Director of Public Prosecutions v Holland
[2017] VCC 1275
•6 September 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised (Not) Restricted Suitable for Publication |
Case No. CR-17-00931
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BRONWYN HOLLAND |
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JUDGE: | HER HONOUR JUDGE LAWSON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 28 August 2017 | |
DATE OF SENTENCE: | 6 September 2017 | |
CASE MAY BE CITED AS: | DPP v Holland | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 1275 | |
REASONS FOR SENTENCE
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Subject:Criminal law – sentencing – handle stolen goods, theft, false imprisonment, intentionally cause injury, armed robbery – early plea of guilty
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr N. Hutton | John Cain, Solicitor for Public Prosecutions |
| For the Accused | Ms S. Lacy | Greg Thomas |
HER HONOUR:
1 Bronwyn Holland, you have pleaded guilty to one charge of handling stolen goods, one charge of theft, one charge of false imprisonment, one charge of causing injury intentionally, and one charge of armed robbery.
2 In addition, there was a related summary matter that had been transferred from the Magistrates' Court, pursuant to s.145 of the Criminal Procedure Act 2009. That was Charge 12, drive whilst disqualified. But at the plea hearing, that charge was withdrawn and so that charge will be struck out.
3 The offences on the Indictment are serious and that is reflected in the maximum penalties that are prescribed by law and they are: 25 years for armed robbery, 15 years for handle stolen goods, and ten years for theft, false imprisonment, and causing injury intentionally respectively.
4 You admitted your criminal history. You have a lengthy history that spans the period from 8 April 2008 until 10 April 2015. You have relevant convictions for offences of violence against the person. You have been before the court for reckless conduct endangering life (2009 Melbourne Children’s Court); reckless conduct endangering serious injury (2013); unlawful assault (2013); reckless conduct endangering serious injury (2014); and unlawful assaults and threat to inflict serious injury (2014). In addition, there is a long history of dishonesty offending.
5 I shall now proceed to sentence you in respect to the charges on the Indictment, on the basis of the summary of the prosecution opening that was read at the plea hearing and is an exhibit.
6 The offending occurred in company with two co-accused, one of whom was your brother, Benjamin Holland, and another one was a male, John Fonua. They are both contesting these charges and their matter is the subject of a part-heard committal hearing, which was due to resume on 31 August 2017.
7
The victim in this matter, Peter Kearney, was known to both you and your brother. On 13 September 2016, he had lent some money to a third person, Amanda Schembri, also known as “Pinky”. He then made an arrangement to meet with her on the following day, so that he could be repaid his money.
Ms Schembri did not appear at the agreed rendezvous on the following day, so he then decided to drive to the house where he had dropped her off on the previous evening.
8
You were present at the house with your brother, Benjamin, when
Mr Kearney arrived. He parked opposite the house and as he was walking into the driveway of the house, another male, your other co-accused, John Oliver Fonua, was seated in the passenger's seat of a car parked in the driveway.
9 Fonua said to Kearney, “Are you all right, Bro?” and Kearney explained to Fonua why he was there and Fonua told him that he did not know whether or not Ms Schembri was home. Fonua then walked together with Kearney into the house.
10 When Kearney entered, he recognised your brother, Benjamin. You were also present at that time. Kearney and Benjamin shook hands. He was then taken to the rear of the house by Fonua, where Fonua made contact with Schembri by phone.
11 In the meantime, Kearney was given a can of Jack Daniels by Fonua. After getting in contact with Ms Schembri, Fonua handed the telephone to Kearney, who then arranged to meet her at a nearby service station. As he walked towards the door, he shook Fonua’s hand and thanked him for the Jack Daniels.
12 Bizarrely, as he went to reach for the front door, you and your brother, Benjamin, started to laugh. Kearney tried to open the front door, but was unable to do so because it was deadlocked. You then said to Kearney, “Do you know who the fuck I am? I am Bronwyn”. Benjamin then got off the couch and started to walk towards Kearney. You then said to Kearney, “You are not going nowhere” and he responded by saying, “What the fuck is going on?” This is the commencement of Charge 3, the false imprisonment charge.
