Director of Public Prosecutions v Duncan

[2024] VCC 1350

IN THE COUNTY COURT OF VICTORIA

AT BENDIGO

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-24-01045

DIRECTOR OF PUBLIC PROSECUTIONS

v

KRISTIN DUNCAN

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JUDGE:	HER HONOUR JUDGE TODD
WHERE HELD:	Melbourne
DATE OF HEARING:	20 August 2024
DATE OF SENTENCE:	29 August 2024
CASE MAY BE CITED AS:	DPP v Duncan
MEDIUM NEUTRAL CITATION:	[2024] VCC 1350

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – SENTENCE

Catchwords:              Koori Court; aggravated burglary; assault with weapon

Legislation Cited:      Crimes Act 1958 (Vic) s 77; Summary Offences Act 1966 (Vic) s 24(2); Sentencing Act 1991 (Vic) s 6 AAA.

Cases Cited:DPP v Meyers (2014) 44 VR 486; R v Verdins (2007) 16 VR 269; Bugmy v The Queen (2013) 249 CLR 571; Muldrock v R (2011) ALR 652.

Sentence:                  Convicted and sentenced to 10 months’ imprisonment and a community corrections order for 24 months.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mx C. Rattray	Office of Public Prosecutions
For the Accused	Mr J. Dean	Emma Turnbull Lawyers

HER HONOUR:

1Kristin Duncan, you have pleaded guilty to one charge of aggravated burglary, which carries a maximum penalty of 25 years’ imprisonment.[1]

[1]Crimes Act 1958 (Vic) s 77.

2The charge of aggravated burglary is put on the basis that you entered a building as a trespasser, with an intent to assault and while knowing a person was present inside.

3You have also agreed to have uplifted, and pleaded guilty to, one charge of assault with a weapon, an offence which carries a maximum penalty of two years’ imprisonment.[2]

[2]Summary Offences Act 1966 (Vic) s 24(2).

Factual basis

4A summary of prosecution opening dated 16 August 2024 was tendered on your plea and became Exhibit A.  That document sets out the factual basis for this sentence and I will refer to parts of it in summary form here.

5On 18 February 2024 at approximately 5.30 pm, you and Chantal Blazevicious, drove to Mason Taylor’s home in Maryborough.  Your father drove you in his car.

6You and Mr Taylor knew each other.[3]

[3]This was corrected at the hearing, contra [4] of the Prosecution Opening.

7When you arrived, you saw Mr Taylor standing at the front of his house.  You had a brief conversation.  You then produced a knife, described later by your victim as being between seven and eight inches in length.  

8You chased Mr Taylor down his driveway while holding the knife.  He retreated to the carport where he picked up a metal pole to defend himself.  While still holding the knife, you yelled at Mr Taylor to ‘give me the gear’.  You then started walking away from Mr Taylor; he fled into his back yard and into his unit through the back door.

9These events give rise to the summary offence of assault with a weapon.

10Meanwhile, Ms Blazevicious had gone inside the house.  Mr Taylor, having entered via the back door, found her there and tried to push her out the front door.

11Still holding the knife, you kicked the partially open door and entered the house. 

12As you entered the house you had an intention to assault Mr Taylor.  The prosecution accepted that you did not, at the time of entry, intend to use your knife for the purpose of causing injury to or incapacitating him.

13This gives rise to Charge 1, aggravated burglary.

14At the time of your entry to the house, Mr Taylor’s girlfriend, Kaitlyn Simmonds, was also inside.

15

You told Mr Taylor once inside that you were getting the methylamphetamine and you were not there to hurt Ms Simmonds.  You then handed the knife to

Ms Blazevicious, who put it in her handbag.

16You saw a small zip lock bag containing a powdered substance (believed to be methylamphetamine) sitting on a table in the house.  You grabbed it, left the house, and you, your father and Ms Blazevicious drove away.

Arrest and interview

17At approximately 6.00 pm, you were found and arrested.

18The police found the stolen zip lock bag believed to contain methylamphetamine when they searched the car.  You claimed ownership of it and told police under caution that you had taken it from Mr Taylor.

19The knife was also found. Ms Blazevicious told the police where it was hidden.

20You were taken to the Maryborough police station where you made various comments and admissions during a record of interview.  Some of these were:

'… No comment. … I didn’t steal nothing, I didn’t take nothing from anyone'.

21When asked why you went to the victim’s place you said:

'To bash the cunt'.

22You also said;

'There was a little bit of gear on the table, so I took the cunt cause I’m a drug addict.

