DPP v Henderson [2021] VCC 652

1. On 9 April 2019 you were arrested in respect of the drug matters and released following a no comment interview. You were charged on summons on 30 January 2020.
2. Analysis of the drugs revealed a total quantity of 581.9 grams of MDMA, comprising 1,052 light green tablets (31 per cent purity) and 1,032 dark green tablets (34 per cent purity). Analysis of the Ziploc bag revealed your fingerprints.
3. You were arrested in relation to the firearm matter at Ms McCabe's home in Armstrong Creek on 29 September 2020. You again gave a no comment interview and were charged and remanded in custody where you have been ever since.
4. Examination of the crime scene revealed a single .22 calibre cartridge case at the front of the unit and DNA matching yours on the front door. Further examination of telephone records placed you and Ms McCabe in the vicinity of the crime scene.
5. The firearm and vehicle were not recovered.
6. Both matters resolved in the Magistrates' Court and you were committed by way of straight hand-up brief to this court on 3 February 2021.
7. On 4 May 2021 you pleaded guilty before me to the following indictable offences:

Charge 1, traffic in drug of dependence contrary to s.71AC(1) of the Drugs, Poisons and Controlled Substances Act 1981 which is punishable by a maximum term of 15 years' imprisonment. This relates to the MDMA;

Charge 2, prohibited person possess a firearm contrary to s.5 of the Firearms Act 1996 which is punishable by a maximum term of 10 years' imprisonment or 1200 penalty units. This relates to your possession of the pistol, and you were a prohibited person by virtue of being a respondent to a personal safety intervention order;

Charge 3, use a firearm (discharge shot at premises) contrary to s.131A(1) of the Firearms Act 1996 which is punishable by a maximum term of 15 years' imprisonment. This relates to your firing of the pistol through the glass panel.

1. On the same day you also pleaded guilty to the related summary offences of: drive whilst suspended contrary to s.30(1) of the Road Safety Act 1986, which is punishable by a maximum term of two years' imprisonment or 240 penalty units and fail to comply with requirement of authorised officer contrary to s.203 of the Public Health and Wellbeing Act 2008, which is punishable by a maximum fine of 120 penalty units. The driving charge relates to your driving on 28 September 2020, your licence having been suspended for six months on 19 June 2020 as a result of a traffic infringement notice. The fail to comply arises from your failure to obey the COVID Stay at Home directions of the Chief Health Officer on 28 and 29 September 2020.
2. A plea on your behalf was conducted on the same day and it now falls to me to sentence you for your conduct. In arriving at an appropriate sentence, I am required by law to have regard to a variety of sometimes countervailing factors.[1] Some tend towards leniency, and some point the other way. No one factor automatically prevails. Rather, I must have regard to them all and give each one the weight it deserves to arrive at a just sentence.