13 You then hit Kearney with your right fist with a “haymaker”, connecting with his nose, causing him substantial pain. He responded by putting his arms over his face and then he was hit three or four times in the arms. That is part of
Charge 4, intentionally cause injury. He then received a massive kick in the guts that sent him backwards into a cupboard, at such force that the cupboard doors fell off. He then dropped to the ground and curled himself up into a ball to protect himself. He was kicked in the stomach and stomped on the head about eight to ten times, which caused him substantial pain. That is
a continuation of Charge 4, intentionally cause injury.
14 Fonua then said to you both, “What the fuck is going on?” You and your brother immediately stopped your attack on Kearney. Kearney did not take away his arms from his face, but he next saw Fonua standing next to him with a gun pointed against the side of his head. Fonua then told Kearney to, “Get the fuck up” in a very demanding manner.
15 Kearney complied and at this stage he then got a better view of the gun, which he described as a silver coloured handgun with a hammer on the back of the gun.
16 Kearney was then taken to a rear room and about an hour passed before Fonua returned and took Kearney back into the kitchen area.
17 Benjamin Holland was then sitting on a couch holding a gun and Bronwyn, you were standing at the kitchen bench with some vehicle transfer papers and a blank piece of paper.
18 With guns pointed at his head and believing that he would be shot, Kearney was forced to sign the transfer papers for his motor vehicle. That constitutes the facts of Charge 5, the armed robbery.
19 Shortly after signing the vehicle transfer papers, Benjamin Holland retrieved a blow torch that was nearby, lit it and threatened to burn Kearney’s face if he reported the matter to the police. Also, whilst holding a gun to his head, Benjamin threatened Kearney that he would kill his family if he was to “dog”; that is, tell the police on him.
20 After this had all occurred, you gave Kearney a cigarette and reassured him that everything was over and he would be able to go home.
21 Benjamin continued to walk around, tormenting Kearney. In the meantime, Fonua was rushing about, packing a sports bag. Kearney was then asked to stand by Fonua. Benjamin held a gun to his face. Kearney was told to put a pillowcase over his head, which he did. After placing the pillowcase over his head, he was asked if he could see anything. He responded he could not. He was then king hit by Fonua, the force of that punch causing him to be thrown two metres, which left him dazed and in substantial pain. That is part of Charge 4, intentionally cause injury.
22 The incident involving him being punched whilst the hood was over his head, was captured on Fonua’s telephone. That telephone was subsequently seized by police. The footage from that telephone has been viewed by the court.
23 Kearney was then told he was going for a drive. By this stage, he had been falsely imprisoned for several hours.
24 He was helped off the floor and walked to the car that was parked in the driveway. The hood was kept over his face and head. He was then taken to a place somewhere in the Geelong area and was told to get out of the vehicle by Fonua.
25 He did so and walked home, arriving home between 5 and 5.30 am. After telling his partner what had occurred, police were contacted.
26 Police attended and following further investigations, they located Kearney’s silver Commodore at an address in Werribee. They left the address to conduct further enquiries, but by the time they returned, the vehicle had gone. The vehicle was later retrieved that day, parked in Wyndham Vale.
27 On 20 September 2016, you were arrested outside the Pacific Werribee Shopping Centre at Hoppers Crossing. You were taken to Werribee Police Station, where you were formally interviewed. In that interview, you denied any involvement in the offending and made up a false story about purchasing the vehicle from Kearney. You were remanded in custody following the interview. You pleaded guilty in respect to the charges at committal hearing that was conducted on 11 May 2017, prior to any witnesses being called.
28 On the same day, that is, 20 September 2016, both co-accused were arrested and charged, but they dispute the facts and are contesting the matter.
29 In respect to the remaining charges on the indictment, on 14 September 2016, you drove to the BP service station, located on the corner of Bulban and Walls Road, Werribee. CCTV footage from the station reveals you driving a white Holden Commodore, bearing stolen registration plates, UIT 639. That is Charge 1, handle stolen goods. You then filled the car with fuel and left without making payment. That is Charge 2, theft.
30 On 8 March 2017 at Melbourne Magistrates’ Court, you pleaded guilty to a number of offences, including shop steal (2); retain stolen goods (3); fraudulent use of
a registration label (2); drive disqualified (2); handle stolen goods; deal with proceeds of crime (2); fail to answer bail; possess explosive; possess drugs; possess prohibited weapon; theft (3); obtain property by deception and a total aggregate sentence of eight months’ imprisonment was imposed, with
a declaration of pre‑sentence detention of 167 days. That sentence was completed on 22 May 2017.