I feel ashamed, I shouldn’t have went near the cunt.

I threw the knife on the ground in his house, I felt sorry for him trembling like that in front of his girl, god honest truth'.

Charged and remanded

23You were charged and remanded on the same day.

Prior Convictions

24You have no criminal history in Victoria.  However, you have been dealt with in Court in Queensland.

25In Queensland, you have a record of multiple appearances in Goondiwindi Boggabilla and Warwick Magistrates’ Courts. 

26In Queensland, you have been dealt with for breaches of family violence intervention orders, trespass, breaches of bail, and a range of minor drug-related offences.  Most seriously, you were sentenced in the District Court sitting in Goondiwindi in October 2020, for offences including armed robbery. You were sentenced to imprisonment for three years with a parole period which is not entirely clear to me.  

27Goondiwindi and Bogabilla Magistrates’ Courts are those most proximate to Toomelah, an Aboriginal settlement to which I will return when dealing with your background.

28Other offences recorded in your history are of a low level and petty nature, mostly concerned with property, dishonesty and drug offences.

Victim impact

29No victim impact statement was before me on your case, but I am able to imagine the effect of this experience on Mr Taylor and Ms Simmonds.  Ms Simmonds is described in the opening as ‘becoming hysterical’ upon seeing you enter her home. I expect that she was also subsequently upset and disturbed by these events which took place inside what was supposed to be a private and safe place for her.

30I take the impact of your offending on your victims into account.

Nature and gravity

31I have considered the features of aggravated burglary as particularised in the case of DPP v Meyers.[4] Your intent upon entry to the home was to assault, in essence, to continue your assault on Mr Taylor, that is the subject of the summary offence.  As I said at the hearing, I found the ‘comparable’ cases identified by the prosecution mostly helpful, but significantly more serious than your case, on a number of axes. 

[4](2014) 44 VR 486.

32You entered by kicking the partly open front door, it was late in the afternoon.  You were in the company of Ms Blazevicious, though she is not said to be a co-offender.  Once inside, you told your victim that you were getting the methylamphetamine and that you were not there to hurt his girlfriend.  When Ms Simmonds was demonstrably upset, you handed the knife to Ms Blazevicious and she put in it in her bag, out of sight.

33All aggravated burglaries are serious, and the 25 year maximum penalty demonstrates how seriously Parliament and therefore the community, regard this offence.  The conduct transgresses the safety of a person’s home and is terrifying for those inside.

34The prosecutor urged a finding that this was a ‘confrontational’ aggravated burglary; I do not find this label useful in assessing the objective gravity in this particular case.

35That said, there is a wide range of conduct contemplated by this charge, and I find yours is in the modest to low range by reference to its chaotic and spontaneous quality, the fact that once inside, you seemed to appreciate the situation you had created, and demonstrated a retreat of sorts among other features. 

Personal circumstances

36You are 33 years old.

37You were born and raised in Goondiwindi, Queensland.

38You identify as an Indigenous man of the Kamilaroi nation, and you have a familial connection to the Bigambul people.  Your grandmother is Judy Duncan, an elder on Toomelah Mission in Boggabilla, Queensland.  You have maintained a lifelong connection to your Indigenous heritage and your country in Goondiwindi.  You have an active role teaching younger generations about the land and their history there.

39You were raised mainly by your grandparents on both sides.  You had limited contact with your parents during childhood, but you formed a stronger relationship with your father which now continues.

40Growing up, you lived in Boggabilla and on Toomelah Mission.  You recall being surrounded by nothing other than alcohol and violence when at Toomelah; that no one was fed properly, and it was a hard place to live.  As the eldest of eight children, you assumed the role of protector and attempted to shield your siblings from the alcohol and violence around you.  You began drinking alcohol at the age of 13; you had been surrounded by it and it had been completely normalised for you.

41You suffered significant deprivations during your time on Toomelah and this is a matter I will return to in this sentence.

42You attended several schools and were educated by relatives in the local community.  In the later years of school, you began to disengage, and after Year 10, you left school to commence a panel beating apprenticeship.  You completed the apprenticeship and worked subsequently for many years as a panel beater.

43More recently, you have worked as a farmhand, although your work history in the past few years has been sporadic.

44You report that your substance abuse issues began at the age of 20, following the passing of your paternal grandfather, who was a positive role model and father figure to you.

