Director of Public Prosecutions v Honeysett
[2022] VCC 1064
•6 July 2022
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR-20-01800
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| PATRICK HONEYSETT |
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JUDGE: | HER HONOUR JUDGE GAYNOR |
WHERE HELD: | Melbourne |
DATE OF HEARING: | |
DATE OF SENTENCE: | 6 July 2022 |
CASE MAY BE CITED AS: | DPP v Honeysett |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1064 |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms K. Parnham | |
For the Accused | Mr J. Saunders |
HER HONOUR:
1Patrick Honeysett, you have pleaded guilty before me to two indictable charges which are the subject of two indictments. Pursuant to Indictment No. K12347286.2 you pleaded guilty to one charge of armed robbery. You also pleaded guilty to the summary offence of breaching a bail condition or in failing to answer bail. Pursuant to Indictment C2013473.1 you have pleaded guilty to one charge of attempting to pervert the course of justice. The facts underlying your offending are as follows, beginning with the armed robbery.
2At about 6 pm on 2 March 2018 you and an unknown offender drove a silver-coloured Mitsubishi to the Waverley Gardens shopping centre where you parked in the multi-level car park. You then entered the Vegas Waverley Gardens, which is a gaming and poking venue situated in the shopping centre. You were carrying a guitar case at the time. The co-offender entered behind the cashier entrance while holding the firearm, which he pointed at a staff member, demanding money. He pushed the cashier, the staff member, and Rita Dala down into a corner with one hand.
3While this was happening you were standing in the pokies area on the other side of the cashier's, talking to a number of patrons in the venue. You removed a firearm from the guitar case you were holding and pointed it towards them, telling them to put their phones down and not to call police. While doing this you loaded a round into the breach by pumping it. The patrons in the hotel began throwing pool cues at you and you yelled at the co-offender that you had to go. The co-offender got $1100 from the cashier area and fled with you through the main entrance. All of these events were captured on CCTV footage.
4Patrons chased the two of you up the escalators back to the car park where a witness, Alex Kutras grabbed the firearm held by you, causing you to drop the guitar case. You and Mr Kutras began to wrestle, at which time the co-offender struck Mr Kutras on the back of the head with the butt of the firearm he was holding, causing a large laceration. It is not contended by the prosecution that you were part of this and this material was opened as context only.
5Patrons began to chase both of you back to the Mitsubishi sedan, which was occupied by an unknown third offender. As Mr Kutras and other patrons from the venue were standing about 20 metres away from the car, your co-offender, just before entering the car, discharged one round from the firearm he was holding, into the concrete roof of the car park. The prosecution case is there is no evidence that you were aware that your co-offender was going to do this. The projectile discharged from the firearm ricocheted from the roof and struck Mr Kutras, lodging in his abdomen. You all then left in the car and while leaving a number of patrons pushed shopping trolleys into the side of the car in an attempt to stop it from leaving, which caused damage to the left side of the car, and the indicator lens from the front, left panel fell off. Mr Kutras was taken to the Dandenong Hospital for treatment.
6Eventually investigations led to a forensic analysis on the car case, revealing a DNA match with you to the likelihood ratio of 100 billion matches and I will not go through all the ways in which you were eventually tracked down but ultimately on 20 March police attended at Clydebank Avenue, Endeavour Hills, where you were then living with your de facto partner and her three children.
7You were arrested, at which time you were in possession of two shotgun cartridges and a mobile phone. A search warrant was executed and various items relating to the offending were uncovered. The Mitsubishi was located on the front nature strip of your home. It bore characteristics such as the damage and a back wheel which were noted on the car used in the armed robbery. Items were also discovered in a search of the car which linked you to the offending and you were taken to the Narre Warren police station for interview.
8On 12 April 2018 Alex Kutras was operated upon to remove the metal fragments from his abdomen, which he received from the discharged round.
9Ultimately police obtained statements from associates of yours whereby you made admissions to committing the armed robbery. Both of those associates whose names are William Cromb and Shannon Rabottini completely implicated you in the offending. You had been released after the police first attended upon you but you were re-arrested on 6 September 2019 in Springvale. You were then remanded in custody.
