DPP v Heffernan [2025] VCC 706

1. The circumstances of your offending were outlined in the Summary of Prosecution Opening for Plea dated 9 April 2025. I shall summarise those facts here.
2. On 29 December 2023 at approximately 5.55 am you and your co-accused, Ross Anderson and Callum Savio, attended at a home under construction in Halpin Crescent, Shepparton.
3. Once inside (Charge 1 - burglary), you stole a Hisense bar fridge, an Inalto dishwasher and a Bosch branded washing machine (Charge 2 - theft). A number of other items were stolen by your co-accused.
4. On 15 January 2024 police executed a search warrant at your home address. They located a number of assorted Milwaukie and Makita power tools, a Rinnai brand air conditioner, a natural gas fireplace and a typhoon pressure washer (Charge 4 - handling stolen goods).
5. Investigators also located seven bottles containing a total of 2.431 litres of 1,4 Butanediol in the shed. A number of text messages and tick sheets reflecting trafficking between 29 November 2023 and 15 January 2024 were located. I note Charge 3 refers to the 2.431 litres only.
6. You were interviewed and provided no comment to the allegations.

1. This was serious offending. You broke into a home under construction and stole valuable items. You were found in possession of a number of other valuable items. The drug charge, while just over the commercial quantity, is particularly serious in itself.

1. You have entered a plea of guilty which has significant utilitarian benefit. You have saved the court and the community the time and expense of running a trial and spared the victim the ordeal of giving evidence at trial. In those circumstances, you have facilitated the administration of justice, and you are entitled to a benefit for that.
2. By your plea you have accepted responsibility for your offending and there is a demonstration of remorse. As you said in the sentencing conversation, hearing the victim impact statements 'makes it hit home a lot more.'

1. I received two victim impact statements which outline the effect of your offending on those whose property you stole.
2. Vinay Jain wrote that he has 'felt unsafe in my own home, a place that should bring comfort and peace ... this crime has deeply affected my sense of security and trust in my community'.
3. Robert Logie wrote that the tools you stole 'represented not only years of investment and hard work, but also the foundation of my career in construction. Their theft has left me financially strained and unable to replace the tools I depended on, ultimately forcing me to leave the career I loved and move into a different field entirely'.
4. Yours were not victimless crimes, real people have lost valuable items that they worked hard to afford, and you have displaced their sense of security.

Personal circumstances and psychological report

1. I turn now to your personal circumstances.
2. You are a 35-year-old Barkandji man, born in January 1990. You have two

half-sisters and a half-brother on your father's side. You were not linked to your Aboriginal culture as a child. 3. You had a difficult relationship with your father as a child and were exposed to alcohol and family violence. That situation has improved, your parents remain together and are both supportive of you. 4. You were diagnosed with ADHD and medicated as a child. You experienced difficulties with the education system including regular suspensions. You state that you can read but cannot make sense of the words. I appreciate the effort that has gone into your letter to the court, to which I will refer shortly. 5. You left formal education in Year 9 and began a carpentry apprenticeship. You ran your own fencing business for some time and most recently worked as a forklift driver at the GV Creamery. 6. You began drinking when you were 13 and commenced daily use of cannabis between the ages of 13 and 15. From the age of 16 you used MDMA and commenced using methylamphetamine from the age of 17. You have also used a number of other substances. 7. You have been with your partner on and off since you were 16. You have a

seven- year-old son and a two-year-old daughter. 8. You attended drug and alcohol rehabilitation in late 2019 and again in November 2021 at the Cottage. You were then employed at the Creamery and managed to obtain a mortgage on a home in Shepparton. Unfortunately, you were retrenched due to the business losing a contract. After losing your job you committed these offences. 9. Since entering custody, you have made efforts to connect to culture. You have completed a number of artworks, some of which you have sold through the Torch Program. You have participated in the Mumgu Dhal and Wadamba Prison to Work Programs and you are an art billet. 10. I received a psychological report co-authored by provisional psychologist Christine Kennedy and forensic psychologist David Ball. They consider that you suffer from antisocial personality disorder, stimulant and other hallucinogen use disorder in early remission and symptoms of ADHD. 11. I received references from both your mother and your father who are clearly supportive of you, together with the aforementioned letter from you. Your parents provided a history of your struggles, particularly with ADHD, your love of sport and family and your desire to connect to culture. You wrote of your family and how you have productively used your time in custody, painting and learning more about your Aboriginal heritage and how to be a good role model for your children.

1. Having never before done so, you participated in a Koori Court sentencing conversation with Aboriginal elders Aunty Laurel Robinson and Uncle Len Harrison. You fully engaged with them and proudly showed a number of your impressive artworks completed whilst you have been in custody.
2. You were supported in court by your parents who sat at the table during the sentencing conversation and your cricket coach Dylan who sat in the body of the court to support you.
3. You spoke proudly of your children and your desire to be there for them and provide for them. The elders encouraged you to continue with your art and to learn more about your culture.
4. It is recognised that participation in a sentencing conversation is more difficult than a general list plea hearing. It is confronting. You are held accountable and you have to speak for yourself.
5. In a decision of Honeysett v The Queen [2018] VSCA 214, the Court of Appeal looked at the Koori Court plea process and stated:

"In our view, in determining the weight to be attached to an offender's participation in a Koori Court sentencing conversation as a mitigating factor, a sentencing court should consider a range of factors including:

(1) The fact that participation in the process is a voluntary one, maybe confronting to the offender and will likely involve him or her being shamed. As noted in Morgan, participation in the process may of itself be rehabilitative.