31 Therefore, you have been remanded in custody in respect to the present matters since 23 May 2017 and the pre-sentence detention totals 107 days. I am required to take into account the time already spent in custody undergoing sentence for the other matters and I have applied Renzella[1] considerations and totality principles.
Gravity of the offending
[1]R v Renzella [1997] 2 VR 88.
32 In relation to the matter, I consider this is a serious example of false imprisonment, occurring as it did over several hours' duration, involving as it did, three people who detained Kearney against his will. I also have had regard to the injuries that were inflicted during the course of the false imprisonment. There is a bit of an overlap between the intentionally causing injury charges and the false imprisonment charges which I have had regard to. Given that there were three offenders and weapons were used in respect to the armed robbery, I consider that this is a particularly serious example of this serious offence.
33 No proper explanation has been provided to the court in respect to your motivation for participating in this offending. It appears, on the face of it, to be a bizarre scenario, where the victim, Kearney, attended the home for a particular reason, totally disconnected with this offending. However, both you and your two co-accused utilised the opportunity to hold Kearney against his will over several hours. You forced him to sign transfer papers in respect to his vehicle and after detaining him for several hours and threatening him with guns and the blow torch and physically assaulting him, you released him in the Geelong area, which was some considerable distance away, with no means of getting home.
34 There is a need in your sentence for the court to denounce your behaviour and general and specific deterrence and the protection of the community are of significance.
35 This offending would have been terrifying for Mr Kearney. He was asked to provide a victim impact statement, but he has not provided that to date.
36 I have had regard to the matters put in mitigation on your behalf by Ms Lacy.
37 Insofar as your role is concerned, she accepted it was serious offending and that you were the one who initiated the assault and locked the front door that prevented Kearney from leaving. In the latter part of the offending, she submitted your role dropped away and that the increasing seriousness can be attributed to the actions of your brother using the gun and the blow torch and also Mr Fonua, who had a gun and used that as well and also they assaulted him later, prior to him being placed in the vehicle.
38 Whilst accepting that you did not use the weapons, nonetheless, you were present when they were being used, in order to force Mr Kearney to firstly sign the transfer papers in your possession and secondly, they were used at the time of the subsequent assaults. You were complicit in the actions of the other men involved. You did nothing to prevent them harming Mr Kearney and I consider your role to be a significant one.
39 I do acknowledge, however, that you have entered a plea of guilty at an early stage, prior to the cross-examination of any witnesses and, in particular, Mr Kearney. I accept that your plea of guilty is evidence of remorse. There is real utility in your plea. You have facilitated justice and your sentence will be discounted accordingly.
40 Ms Gina Cidoni, psychologist, and Mr Martin Jackson, neuropsychologist, both assessed you and I have read their respective reports. Your counsel confirmed there was no reliance on the Verdins principles. You knew what you were doing was wrong at the time of the offending.
41 Your personal history is documented in both reports. I do not propose to go into any great detail concerning that, other than to note from a very early age, you were raised by your mother. You had difficulties at school. You were expelled in Year 9 because of truancy and poor behaviour. You completed a Certificate II in Motor Mechanics at Kangan Batman TAFE, Richmond, a pre-apprenticeship course. You were unable to find an apprenticeship following the completion of that course.
42 You have had a limited employment history. You have done some work as
a cleaner at a childcare centre and a short period of employment at the Werribee fruit market. You also worked about four years ago in a fish and chip shop in Williamstown for about 18 months. You were on New Start Allowance prior to your arrest.
43 You do have a long history of substance abuse. You started drinking alcohol at around the age of 12, increasing your drinking over time. You stopped during your first pregnancy, but recommenced after your second pregnancy.
44 You started using marijuana at age 18, but only used it occasionally for about a year. You were then introduced to methamphetamines at age 23 and by 24 you were using that drug daily. You started using intravenously and in 2016 you stopped using intravenously and began to smoke about one gram a day.
45 There are two children that were born of a relationship and they are aged eight and six respectively. Both children are in the care of their father currently. You do not have any significant contact with your children.
46 As a child, you had to step up into the role as carer for your mother, who was unwell due to serious injuries sustained in a motor vehicle accident. That occurred whilst you were in your early-teens. She became too unwell to work and eventually you were her full-time carer until she died in 2007, at which time you were aged 18.
47 You have a history of real personal trauma that occurred at about age 15. It is referred to in the reports. You told the examiners that you are a person who behaved impulsively and would do dangerous things whilst taking ice.