45At the time of this offending, you had recently moved to Maryborough, Victoria from Goondiwindi in Queensland, to look for work and to distance yourself from associations in Queensland.  Once in Victoria though, you quickly relapsed.

46You have three biological children who you remain in contact with.  They are aged eight, 10 and 15 and live with their mothers in Queensland.  You are a stepfather to another two children who you consider to be your own.

Mitigation

47Turning now to matters that mitigate your sentence.  Your offending took place in February 2024, and you are now being sentenced in August the same year.  This is an early plea of guilty and a swift conduct of your case.  Your pleas of guilty are very valuable.  You have contributed to the efficient administration of justice.  This is a very significant matter in reduction of your sentence.

Remorse

48You made appropriate, if untested statements indicating your remorse in the process of speaking to the assessing psychologist.  You have expressed this in ways that allow me to give it some weight in this sentence; there is some insight into your addiction.  You have also expressed appropriate victim empathy too.  When you are sober, you do not turn away from responsibility.

Psychological evidence

49A psychological report authored by Mr Warren Simmons was tendered on your plea.  I have taken its contents into account as general background.  In essence, the report included these observations about your mental health:

(a)   at the time of arrest, you would have likely met the criteria for Alcohol, Cannabis and Stimulant Use Disorder;

(b)   on the basis of your history of intergenerational trauma, you present with symptoms of anxiety and PTSD falling short of diagnosis of those conditions; and

(c)   you would benefit from drug and alcohol and trauma-informed counselling upon release.

50No formal ‘Verdins’[5] submissions were made on the basis of this material; I accept the propositions I have just outlined and taken them into account going to rehabilitation and Bugmy[6] principles, among other things. 

[5](2007) 16 VR 269.

[6](2013) 249 CLR 571 (‘Bugmy’).

51It was also submitted that your PTSD symptoms should moderate the role for general deterrence as described in the case of Muldrock v R.[7]  I find that your symptoms fall short of the ‘mental disorder or abnormality’[8] such as to engage that principle.  I will deal with the manifestations of intergenerational trauma under the ‘Bugmy‘ principles.

[7](2011) ALR 652.

[8]Ibid [53].

Participation in Sentencing conversation

52You participated in a sentencing conversation in the County Koori Court at Bendigo.  I was assisted by Aboriginal Respected person Ms Aunty Peta Hudson, a Dja Dja Wurrung woman from the Bendigo area.

53Your sister Jessica Lewis sat at the table with you.  She wrote a letter and you read it during the sentencing conversation.

54As part of the conversation, I heard Aunty Peta Hudson tell you that you have choices, that you have skills, and that you are worthy.

55During the conversation, you disclosed both your vulnerability, and also your determined side.  You said of yourself ‘When I’m driven, I’m driven’.  You are currently doing physical training twice a day.  You are fit and purposeful.  You said ‘I wish my kids could see me now’.  

56You also spoke about how your descent into drug use and you said this: 'In that little moment, there’s no hurt’.

Bugmy mitigation

57On your plea, your counsel submitted that the principles in the case of Bugmy have direct application in this sentencing synthesis.  Particularly, that your exposure to extreme childhood deprivation and abuse should be understood to reduce your moral culpability for your offending in a general way, and that your culpability should be considered to be lower than that of an offender whose formative years had not been so blighted.

58In the prosecution submissions on sentence, it was argued that the court should not place significant weight on those submissions.  It was submitted that the only basis of the disadvantage was the ‘self reported childhood disadvantages’ contained in the psychological report.

59In the defence submissions, a report into the Toomelah mission prepared by the Australian Human Rights Commission in 1988,[9] (‘the Report’) and tabled in Parliament the same year was referred to.  Having been made aware of the report, I read it, or most of it, so to be better informed about the submissions in this case, and I informed the parties that I had done so.

[9]Australian Human Rights Commission, Toomelah Report: Report on the Problems and Needs of Aborigines Living on the NSW-Queensland Border (2 June 1998).

60I note that the Toomelah Mission report was completed two years before your birth in 1990. 

Toomelah Mission

61The Report gives a snapshot of the Aboriginal ‘mission’ community just before your arrival into that environment as an infant.  It describes in painful detail, the almost total failure of every level of government.  There was no adequate water supply.  Residents had to queue twice daily to take water in containers.  There was a totally inadequate system of public sanitation, such that raw sewerage flowed above ground.  There was little or no health care system.  Students had to cross the border and do a bridging course to complete high school; there was widespread racism at the school and many Toomelah students did not persist with schooling. The report, in summary, is a shocking catalogue of a materially deprived and morally dejected community torn apart by drug and alcohol fuelled violence.

