Director of Public Prosecutions v Heywood

[2024] VCC 1408

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 24-00396

DIRECTOR OF PUBLIC PROSECUTIONS

v

DEAN HEYWOOD

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JUDGE:	HIS HONOUR JUDGE MCINERNEY
WHERE HELD:	Melbourne
DATE OF HEARING:	6 August 2024 and 28 August 2024
DATE OF SENTENCE:	6 September 2024
CASE MAY BE CITED AS:	DPP v Heywood
MEDIUM NEUTRAL CITATION:	[2024] VCC 1408

REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Abuse of public office by way of conduct as a Commonwealth public official; dishonestly obtain financial gain.
Legislation Cited: s142.2(1) Criminal Code Act 1995 (Cth); s16A(ja) Crimes Act 1914 (Cth); s16A(g) of the Crimes Act 1914 (Cth); s19AC of the Crimes Act 1914 (Cth).
Cases Cited: R v Ellis [1986] NSW 603; Mohamed v The Queen [2022] VSCA 136; DPP v Dalgleish (A Pseudonym) [2017] 91 ALJR 1063;
Sentence: Two and half years’ imprisonment – immediate gaol with recognisance order after six months.

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APPEARANCES:	Counsel	Solicitors
For the Commonwealth Director of Public Prosecutions	Ms C. Foot	Office of Public Prosecutions
For the Accused	Mr J. Portelli	James Dowsley & Associates

HIS HONOUR:

1Mr Heywood, who is currently a traffic controller, has pleaded guilty to a Commonwealth indictment signed by Mr Doyle on 19 March 2024. The one charge in the indictment is under s142.2(1) of the Commonwealth Code. In the plea, Ms Foot appeared, as she does today, for the prosecution and Mr Portelli appeared on behalf of Mr Heywood.

2Mr Heywood was 30 at the time of this offending and is 34 this year.  The charge is one of abuse of public office by way of his conduct as a Commonwealth public official to dishonestly gain a benefit for himself and Joseph Hanna.  The conduct involved payments by Mr Hanna, five in fact, to Mr Heywood totalling $13,850.  As a result of those payments, two successful deliveries of drugs and/or contraband were made to Mr Hanna.  Firstly, by Mr Heywood personally on 27 December 2021, and, secondly, by another agent organised by Mr Heywood, which took place on 7 January 2022.

3The circumstance whereby he becomes a Commonwealth public official is set out in the Commonwealth Code, in particular the dictionary by the definition of Commonwealth public official which is located at p476 of the Code, paragraph (q): a person who is an employee of a contracted service provider for the purposes of a Commonwealth contract is deemed a Commonwealth public official.

4The maximum penalty imposed for this offence is five years' imprisonment. The prosecution submits that immediate gaol is required in the totality of the circumstances, although it has submitted the Court may impose a recognisance release order. In that submission, it stressed the importance, with a public official being involved in the running of a detention centre, of the principle of general deterrence. In that regard, see Exhibit C, which was the sentencing submissions of the prosecution, at [43] and [116], of course one is required to take into s16A(ja) of the Crimes Act.

5The defence also accepts that this offence warrants a gaol sentence, but seeks an immediate recognisance release order. 

6I come then to the circumstances of the offending, albeit that I have briefly described them.  As I have said, Mr Heywood is a deemed public official, in fact performing the job of a detention services officer who had been employed in that capacity at the Commonwealth Immigration Transit Centre in Melbourne.  He began work at such centre in June 2020 and was subject to a code of behaviour as detailed in [13] of the opening. He was required to perform the duties as detailed in [14], including '14.5 refraining from accepting any gratuity in connection with his duties' and '14.6 ensuring that controlled or illegal items are detected, confiscated and retained where appropriate'.      

7Remarkably, from Sunday 14 November 2021, Mr Heywood utilised his own phone to converse, via WhatsApp with Mr Hanna, who was using an alias, as to the purchase, and introduction into the centre, of methamphetamine, cannabis and other contraband.  From 14 November 2021, he engaged in some eighteen hundred WhatsApp messages, discussing the proposed supply of drugs and contraband with Mr Hanna.  In order to do so, $13,850 was paid into Mr Heywood's own personal bank account by Mr Hanna. 

8In response to such payments, Mr Heywood supplied, on 7 December 2021, 6.5 grams of methamphetamine, a cigarette lighter and a vape to Mr Hanna.  Further, on 7 January 2022, he arranged to be supplied to Mr Hanna methamphetamine, cannabis and other contraband.   Mr Hanna thereafter was not happy with the arrangement and asked for a refund of his money, as he had not got all the drugs that he paid for. When he was not satisfied by Mr Heywood's actions, that is that the money had not been repaid and he did not get the drugs that he paid for, he reported these circumstances to Serco staff on 21 February 2022.

