Director of Public Prosecutions v Hornsey

[2017] VCC 569

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

AT LATROBE VALLEY
CRIMINAL JURISDICTION

CR 17-00558
CR-17-00559

DIRECTOR OF PUBLIC PROSECUTIONS

v

MICHELLE HORNSEY
BRETT HORNSEY

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Latrobe Valley
DATE OF HEARING:
DATE OF SENTENCE:	11 May 2017
CASE MAY BE CITED AS:	DPP v Hornsey
MEDIUM NEUTRAL CITATION:	[2017] VCC 569

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P. Bourke
For Accused M. Hornsey	Ms M. Harris
For Accused B. Hornsey	Mr A. Burnnard

Pages 1 - 7

 

 

HIS HONOUR: 

1Michelle and Brett Hornsey, you have each pleaded guilty on separate indictments to a charge of attempt to pervert or acts attempting to pervert the course of justice. 

2You are aged 51 and 53 years respectively.  Each of you have pleaded guilty and you must get the utilitarian benefit of that plea of guilty in circumstances where it may have been an entertaining trial.  In any event, remorse, I suspect, is somewhat problematic, although I dare say you wish this had all never happened. 

3That charge carries a maximum penalty of 25 years.  You, Mr Hornsey, have also pleaded guilty to uplifted Magistrates' Court matters of unlicensed driving and driving an unregistered vehicle. 

4First, and pursuant to s.464Z of the Crimes Act, ZF of the Crimes Act, I make an order that you, Mr Hornsey, provide a saliva sample for DNA purposes.  I must advise you that order, having been made, if you refuse to provide such a sample, police may use reasonable force to take it from you and your counsel will explain to you what you do about that.

5The Crown opening has been tendered and there is no need for me to into the extensive details to which it descended.  In simple terms, what occurred was that back in October 2015, your daughter and man called Sam Ferrari were attempting to recover a drug debt from Mr Albanese. 

6The versions of events here are all over the place.  It was said, at one stage, that it was a drug debt owed to your daughter.  Another time, Mr Albanese claims it had nothing to do with her.  In any event, it was debt collecting for a drug debt.  When you attended, Mr Ferrari had a hammer and threats were made to Mr Albanese.  A situation then arose where he was robbed of his car keys at a different address and the hammer was not alleged to have been used. 

7Eventually, you end up with a theft of a motor vehicle, threat to cause serious injury, robbery, and I think one or two other charges and she was given a custodial sentence. 

8In any event, after she had been arrested and was in custody, and apparently believed she was in custody for aggravated burglary, she made a number of phone calls directed towards the two of you, asking you to get Mr Albanese to change his statement.  She was clearly under the belief that he had put in that statement, that she was holding a hammer and was under the belief that she was charged with aggravated burglary.  Neither of those things were true.

9The request, having read the transcript of those gaol phone calls, was simply to get rid of the hammer.  Mr Albanese made a statement to police where he said that your daughter had threatened him verbally herself.  Upon being approached by you initially, as I understand it, Ms Hornsey - he was asked to say there were no threats at all.  You have to be sentenced on that basis because that is what has been pleaded to; it is as simple as that. 

10In any event, what occurred was after that.  Mr Albanese, without being threatened in any way, shape, or form, because he said he felt sorry for you two, decided to make serious and further documents.

11On 5 January 2016, Mr Albanese attended with you, Ms Hornsey at a police station and made a statutory declaration which said that no threats had been made.  He subsequent said that that statutory declaration or affidavit was not true and by necessary inference was perjurious. 

12The next day, he returned to the police station and made a police statement saying that no threats had been made.  He then asserted that - well, ultimately asserted that that statement was not true and again, obviously, was perjurious. 

13He says, and you have pleaded to it, that those untrue statement were made at the behest of you two.  The crime of attempting to pervert, can be very easily made out, and I am not going to buy into what might be my admittedly expressed concerns about the way in which this matter has evolved.  What really concerns me is that after all this and after he made his statement,
Mr Albanese went to the committal and swore on oath without a certificate for perjury that no threats were made.  He said that Mr Ferrari had made then.  That is at page - I have not got it with me.  I did have it.  In fact, I have got it underlined. 

14MR BURNNARD:  It is all right.  I will go and have a look, Your Honour.

15HIS HONOUR:  You go and have a look - he says it three times that no threats were made by Laurinda.  He says that they were made by Mr Ferrari.  In any event, that piece of perjury did not attract the attention of the authorities and he goes un-interviewed and uncharged. 