10On 20 March you remained mute during an interview with police. You engaged in a further record of interview on 6 September. You denied committing the armed robbery. Your actions in participating in this armed robbery clearly underlie the offending on Indictment K12347286.2.
11At the time of the arrest on 6 September 2019 you were on bail for the offence of theft of firearms and burglary, a condition of which was that you report to the Endeavour Hills police station every Monday, Wednesday and Friday. You failed to report on bail 75 out of the required 83 times. The maximum penalty for armed robbery is 25 years' imprisonment.
12Turning to Indictment C2013473.1, the charge of attempting to pervert the course of justice. At the time of the armed robbery and police investigation you were in a relationship with Jessica Benn, with whom you had been residing, and she was present during your arrest and the relationship continued after you were remanded in custody.
13As a part of the evidence for the armed robbery police obtained statements from three associates of yours which implicated you in the armed robbery. One of them, Kristy Campbell, was the sister of Joanne Campbell, who was also the partner of William Cromb, who gave a statement to police, as I have already outlined.
14Police began investigating phone calls between yourself and other persons whilst you were being held on remand at Port Phillip Prison. During these calls you and Ms Benn regularly discussed communicating with witnesses to attempt to influence them to change the statements and the information that they have given to police. There were discussions about Ms Benn attending the homes of these witnesses to attempt to influence them. There were discussions about providing copies of statements from the brief of evidence against you, to attempt to influence them to change those statements, and there were discussions about Ms Benn trying to find or contact witnesses to get them to change their statement. You and Ms Benn discussed a number of ways in which these witnesses could be approached and placed under pressure.
15A summary of these calls was included in the prosecution opening, which I attach as an annexure to these sentencing remarks. During this it was confirmed by Ms Benn that she had in fact spoken to Kristy Campbell, who was the partner of William Cromb, but that seems to be as far as the efforts by you went. Ultimately it appears that none of the witnesses who had made statements implicating you in the armed robbery were in fact approached. It is noted, however, that between 9 September 2019 and 23 January 2020 there were 59 calls, for example, between Ms Benn and Kristy Campbell. The maximum penalty for the charge of attempting to pervert the course of justice is 25 years' imprisonment.
16I now turn to the victim impact statements of Mr Kutras and his wife. Certainly I acknowledge that much of what is said in the victim impact statements relates to the injury received by Mr Kutras, never-the-less it does have application in your case. In his victim impact statement Mr Kutras said he was very emotional for months after the crime. He thought he was going to die as a result of being shot. After recovering from surgery he became too scared to leave the house, suffered nightly nightmares, became obsessed about - began to ruminate about what had happened. He was frightened, that what he described as ‘the shooter’, might come to his home. He and his wife had attended the Vegas sports bar every week on the weekends with friends and they stopped attending there and ultimately moved houses because they no longer felt safe where they were living. Mr Kutras eventually left his job because of the stress. He had to take an enormous amount of time off. He was worried about his wife. He became extremely angry. There were marital difficulties that arose. He continues to suffer flashbacks, and he had panic attacks when he went to the Waverley Gardens shopping centre, watched TV news or movies where someone was shot, and ultimately he attended on a psychologist and was diagnosed with anxiety, depression and post-traumatic stress disorder.
17Ms Mary Kutras in her victim impact statement said she had to take time off work because of the trauma of the crime. She had to take leave without pay because she ran out of sick pay. There were excess costs as a result of the surgery of $3000. She spoke of dealing with her husband, who is in a great deal of pain. She described the emotional trauma as one of the worst experiences of her life. She fears being shot at. She thought her husband was going to die. She believed that she has not yet recovered, still suffers flashbacks, does not go to the shopping centre because of the emotional trauma that that causes. She suffers nightmares. She worries about her husband when he is not at home. She feels a great deal of anger and she too described ongoing traumatic, emotional responses to this offending.
