Director of Public Prosecutions v Dunne

[2021] VCC 1368

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

 Revised
Not Restricted
Suitable for Publication

Case No. CR-20-01513

DIRECTOR OF PUBLIC PROSECUTIONS

v

JACK DUNNE

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JUDGE:	HIS HONOUR JUDGE WRAIGHT
WHERE HELD:	Melbourne
DATE OF HEARING:	8 September 2021
DATE OF SENTENCE:	20 September 2021
CASE MAY BE CITED AS:	DPP v Dunne
MEDIUM NEUTRAL CITATION:	[2021] VCC 1368

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentencing.

Catchwords:              Plea of guilty – Aggravated burglary – Common assault – Offender forced open door of victim’s room and repeatedly struck victim – Reasonable prospects of rehabilitation – Time in custody onerous – COVID-19 pandemic.

Legislation Cited: Sentencing Act1991 ss 6AAA, 18 , 44, 48CA; Crimes Act 1958 s 77; Bail Act 1977 s 30B.

Cases Cited:             Worboyes v The Queen [2021] VSCA 169.

Sentence:                  Imprisonment for a period of 18 months together with a community correction order for a period of 3 years.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr S Lee	Office of Public Prosecutions
For the Accused	Ms R Avis	James Dowsley & Associates

HIS HONOUR:

Introduction

1Jack Dunne, you have pleaded guilty to one charge of aggravated burglary, contrary to s 77 of the Crimes Act 1958, which carries a maximum penalty of 25 years imprisonment (Charge 1), and one charge of common assault contrary to the common law, which carries a maximum penalty of 5 years imprisonment (Charge 2).

2You have also pleaded guilty to the related summary charge of commit indictable offence whilst on bail, contrary to s 30B of the Bail Act 1977, which carries a maximum penalty of 30 penalty units or 3 months imprisonment (Summary Charge 4).

3You have also admitted your prior Criminal Record.

Circumstances of the offending

4A summary of prosecution opening was tendered on the plea as follows:

5You nominally reside in the Australian Capital Territory although from approximately April 2020 you were residing with associates or at hotels in the Frankston and Mornington areas.

6The victim in this matter, Indya Knight, is 26 years of age and described you as a friend with whom she had a falling out.

7At the time of the offending on 27 June 2020, Ms Knight was staying at room 12 at the Seaford Motel, 362 Frankston-Dandenong Road, Seaford. Room 12 is on the second floor.

8On Saturday 26 June 2020, Ms Knight was in room 12 at the Seaford Motel video calling a female friend. Witness Dallas King was staying in room 13.
Ms King, from inside room 13, heard Ms Knight speaking and the voice of another female.

9At approximately 11.10pm, Ms Knight heard a knock on the door and said, ‘Who is it?’ however there was no response. The knocking grew louder and shortly after, the door to room 12 was forced open. Ms King heard three big bangs which shook the whole building and then heard the door slam open and a female scream.

10Ms Knight observed you standing in the doorway of the motel room. Ms Knight recognised you and yelled ‘I’m sorry Jack’ while backing away. She fell backwards onto the bed and you approached her, standing on the bed.

11You then struck Ms Knight four to six times with a clenched fist to the right side of her head. Ms King heard you shouting something like ‘you shouldn’t have fucking done…’ It is these facts that relate to Charge 1, aggravated burglary, and Charge 2, common assault.

12You picked up Ms Knight’s brown handbag and threw it against the wall before leaving the room without saying anything further. At about this time, Ms King called 000 however did not see any person leaving the motel complex. The incident lasted between 15 to 20 seconds.

13At approximately 11.23pm, Senior Constable Nathan Hames and First Constable Hailey Robertson from the Frankston police arrived at the Seaford Motel. First Constable Robertson activated the Body Worn Camera, approached room 12 and observed damage to the door consistent with forced entry. She announced herself as police and began a conversing with Ms Knight.

