Director of Public Prosecutions v Horneij
[2013] VCC 1415
•24 September 2013
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-13-01425
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JAMES GREGORY HORNEIJ |
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JUDGE: | HIS HONOUR JUDGE MONTGOMERY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 23 September 2013 | |
DATE OF SENTENCE: | 24 September 2013 | |
CASE MAY BE CITED AS: | DPP v Horneij | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1415 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms T. Saville | Office of Public Prosecutions |
| For the Accused | Mr P. Howman | HBH Legal |
HIS HONOUR:
1 James Gregory Horneij, you have pleaded guilty to two charges of common assault, one charge of making threat to inflict serious injury and three charges of rape. The facts of the matter are contained in the prosecution summary. On your behalf your Counsel indicated that there was nothing in the summary that he disputed. The summary contains the facts upon which I have imposed the sentence, I will not now recite the facts. Any reader of these reasons can refer to the summary, Exhibit 1, to place the sentence in their factual context. A victim impact statement, as opposed to the normal sworn document, was tendered. I have read that and taken its contents into account.
2 As you will receive a term of imprisonment on Charges 3 and 4 you will be sentenced as a serious sexual offender on Charges 5 and 6. That means in relation to Charges 5 and 6 the Court must regard the protection of the community as the principal purpose for which the sentence is imposed. The prosecutor has indicated on behalf of the Crown that the prosecution is not seeking a disproportionate sentence. I have decided you are to be registered pursuant to the Sex Offender's Registration Act and you are to be registered for a period of 15 years.
3 You have pleaded guilty to these charges at committal mention on 30 July 2013 and have spent 150 days in custody already. I have made a s.464ZF retention order and a disposal order The prosecutor submitted that the appropriate sentencing range would be a head sentence of between nine to seven years and a non-parole period of between seven to five and a half years.
4 You have admitted a substantial criminal record and although it only includes one prior conviction for a sexual offence, namely in the District Court in South Australia in August 2009, a conviction for indecent assault for which you received an eight month suspended sentence. Your criminal history includes, amongst other things, numerous convictions for dishonesty, violence and drug matters. It is truly an unimpressive record.
5 You are now aged 33. On your behalf your Counsel submitted the reports of three psychologists. Taking them in chronological order, the first was from Robert J Cock dated 30 June 2008. The second from Alan Fugler, dated 25 July 2009 and the one prepared for the purposes of this hearing from Ian McKinnon, forensic and consultant psychologist, dated 14 September 2013. All those reports set out in some detail your history and background, your substance abuse problems and your psychological condition.
6
If I could go to the report prepared for this hearing. In that report
Mr McKinnon, as I have said, sets out your background which includes your unfortunate family background and that you were, at one stage when you were around 12, taken into the care of DHS. You became what is known as a "street kid" in Melbourne. You began using drugs and alcohol at 12 to 13 years of age. You have had an unfortunate experience in Ballarat at the age of 13, which is mentioned in the report.
7 You virtually have very little education and no employment skills. It is reported in that report that you last worked as a trainee shearer in late 2012. All the reports set out your substance abuse problems. At the time that he assessed you Mr McKinnon said that you were suffering from a personality disorder. It is noted in the current clinical summary that the results and clinical observations suggested that your functional intelligence fell at the lower end of the normal adult range and you should properly be regarded as possessing borderline intellectual abilities.
8 Mr McKinnon said that you were very poorly equipped for the normal demands of adulthood and your ability to enter into vocational training was limited by your poor level of academic achievement. He also said you appear to have extremely low personal insight. He said you had expressed remorse for the offences and said you had accepted responsibility for your actions and that you would be punished for your crimes. He said "However Mr Horneij's appreciation for the adverse impact of his assaults on Ms Kilpatrick is limited by his inferior ability to emphasise and his very poor levels of insight". He said that at the time of the offending you also suffered from the personality disorder. In his summary and conclusions he said that while in prison you may benefit from sustained individual psychologist therapy that addresses your personality disorder and your other problems. He also said you may benefit from an extended period of parole.
9 I have taken into account all of the matters put and said and referred to in relation to those three psychological reports. Your Counsel did not submit that any of those raised the issues set out in the case of Verdins but as your general background I take into account all the matters set out, as I said, in the psychological reports.
