Director of Public Prosecutions v Hepworth

[2021] VCC 2057

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
 Suitable for Publication

Case No. CR-21-01984

DIRECTOR OF PUBLIC PROSECUTIONS

v

HENRY HEPWORTH

---

JUDGE:	HIS HONOUR JUDGE TIWANA
WHERE HELD:	Melbourne
DATE OF HEARING:	12 November 2021
DATE OF SENTENCE:	10 December 2021
CASE MAY BE CITED AS:	DPP v Hepworth
MEDIUM NEUTRAL CITATION:	[2021] VCC 2057

REASONS FOR SENTENCE
---

Subject:Criminal Law – Sentence

Catchwords:              Intentionally damaging property –– damage to iPad - carjacking – category 2 offence – victim related to the offender– poured kerosene over victim and flickered a cigarette lighter – offence committed under the influence of methamphetamine – pre-meditated offending – first experience of custody.

Legislation Cited:      Crimes Act 1958 (Vic); Sentencing Act 1991 (Vic)

Cases Cited:Worboyes v The Queen (2021) 96 MVR 344; Rossi v The Queen [2021] VSCA 296

---

APPEARANCES:	Counsel	Solicitors
For the Director	Mr P. Pickering	Office of Public Prosecutions
For the Accused	Mr R. Backwell	Greg Thomas

HIS HONOUR:

Introduction

1Henry Hepworth, you have pleaded guilty on indictment to one charge of intentionally damaging property contrary to s 197 of the Crimes Act 1958 and one charge of carjacking contrary to s 79 of the Crimes Act 1958.

2Intentionally damaging property carries a maximum penalty of 10 years’ imprisonment.  Carjacking carries a maximum penalty of 15 years’ imprisonment.

3In addition, carjacking is a Category 2 offence. This means I am required to sentence you to a custodial order unless one of the circumstances set out in s 5(2H)(a) to (e) of the Sentencing Act1991 is established. Your counsel, quite sensibly, did not seek to rely on any of these circumstances.

Circumstances of the offending

4The circumstances of your offending are set out in the prosecution opening for plea dated 19 October 2021.[1]  Your counsel indicated that this was an agreed document for the purposes of sentencing. I will now set out the facts of your offending.

[1] Exhibit A.

5Shortly prior to the offending, you had arrived in Victoria from Western Australia.  You were living with your uncle, the victim in this matter, Mr Kelsall, at his home address in Watsonia.

6

On the morning of 30 January 2021, Mr Kelsall was driving you to the Oaks Hotel in Melbourne in his silver Toyota Corolla.  During the journey, you said to

Mr Kelsall, ‘I have a proposal for you’.  You added ‘I get possession of your car and you’ll be rid of me and I won’t hurt you’.

7

Mr Kelsall told you that he would not give you his vehicle.  You replied, saying that you knew powerful people and could have Mr Kelsall’s daughter badly hurt.  You told Mr Kelsall to turn the car back as you no longer wanted to go to the hotel.

Mr Kelsall drove back to his home address.

8Having arrived home, Mr Kelsall noticed that his iPad had been smashed.  When challenged, you said you had broken it when you were angry with him. (Charge 1, intentionally damaging property.)

9That same afternoon, you asked Mr Kelsall to drive you to a party in Footscray.  Mr Kelsall agreed.  En route, you changed your mind and asked Mr Kelsall to drive you to the Oaks Hotel.  Mr Kelsall drove you to the hotel and parked in the lower level of a car park.

10

As Mr Kelsall was helping you remove your possessions from the back seat, you went to the driver’s side of the car and removed the keys from the ignition.  You then poured kerosene from a bottle into a bucket which was in the vehicle and threw it over Mr Kelsall.  The bottle of kerosene had come from the garage of

Mr Kelsall’s home.

11Mr Kelsall asked you what you were doing, and you yelled ‘Give me the car or I will set you on fire’.  You began flicking a cigarette lighter in your hand, saying ‘I want the car’. (Charge 2, carjacking.)

12Fearing he would be set alight, Mr Kelsall ran around to the front of the car.  You followed him. Mr Kelsall ran up the ramp of the car park onto Market Street to escape.  He asked a member of the public to call Triple 0.

13You drove away in Mr Kelsall’s vehicle.

Arrest and interview

14At about 2:19 am on 31 January 2021, the police intercepted you driving the stolen Toyota in Gurners Lane, Melbourne.  You were arrested and taken to Melbourne West police station.  You participated in a record of interview.  You denied making any demands for Mr Kelsall’s vehicle.  You denied throwing anything but water on Mr Kelsall and denied that you had a lighter.  You said that you did not make any threat to set Mr Kelsall on fire. You added that Mr Kelsall had run away for an unknown reason, and you took his car intending to return it to him.