9I come then to the prosecution submission.  As to such circumstances, the prosecution submitted such was premeditated, planned and motivated by
self-interest, see Exhibit C at [11(a)].  Could I add to that the financial motive of benefit to Mr Heywood as established by the payment into his bank account of $13,850.  The prosecution also pointed to the potential consequences of introducing drugs into a detention centre, both as to the individual detainees and generally in regard to the overall safety of the facility, see [11(a)] of Exhibit C.

10The prosecution stressed the ongoing nature of the crime and its persistence, see [11(b)] Exhibit C, over two months.  Mr Portelli did not dispute such analysis, although as to his client he put that the criminality was extremely naïve given that Mr Heywood not only used his own bank account, but his own phone.  I characterise the offending as serious, as is demonstrated not only by the maximum sentence, but by both counsel accepting that a gaol sentence is appropriate.

11Mr Portelli put the following matters in support of his submission:

(a)   That there were no prior offences;

(b)   The plea of guilty:

Insofar as that plea is concerned, I do not accept the submission put that the Ellis discretion, as it is described New South Wales, R v Ellis [1986] NSW 603, can be entertained here. It applies to circumstances which are not applicable here because the criminality itself was detected by the disclosures made by Mr Hanna, see [36] to [38] of the opening. Mr Heywood of course is entitled to the appropriate mitigation as set out in s16A(g) of the Crimes Act. 

(c)   Delay:

The delay had nothing to do with Mr Heywood and will be taken into account by way of mitigation.  He was interviewed in March of 2022 and was not charged for one and a half years thereafter.   He comes now to be sentenced on this date in 2024.

(d)   Background:

He has an excellent work record, family and employment background, see Exhibits 4 and 6.

(e)   Remorse:

I accept that it is genuine, that he has acknowledged his wrongdoing, as demonstrated in Exhibits 4 and 5, and as demonstrated in the statements made to the psychologist, Ian MacKinnon, in particular Exhibit 2 at [66], and further in the two letters sent to the Court which are both part of Exhibit 4. 

(f)    Family Hardship:

Mr Portelli was also at pains to put to the Court the impact of a gaol sentence upon Mr Heywood’s partner, Ms Moore, who is concerned as to her two children, as is detailed in Exhibit 6.  Ms Moore is a person with whom Mr Heywood has shared a house from March of this year.  I accept that the gaoling of Mr Heywood would clearly impact on the family and indeed cause hardship, albeit the recent nature of the relationship.  I refer to the differences in this regard as to Commonwealth offences, where there is no need for such hardship to be exceptional, see Mohamed v The Queen [2022] VSCA 136, [41] to [43] In determining this sentence, I do in fact take into account the impact on Ms Moore and her children, and of course the impact such will have on Mr Heywood in gaol.

(g)   Rehabilitation

As to rehabilitation, I refer to Exhibit 2 at [59] of the report of psychologist, Mr MacKinnon, and the steps taken to overcome issues in regard to drugs, in particular methamphetamine, which were being indulged in at the time by Mr Heywood that these crimes occurred. 

Other Cases

12The cases supplied by the prosecution are not directly relevant to this case, however in each instance, given their particular circumstances, they stress the importance of general deterrence. 

13As the High Court has decreed, Mr Heywood is entitled to individualised justice and a just sentence taking into account the facts of this case, DPP v Dalgleish [2017] ALJR 91, 1063, 1072, at [49].

14Mr Heywood, I have taken into account all of the submissions on your behalf, all the evidence and the submissions of the prosecution. Unfortunately, given the seriousness of this crime, its persistence, your motivation and the importance of the principle of general deterrence, such matters unfortunately for you, take precedence where you have grossly abused your obligation as a public official at this detention centre.  In those circumstance, it is not possible for me to pass a sentence that does not involve immediate gaol.

15If you would stand up, please. You will be sentenced to two and a half years’ imprisonment. I order, pursuant to s19AC of the Crimes Act, that there be a recognisance release order whereby after the service of six months' gaol, you can be released upon your own recognisance, to be entered into today, in the sum of $5,000, to be of good behaviour for the next two and a half years.  You will be advised by your legal advisers that in entering into such recognisance, there must be during that two and a half years no breaches of the obligation to be of good behaviour.  Otherwise, you will be brought back and there will be no further mercy shown.

16MS FOOT:  Yes, Your Honour.

17HIS HONOUR:  Yes, good luck.

18OFFENDER:  Thank you, Your Honour.

19MR PORTELLI:  As the Court pleases.

20HIS HONOUR:  Thank you, Mr Portelli.

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