18I also received a psychological report from Angela Zervoz, who is a registered psychologist, and who has been treating Mr and Mrs Kutras. She confirms that Mr Kutras has been diagnosed with post-traumatic stress disorder, depression and anxiety with episodes of panic. She said that Ms Kutras has been prescribed anti-anxiety medication and that she has also attracted diagnoses of generalised anxiety disorder, depression and post-traumatic stress disorder. She stated:
'In summary, Alex and Mary Kutras were victims of an armed robbery where both had guns pointed at them and thought they would be killed. As a result they experienced various symptoms of PTSD. They have difficulty working, sleeping and maintaining relationships both as a couple and with others. Recently the perpetrator who shot at Mr Kutras has been apprehended. This has triggered flashbacks and nightmares for Mr and Mrs Kutras. Their anxiety has been heightened and they ruminate about the incident that they believe has changed their lives forever'.
19I have taken quite some time over the victim impact statements because even though, as I have said, much of it relates to Mr Kutras being shot, never-the-less Mr Kutras was subject to a serious armed robbery, they had firearms pointed at them, they feared for their lives, they continue to suffer serious mental health difficulties as a result of the offending of which they were victims on that day.
20I now turn to your personal circumstances. You are a 47 year old Aboriginal man, a member of the Wiradjeri clan. You are one of four children born to your parents and you described to psychologist, Marli Bovankirk, whose report dated 4 May 2022 was tendered on the plea, a positive family upbringing. You described the family as not well off but loving. You remain close to your parents and your siblings. At school there were no particular incidents. You described yourself as dumb and just scraping through but essentially it appears that you did not find academic study particularly interesting and ultimately you left in Year 10 to take up a plumbing apprenticeship. Your father is also a plumber.
21You did not finish your apprenticeship because you were gaoled, and this takes me both to the drug habit that has bedevilled you since your mid-teens, and your extraordinarily long prior criminal history.
22You told the psychologist, that you began smoking cannabis in the context of peer group when you were 15 and quickly progressed to amphetamine and opioid use and that essentially you have battled drugs ever since. You have an extraordinarily long prior criminal history beginning in 1994 and you have appeared before a court virtually every year since then. Along the way you have been gaoled numerous times. You have been placed on a number of community corrections orders, all of which you have breached, and in 2005 you were placed on a drug treatment order in which you were breached in 2007.
23The offending is primarily dishonesty offending. You have been dealt with for burglary, for theft, for possessing the proceeds of crime, for unlawful possession, for car theft, for driving offences, for drug offences including trafficking drugs. Virtually every version of dishonesty offending you have undertaken, and this has just gone on in a steady stream since your mid to late teens to the present day.
24When you were 17 you formed your first relationship and a daughter and a son were born of that relationship. That son died of sudden infant death syndrome when you were 19 and you dealt with this by plunging into even more drug use. The relationship ended and you had limited contact with your daughter thereafter.
25In 2004 you began a relationship of which two sons were born but at the time of the writing of the report you told Ms Bovankirk you had not seen your sons for 15 years.
26At the time of the offending that has brought you before this court you had been in an eight year relationship with your de facto partner and lived with her and her three children. You were both drug users and that relationship has now ended.
27At the time of the offending you were using methamphetamine on a daily basis and became indebted, as I understand it, to the tune of $20,000 to a criminal outlaw gang and essentially, as I understand the instructions conveyed by your counsel, this armed robbery was planned by that criminal group and you were ordered to take part in it, which you did.
28I am inclined to accept that version of events because even though you have been a non-stop offender since, as I have said, your early to late teens, while there are a couple of prior convictions for violence but you have always appeared before the Magistrates' Court. This armed robbery clearly represents a marked escalation in your offending. It does not excuse your offending by any means. As I have said, apart from anything else, the effect upon Mr and Mrs Kutras has been absolutely appalling and you participated in it, pointing a gun at patrons. You can only imagine how terrified those people were and how much more terrified Mr and Mrs Kutras then became and remain essentially in that state, but I do accept that even though you have been a constant offender, a constant criminal if you like, over decades, this sort of offending is what could be described as out of your league. Again, this does not excuse your offending. If anything, Mr Honeysett, it simply shows the depths to which your drug use has taken you, that you become indebted to and organised criminal group and at the age of 42, as you then were, engaged in the worst offending of your life.