15You have remained in custody since your arrest.

Criminal record

16

You have admitted a prior criminal history in Western Australia between

19 June 2013 and 26 November 2020.  Your prior history relates to appearances in Magistrates’ Courts for offences including stealing,[2] damaging property, possessing a prohibited drug[3] and possessing a prohibited weapon.  On each previous occasion that you have been sentenced, you received a financial penalty.

[2] Five offences of stealing between 31 July 2018 and 30 June 2020.

[3] There are many offences of possessing a prohibited drug.

Personal Circumstances

17You were born in Melbourne on 10 December 1994 and have turned 27 today.  Your parents separated when you were two years old.  You have no siblings.  Other than some limited contact with your father when you were aged seven, he has played no role in your life.  Your mother raised you and she remains a strong support.  She moved to Western Australia where you continued to live until arriving in Melbourne about three weeks before this offending.

18You completed schooling up to Year 10.  You then attended TAFE where you completed a seafood processing and fishing operations course.  You worked as a fisherman on and off for a period of six years with the same employer.

19You formed a relationship at the age of 18 and moved in with your partner and her parents where you resided for approximately two years.  The relationship produced two daughters, now aged six and seven.

20Unsurprisingly, abuse of drugs has hindered your progress in life. You began using cannabis at the age of 13 when you were at school.  Your cannabis use continued until the age of 17.  You then began using methamphetamine.  It became a daily habit, and you were using it right up to your arrest on 31 January 2021.

21You were a good worker and earning decent money.  However, your drug use interfered with your work duties and you lost your employment on a number of occasions.  Your employer was supportive of you and gave you opportunities to return back to work.  Eventually you ceased working and was in receipt of benefits at the time of your arrest.

22As a result of the breakdown of your relationship, you were responsible for the care of your daughters under the supervision of your mother.  In 2019, your mother was granted full parental responsibility for both of your daughters.

23Looking at your prior history, it is clear that it was your addiction to illicit substances that has brought you before the courts on previous occasions.

24You came to Melbourne in January 2021 to escape the drug scene. Your maternal uncle, Mr Kelsall was good enough to provide you with accommodation.  Despite your endeavours to avoid drugs, having arrived in Melbourne you continued abusing methamphetamine right up to your arrest.  I am told that you were also taking steroids.

25I have taken into consideration the references which allude to your personal background, provided by your mother and your grandfather.[4]

[4] Exhibits 3 and 4.

26Your uncle noted that you appeared to be quite paranoid and that you believed that your mum was controlling your mind.  You were sleeping during the day and out all night.

Matters in Mitigation

27You entered pleas of guilty on the day the case was listed for a committal hearing but prior to the calling of any evidence.  At the time of the committal hearing, you were facing other more serious charges. Through negotiations, a plea to carjacking and criminal damage was accepted.  Accordingly, I accept that your pleas of guilty were entered at a relatively early stage in the Magistrates’ Court.  By entering pleas of guilty, you have facilitated the course of justice and have taken responsibility for your actions.  You have also saved the community the time and cost of a trial and have spared your uncle from having to give evidence.  The utilitarian benefit of your plea is heightened in the current COVID-19 environment, and you are entitled to a further palpable discount at a time when this court is facing a considerable backlog of trials.[5]

[5] Worboyes v The Queen (2021) 96 MVR 344, 356-7 [35] – [39]. See also Rossi v The Queen [2021] VSCA 296 [13].

28

I accept that your pleas of guilty are demonstrative of some remorse.  You told

Gina Cidoni, a Forensic Psychologist, that you felt bad about what happened.[6]  You have not spoken to your uncle since the offending.  Ms Cidoni further states:

He displayed good insight in relation to the perils of his drug use and he expressed remorse for his behaviour.[7]

[6] Ms Cidoni’s report [10] (Exhibit 2).

[7] Ibid [40].

Period in custody

29

You have been in custody since 31 January 2021.  Your arrest and remand in custody has put an end to a long and dangerous addiction to methamphetamine.  I was provided with two clean urine screens taken on 24 February and

12 April 2021.[8]  You have completed a course titled ‘Ice and Me’.  In addition, you have completed a number of other courses, including a Certificate II in Kitchen Operations, Certificate II in Community Services, Certificate 1 in Access to Vocational Pathways and Certificate III in Civil Construction.[9]

[8] Exhibit 6.

