STATE OF TASMANIA v LUKE DON HENDERSON 20 NOVEMBER 2024
COMMENTS ON PASSING SENTENCE JAGO J
Mr Henderson, you have pleaded guilty to the crimes of aggravated assault and attempting to escape. On 25 February 2024 at approximately 2.10pm, you and another male entered Kathmandu in Devonport and stole some clothing items. A police officer observed this occur. When you saw the police officer watching, you began to run. He chased after you and called for you to stop on several occasions. You did not do so. The police officer conveyed information about this incident over the police communications radio. Nearby, there were some other police officers. They also began to chase you. Whilst police were pursuing you, you removed a medium sized hammer from your pocket and continued to run. One of the police officers, Sergeant Partridge, informed you that you were under arrest for possessing a dangerous article in a public place. You told the police officer to “fuck off” and leave you alone and continued to run.
Sergeant Partridge continued to pursue you. At one point, he got close enough to deploy capsicum spray. Whilst it affected you, it did not lead to you stopping. Meanwhile, the complainant and her two children, aged 9 and 2, had entered the Woolworths car park in Devonport. As she was parking her car, you approached it. You had the hammer in your left hand. You opened the rear driver’s side door and got into the back seat of the vehicle, next to the 2-year-old child. You yelled at the complainant; “Drive, drive, drive, just fucking drive”. Fortunately, Sergeant Partridge was still in pursuit of you and was in close proximity. He opened the driver’s door and removed the keys from the ignition. You then attempted to leave the vehicle through the rear passenger door but Sergeant Partridge prevented you from doing so. You slid across the seat, past the child and exited the vehicle via the rear left door and again began to run from police. The complainant and her two children were able to exit the motor vehicle. They were not physically harmed, although the situation was obviously very distressing for them. Eventually, police were able to corner you in a nearby shop and restrain you. You were taken into custody.
Your endeavour to escape from police involved quite a concerted effort. You began running from police in Rooke Street in Devonport, near the Kathmandu store, and were not detained until they cornered you in the Kmart complex. This route would have necessitated you running along a number of public streets, thereby exposing members of the public to your behaviour. You obviously directly involved some members of the public when you jumped into the complainant’s motor vehicle and demanded that she drive. You were armed with a hammer when you did this. Whilst there is no suggestion you endeavoured to use the hammer in any threatening way, she did not know you or what you may do. Your possession of a weapon in such close proximity to her child must have been terrifying for her.
I have received a victim impact statement from the complainant. She has been badly affected by your crime. Whilst it was occurring, she was very concerned about the wellbeing of her children. She has been left feeling anxious and emotional and will no longer attend shopping centres by herself. She has experienced panic attacks and nightmares. I note you have written a letter of apology to the complainant. It is a matter for the Office of Director of Public Prosecutions whether it is provided to her. I accept in that letter you acknowledge your wrongdoing and express regret for your behaviour. You show insight into the effect your crime has had upon the complainant and her children.
You are 37 years of age. You have a lengthy criminal record, predominately in New South Wales. You have prior convictions for common assault, assault occasioning bodily harm, stalking with intent to cause fear, contravention of apprehended violence orders, offences of dishonesty, driving offences, property damage offences and offences against police.
In Tasmania, you have prior convictions for matters of dishonesty, offences against police, property damage offences and offences contrary to the Misuse of Drugs Act.
You were taken into custody following these crimes. You have been in custody since that date, but you have also served a sentence of imprisonment imposed by the Magistrates Court whilst in custody. It is agreed that the sentencing order I impose should commence from 15 May 2024.
You have had a difficult upbringing. Both of your parents were drug addicts. Your father died when you were approximately three years old from a heroin overdose. Apparently, you witnessed his death. Thereafter you were raised by your mother, but the lifestyle she provided for you was chaotic and neglectful. She was both a user and seller of heroin and drank alcohol to excess. You were exposed to constant drug use within the family home. You commenced drinking alcohol at about age eight, and by the age of 16 you were consuming alcohol heavily. You began smoking cannabis from about age 10 and have used it reasonably constantly since. You commenced using heroin when you were aged 12. Your heroin use has continued into adulthood. There have been a number of occasions in which you have overdosed, and your illicit drug use has been to the point where you have experienced drug induced psychosis. Your upbringing exposed you to much criminal behaviour and you were raised with an anti-police mentality.
