Director of Public Prosecutions v Hensel

[2013] VCC 1142

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

AT BENDIGO

CRIMINAL DIVISION

Case No. CR-10-01916

DIRECTOR OF PUBLIC PROSECUTIONS

v

KIMBERLEY ANN HENSEL

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JUDGE:	HIS HONOUR JUDGE MAIDMENT
WHERE HELD:	Bendigo
DATE OF HEARING:	21 August 2013
DATE OF SENTENCE:	21 August 2013
CASE MAY BE CITED AS:	DPP v Hensel
MEDIUM NEUTRAL CITATION:	[2013] VCC 1142

REASONS FOR SENTENCE
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Legislation Cited:    
Cases Cited:            
Sentence:                

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr P. Jones
For the Accused	Mr A. McLennan

HIS HONOUR:

1       Ms Hensel, you have pleaded guilty to an indictment charging you with aggravated burglary and with intentionally causing injury to Michelle Mathers.  The offences are both serious offences, particularly the aggravated burglary which carries a maximum term of imprisonment of 25 years.   The offence of intentionally causing injury carries a maximum term of imprisonment of ten years.

2       The prosecution has read a summary which is Exhibit A.  I am not going to repeat that.  I incorporate its contents into these reasons for sentence.  The prosecution also indicated that, in their submission, a wholly suspended sentence was within the range of available sentences to me.  I have been provided by your counsel with letters which evidence the fact that you have taken steps to address your substance abuse problems and that, so far as alcohol and cannabis  are concerned at any rate, you have been abstinent for now a considerable period of time.   I have also been provided with a copy of a report dated 6 December 2010 provided by forensic psychologist Pamela Mathews.   That is helpful in setting out a deal about your background and your substance abuse and the circumstances surrounding your offending conduct and that, I think, helps support the proposition that you are unlikely to offend again.  At least there is no reason in any of the material that I have been shown to form the view that you will offend again.

3       It is important for me to consider your prospects of rehabilitation.  I think they are good.  I also have to consider the impact upon the victim.  There is no victim impact statement but nevertheless it would have been a very frightening experience, not just for her but for the children in the house and there was a young child in her bed at the time that you entered the premises.  You were no doubt fuelled by alcohol at the time and very angry and I have no doubt that the memory of your arrival and your conduct of that house will linger, not just with the victim, but with those of her children at least that were aware of what was going on.

4       That requires me to express the denunciation of this court of conduct of that kind and to punish you for the offending conduct and particularly, although I think deterring you is not terribly significant, to deter others from committing offences of this kind.  All of that I have to balance against facilitating your rehabilitation.  I think you have already got that well underway and I am not inclined today to interfere with that process.

5       You have obviously major responsibilities with your children.   It looks as though you are fulfilling those responsibilities well.   I am told that your partner is not presently living with you but it seems that he is supportive and he is here today to lend his support and I am hopeful that you will lead a trouble free life in the future.

6       I think the prosecution submission that a wholly suspended sentence is within the range is in the circumstances a reasonable one.  You pleaded guilty at the earliest opportunity, saved the community the cost and the inconvenience of a trial and the witnesses the inconvenience of having to attend court and give evidence against you and also you have expressed remorse and the plea of guilty is consistent with that expression of remorse so you are entitled, in any event, to credit for that and I give you credit for it.

7       I am sure you are remorseful and that you are genuinely sorry for what you did in the cold light of day.  Indeed that is what you expressed to the police when you were interviewed about the matter.  So I am entirely satisfied that that is genuine and that you are quite horrified by what you did.  The other matter that I need to mention is that these offences occurred in June of 2010, three years or more ago.   So it is a difficult situation for a court considering imposing sentence on somebody for offences that occurred such a long time ago, particularly when they have been leading a blame free life in the intervening period.

8       I think to send you to prison now would be unduly harsh and would not, I think, certainly assist your continued rehabilitation.  In the circumstances, it seems to me that a wholly suspended sentence is an appropriate sentence and I propose to impose that.  You, of course, will realise that if you commit another offence during the period of the suspension, and it will be 12 months from today, then you will be required to serve the sentence that I am about to impose.  If you do not commit another offence punishable by imprisonment in that period, well you will not have to serve the term of imprisonment.  I am sure you understand that.

9       All right.  So if you would just stand please.  Kimberley Ann Hensel, for the offence of aggravated burglary I sentence you to two years' imprisonment and convict you. 

10      For the offence of intentionally causing injury, I sentence you to imprisonment for a period of six months.

11      The two sentences will be concurrent, making a total effective sentence of two years.  That sentence will be suspended for a period of 12 months. 

12      But for your pleas of guilty, I would have sentenced you to imprisonment for three years with a non-parole period of two years.  Given that you have no prior convictions and given the nature of this particular offending conduct and my view that you are unlikely to offend again, I do not propose to make the order under s.464ZF of the Act that the prosecution has sought.  Are there any other orders I need make, gentlemen.  No, thank you.  You may leave the dock and that order will be drawn up.  Good luck, Ms Hensel, I hope it goes well.

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