1. Turning first to your personal circumstances. These were outlined in defence submissions and a report of consultant psychologist Luke Armstrong dated 27 April 2021.
2. You were between 27 and 29 years old at the time of the offending and are now 30. You were born in Melbourne and are one of two non-identical twins. Both your parents worked very long hours during your childhood meaning that sometimes you had little contact with them. Your father worked as a customs broker and your mother stacked shelves at a supermarket overnight. You told Mr Armstrong that your father rarely took a holiday.
3. You did well academically at school but got into trouble because you were in frequent fights due to your perceived need to protect your brother, who was severely bullied. Your parents apparently condoned your behaviour in this regard.
4. By your early teens you, 'dreaded', school and moved to a new school where you gravitated towards an older and more aggressive group of friends and still saw yourself as your brother's protector. At 13 you started binge drinking alcohol and smoking cannabis, both once a month. By 14 you were using cannabis weekly and also taking ecstasy. At 15 you started taking amphetamine on weekends.
5. From around the age of 14 you engaged in deceptive behaviour, car theft and fighting. Despite this you stayed at school and also did a daily paper round. Mr Armstrong attributed your bad conduct at this time to parental neglect and your, 'parentification', meaning that you assumed the role of a parent in relation to your brother.
6. You left school after Year 11 and started an apprenticeship in landscaping when you were about 16. You worked as a concreter from age 19 and have remained in trade-related work ever since; including painting, labouring, and in more recent years, tow truck driving.
7. Your first encounter with the criminal justice system was as a child when you were charged with a variety of offences. Your first appearance in the adult jurisdiction was in 2009 when you were 18, on charges of possession and trafficking of ecstasy. You were fined without conviction. The next year you were convicted for throwing an egg at a stranger.
8. There was then an almost eight-year gap in your offending. You attribute this to being in a relationship throughout this period. You told Mr Armstrong your partner was either a sex worker or a stripper who came from a dysfunctional background and that you supported her. When this relationship ended you descended into serious drug and alcohol abuse, particularly cocaine and ice. You self-medicated withdrawal symptoms with cannabis and Xanax.
9. In 2019 you were convicted of stalking. You told Mr Armstrong you, 'were seeking to recover debts on behalf of another party', and accept you broke the law. Your drug use escalated in March/April 2020 following hand surgery and with the onset of the pandemic. Lockdowns apparently led to feelings of depression and you went on four to five-day drug binges and used heroin to help you sleep.
10. In addition to your drug use, you have had a long-term problem with gambling. You have gambled daily since your early teens and in recent years have gambled multiple times a day.
11. You told Mr Armstrong that in September 2020 you were gambling at least daily and that the night before and the day of your offending you had used ice and cannabis as part of an ongoing binge. Indeed, you told him that you believed that polysubstance use prior to the offending, 'clouded [your] judgment' and that, 'having been clean for six months', you were, 'adamant [you] would have gone about [things] in a different way'. You told Mr Armstrong you accept that your drug abuse was ruining your life.
12. According to Mr Armstrong you most probably suffered from a polysubstance abuse problem at the time of the offending, specifically Stimulant Use Disorder, Cannabis Use Disorder and Opioid Use Disorder, all of which were in early remission at the time of his assessment. He said your history also suggested that you suffer from a Gambling Use Disorder.
13. Mr Armstrong described you as presenting with childhood features of Conduct Disorder, secondary to familial related emotional neglect. He believed that the combination of your childhood experiences of emotional neglect and your brother's bullying led to you becoming parentified and personality disordered. He believed your substance abuse was a form of self-medication and a consequence of your parentification as well as the delinquent peer associations you formed in your youth. I shall return to Mr Armstrong's opinions shortly.
14. Since being charged with the firearms offences you have accepted your fate and not applied for bail. You have spent most of your remand at the Fulham Correctional Facility, which has been somewhat sheltered from the effects of COVID 19. You have completed some studies which will enable you to undertake further university level studies after sentence. You have also been working as a billet meaning your behaviour in custody has been good.

Objective Gravity of your offending and moral culpability

1. I turn now to the objective gravity of your offending and your moral culpability. The inherent seriousness of each of your offences is reflected in the relevant maximum penalty.
2. The trafficking charge is based on your possession of 581.9 grams of MDMA on a single day for the purpose of sale. This was 194 times the trafficable quantity of 3 grams and more even than the commercial quantity of 500 grams of mixed substance.[2] You have not been charged with the more serious offence of trafficking a commercial quantity of MDMA because the prosecution accepts that it could not prove that you intended to traffic a commercial quantity. I make it clear that I am not sentencing for that more serious offence, however, on any view you were in possession of a large quantity of tablets and you must have known that. Further, this was the second time you had trafficked MDMA. I regard this as a serious example of the offence of trafficking simpliciter for which you bear a high moral culpability.
3. Your conduct on 28 September 2020 was nothing short of outrageous. The more so because at the time you knew you were facing a serious drug trafficking charge. You told Mr Armstrong that you acquired the firearm for your own protection in the context of deteriorating relationships with associates, whom he inferred to be drug associates. In relation to the discharging of the firearm you claimed you had arranged for Ms McCabe to text you that she was safe, but she never did. Further, you said that you heard yelling from inside the address and felt compelled to remove her from danger. The prosecution do not dispute your explanation of how you came to fire the gun, and I therefore sentence you on that basis.
4. As a prohibited person you were not entitled to possess a firearm in any circumstances, let alone to carry a loaded handgun for self-protection or whilst acting in some sort of bodyguard role. Carrying a loaded handgun for those purposes and in that milieu creates an obvious risk that the gun might end up being used to cause injury or death, particularly if you are also drug affected which you were at the time.[3] Needless to say, that risk eventuated in this case. Whilst I accept that you did not specifically intend to injure the victim and that you were motivated by a desire to protect Ms McCabe rather than to enforce payment of any perceived debt, your discharging of a loaded semi-automatic handgun through the door knowing that the victim was on the other side was reckless in the extreme and completely without justification. At the time you pulled the trigger there was no good reason to think that Ms McCabe was in imminent danger, if there ever was. Further, the fact your bullet struck the victim is an aggravating feature of your conduct.
5. Whilst of lesser seriousness your offences of driving whilst suspended and failing to comply with the Stay at Home directions are still significant. You told Mr Armstrong that your original intention in driving on the 28th was to assist Ms McCabe obtain a roadworthy for her car. This explanation raises more questions than it answers, but in any event is hardly a good reason for being out and about. In my view your offences constitute serious examples of those crimes and are reflective of your attitude of complete disobedience to the law.
6. Ms Garde-Wilson argued that your moral culpability for the discharging the firearm offence was reduced, albeit only slightly, on account of Mr Armstrong's diagnosis of you as suffering from a personality disorder. She argued that your decision to fire the gun occurred in the heat of the moment when your judgment was clouded by the driving force of your personality disorder.
7. There is now no doubt that the principles of Verdins can apply to personality disorders.[4] The 2020 case of Brown makes it clear that what matters is not the diagnosis or label, but rather the degree and effect of any impairment. However, the court in Brown noted that the expert evidence in that case seemed to indicate that only a personality disorder of, 'some severity' was likely to engage the principles.[5] The court quoted one of the two experts, Professor Ogloff, as saying in relation to the degree of impairment likely to be relevant to sentencing:

'The bar needs to be set quite high. The presence of a disorder, whether it's a clinical disorder or personality disorder, it has to be one that has some profound effect on the individual's cognitive capacity and behaviour.'[6]

1. Further, the Court reinforced the need for rigorous evaluation of the evidence by sentencing Judges as well as rigour on the part of clinicians and legal practitioners who, respectively, prepare and commission reports. In that regard it is noteworthy that in relation to personality disorders the American Psychiatric Association guide to diagnosis DSM-5 as quoted by the court states:

'Although a single interview with the individual is sometimes sufficient for making the diagnosis, it is often necessary to conduct more than one interview and to space these over time.'[7]

1. This position was endorsed by Professor Ogloff who was again quoted by the court as saying:

'Because a personality disorder generally is enduring long-term, although the severity can ebb and flow over time, then it's very difficult to diagnose with just a cross sectional evaluation of an individual ... it does require a longitudinal perspective with information across a number of data sources, not just sitting down with somebody for a period of time.'[8]

1. Turning to the evidence in this case, Mr Armstrong saw you for a face-to-face, albeit non-contact, assessment for five hours probably on the day he wrote his report.
2. He described a continuing pattern of rescuing behaviour and said in his report that he, 'suspected' you suffered from Narcissistic Personality Disorder, with features of a Dependent Personality Disorder. He said that he, 'suspected' your history of parentification distorted your judgment on 28 September; that you acted on a misguided or distorted belief that you were Ms McCabe's protector; and that although objectively disproportionate your behaviour was proportionate to your personality disordered belief systems and background of chronic parentification. Mr Armstrong also said he, 'suspected' your deteriorating drug addiction additionally impaired your decision making.
3. Mr Armstrong was called as a witness in the plea. Despite using the word. 'suspected' in his report, in evidence he said that he did in fact diagnose you with a personality disorder. Further, when asked whether your personality disorder would have led to the same conduct in the same situation even without the effect of drugs, he at first said, 'I would suggest so' but then said that he was, 'very confident' that it would have. He agreed with your assessment that your drug consumption would have clouded your judgment, but he disagreed that it was the main contributing factor, saying it was only part of the equation.
4. Mr Armstrong said, in essence, that your impairment became manifest once you reached a heightened state of emotion. This 'heightened state' would have followed your not receiving a text message from Ms McCabe, and it certainly existed at the time you left the car with the gun. He described you as then being unable to problem-solve and having an overriding compulsion to rescue Ms McCabe.
5. Whilst some aspects of Mr Armstrong's evidence are difficult to reconcile and it is noteworthy that he only saw you on the one occasion, on balance I accept that you do suffer from Narcissistic Personality Disorder with features of a Dependent Personality Disorder. However, with due respect to Mr Armstrong, given the confounding effect of your drug consumption I do not accept his opinion as to the significance of that personality disorder. In particular, his opinion that your personality disorder would have led you to behave in the same way even if you had not been affected by drugs strikes me as entering the realm of speculation. The same can be said for any suggestion that but for your personality disorder you would not have acted as you did. You agreed to perform the role of protector of Ms McCabe whilst you were in the middle of a drug binge and armed with a loaded gun. To borrow a line from another recent case involving a mentally impaired offender who was also intoxicated:

'there is an obvious implausibility about the contention that, but for [your] impairment, the offending would not have occurred'.[9]

1. I am therefore not satisfied that Verdins is enlivened in relation to Charge 3, or indeed any of the charges.
2. In any event, even if your moral culpability had been reduced by your personality disorder, there would have been a corresponding increase in danger to the public and need for community protection.