16The fact of the matter is that you cannot do what you did; I think you both know that.  It can be a very serious offence, attempting to pervert the course of justice at the other end it can be almost laughable on occasions.  It is my view that the seriousness of this offending is such that it is nowhere near the top of the range. 

17In fact, there is a chance that what you achieve might have even been the truth.  But be that as it may, it certainly warrants, having being charged, there must be, given by me, attention to, certainly, general deterrence as well as an appropriate punishment for a crime which has often been described as "strikes at the heart of the system of justice." 

18In any event, I have then looked at matters personal to you.  It is my view - bearing in mind the lower end scale of this offending that a community corrections order with conviction would be well within range and that is what I propose to do.

19So far as you are concerned, Ms Hornsey, material was provided before me.  Now, it is important to note, I think, that you have no prior convictions at all.  It is important to know that each of you has done this to try and get you daughter out of custody which whilst not laudable, is certainly understandable.  Ultimately, you would not have achieved that, I do not think, but that is what you were trying to do. 

20You have the care and control of your granddaughter and the references that have been tendered on your behalf indicate that you have a lot of contact with other children and that you are a person who has cared very much for other people and have been a hard worker and despite your husband's vegetable picking skills, have been a provider for the family for some time, as the reports would seem to indicate.

21In your situation, I have no difficulty with giving you a community corrections order on that basis, and the prospects of your rehabilitation are excellent.  The risk of you reoffending in a way such as this are absolutely zero, in my view. 

22Accordingly, you know, a community corrections order, in your situation, there will be 50 hours of work, bearing in mind the responsibilities that you have.  It will be conviction which is a punishment in itself and it will be over two years, so it is plenty of time to do it. 

23Also note, in this situation that once the workhours are done, the CCO concludes.  I do not know whether I make that order or whether it is just by operation of law. 

24As far as you are concerned, Mr Hornsey, you have got pages of priors.  The Crown have very properly pointed out that one of them is not quite right but you have been in the system a long time and you should have known a lot better than this. 

25I accept that there was no actual threats of violence made to Mr Albanese and as I indicated, you were just endeavouring to get your daughter out of custody.  You do have some medical issues with your back.  To your credit you continue to work and I have a reference from a Mr and Mrs Dirkin, I am assuming.  Yes, a Mr and Mrs Dirkin, that you have been working with them as a potato picker, so you clearly are able to work and you have work available to you over the next month.  They point out that you have been a very reliable worker over the years and I accept that that is probably true. 

26Parity is of no concern in this matter, as I indicated clearly, I am very concerned about the sentence I have gave your daughter in the end.  I should have investigated this much more completely than I did. 

27But in your situation, again, for the same reasons as the lower end of the offending and this scenario in which it all occurred, I am prepared to give you a with conviction community corrections order as well.  You do have the prior convictions and whilst you do not get sentenced for the same things twice, I am going to give you 100 work hours, they are going to be for two years and with conviction.

28The prospects of your rehabilitation are problematic and the risk of you reoffending is anybody's guess.  But I am just sentencing for this one matter just to try make an end of it all.  Anything else I have got to do?

29MR BURNNARD:  No.

30MS HARRIS:  Is Your Honour proposing that that CCO be an aggregate sentence, taking into account the summary matters?

31HIS HONOUR:  Yes, it takes the lot in, yes, yes.  Well, it is not aggregate, it just - yes.  That is (indistinct words).

32MS HARRIS:  Your Honour, might I approach the dock?

33HIS HONOUR:  Yes.  All right, so those orders are made.  No doubt I am going to see you again, Mr Hornsey.  But Mr Hornsey, you have got to understand, your last get out of gaol free card, all right?  If you breach this and you are brought back, you will go through that door, no questions asked, all right?

34OFFENDER B. HORNSEY:  Yep.

35HIS HONOUR:  All right?  This is all worked out all right for you in the end but you took a reach chance with this. 

36OFFENDER B. HORNSEY:  Yep.

37HIS HONOUR:  All right, and you know that.  All right, I will just leave the Bench.  There is no other orders I have to make, there is no 6AAA's?

38MR BURNNARD:  No.

39HIS HONOUR:  No forfeitures?  We did all that last time, did we not?

40MR BURNNARD:  No, think we all right, Your Honour.

41HIS HONOUR:  Yes, thanks for that.

42MR BURNNARD:  Thank you.

43MS HARRIS:  As Your Honour pleases..

44HIS HONOUR:  Yes, thanks, Mr Burnnard.  Thanks, Ms Harris.

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