62While the situation as described in 1988 may have subsequently improved, the level of improvement needed would, even with great will on the part of every level of government, take many years to manifest.  I note that a report in 2017, included that the Australian Army was deployed to the mission to undertake a range of projects. [10]

[10]Joel Gibson, ‘Heartbroken nurse quits over child abuse’ (online, 23 June 2008) < Jennifer Ingall, ‘Army begins six month program to rebuild NSW Indigenous community of Toomelah’ (online, 10 May 2017) < grew up in and around that community, where, though you were culturally connected, you were in and out of a highly dysfunctional environment.  You report being cared for by your grandparents, and spending time at Toomelah.

64Your place in and around the Toomelah environment has three sources in this hearing, first your self-report to Mr Simmonds, and to your counsel.  Your court records in the Goondiwindi and Bogabilla Magistrates Courts place you in the area between 2010 (when you are 20 years old) and 2023 (last year).  I see that in the Toomelah report, your family name, Duncan, is shared by several of the Aboriginal witnesses referred to by the report writers.  You were not always resident there, but I accept that you were in and of that community for a substantial period of your life.

65On this material, I find that your case invokes classical ‘Bugmy’ principles, on the basis that your Aboriginal heritage meant that you endured the worst manifestations of colonisation and systemic racism.  This is ‘classical’ Bugmy, and I apply those principles in mitigation of your sentence.

Rehabilitation

66Your criminal history is a serious one, but alongside that history is another story of your competence and achievement.  You are a qualified panel beater and have worked previously and consistently in that trade.  You have engaged with Aboriginal cultural practice while in custody, and letters and artwork which reflects that are before me.  On your plea, your sister Jessica wrote a very affectionate and kind letter about you and the role that you have occupied as her brother.  It is very clear that you have her consistent affection and support. 

67As a panel beater, you are qualified and experienced and you have also engaged with the art programs and other programs in Marngoneet, where you are currently held.

68In terms of my findings in relation to your rehabilitation, I find that it will take all of the determination that you have, but I take some comfort from the way you describe yourself as ‘driven when [you] are driven’.  It will take all of the determination that you have to turn away from the substance abuse that has so wrecked your life and your relationships over these past recent years. But you do have that determination in your history;  the evidence of persistence in terms of work and family life is important in terms of my conclusion that you have some strong prospects of rehabilitation.

Sentencing principles

69General deterrence, specific deterrence, and just punishment are the dominant purposes of the imposition of this sentence.  You need to learn that the sentences keep going up until you stop.  While you are a slave to your addiction, you will continue to be driven to the commission of drug addled and chaotic offending.

70I have already made some qualified conclusions on your rehabilitation.  Community protection is best served by you getting the chance to address your drug addiction and the trauma that underlies it.

71On your plea, you said you had been put on an opiate replacement prescription for the first time in custody, which you are finding very helpful.  This of course is very positive.  The other submission on your plea was that this sentence could be structured by the combination of imprisonment with a community corrections order, specifically with a feature of that order including admission to the Aboriginal Men’s Healing Rehabilitation Centre Wulgunggo Ngalu in Gippsland.

72I had you assessed for admission to that program.  You were found unsuitable. Regrettably, your current treatment on the opiate replacement therapy makes you ineligible as the facility has no capacity to manage that treatment.

Consideration

73Turning now to my considerations of the matters on this sentence.  The sentence requires me to resolve the tension between the objective seriousness of what you did, the need for general deterrence, just punishment, specific deterrence on one hand, and the fact that you seem ready and willing to address your substance use disorder and to embark upon a return to a purposeful life, with a focus on work and family.  It is not straightforward.

74In the end, I will balance the factors in this way.  You will receive a combination sentence of prison time with a community corrections order.  You will not be immediately released, but will serve approximately six more months.  I will return to the structure of that sentence and shortly.

75I note that you are currently not suitable for Wulgunggo Ngalu; you may find that it is a good time to seek advice about the slow reduction and cessation of the opiate replacement therapy that you are on.  I trust that the Correctional authorities will again consider you for Wulgunggo Ngalu if you achieve that.  I will put a judicial monitoring condition in place, to monitor the parties’ approach to that project.

Disposition

76On Charge 1, aggravated burglary, you are convicted and sentenced to 10 months imprisonment and a community corrections order of 24 months duration.

