:

She requires intensive psychological treatment to improve coping skills, and emotional regulation and address the trauma and maladjustment she has experienced. She would benefit from talk therapy and cognitive behavioural therapy (CBT) to address the impacts her early life and current circumstances have on her depression and anxiety and to improve symptomology. Eye Movement Desensitisation and Reprocessing therapy (EDMR) would be beneficial for her PTSD symptoms. She will also benefit with AOD relapse prevention instruction and sobriety coaching.

·        Mr Cidoni assesses your risk of reoffending as low. The above interventions will further lower that risk of reoffending.

[5]Exhibit 2.

23I note no reliance was placed on Verdins[6] principles.

[6]        R v Verdins (2007) 16 VR 269.

24While your pleas of guilty cannot be described as early,[7] nevertheless they entitle you to a sentencing discount. You have saved the cost and time associated with a trial and have ultimately accepted responsibility for your unlawful behaviour.

[7]A sentence indication was sought and given in 2023 but not accepted by you.

25I am unable to find any evidence of genuine remorse. It took you a long time to accept responsibility in circumstances where the evidence against you was overwhelming. It may be that your plea of guilty is indicative of some very limited remorse and I am prepared to accept that.

26The fact that you have not been in any trouble for three years, have given birth recently and enjoy the support of your current partner, allow me to conclude that you have quite decent prospects of rehabilitation. The sentence I impose must punish you but also assist in progressing your rehabilitation.

27Both the prosecution and defence submitted that all sentencing objectives can be adequately dealt with by a term of imprisonment combined with a CCO. I agree with that sentencing submission.

28I have had regard to the pre-sentence assessment report from the Department of Justice dated 5 February 2024.

29On charge 1, you will be convicted and sentenced to six months’ imprisonment.

30On Charge 2, you will be convicted and sentenced to five months’ imprisonment.

31The sentences will run concurrently making a total effective term of six months’ imprisonment. In addition, on charges 1 and 2, you will be convicted and sentenced to a CCO for a period of 18 months that will commence upon your release from custody.

·        Every CCO has core conditions that you must comply with. They are as follows:

·        You must not commit any offence punishable by imprisonment.

·        You must comply with any obligation or requirement prescribed by the regulations.

·        You must report to and receive visits from the Secretary.

·        You must report to the community corrections centre within two clear working days of your release.

·        You must notify the Secretary of any change of address or employment within two clear working days of the change.

·        You must not leave Victoria except with the permission of the Secretary.

·        And, finally, you must comply with any direction given by the Secretary that is necessary for the Secretary to give to ensure your compliance with the order.

32In addition to the mandatory core conditions, the CCO will also include the following special conditions:

·        First, you will have to perform 200 hours of unpaid community work as directed.

·        Second, you must undergo assessment and treatment (including testing) for drug abuse or dependency as directed.

·        Third, you must undergo assessment and treatment (including testing) for alcohol abuse or dependency as directed.

·        Fourth, you must undergo any mental health assessment and treatment as directed.

·        Fifth, you must engage in programs that address factors relating to your offending behaviour.

·        Sixth, you will be subject to supervision as directed for the duration of the CCO.

33You must report to Geelong Community Correction Services within two working days following your release from prison.

34Pursuant to s 48CA(2) of the Sentencing Act 1991, I direct that treatment and rehabilitation successfully undertaken is to be counted as hours of unpaid community work for the purposes of the unpaid community work condition.

35Ms Hensel, you need to understand that if you were to breach the CCO in any way, either by committing another offence or by not complying with any of the core or special conditions, then you could be charged with the offence of breaching the order.

36The offence of breaching a CCO itself carries a maximum penalty of three months' imprisonment. So were you to breach the order, you would need to come back to Court and face sentencing for that breach offence.  In those circumstances, you could also be re-sentenced for the offences for which you were placed on the order originally, namely the charges of aggravated burglary and recklessly causing injury. You would then face the very real possibility of being sent back to prison.

37So, there are serious consequences attached to any breach. Do you understand that?

38OFFENDER: Yes, I do.

39HIS HONOUR:  Do you also understand all the conditions of the proposed CCO?

40OFFENDER: Yes, I do.

41HIS HONOUR:  Do you consent to being placed on a CCO in the terms I have outlined and to abide by all of its conditions?

42OFFENDER: Yes, I do.

Pre-sentence detention  

43Pursuant to s 18 of the Sentencing Act 1991, the period of 127 days of pre-sentence detention, is declared as having already been served in respect of this sentence, and I order that such declaration and its details be entered in the Court’s records.

Section 6AAA declaration

44Pursuant to s 6AAA of the Sentencing Act, I indicate that had you pleaded not guilty and been convicted I would have sentenced you to a term of two years and nine months’ imprisonment with a non-parole period of 22 months.