1. Another matter to which I must have regard in arriving at an appropriate sentence is current sentencing practices which may be gleaned from statistics or sentences imposed in other cases, or both.[10]
2. Whilst no two cases are ever truly the same, and other sentences are not precedents to be applied or distinguished, sentences imposed in comparable cases may provide a convenient yardstick against which to measure any sentence proposed in the instant case.
3. Neither counsel referred me to any comparable cases. However, I have had regard to the range of sentences imposed or considered in this court and the Court of Appeal for trafficking in MDMA, being cognisant that it is relative quantity, not type of drug that matters; and also prohibited person possess a firearm.[11]
4. I note that the offence of discharging a firearm at premises is a relatively recent addition to the Firearms Act 1996. It bears some similarity to the offences of reckless conduct endangering serious injury or life in the Crimes Act 1958, but with a greater maximum penalty. It was considered recently by the Court of Appeal in the matter of Atkinson v The Queen_._[12] Of course, one case does not a sentencing practice make and further, the facts of Atkinson are quite different to the present.
5. Ultimately my duty is to impose a just and appropriate sentence on you in the unique circumstances of this case.

1. Other matters I am required to take into account are the impact of your offending on your victim and their personal circumstances.[13] The victim of your firearms offences completed a victim impact statement in which he describes the physical pain he still endures, the fact he suffered financially as a result of not being able to drive and his doors being damaged, as well as his ongoing emotional trauma as a result of your actions.

1. You are entitled to a significant discount in your sentence for the fact you have pleaded guilty and did so at a very early stage. In so doing, you have facilitated the course of justice and taken legal responsibility for your crimes. This is particularly valuable in the current environment where COVID-19 has placed the criminal justice system under considerable strain. You have also spared your victim the experience of coming to court to give evidence.
2. I am not, however, satisfied that you are entitled to any additional discount for remorse. You did tell Mr Armstrong that you took full responsibility for your conduct in relation to the firearm and regretted your actions. However as the courts have made clear, true remorse is not anxiety at the prospect of being punished nor simply regret. True remorse involves a desire to make amends and a determination to change one's behaviour;[14] and on that there is no evidence.

1. None of your prior sentencing dispositions were effective to deter you from offending again. The fact you were facing a serious drug trafficking charge was not enough to deter you from offending. All of this is a worry. On the other hand, you did have an eight-year gap in your criminal - though not your driving - offending, and you have no priors for firearm offences or offences of violence. Mr Armstrong noted that you have not previously been diagnosed or treated for any psychological issues. He said: 'Drug treatment in combination with psychological interventions will be necessary. Mr Henderson has no boundaries with regard to his obligation to rescue others.'
2. Mr Armstrong considered that with abstinence from drugs and proper treatment your prospects of rehabilitation were promising.
3. Given your long involvement with drugs and continuing and worsening attitude of disobedience to the law, I am not so quite sanguine. Nevertheless, I agree there is still hope. If you can remain drug-free in particular, you might still be able to be a contributing member of society.

1. In determining the appropriate sentence, I must consider how a term of imprisonment would be likely to impact you. Whilst it has not been put to me that you have found remand particularly difficult, I take into account that incarceration during the pandemic is generally harder than at other times given the curtailment of various activities and programs, the reduction or suspension of personal visits and the occasional lockdowns.