(2) The fact that an offender is, rather than hiding behind counsel, taking the opportunity to personally:

(a) Demonstrate his or her remorse for the offending;

(b) Demonstrate insight into the reasons for and the seriousness and effect of the offending; and

(c) Express any intention to reform and how that will be done, including by participating in available rehabilitation programs.

(3) The court's assessment of the genuineness of the offender's statements during the sentencing conversation.

That assessment should take into account all of the information before the court. Based on the court's assessment of the quality and genuineness of the statements made by the offender, it is a matter for the individual judge to assess weight in the circumstances of the particular case.

In fixing a sentence it is a duty of the court to impose just punishment adapted to all the circumstances of the case by reference to the permissible sentencing purposes of general and specific deterrence, any means by which rehabilitation of the offender be facilitated, denunciation of the offending and the need to protect the community."

1. From your participation in the sentencing conversation I have observed that you are open to exploring your cultural ties and connecting with community and you are dedicated to your art. I found your participation in the sentencing conversation to be genuine and I take it into account.

1. Mr Heffernan, this was serious offending. You have an extensive criminal history for relevant offending including burglary, proceeds and drug offences. It also includes five fairly recent community corrections order breaches.
2. The sentence I impose must make clear to you that offending of this nature will not be tolerated by the courts or the community. As I have said, these are not victimless crimes and the community needs to be protected.
3. I must also make clear to others minded to commit offences of a similar nature that they will be punished if they do so. Denunciation and just punishment are also relevant considerations.
4. I consider your prospects of rehabilitation to be reasonable should you engage with the support that is on offer to you. You have a demonstrated capacity to work and support yourself and your family but you need to accept the support of counselling, prison to work programs, drug and alcohol programs and cultural supports. Should you do this, I consider your prospects to be good.
5. Trafficking in a drug of dependence in not less than a commercial quantity is a Category 2 offence which requires the court to impose a term of imprisonment other than a combination sentence. It was not submitted that you meet any of the exceptions to this requirement.
6. I also take parity into account. Your co-accused Anderson was sentenced to five months' imprisonment for the burglary and unrelated matters. Your co-accused Savio was sentenced to one year and six months' imprisonment with a non-parole period of nine months for trafficking 1,4 butanediol and other offences, limited to the supply of the bottles located at your address.

1. Mr O'Doherty for the prosecution submitted that a term of imprisonment with a non-parole period is warranted in your case, primarily because of the seriousness of Charge 3, trafficking in a drug of dependence in not less than a commercial quantity.
2. Mr Pearson appearing on your behalf submitted that while I cannot impose a combination sentence on Charge 3, I could impose a straight sentence on that charge and a combination sentence on the other charges.
3. Mr Pearson referred me to several authorities relating to Charge 3, trafficking in a drug of dependence in not less than a commercial quantity, namely, Roach,__[1] Danaf,[2] El Dimachki,[3] and Lye.[4]
4. You have breached a number of Community Corrections Order in the recent past which in combination with the seriousness of Charge 3 leads me to conclude that a head sentence and non-parole period is the appropriate outcome in your case.
5. You can still engage in rehabilitation and counselling programs of your own accord once released and I encourage you to do so. There are also a number of local cultural education resources such as Rumbalara Aboriginal Co-operative that you can link in with upon your release.

1. On Charge 1, burglary, you are sentenced to eight months' imprisonment.
2. On Charge 2, theft, you are sentenced to eight months' imprisonment.
3. On Charge 3, trafficking in a drug of dependence in not less than a commercial quantity, you are sentenced to two years' imprisonment.
4. On Charge 4, handling stolen goods, you are sentenced to eight months' imprisonment.
5. On related Summary Charge 8, commit indictable offence while on bail, you are sentenced to one month imprisonment.
6. I direct that the sentence on Charge 3 be the base sentence.
7. I direct that four months of the sentence on each of Charges 1, 2, and 4 be served cumulatively on the sentence imposed on Charge 3 and on each other.
8. For the avoidance of doubt, there is no cumulation on related Summary Charge 8.
9. That makes a total effective sentence of three years.
10. I direct that you serve a minimum non-parole period of one year and 10 months' imprisonment before becoming eligible for parole.
11. I declare that pursuant to section 18 of the Sentencing Act 1991 (Vic), you have served 501 days by way of pre-sentence detention, excluding today.
12. I declare that pursuant to section 6AAA of the Sentencing Act 1991 (Vic), had you not pleaded guilty, the sentence I would have imposed would have been four years six months with a non-parole period of three years.
13. I grant the forfeiture and disposal orders sought by the prosecution.
14. Is there anything further Mr O'Doherty.
15. MR O'DOHERTY: No, Your Honour, no.
16. HER HONOUR: Mr Pearson is there anything further.
17. MR PEARSON: No there isn't, Your Honour, no.
18. HER HONOUR: Thank you, we will adjourn the court.

(At this stage the court proceeded with another matter.)

[1] [2020] VSCA 205.

[2] [2020] VSCA 226.

[3] [2021] VSCA 98.

[4] [2024] VCC 1762.