29Experience of these courts are that most people who engage in constant offending have a rethink about where their lives are taking them, what sort of lives they want to lead, between about 35 and 40. This has come late to you. Additionally, most people who have offended as you have over so many years do not enjoy the support of a loving and united family. Generally speaking, they are people who have been subject to enormous ill-treatment from an early age, have themselves often been the victims of crime at the hands of their parents. This has not happened to you. So I am making the comments that I am simply by way of enlarging on factors that, in my view, are relevant to the sentence I must ultimately impose upon you.
30You were represented by extremely experienced counsel and that was, in my view, evident on the plea, that the only plea material Mr Saunders had at his disposal was your progress since being in custody. It is quite clear and I accept that you have resolved to turn your life around and very late in the piece, may I say, Mr Honeysett, come to the realisation that you need to make fundamental changes to your life.
31You told Ms Bovankirk that you had had enough of the life you were leading and that you wanted to turn your life around. As a result, whilst in custody you have stopped using drugs. I know perfectly well that drugs are easily obtained in gaol. There have been random urine screens, five I understand in all, over that period of time, all of which have proved negative for drug use. You have undertaken a Caraniche drug course but most impressively, you are now a peer educator within the gaol. A peer educator is a prisoner who is tasked with working with persons coming into the gaol system for the first time, engaging with them, educating them in how to operate within the gaol, and to encourage them to make the best of what they can of the prison whilst they are in custody. I am well aware that only prisoners enjoying the highest trust obtain this position within the gaol and I do regard that as significant proof, if you like, that you are determined to turn your life around.
32Importantly, psychological testing conducted by Ms Bovankirk did not reveal the development by you of any personality disorder. That is really important, and also indicates that you came from a loving family. A personality disorder is usually developed by people who have undergone a lot of trauma in their childhood, and the problem that it presents for the criminal justice system is that essentially it results in a fixed lens through which a person looks at the world, and that lens is very, very hard to change. So, for example, if someone has an antisocial personality disorder, which people constantly involved in the criminal justice system often develop, it means they have a fixed view that approves of antisocial behaviour. Personality disorders, as I said, are extremely hard to change, require intense therapy over a number of years, and so I am comforted by the fact that you have not been found to have developed a personality disorder, which makes the likelihood of you retaining views leading to the commission of further offending in the future is not something to which I need have regard. In other words, it means your prospects of rehabilitation are more positive.
33I also understand that as part of your rehabilitation you have become involved in cultural pursuits with your heritage within the gaol. You engage in painting and Aboriginal painting, and these are all very positive signs. Ms Bovankirk understandably described your prospects of rehabilitation as guarded, and that is so because even though you may have done well in gaol, Mr Honeysett, that is within a strict structure that keeps you contained. The difficulty for you is going to be in keeping this up once you are eventually released from custody and where you do not have the sort of rules and regulations that keep you and help you to resist use of drugs and resist engaging in offending.
34Ultimately I think it is fair to describe your history and the current offending as the serious consequences, of a non-stop, serious drug addiction issue. I am not saying this to you by way of excuse but it is quite clear that you have used drugs ceaselessly for decades and offended in order to support that habit. Ultimately, in this armed robbery, this was the, if you like, the pinnacle of this pattern of behaviour, whereby in order to meet a serious debt that you had to an organised criminal group, you engaged in, at the age
of 42, as I have said, the most serious offending you had ever engaged in, in your life, causing in the process, apart from anything else, the terrible emotional damage to Mr and Mrs Kutras.35Ms Bovankirk described your life, and it is probably a good description, and I will quote directly from the report. She said:
'Mr Honeysett has an extensive criminal history dating back to 1994 whereby he first appeared before the Frankston Magistrates' Court for one charge of cannabis possession. Since this period his official criminal record depicts a pattern of engaging in dishonesty, driving and motor vehicle offences, drugs, possession and traffic, and violent offending in addition to various offences related to his time in custody, for example, escape from prison/police/gaol, possess anything without authority/police/gaol, act in a disruptive manner, gaol/police/gaol. Sanctions have included terms of imprisonment, community corrections orders, suspended sentences, drug treatment order and fine.