14Ms Knight initially refused to disclose your identity out of fear of reprisal however provided a description of you.

15Ms Knight further disclosed that you had stolen $700 from her ‘a few nights earlier.’ Ms Knight stated that you kicked the door to the motel room, punched and stomped on her.

16Ms Knight continued to express fear of reprisal stating that if she disclosed your identity ‘they’ll come back for me, that’s what they'll do’, however she then disclosed your name to the police.

17Ms Knight further disclosed that approximately 15 minutes prior to the incident she had posted a status on Facebook that read ‘Jack Dunne is a shit cunt wannabe gangster from Mornington.’ The Facebook post was deleted soon after it was posted.

18Further police attended the scene. Photographs were taken of Ms Knight’s injuries and the crime scene and a statement was obtained from Ms King.

19Ambulance officers were requested to assess Ms Knight’s injuries however
Ms Knight refused to attend hospital. She was conveyed to the Frankston Police Station to arrange crisis accommodation however she later returned to the motel room.

20On 30 June 2020 members of the Special Operations Group arrested you as you exited premises at 14 Winter Lane, Carrum Downs.

21You were conveyed to the Dandenong police complex and interviewed by Senior Constable Charlie Love and Acting Sergeant Gareth Howells. Prior to the interview, you exercised your right to speak to a legal practitioner.

22You indicated that you had worked as a carpenter in the ACT prior to returning to Victoria. You stated you had been staying at ‘mate's places or hotels’.

23You then provided a ‘no comment’ interview in relation to the allegations. A DNA reference sample and fingerprints were obtained by police. You were charged and remanded in custody.

24You were on bail at the time of the offending, which gives rise to Summary Charge 4, commit indictable offence whilst on bail.

Nature and gravity of the offending

25Aggravated burglary is by its nature a serious offence, reflected in the maximum penalty of 25 years imprisonment. However, it is an offence that is able to be committed in various ways and each case must be assessed on its on facts. In this instance, while the commission of the aggravated burglary and the common assault only took some 15 to 20 seconds, the offence occurred at night, the victim was alone in a room with no way of escaping and you were angry and drug affected when you forced the door. Thus, in all the circumstances your offending, while of short duration and impulsive, is nonetheless serious.

26Whilst no victim impact statement was filed, your conduct was undoubtedly a frightening experience for the victim. As is apparent from her statement, the victim was frightened that you would come back if she disclosed your identity. As to the victim's injuries, as discussed at the plea, it appears that they were relatively minor but undoubtedly would have caused her discomfort at the very least.

Personal circumstances

27You are now 28 years of age. You were born in Sydney and have a younger sister and an older brother. Your parents separated when you were four years of age and you relocated to Victoria with your mother. You did not see your father again for some years. You struggled at school, experiencing learning difficulties and presenting with behavioural issues. When you were 8 years of age, your father returned briefly before moving interstate. In Year 7 you severed an artery in your leg which required surgery and interrupted your schooling. When you were 14 years of age your mother left you and moved to live in Port Fairy with her new partner. You have had a strained relationship with your mother and have had no communication with her in recent years.

28You left school in Year 8 and relocated to Canberra with your brother to live with your father for six months. When you returned to Victoria, you lived on a property without your parents and started working in the horse track industry. You also were drinking alcohol heavily in your teen years and you began using methamphetamines, Ecstasy and Xanax.

29You worked in track work until the age of 18 and then commenced a bricklaying apprenticeship. You were unable to complete the apprenticeship and after three years were effectively made redundant. You also commenced a carpentry apprenticeship but have not completed it.

30You had a long-term relationship with a woman from the age of around 15 to 21. You had two daughters together, who are now aged seven and 10. The relationship with their mother ended in 2014 and you ceased contact with your daughters which had a significant emotional impact on you. As a result of intervention orders you are no longer able to have contact with them. Your drug use escalated when you ceased contact with your daughters and in 2015, you began committing offences and becoming involved in the criminal justice system.

