DPP v Heffernan [2014] VCC 1262 (13 August 2014)


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

DIRECTOR OF PUBLIC PROSECUTIONS

V

JOSHUA HEFFERNAN

JUDGE:	HER HONOUR JUDGE LAWSON
WHERE HELD:	Melbourne
DATE OF HEARING:	22 May 2014
DATE OF SENTENCE:	13 August 2014
CASE MAY BE CITED AS:	DPP v Heffernan
MEDIUM NEUTRAL CITATION:	[2014] VCC 1262

Subject: Criminal law – sentencing - false imprisonment – threat to skill - criminal damage.

APPEARANCES:	Counsel	Solicitors
For the DPP	Ms A. Bhai	Craig Hyland Solicitor for Public Prosecutions

For the Accused	Ms M. Rudolphus	Ann Valos Criminal Law

1 Joshua Heffernan, you have pleaded guilty on indictment to three charges, one of false imprisonment, one of make threat to kill and one of criminal damage. And in addition you have consented to the transfer of one summary charge that relates to trespass and have pleaded guilty to that charge.

2 They are serious offences. The maximum gaol term that I could have imposed in respect the indictment for each of the charges was 10 years' imprisonment and in respect to the trespass, the maximum penalty I could have imposed is six months' imprisonment or 25 penalty units.

3 You have also admitted to me your prior criminal record. There are in total eight court appearances that covers the period from 1 April 2009 until 26 March 2013. Your prior criminal history relates to offences of dishonesty, contravening Family Violence Intervention Orders, failing to answer bail, criminal damage, unlawful assaults, numerous driving offences, make threats to kill, resist arrest and intentionally damage property. So that is of relevance in my sentencing you today, so it has a bearing on your prospects for rehabilitation.

4 In the past, Courts have been generous with you and have imposed a variety of outcomes, including adjourned undertakings without convictions and Justice Plans, fines, a 12 month Community Corrections Order that you breached for which you were placed on a 4 months wholly suspended sentence and fined. You then breached the suspended sentence and were placed on a further suspended sentence.

5 The offending for which you are now before the Court for relates to an incident that occurred on 23 July 2013, when on that day, you attended the home of your former girlfriend and entered her home without permission. That is the trespass. Your reason was that you wanted to apologise to her for your past bad behaviour. She was shocked to see you in her house. What has happened thereafter is set out in the Prosecution Opening, and that was marked as Exhibit 1 at the plea hearing.

6 In summary, you detained your former girlfriend against her will for about an hour. During the course of that time, you threatened to kill her and, at one stage when she locked herself inside the bathroom, you damaged the bathroom door lock whilst forcing the door open. When she was in the bathroom, she sent text messages to her sister. Her sister was able to arrange for the police to attend the house. Once you had forced open the door, you took her phone and read the message from her sister and became aware that the police were on their way. You saw that message and you apologised to her and drove away in your car. You were arrested on 26 July 2013 and interviewed by police, but denied any offending.

7 You were charged and remanded in custody on 26 July 2013. Early attempts were made to resolve this matter as a plea hearing. A committal hearing was conducted on 12 December 2013 and the matter eventually resolved into a guilty plea prior to a directions hearing that was conducted on 21 February 2014. It was submitted on your behalf, and the Crown accept, that the pleas of guilty were entered at the earliest opportunity.

8 On 10 February 2014, you were sentenced at Sunshine Magistrates’ Court to four months imprisonment and in relation to some driving matters and the four month suspended sentence imposed on 26 March 2013 was wholly restored. That sentence expired on 9 June 2014. On 5 August 2014, again at Sunshine Magistrates' Court, you were sentenced in respect to some fresh matters including a make threat to kill charge and you were sentenced to effectively 56 days.

9 In total, you have had 13 months' in custody for prior offending and also some subsequent offending as well as the time you have spent in custody whilst on remand for these matters. I understand you have served 203 days' pre-sentence detention for these matters alone.

10 I have been told something of your personal history and background. You are now aged 24 and you were aged 23 at the time you offended.

11 You had been in a relationship with the victim for some 18 months. That relationship was very much one that was up and down and sometimes volatile. You had been separated for some 18 months before the incident occurred.

12 Ms Jackson, the victim, sets out in her Victim Impact Statement the effect of your offending. It has been really difficult for her. She has been depressed and all areas of her life have been affected by your actions. She finds it very difficult to engage socially. She had to have her medication changed and she started seeing a psychologist. She has cut back her work to one day a week and she says she fears for her safety.

13 Whilst your intentions were noble when you first attended her home — that is, that you wanted to apologise for your own past bad behaviour — what you did on that occasion at her home does not reflect well upon you and has had serious consequences for her.

14 It is necessary in sentencing you to impose appropriate punishment for the criminal acts that you did on that occasion.

15 I have had the opportunity of receiving some reports. I have read a report from Alison Mynard, Clinical Psychologist, and also an older report from Belinda O'Brien from the Department of Human Services that sets out your background, including the fact that at nine years of age you were found eligible to receive services under the Intellectually Disabled Persons’ Services Act 1986. At that time you were described as having a level of functioning that fell within the mild range of intellectual disability. Also, between the ages of 11 and 15, you were diagnosed for Attention Deficit Hyperactivity Disorder.