10 Your Counsel relied on your early plea of guilty and what is, in my view, a limited expression of regret in your record of interview given that your position in the interview was that you believe the complainant was consenting. He pointed to your dysfunctional upbringing, your troubled early life and history, your substance abuse and the sexual assaults referred to in the reports that have been committed on yourself. As I said these matters were set out in great detail in the reports.
11 Mr Howman told me that after a long absence in your life your natural father has contacted you by visiting you twice whilst you have been in prison. In fact he is the only person to have visited you. Your mother and stepfather have attended Court. He told me of the courses you have attended in prison and the sporting activities you are engaging in. He told me you have a concern about your placement in the prison system when it is known what offences you have been convicted of. There is no material before me to show that you will not classified in the usual way and if you want to go into protection that that cannot be arranged.
12 He said the offending was extremely serious however you had shown sorrow and contrition. He submitted that I should consider a sentence at the lower end of the scale submitted by the prosecution.
13 Sentencing considerations. I will explain these terms for you. General deterrence, that is I have to set a sentence that will try and stop other people doing these things. Specific deterrence, that is I have to get it into your mind that you cannot do these things again and I have to consider the protection of the community. All those three factors are important sentencing considerations here, as is the Court's denunciation of your conduct, that is, what I think of it. I have taken into account the matters set out in ss.5(1) and (2) of the Sentencing Act. I have taken into account all the submissions made and exhibits tendered by both parties including any not specifically referred to in these reasons.
14 Your behaviour, insofar as your offending is concerned could only be considered as appalling. A civil society cannot tolerate such behaviour by men towards women. You frightened and humiliated the complainant. You have left her with memories that she is finding it hard to cope with.
15 Your criminal suggests that you have poor prospects of rehabilitation. You must use your time in gaol to be drug free and to improve your education qualifications and any training that you can obtain whilst in custody. I have taken into account your plea of guilty. It has saved the Court the time and expense of a trial and it has also saved the complainant from having to go into the witness box. I accept on those two bases that it has a significant discount value. I accept that your plea is an acceptance by you of responsibility for your actions and I have taken that into account.
16 I impose the following sentences. On Charge 1 I impose a sentence of six months' imprisonment. On Charge 2 a sentence of six months. On Charge 3 a sentence of nine months. On Charge 4 a sentence of five years. On Charge 5 a sentence of five years and on Charge 6 a sentence of five years. I direct that three months of the sentence on Charge 1 and three months of the sentence on Charge 2 and six months of the sentence on Charge 3, one year of the sentence on Charge 4 and one year of the sentence on Charge 5 be served cumulatively with each other and cumulatively with the sentence imposed on the base Count, Charge 6, a sentence of five years. That, on my arithmetic, makes a total effective sentence of eight years . I impose a non-parole period of six years.
17 I declare that the time that you have served of 150 days be reckoned as part of term of imprisonment I have already imposed under s.187 of the Sentencing Act. I declare under s.6AAA of the Sentencing Act that but for you plea of guilty I would have imposed a sentence of tens years with a non-parole period of eight years.
18 If you would just check the arithmetic on my figures there. Anyone want me to go through it again? It is six, six, nine, five, five, five and the cumulation is three months on Charge 1, three months on Charge 2, six months on Charge 3 makes a total of a year. One year on Charge 4, one year on Charge 5 so there is a total cumulation of those three of three years added to five on Charge 6 which makes the eight. Have I got that right?
19 MS SAVILLE: Yes, Your Honour.
20 MR HOWMAN: It seems to be right, Your Honour.
21 HIS HONOUR: All right. With a non-parole period of six. Are there any other orders or matters that I need to look at?
22 MS SAVILLE: No, Your Honour.
23 HIS HONOUR: No. Mr Howman?
24 MR HOWMAN: No, Your Honour.
25 HIS HONOUR: Thank you. I have imposed a sex registration requirement . These papers will now be served on you. You do not have to accept service of them. Your Counsel will explain to you, no doubt, the various conditions and what it all means so I ask my Associate to serve that on you. As I said you do not have to. If you'd like to go up, Mr Howman with my Associate. Yes thank you, you can remove Mr Horneij. Thanks, Mr Howman, you're excused.
26 MR HOWMAN: Thank you, Your Honour.
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