31From 2018 to early 2020 you were abstinent from substance use. You were living in Canberra and working as a casual labourer for a small carpentry and building company. A letter from the Director of the company, Michael Bawden, was tendered on the plea. Mr Bawden describes you as having a strong work ethic, being reliable and having compassion for others. He provides an example of one occasion where you worked on a resident’s house beyond the scope of your role in order to assist them without pay. Mr Bawden also states that he would not hesitate to employ you again.

32In April 2020 around the time of the offending, you had moved back to live in Victoria following the end of a five year relationship with Laura Fowler. This breakup triggered a relapse into drug use and a decline in your mental health. You were unemployed and had no stable housing.

33Since being remanded in custody you have worked as a billet in prison, and it was submitted that you are drug free. Due to the pandemic, you have not been able to access programs or courses.

34You are now back in contact with your most recent partner, Ms Fowler and hope to resume the relationship in the future. Ms Fowler prepared a letter which was tendered on the plea. Ms Fowler works as a nurse and a beautician. Ms Fowler speaks with you regularly via telephone and states that you have made your intentions clear that you want to move on in a positive way. It is clear from
Ms Fowler’s letter that she will provide you with ongoing support.

35You have also regained contact with your father since being in custody and speak to him via telephone. You look forward to rebuilding your relationship with him upon your release.

36Your childhood close friend Jack Noonan prepared a letter which was tendered on the plea. Mr Noonan also observed the plea remotely in support of you.
Mr Noonan works as a jockey in the horse industry and describes you as being a skilled track rider and horseman with an excellent work ethic. Mr Noonan states that you are welcome to live with him together with his partner and young child and offers you full time work on their property in Moorooduc, riding horses and managing the property.

37A report was prepared by Sandra Cokorilo, psychologist and tendered on the plea. Ms Cokorilo conducted a number of psychometric tests and clinically assessed you. In summary, Ms Cokorilo concluded that you present with a Major Depressive Disorder and Stimulant Use Disorder and notes that you acknowledge the relationship between your untreated mental health, your self-induced intoxication and the role it played in the current offending. Ms Cokorilo attributes your depressive disorder to the breakdown of your long-term relationship and against that background, your relapse into methylamphetamine abuse would have reduced your self-inhibition and cognitive control, clouding your ability to make calm and rational choices. Unsurprisingly, Ms Cokorilo states that you require therapeutic intervention to address your drug use and psychological condition.

Sentencing considerations

38Ms Avis who appeared on your behalf at the plea, outlined a number of matters in mitigation. First and foremost is your plea of guilty. A contested committal hearing took place on 12 November 2020 during which witnesses were cross examined and the matter was committed to this Court for trial. A case conference before me on 16 March 2021 did not result in the resolution of the matter however further discussions continued. Ultimately, the matter resolved at a directions hearing on 20 July 2021. While your plea is not an early plea it still has utilitarian value, sparing the resources and time of a jury trial and importantly, sparing the victim from having to give evidence again. Your plea carries additional weight in the context of the pandemic which has created a substantial backlog of cases in the criminal justice system.[1]

[1] Worboyes v The Queen [2021] VSCA 169 at [39].

39Ms Avis submitted that over and above your plea of guilty you have demonstrated remorse. However, the way you expressed yourself to Ms Cokorilo suggests you have some distance to go before you have full insight into the impact of your offending. While you stated that you were ashamed of your conduct, you also stated that the victim ‘kinda deserves it’. Ms Avis submitted that this comment was taken out of context however in the circumstances, it is difficult to imagine any context where the comment would be appropriate. In an assessment report I ordered for consideration of a community correction order, the writer states that you have ‘demonstrated limited empathy towards the victim’. Therefore, in the circumstances I am unable to find that you have expressed genuine remorse.