48 Your parents separated when you were about two to three and your father, who is described in the material as an alcoholic and violent man, has never had any real role in your upbringing. It is noted, however, that you were living with him at the time these offences were committed.
49 I accept that you have had a very traumatic childhood and your experience of growing up in a situation of profound childhood deprivation does not diminish with the passage of time and repeated offending and therefore full weight will be given to your deprived background in the sentence.[2]
[2]Bugmy v R [2013] HCA 37.
50 It is noted you have never undergone any formal detoxification or any residential rehabilitation for drug and alcohol use. You have had some counselling with Anglicare, with drug and alcohol counsellors as part of your Community Correction Orders. I noted you told one of the examiners that you had no intention of going to counselling, unless ordered to do so.
51 You have a history of being involved in motor vehicle accidents and motorcycle accidents in the past and there is some knee pain, but I noted there was no formal treatment for any mental health problems.
52 Mr Jackson assessed you as being of general intelligence. Your full scale IQ was 95, which is within the average range. Clinically he noted that you did not present with any overt symptoms of a mood disorder, either anxiety or depression.
53 On formal questioning, you reported symptoms suggestive of severe depression, as well as moderate stress and anxiety. He considered you to have intact cognitive function, with no evidence of acquired brain injury. He did not consider there was any evidence of cognitive impairment due to mental health issues.
54 He noted that Ms Cidoni raised the possibility you may have an underlying personality disorder, with borderline presentation. He considered that to be consistent with a history of sexual abuse, traumatic upbringing, self-harm, substance abuse and relationship problems. However, he did not formally assess that condition in his assessment.
55 Overall, he concluded that your neuropsychological profile is completely intact and that you do not have a cognitive condition that would have contributed to your offending behaviour. He considered the factors that contributed to your offending behaviour would have been your substance abuse, as well as potentially personality factors.
56 You told Mr Jackson that you had been drinking excessive amounts of alcohol, up to at least a slab of beer a day, as well as consuming a gram of ice daily at the time of the offending. He did not consider that there was any reason why a period of time in custody would be more onerous to you than an average person. That is certainly borne out by your current situation. You are settled and doing well in the custodial setting.
57 What is good from Mr Jackson’s report is that he considers that you do have cognitive capacity to learn and benefit from treatment and interventions to try to assist you to remain drug-free and change your behaviour in the future.
58 Ms Cidoni’s report was completed following an interview in March this year. Her report is somewhat at odds with the opinions expressed by Mr Jackson. Given that his report is more recent and that he has had the value of undertaking his own testing and assessment, I prefer his expressed opinion concerning your intelligence and condition generally.
59 Overall, I am only cautiously optimistic about your prospects of rehabilitation. You are a person who does have the capacity to change, but this is entirely dependent on whether you can remain committed to being drug-free in the future and also whether you are willing to undergo counselling and treatment in respect to your offending behaviours.
60 In sentencing you, I must impose just punishment and provide for deterrence, both general and specific and also the protection of the community.
61 Could you please stand, Ms Holland?
62 I will now announce the formal court orders. In respect to each of the charges, you are convicted and I impose the following sentence:
63 Charge 1, handle stolen goods, six months’ imprisonment.
64 Charge 2, theft, six months’ imprisonment.
65 Charge 3, false imprisonment, 18 months’ imprisonment.
66 Charge 4, causing injury intentionally, 18 months’ imprisonment.
67 Charge 5, armed robbery, three years’ imprisonment.
68 Charge 5 is the base sentence.
69 I make the following order for cumulation. I direct that six months of the sentence imposed on Charges 3 and 4, be cumulative upon each other and the sentence imposed on Charge 5.
70 That makes a total effective sentence of four years’ imprisonment.
71 I fix a non-parole period of two years and six months.
72 I make the following declaration, pursuant to s.6AAA. But for your plea of guilty,
I would have imposed a term of imprisonment of six years, to serve four years.
73 I make the following declaration of pre‑sentence detention. I declare that the period of time that you have been in custody in respect of these offences, namely 107 days, be reckoned as a period of imprisonment already served under this sentence, which is to be deducted administratively.
74 I think that covers all the matters. There are no ancillary orders?
75 MR HUTTON: That is it, Your Honour.
76 HER HONOUR: Yes, all right. Good. All right, well that completes that sentence. We can now adjourn the court.
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