Mr Honeysett has breached numerous community based sanctions including orders, and bail sanctions'.
36She said that you did not attempt to deny or minimise the offending. You told her you deeply regretted your actions, that you are ready to face what you have done. You were seen to minimise the impact on the victims, Mr Honeysett, and that is important. She said you were able to recognise that other patrons in the venue likely felt scared and angry but I hope you understand, both from the victim impact statements being read out during the plea hearing and in relation to what I have - the summaries I have given, how deeply affected the Kutrases were and how innocent they were as victims, simply being patrons at that venue and then really, Mr Kutras attempting to do what might be said to be quite bravely, the right thing, and it is something that you really do need to reflect upon. You can have a very grave effect on other people and it may be that your years of offending and drug use have blunted you in terms of your capacity to have empathy for victims of crime. I certainly hope the seriousness of this offending and the serious effects on the Kutras are something that you do take into account, because it is going to be an important part of your rehabilitation.
37You were also assessed as a result of testing of there being a moderate risk of reoffending in a violent manner. Ultimately the situation is that I do accept that over time you have very much considered the course your life has taken. I accept that you have done very well within the prison system and worked your way to a position of particular trust. I accept that the plea of guilty is a significant one. It came at a late stage but ultimately the - can I say it came at a late stage that is just before trial. However, I also accept that the negotiations entered into by counsel on your behalf did result in a significant change in the charges levelled against you in that it resulted in you essentially being removed from the physical injury done to Mr Kutras, and removal from the actions of your co-offender.
38I accept that you continue to enjoy the support of your family on release. I also accept that most of your time in custody has been spent during COVID lockdowns, that you have not had access to the programs that normally exist within the gaol system, and that as a result your time in custody has been more difficult. I accept that as a result of the period of time you have spent in custody your prospects of rehabilitation are certainly enhanced in my view.
39I also accept that the attempts to pervert the course of justice fell at the lower scale of seriousness that can accompany offending of this kind and, indeed, this was essentially conceded by the prosecution. Never-the-less that is a serious charge and, indeed, the armed robbery was a serious example of an armed robbery. Your counsel submitted that in all the circumstances I should deal with you by way of a term of imprisonment with a greater than usual disparity between the maximum and minimum term. It was conceded that the only way I should deal with you is by way of a term of imprisonment to be immediately served.
40I am sufficiently persuaded by the efforts you have made in gaol to accede to your counsel's request to some extent. However, it is quite clear to me that unless you successfully deal with your drug use and dependency on drugs, nothing is going to change, Mr Honeysett, and again, it is very difficult to prophesy how you will travel in the community once you are released from custody and are no longer able to rely upon, as I have said, the constrictions of a gaol and the external scaffolding, if you like, that it provides.
41In sentencing you there is no doubt that the principles of denunciation of your conduct, just punishment and protection of the community are serious principles to which I must have regard. I therefore, taking into account the mitigating circumstances in your case, but also the serious punitive measures which are demanded by the nature of your offending in both cases, I sentence you as follows:
on the charge of armed robbery you are sentenced to six years' imprisonment.
on the charge of attempting to pervert the course of justice you are sentenced to 18 months' imprisonment.
42I order that 12 months of the sentence imposed for the charge of attempting to pervert the course of justice be served cumulatively to the sentence I have imposed for armed robbery, giving a total effective sentence of seven years. I order that you serve a minimum term of four years and 10 months before becoming eligible for parole.
43What is the PSD, please?
44MS PARNHAM: Your Honour, I calculate the PSD as 835 days.
45HER HONOUR: Yes.
46MS PARNHAM: I am not sure if my learned friend agrees with that.
47HER HONOUR: I do note that there was a period of about two months that was served for other offending.
48MS PARNHAM: I have subtracted those two months from the PSD calculation.
49HER HONOUR: Yes, that is fine. I am just making that notation for the record. Yes?
50ACCUSED: It should be 1025 days on (indistinct).
51MR SAUNDERS: Your Honour, would Your Honour bear with me now?