Given what I have just outlined, it is not surprising that your education was interrupted, and you left school early. You undertook some work on farms, but in 2016, when you were heavily intoxicated, you were hit by a car. It has left you with an acquired brain injury, which impacts upon your daily living skills. You have difficulties with organisation, planning, problem solving and emotional regulation.
Additionally, you have been diagnosed with XYY Syndrome, also known as Jacobs Syndrome. This condition has varying impacts upon individuals, but commonly leads to impulsivity and emotional dysregulation.
During your childhood you were also sexually abused. You are currently making a claim through the New South Wales Compensation Scheme for sexual abuse that was perpetrated upon you by a priest at a local church. You have been diagnosed with Post Traumatic Stress Disorder, most likely flowing from this abuse, as well as your difficult and neglectful childhood.
I have a report from Dr Georgina O’Donnell. In it, she opines that the combined effect of your chronic substance use, your acquired brain injury, your post-traumatic stress disorder and the genetic condition have causally contributed to your impulsive decision making and actions at the time these crimes occurred. She is of the view that your trauma background informed your response towards police because, given the environment in which you were raised, your distrust of police is marked. This contributed to your rather dramatic response to your potential arrest for a shoplifting offence. Dr O’Donnell is of the view that your ability to exercise appropriate judgment and make calm and rational choices was impaired due to this “constellation of factors”. I accept the opinion of Dr O’Donnell. I take it into account in sentencing.
Whilst in custody, you have been endeavouring to use your time wisely. You have been working with a social worker, learning skills to manage your mental health conditions. You have also undertaken therapy directed at assisting you with planning daily activities and managing tasks generally. You have also undertaken a resilience course. The counselling has been funded through your NDIS package, and it is anticipated that you will continue to receive such support through NDIS funding upon your ultimate release.
I also note that you have also undertaken artwork whilst you have been remanded in custody and are currently preparing works to be displayed as part of the Prison Art Exhibition.
You are hopeful of obtaining ongoing assistance with your illicit drug addiction as you recognise that, unless you can successfully address it, the cycle of drug abuse and criminal offending that has characterised the main of your life, is likely to continue. I accept you have a desire to change and with appropriate support and treatment, there remains some prospect of rehabilitation. Accordingly, it is appropriate to make allowance for early release on parole.
I am satisfied that I should sentence on the basis that your moral culpability is lessened somewhat because of your complex background of acquired brain injury, Post Traumatic Stress Disorder and chronic drug abuse difficulties, which arose from your neglectful childhood. I am also of the view that your deprived upbringing has rendered you vulnerable to criminal behaviours and I should sentence with the considerations discussed in Bugmy v The Queen [2013] 249 CLR 571) in mind.
That said, there is no doubt this was very serious offending. You exposed an innocent member of the community, and her young children to your chaotic and confronting behaviour. She has been left traumatised. The protection of the public is an important sentencing consideration. Whilst it is appropriate to moderate the weight to be given to general and specific deterrence and denunciation, they remain relevant sentencing considerations.
I take into account your pleas of guilty. I also accept that the time you have spent in custody has been difficult and you have been subjected to many lockdowns. Your Counsel has provided a document indicating the full or part day lockdowns that have occurred during your time in custody. There have been many, and I accept the imposition of such lockdowns makes incarceration more onerous.
Taking into account all those factors, I am of the view that a substantial period of imprisonment must nevertheless be imposed. You are convicted on each count on the indictment. I impose one sentence. You are sentenced to imprisonment for a period of 2 years commencing 15 May 2024. I order that you not be eligible for parole until you have served one half of that period of imprisonment.