1. Finally, I turn to the purposes of sentencing. The Sentencing Act 1991 prescribes the purposes, indeed the only purposes, for which a sentence may be imposed. These are just punishment, deterrence, rehabilitation, denunciation, and protection of the community. I am obliged not to impose a more severe sentence than is necessary to achieve those sentencing purposes.
2. A custodial sentence must only be imposed as a last resort but is conceded to be the only appropriate disposition in your case. That said, I am obliged not to impose a more severe sentence than is necessary to achieve the sentencing purposes. Further, when there are multiple charges, as here, the total effective sentence must not offend the principle of totality. What that means is that you must not be punished any more than is proportionate and appropriate to your overall criminality. I have sought to ensure that that does not happen by my various orders for cumulation and concurrency.
3. Further, you must not be punished twice for the same conduct and in that regard, I make it clear that I do not treat the fact you were a prohibited person as aggravating your offence of discharging a weapon.
4. Your crimes demand that my sentence denounce your conduct and deter others from similar behaviour. Your prior criminal history also gives rise to the need for my sentence to specifically deter you and to protect the community from you. At the same time the purpose of just punishment requires that in fixing my sentence I take into account the various mitigating factors, which I have already outlined during the course of these remarks.
5. Of course, the best way that community protection can be achieved is by your rehabilitation and I note Mr Armstrong's opinion that you need targeted mental health treatment as well as drug rehabilitation. I will allow for your potential rehabilitation by the fixing of a non-parole period.
6. Now, Mr Henderson, I am not going to ask you to stand up because this proceeding is occurring remotely and if you do stand up, I will not be able to see you.

1. On Charge 1, which is the trafficking charge, I convict and sentence you to three years and six months. That is a total of 42 months and this is the base sentence.
2. On Charge 2, which is the prohibited person charge, I convict and sentence you to 18 months.
3. On Charge 3, which is the discharging firearm offence, I convict and sentence you to three years and six months, that is 42 months.
4. I direct that one year of the sentence imposed on Charge 3 and six months of the sentence imposed on Charge 2 be cumulative with each other and on Charge 1 making a total effective sentence of five years or 60 months.
5. In respect of that sentence, I set a non-parole period of three years and six months.
6. On the summary charge of drive whilst suspended, Charge 6, I convict and fine you $1500. On the summary charge of disobey the Stay at Home directions, that is Charge 7, I convict and fine you $700.
7. I make no order against your licence on the charge of drive whilst suspended as any order I would be likely to make will be exceeded by the time you will spend in custody.
8. I declare that you have already spent 234 days in custody in respect of the sentence I have imposed, not including today; and order that this declaration be entered in the records of the court and that the period be deducted administratively.

Section 6AAA

1. If you had not pleaded guilty to these charges and then been found guilty by a jury, I would have sentenced you to a total effective sentence of seven years with a non-parole period of five years.

1. A disposal order is sought regarding the drugs seized and the cartridge case located in the victim's premises and I have signed those orders.
2. So Mr Henderson, do you understand the sentence I have imposed, the total effective sentence in terms of imprisonment is five years with a non-parole period of three years and six months?
3. OFFENDER: Yes.
4. HER HONOUR: And as you know, I am sure, it is up to the Adult Parole Board if you are released at the end of the three years and six months. That is something that I have no control over. If you continue the way you are going in prison, because as I said you are a billet, and so therefore must be behaving in a good fashion, then it may be that that will be when you are released. But as I say, that is something that is out of my control.
5. Now, counsel, can I just enquire, are there any other matters that I need to attend to?
6. MS ANDERSON: No, thank you, Your Honour.
7. MS GARDE-WILSON: Nothing further, Your Honour.
8. HER HONOUR: All right. Thank you. We will adjourn the court.

[1] Section 5(2) of the Sentencing Act 1991.

[2] The statutory sentencing regime for all drug trafficking offences in Victoria is quantitative rather than qualitative, that is, it is based on the quantity of the drug trafficked, rather than any sort of subjective assessment of its deleterious effects. This means, for example, that trafficking in a trafficable quantity of ice is no more serious than trafficking in a trafficable quantity of cannabis, all other things being equal. It also means that the greater the relative quantity trafficked the more serious the offence, again all other things being equal.

[3] See DPP v Graoroski [2018] VSCA 332 at [38].

[4] Brown v The Queen [2020] VSCA 212.

[5] Brown v The Queen [2020] VSCA 212 at [68].

[9] Thomas v The Queen [2021] VSCA 97 at [36].

[10]The rationale for doing this is to promote consistency of approach in sentencing, particularly, the application of relevant sentencing principles.

[11] Including most recently Accariato v The Queen [2019] VSCA 264.

[12] [2021] VSCA 127.

[13] Sections 5(2)(daa), (da) and (db) of the Sentencing Act 1991.

[14] Barbaro & Zirilli v The Queen [2012] VSCA 288 at [36].