40Ms Avis submits that limb five of Verdins has application in this case. That is, that as a result of your mental health issues, a sentence of imprisonment may weigh more heavily on you than it would on a person who does not suffer your condition. In that regard, Ms Avis relies on Ms Cokorilo’s opinion that whilst your major depressive disorder is currently in full remission, prolonged imprisonment may cause a decompensation of your mental health. The opinion is somewhat speculative and given that your depression is in full remission after having been in custody for over a year, in my view the evidence does not support the requisite link to enliven Verdins principle 5.

41As to your prospects of rehabilitation, it is clear that you require treatment for your drug problem which was a significant contributor to your violent conduct. It is also apparent that you need to gain control over your anger and ultimately, to deal with the issues that led you into drug use and the criminal justice system. Nonetheless, it appears that when you are drug free you are able to contribute to society as evidenced in the letter of Mr Bawden. Further, you have retained the support of your long term friends and partner. As such if you can remain drug free and maintain your supports in the community, in my view your prospects of rehabilitation are able to be assessed as reasonable.

42I take into account the fact that your time on remand has been particularly onerous as it has been served during the COVID-19 pandemic. Prisoners are subjected to lockdowns, quarantine periods and there are restrictions on personal visits, education and rehabilitative programs. Given the current state of the virus in the community, restrictions may remain for some time.

43Mr Lee who appeared on behalf of the Director of Public Prosecutions, submitted that community protection, denunciation, general deterrence and specific deterrence are relevant sentencing considerations. I agree. In my view general deterrence is particularly relevant in this instance. A clear message must be conveyed that conduct like yours will not be tolerated in our community and will met with a stern response by the courts.

44Ms Avis submitted that in all the circumstances, a term of imprisonment consisting of the time you have already served, in combination with a community correction order is a disposition that would meet the relevant sentencing considerations in this case. Mr Lee submitted that a head sentence with a non-parole period is the most appropriate sentencing disposition.

45I had you assessed for a community correction order and you have been found suitable. In all the circumstances in my view, a combination sentence pursuant to s 44 of the Sentencing Act 1991, is able to meet the relevant sentencing considerations in this instance, however I am also of the view that a further period of imprisonment than that which you have already served is required before release on such an order. Further, while all community correction orders are punitive, the order I impose will have an unpaid community work condition together with a number of therapeutic conditions.

Sentence

46Mr Dunne please stand.

47Jack Dunne, on Charge 1, aggravated burglary, you are convicted and sentenced to 18 months imprisonment. On Charge 2, common assault, you are convicted and sentenced to 6 months imprisonment. As both offences were committed in one short transaction, the sentence on Charge 2 will be wholly concurrent with the sentence on Charge 1. Therefore you will be required to serve 18 months as the prison component of the sentence pursuant to s 44 of the Sentencing Act 1991.

48On Summary Charge 4, commit an indictable offence whilst on bail, you are convicted and sentenced to 1 month imprisonment, which will also be concurrent with the other sentences of imprisonment imposed.

49As part of the sentence on Charges 1 and 2, upon your release from custody, you will be placed on a community correction order with conviction for a period of 3 years. As noted, the order will have punitive and therapeutic components. You will be required to complete 200 hours of unpaid community work. You will be subject to treatment and rehabilitation conditions to address your mental health, your drug use and your offending behaviour, which in this case will be an anger management program or equivalent. You will also be subject to supervision for the period of the order.

50Pursuant to s 48CA of the Sentencing Act1991, I direct that all of the hours that you satisfactorily complete pursuant to the treatment and rehabilitation conditions may be credited as hours of unpaid community work.

51Pursuant to s 18 of the Sentencing Act 1991, I declare that 387 days be reckoned as the period of imprisonment already served under the sentence I have imposed.  That does not include today.

52Pursuant to s 6AAA of the Sentencing Act1991, if not for your plea of guilty I would have sentenced you to a period of imprisonment of 3 years with a non-parole period of 2 years.

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