16 With your disability, there have been specific impacts mainly on your learning and your behaviour. It is recorded that you have particular difficulty in areas of language and expression, both verbal and written, and that you present with behaviour that reflects a more immature person. Nonetheless, you can carry out all personal care tasks and live independently. In the past, you have managed living in shared accommodation with friends.

17 You are the third of four children. You have three sisters. Both your mother, Ms Trudy Heffernan, and your father, Mr Tribe, have been present during the plea hearing and they are very supportive of you. Recently, they have reconciled and they intend to obtain accommodation where you can go and live. It is intended that you will live with your father initially in shared accommodation in Dandenong upon your release.

18 I note that you have had a disrupted schooling because of your various difficulties associated with your mild intellectual impairment. You were able to complete Year 10 at Warringa Special School.

19 In addition to you mild intellectual impairment you also have a history of substance abuse and that has complicated your situation. You have experimented with various drugs and alcohol from an early age and you were a regular user of ice. At the time of this offending you were using ice, as well as a drug known as "juice," that is possibly gamma hydroxybutyric acid (GHB).

20 You have had some work in the past. You have worked casually as a furniture removalist and as a yardsman. You have shown that whilst you have been in prison you can undertake other tasks such as bakery and other tasks.

21 I am not aware that you have ever had any formal alcohol or drug rehabilitation programs in the past.

22 Ms Mynard says in her report that you do struggle as a result of your intellectual disability, with many behavioural problems. You struggle with emotional regulation. You often become angry and you argue with people around you. You have difficulty managing your intense anger.

23 She does say, however, that you do know the difference between right and wrong and that your behaviour was not right on this occasion.

24 She says that it has been difficult for you in custody because of your intellectual impairment and associated behaviour disorders. There have been several fights in custody and that has resulted in you being isolated.

25 Ms Mynard assesses you in the severe range for anxiety and extremely severe range for depression and stress. She confirms that you do have some symptoms of ADHD and she says you have trouble sustaining attention, organising yourself and focussing on details. You have trouble remembering things, you have low frustration tolerance and you have been observed to be very fidgety and feeling over active at times.

26 Having regard to Ms Mynard’s report and the information I have about your disability, I consider that the principles outlined in Verdins are enlivened. I think that there is a connection between your intellectual disability and this offending. You have difficulty with processing thoughts and actions and understanding consequences. Your problem solving difficulties, problems with intellectual emotional regulation and impulsivity are all behaviours which have contributed to this offending. There is, therefore, a need for me in sentencing you to moderate both general and specific deterrence. I consider your moral culpability is lowered. Given your known intellectual disability, I also accept that prison is more difficult for you than for other people who do not have this disability.

27 Nevertheless, I must punish you for that behaviour that you exhibited on that occasion and it is important that the Court acknowledges that there is a need to protect the community from you in relation to your behaviour.

28 In particular I note that because you have been charged and found guilty and convicted of a make threat to kill charge, you are now considered to be a serious violent offender because of your past conviction for that offence and also a subsequent conviction. Section 6B of the Sentencing Act (Vic) 1991 applies and protection of the community is the principle sentencing requirement in respect to that charge.

29 It is important that I establish a disposition that is going to support you in the community. It is going to have regard to your intellectual impairment and also to set up some programs to assist you to manage all of your behaviours so that you avoid any further criminal offending.

30 I have had regard to the fact that you did utilise your time in custody. I have had access to all the occupational courses and the certificates that you have obtained and you have completed the harm reduction program and also the problem solving program and communication skills program. Some drug screens were provided and those urine screens are all negative. Overall, I consider that you do have real prospects for rehabilitation and with proper supports, assessment and treatment of your drug and alcohol problems that you will be able to maintain a lifestyle in the community that does not expose you to the risk of further criminal charges and further time in gaol.

31 I have had regard to the matters set out in the pre-sentence report and also the very informative report received from Mr Dashiell Rees who is the representative from Department of Human Services. His report, dated 12 August 2014, sets out the background and also makes recommendations which ultimately I have accepted and they will for part of your sentence.

32 In sentencing you, it is important to give consideration to your supported release back into the community. You do require assistance in dealing with all the behaviours that have been identified in the various reports. As discussed in the plea hearing I propose to place you on a Community Corrections Order with conditions as recommended by Mr Rees.

33 I will proceed now to sentence you. I have had regard to your early plea of guilty and its utility, and the fact that you have facilitated justice. Accordingly there will be a significant discount in your sentence.

34 The formal Court orders are as follows, in relation to Charge 1, the false imprisonment, you will be convicted and placed on a 12 month community corrections order with the Justice Plan, with the conditions as outlined in the report of Mr Rees and that is that you undergo assessment with ASCO COATS or other service as deemed appropriate by Department of Community Services, that you adhere to any recommendations made by ASCO COATS with the assistance of Department of Community Services and that you participate in a behavioural counselling program, or like available service as deemed appropriate by Department of Community Services.