[9] Exhibit 5.

30You are currently working in the woodwork section of the prison making furniture.

31You have maintained weekly contact with your children via online video conferencing, phone calls and letters.  You have sent them photographs and gifts that you have made yourself.  Your children have sent you letters and pictures as well.  Not surprisingly, your children miss you terribly.

32Your grandfather, Mr Hepworth has also maintained regular contact with you through phone calls and emails.

33I accept that your time in custody has been and will continue to be onerous.  As a result of the pandemic, you have been deprived of any personal visits. Whilst to your credit you have undertaken some courses, the availability of rehabilitative and educational programs is currently limited.  You have also had to endure periods of lockdowns.  You are in an environment which presents a risk of COVID-19 infection over which you have little control. Further, I accept that there is a degree of anguish at being absent from your young daughters’ lives.  It is to your credit that you have maintained a relationship with them through online communication and by sending them letters and gifts.

34You are 27 years of age facing a custodial sentence for the first time.  You have no prior offences of violence on your record.  Bearing in mind your age and a limited criminal history, your rehabilitation remains an important objective.

35

It is no secret that your rehabilitation depends on your abstinence from illicit substances.  You have been free of drugs for a significant period since

31 January 2021.  No doubt you feel better, much healthier and enjoy a clear mind.  The key to your successful rehabilitation, is maintaining your progress when you are released.  As Mr Backwell submitted on your behalf, there are two good reasons for you to maintain abstinence.  Those reasons are your two young daughters.  You are extremely fortunate, and should be immensely grateful to your mother, who not only raised you, but is now raising your daughters.  If you maintain abstinence from drug use, then I am sure you will have a good future ahead of you. As submitted by Mr Backwell, I regard your prospects of rehabilitation as reasonable.

36Ms Cidoni has not diagnosed you with any mental or personality disorder.  She states that the absence of any such disorder augurs well in terms of your recovery from drug use.

Objective gravity

37Mr Hepworth the offending, subject of Charge 2, is a serious example of carjacking.  There can be no doubt about that.  You offended against your uncle who had welcomed you into his home.  As Mr Pickering submitted, on behalf of the prosecution, this was quite deliberate and planned offending.  On the morning of 30 January 2021, you asked your uncle to give you his vehicle, telling him if he did, you would not hurt him.  Later that afternoon, you left your uncle’s home in his vehicle, taking with you a bottle of kerosene from his garage.  You not only threatened to set your uncle on fire but demonstrated that you were serious by throwing kerosene over him and flicking a cigarette lighter.

38Your uncle has chosen not to make a victim impact statement.  However, it is clear that your actions in pouring kerosene over him and flicking the lighter would have been utterly frightening.  Indeed, your uncle ran away from you allowing you to steal his car.

39The fact that you were under the influence of methamphetamine does not in any way excuse your offending.

40Any sentence must denounce your conduct and give weight to general deterrence.

41I bear in mind that this is your first experience of custody.  That fact alone, apart from its length, will hopefully act as a deterrent to you.

Sentencing

42Having carefully considered all the matters raised in this case, and weighed the various sentencing considerations, I sentence you, Mr Hepworth, as follows:

43On Charge 1 on the indictment, intentionally damaging property, Mr Hepworth, you will be convicted and fined $300.

44On Charge 2, carjacking, you will be convicted and sentenced to two years and five months’ imprisonment.

45I set a non-parole period of one year and five months’ imprisonment.

46Pursuant to s 89(1) of the Sentencing Act 1991, your licence will be cancelled, and you will be disqualified for a period of 12 months from today.

Pre-sentence detention

47Pursuant to s18 Sentencing Act 1991, the period of 312 days of pre-sentence detention, not including today's date, is hereby 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 records.

Section 6AAA declaration

48Pursuant to s 6AAA of the Sentencing Act 1991, I indicate that had Mr Hepworth pleaded not guilty to Charge 2 and been convicted of it, he would have been sentenced to a term of three years and four months’ imprisonment with a non-parole period of two years.

49HIS HONOUR:  Yes, thank you, Mr Pickering, anything else arising?

50MR PICKERING:  No, Your Honour.

51HIS HONOUR:  Thank you.  Mr Backwell.

52MR BACKWELL:  No, Sir.

53HIS HONOUR:  Thank you.  Yes, adjourn the court.  Could I, before I adjourn the court, thank you Mr Pickering and Mr Backwell, for your assistance.

54MR BACKWELL:  Thank you, Your Honour.

-----