52HER HONOUR: No, you are not part of this discussion, Mr Honeysett.
53ACCUSED: Oh, sorry, sorry, I thought you - - -
54HER HONOUR: Thank you, no. Thank you. Yes?
55MR SAUNDERS: Would Your Honour bear with me? I just need to refer it. I think it was 1025 minus the 60-odd days which gave us at the date of the plea, and I am just looking for that date now, if Your Honour will bear with me. I am sorry, I did not have it up on the screen.
56MS PARNHAM: Yes, my calculation does differ to what was said at the plea. I used the time and date website, calculating from 23 March 2020 to 6 July 2022, and it has given me 835 days.
57MR SAUNDERS: It was 900 and something at the date of the plea, Your Honour.
58HER HONOUR: I do not think that takes into account the fact that he was placed in custody on 6 September 2019.
59MS PARNHAM: Yes, that is right.
60HER HONOUR: So that date - you have not included that time. So there was the time between January and March of 2020 when he - see, you have left that out. So I think there is more than that.
61MS PARNHAM: My apologies. The calculation that we provided at the time of the plea was 946 days. We would need to add 29 days to that.
62HER HONOUR: All right, that makes 975. Yes.
63MR SAUNDERS: Your Honour, I had 965 days at the date of the plea, so that and what are we - - -
64HER HONOUR: if you add 29 - hang on.
65MR SAUNDERS: We arrived at the day of last week. It was 965 days I had not including the Monday.
66HER HONOUR: Yes.
67MR SAUNDERS: So we have got seven, eight, nine - - -
68HER HONOUR: It's 995 days.
69MR SAUNDERS: Nine hundred and ninety-five days.
70HER HONOUR: All right. We need to - I did not realise there was that much disparity as at the date of the plea. Why the 946 days?
71MS PARNHAM: That is calculated 6 September 29, a pause from
24 January 2020 to 23 March 2020, and up to - from 23 March to 7 June 2022 but, Your Honour, I am prepared to concede the defence request for 995 days.72HER HONOUR: All right then. I will declare 995 days have been served by way of pre-sentence detention. That 995 days is the period of time except for the two month sentence imposed on Mr Honeysett on 24 January 2020.
73Pursuant to the s6AAA I declare that had you not pleaded guilty I would have sentenced you to a term of imprisonment of eight years and order you serve a minimum term of six years. Thank you
74MR SAUNDERS: If the court pleases.
75HER HONOUR: Thank you.
76MS PARNHAM: Your Honour, have you sentenced on the summary charge of breaching?
77HER HONOUR: What - I beg your pardon. What was the maximum penalty for that? I have not.
78MS PARNHAM: You are testing me now, Your Honour. I need to check.
79MR SAUNDERS: Three months.
80MS PARNHAM: Yes, that is correct.
81HER HONOUR: Yes, the maximum penalty for that is three months. I will impose one month and that will be served concurrently.
82MS PARNHAM: And, Your Honour, there are two ancillary orders sought in this matter.
83HER HONOUR: Yes, I have got those and I have signed them. They are the forfeiture order. Was there some - was it you? There was some - no, and a disposal order. They have both been signed and will be returned to you.
84MS PARNHAM: Yes, the firearm forfeiture order, Your Honour.
85HER HONOUR: Thank you. Yes, thank you. All right, is there anything else I need to attend to?
86MR SAUNDERS: Your Honour, is it possible for us to have a brief - or for me to have a brief discuss with Mr Honeysett after this meeting is concerned or is Your Honour into the next matter almost straight away?
87HER HONOUR: I am not sure. I wonder of my associates can tell me. I have got another Zoom meeting.
88ASSOCIATE: Excuse me, Your Honour. Yes, you are heading straight into a mention right after this one.
89HER HONOUR: I am very sorry, Mr Saunders. I just do not have time.
90MR SAUNDERS: All right, thank you, Your Honour. I thought I would ask.
91HER HONOUR: No, that is all right, of course.
92MR SAUNDERS: If I can just indicate to Mr Honeysett we will be in touch in the next day or so.
93HER HONOUR: Yes, thank you very much. Yes, thank you.
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