35 Also, remember when I went through before with you all of the mandatory conditions? They apply, and also for the next 12 months' plus there will be some judicial monitoring. So you will be required to come back before me on 13 February 2015 at 10 o'clock. That will be just to report back to me how you are going.

36 Now Charge 2, make threat to kill, you are convicted and sentenced to 203 days which is the time you have already served.

37 Charge 3, the criminal damage, convicted and discharged. So that is the sentence in respect to the indictable offences.

38 In respect to the summary charge, Charge 1 trespass, you will be convicted and sentenced to one month imprisonment and that is concurrent with the sentence I have imposed in respect to the indictment. So in effect, you have been convicted to the time you have already served.

39 I make the following declaration in respect to pre-sentence detention. I declare that you have served 203 days of the sentence imposed and I direct that that be entered into the records of the Court.

40 Pursuant to s.6AAA of the Sentencing Act, but for your plea of guilty in respect to Charge 2 and the summary charge of trespass, I would have sentenced you to 12 months' imprisonment.

41 I make the forensic sample order sought. I consider it is in the interests of the community and I have had regard to the seriousness of the circumstances of the offending. I consider that the order is warranted and I note that order is by consent.

42 Finally I declare pursuant to s.6F of the Sentencing Act that it is noted in the court records with respect to Charge 2 on the indictment, you have been sentenced as a serious violent offender. I further note that the Crown did not seek a disproportionate sentence in respect to that charge. I think that covers everything.

43 MS BHAI: Just one thing Your Honour, Your Honour's made the forensic sample order but as this is a taking not a retention, Mr Heffernan must be informed of his obligations.

44 HER HONOUR: All right, I have just got to tell you, Mr Heffernan, that I have made an order that you will have to go to the police station and give them a sample from a scraping of your mouth so they will give you a cotton bud, the policeman, and they will put it in your mouth and just rub it on your cheek inside and provided that you cooperate with them, that will deal with that matter but if you don't, then the police may use reasonable force to enable that forensic sample to be taken. But hopefully you will be cooperative and that will not be necessary.

46 HER HONOUR: We will make the orders and then your solicitor, Ms Rudolphus, will explain that.

47 MS BHAI: And sorry Your Honour, Your Honour has to indicate one of the new changes in regards to that which of the charges Your Honour is making the order on.

50 HER HONOUR: I think I have covered everything now and so there is a little bit to be done now. We have to formally sign the orders. I will just check the order that has been prepared. It is only in respect to the criminal damage so you will have to take out the - the false imprisonment, Charge 1. We have just got to fix up the form. There's a few things you've got to do, Mr Heffernan. Once we get the order in the correct form, I'll sign it and then you've got to sign it, you'll have to liaise with Mr Rees about what he needs you to do.

52 HER HONOUR: And you've got to speak to Ms Rudolphus about going to the police station for your forensic sample to be taken.

54 HER HONOUR: And you have to go to Department of Correctional Services in Dandenong just to report and set up the requirements of community corrections. But the important relationship will be between yourself and Mr Rees.

56 HER HONOUR: All right? So there is a few things to do. Hopefully we will make sure he's aware of all of those things and then ultimately I will see you again on 13 February next year at 10 o'clock. Okay?

58 HER HONOUR: Yep. It is a lot to take in but hopefully he understands. So at this time we don't get a bad response.

60 HER HONOUR: I think this is the best opportunity you have. You know what the alternative is, don't you?

62 HER HONOUR: It will be hard once you are released because there will be lots of opportunities to make connections with people who have had drugs and what not so you have got to resist that.

64 HER HONOUR: I know it's easy for me to say but ultimately it's a matter for you.

65 MS RUDOLPHUS: Your Honour, Mr Rees has just asked me to clarify that it is Disability Client Services.

68 HER HONOUR: Yes. DCS. So it is taking a little bit of time because it is a little more unusual. Does he want to talk to his mother?

70 HER HONOUR: Yes that's okay. Yes. All right Ms Rudolphus, if you could please attend with my associate just to run through those things again - - -

72 HER HONOUR: - - - with Mr Heffernan and get his signature and then we'll copy that and he can be taken downstairs and processed and the matter can be completed.

74 HER HONOUR: All right so Mr Heffernan that completes the formal orders. You still have to go downstairs with the custody officer and they'll make the necessary arrangements for your release downstairs.

76 HER HONOUR: And we'll provide a copy of the order to your solicitor and she can also inform you about the other order about the taking of the sample. Once that's made, I'll do that today. We can scan that, can't we and send that to Ms Rudolphus's office? If you could organise with your client just to make sure he does those things.

78 HER HONOUR: Good on you. I appreciate the assistance that you have provided this morning.

80 HER HONOUR: Also, Mr Rees thank you for coming. I know you're probably very busy but it is really important on this occasion that if we make the extra effort, let's see if he can keep it this time. All right? So Joshua, it's up to you.

County Court of Victoria

DPP v Heffernan [2014] VCC 1262 (13 August 2014)