77On the related summary offence of assault with a weapon, you are convicted and sentenced to four months imprisonment, two months of this to be served cumulatively upon the sentence on Charge 1, resulting in a total effective sentence of 12 months, with a community corrections order of 24 months, to commence upon completion of the imprisonment period. 

78I will impose the following conditions on the community corrections order that will commence after your release. 

·        You will need to submit to treatment and rehabilitation for alcohol and drug dependency;

·        You will be required to submit to supervision;

·        You will be required to submit to treatment and rehabilitation for your mental health;

·        I have considered imposing a community work condition, but I will not do so because I regard the punitive aspect to be sufficient in terms of your custody thus far.  I will make the order for a period of 24 months;

·        

I will schedule a judicial monitoring date and the date of that monitoring is

7 March 2025 at 9.30 am.  You can appear before me on that date and I will, at that stage, check in and make sure that everything that can be done has been done to hopefully direct you to something that is really structured and helpful, whether it be Wulgunggo Ngalu or an appropriate other facility.

79I declare that you have already served 193 days by way of pre-sentence detention to be reckoned as already served. I declare also that pursuant to s 6AAA of the Sentencing Act,[11] had you not pleaded guilty, but been found guilty after trial, I would have imposed a sentence of four years imprisonment, with a non-parole period of three years.  Mx Rattray, are there any ancillary orders sought?

[11]1991 (Vic). 

80MX RATTRAY:  No, Your Honour.

81HER HONOUR:  Nothing, all right.  Mr Dean, because there is a community corrections order, your client will need to consent to it.  What I might do is just stand down briefly so you can have a quick word to him and explain the order. 

82MR DEAN:  Yes, Your Honour.

83HER HONOUR:  Do you have enough - you have all the information there about what I intend?

84MR DEAN:  Yes, Your Honour.

85HER HONOUR:  I would like you to give him some advice about it, some advice about - actually I will just do it this way, just got another commitment.  So I will do it this way directly to you Mr Duncan.  So Mr Duncan, I have given you a little bit more time and then time on a CCO right?  Now for the community corrections order, you have to do a range of things.  One of them is submit to drug and alcohol treatment.  I think you already said you are ready to do that.  The next thing - - -

86OFFENDER:  Yep.

87HER HONOUR:  You also have to get mental health treatment because the two things go alongside each other obviously.  I am going to have you back for a judicial monitoring, which means you have to front up and face me, once you are on your CCO and I will get a report about how it is that you are going.

88OFFENDER:  Sweet, yep.

89HER HONOUR:  Yes, so - but I cannot put you on the order - sorry, there are other features of the order I should tell you about.  You are not allowed to leave Victoria without permission, right?  You have got to submit to supervision, which means that you might have to engage in interviews or visits from Corrections once you are on your CCO.  So they are just going to - that is a supervision monitoring condition.  So it is for 24 months, so two years.

90OFFENDER:  Yep.

91HER HONOUR:  Where you have to do what Corrections ask you.  It would be appropriate if you talk to Corrections as soon as you can about you know what sort of plan you would like to put in place on that order.  So you can be active participant in that order and I am going to be listening in, ultimately on a monitoring hearing, just to see how it is going and making sure that we stay optimistic about getting some real work done, all right.  If you breach your order, you come back before me.  It is not like the Magistrates' Court where you might drift around different magistrates who do not know your full story.  I know your full story, I reckon now or as much of it that is before me.

92OFFENDER:  Yep.

93HER HONOUR:  So I will monitor your progress on the CCO.  So having said all that, do you agree to complete the community corrections order?  Do you agree to do that?

94OFFENDER:  Yes, Your Honour.

95HER HONOUR:  All right, that is good.  Have I missed any orders counsel?

96MR DEAN:  Not to my knowledge.

97MX RATTRAY:  No, Your Honour.

98HER HONOUR:  No, all right.  Mr Duncan, I will see you on 7 March 2025 at 9.30.  Now you can attend by video link right, so you will get in touch with your Corrections officer and say 'I've got judicial monitoring' and they will say 'Okay we wrote a report' and then you can go to their office if you do not have online access, you go to the Corrections Office and sit next to your worker and say 'I'm here' and I will ask to hear all about it.  If you have got problems on the order, that is the time to raise them and we will try and work something out.  All right, good luck.

99OFFENDER:  Okay.

100HER HONOUR:  I will see you then.  Thank you, counsel, for your assistance in the case.

101MR DEAN:  Your Honour pleases.

102MX RATTRAY:  Your Honour pleases.

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