Director of Public Prosecutions v Fox
[2019] VCC 74
•1 February 2019
IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for PublicationAT MELBOURNE
CRIMINAL JURISDICTIONCR-18-01255
DIRECTOR OF PUBLIC PROSECUTIONS v JACK FOX ---
JUDGE: HIS HONOUR JUDGE HIGHAM WHERE HELD: Latrobe Valley (Plea); Melbourne (Further Plea; Sentence) DATE OF HEARING: 19 September 2018; 20 December 2018 DATE OF SENTENCE: 1 February 2019 CASE MAY BE CITED AS: DPP v Fox MEDIUM NEUTRAL CITATION: [2019] VCC 74 REASONS FOR SENTENCE
---Subject: CRIMINAL LAW
Catchwords: Sentence – plea of guilty – aggravated burglary – common law assault
Legislation Cited: Crimes Act 1958; Sentencing Act 1991
Cases Cited:
Sentence:Total effective sentence of eight months’ imprisonment and a 30 month community correction order with conditions including supervision; 150 hours of unpaid community work; treatment for alcohol abuse; treatment for mental health; offending behaviour programs; anger management programs; men’s behaviour change programs; judicial monitoring.
---
APPEARANCES:
Counsel Solicitors For the Director of Public Prosecutions Ms D Guesdon (Plea)
Ms A Harrold (Sentence)
Solicitor for Public Prosecutions For the Accused Mr R Davis Robert Davis
HIS HONOUR:
1Jack Fox, you have pleaded guilty to one charge of aggravated burglary, for which the maximum penalty is the term of imprisonment of 25 years, and two charges of common law assault, for which the maximum penalty is a term of imprisonment of five years.
2On the plea was tendered a summary of prosecution opening, Exhibit 1, which set out in detail the circumstances of your offending. I annex a copy of that document to the sentencing reasons.
3In brief, at the time of the offending you were living at a unit in Moe. In another unit in the building lived Joshua Natt and Brendan Langenakker. You had known each other as neighbours but had never socialised. However, there had been ongoing issues between you relating to you playing your music at a loud volume. On an earlier occasion, you had apparently told your neighbours that if they had a problem with the volume of your music, they should consult you before contacting the police.
4On the afternoon of Sunday 21 January 2018, you were in the unit of your friend Kelly, who was the sister of your then former girlfriend, Hailey, who was also present. All three of you were drinking alcohol and listening to music.
5At approximately 3.30 pm, police attended the unit block and told you to turn down your music, which you did. Once the police had left, however, you went downstairs and banged on the front window of your victim's unit, asking why they had contacted the police rather than speaking to you, as you had told them they should do.
6In response to your challenge, Mr Natt contacted police and requested that they re-attend. Police returned at approximately 4.06 pm and again they spoke to you. In the course of that conversation, you admitted to knocking on someone's door. The police asked you again to turn your music down, you complied, and the police then left the premises.
7It seems that the second attendance by the police drove you into a rage. Almost as soon as the police had left, you went down to the front door of the unit of where your victims lived. You opened the front door screen and then forcibly kicked the wooden door. The force of such kick swung the door open and broke the lock. Without hesitation, you entered the unit uninvited; these facts underpin Charge 1.
8You approached your victim, Mr Natt, who was standing in the lounge room of his home. You immediately grabbed him by the throat and forcibly pushed him into a small bar fridge. Mr Natt fell to the floor. These facts underpin Charge 2.
9On hearing the commotion, Mr Langenakker physically challenged you, seeking to protect his partner and to remove you from his home. Your response was to set upon him, punching him approximately three times to the face with your right fist. The force of your punches caused Mr Langenakker to fall to the ground. You then grabbed hold of his head and attempted to forcibly ram it into the kitchen handles. Fortunately for your victim and fortunately for you, you were unsuccessful in your attempt. Your victim's ordeal was not yet over, for you then proceeded to knee Mr Langenakker in the face approximately three times. These facts underpin Charge 3.
10The screams and commotion brought both Kelly and Hailey down to the unit. They managed to drag you off your victim. You returned to your own unit, washed yourself and then left the address prior to the arrival of police.
11Mr Langenakker was taken to the Latrobe Regional Hospital where he was treated for injuries. He suffered bruising, swelling and bleeding to his nose and face, a welt to the left side of his ribs, a chipped tooth, scratches and red marks to his back. The kitchen and lounge room of the home he shared with Mr Natt was covered with blood.
12You presented yourself at 10.20 pm that evening at Moe police station, where you were questioned. In the record of interview you made full and frank admissions to all of the allegations, telling the police that you went into the unit with the intention of hurting your victims because you were angry about the police being called.
13You knew you did not have permission to go inside and you told the police that you did not want particularly to hurt Mr Langenakker until you had punched him the third time, and then you really wanted to hurt him, and that you had blacked out and could not recall what you had done. During the course of that interview, you were compliant, cooperative and, I accept, showed remorse.
14Tendered on the plea were victim impact statements from both of your victims, Exhibit 2 for Mr Natt and Exhibit 3 for Mr Langenakker. Mr Natt describes his terror when confronted by you and being scared for his life and also scared for his partner's life. He writes that at that time neither he nor his partner interacted with many people but after the assault, he, Mr Natt, became even more isolated, completely losing his trust in strangers. He developed anxiety and needed to see a psychologist, a direct result of your offending. He and his partner have moved from the home that they had made together to another address.
15Mr Langenakker also writes of having to see a counsellor to help him address the anxiety arising directly from your assault of him. For him, his home was no longer safe, and the anxiety he was experiencing could only be addressed by moving to another address where they both could begin to rebuild a home.
16I note that you wrote a letter to your two victims, apologising for what you had done to them; this is Exhibit 4JF tendered on your plea.
17The plea, which began on 18 September 2018, was adjourned to enable a psychological report to be obtained. Exhibit 9 is a report by Ahona Guha, psychologist, dated 18 December 2018. That report sets out in stark detail your history and provides a context for why a relatively young man such as you should react in such a rage-fuelled manner to the legitimate actions of your neighbours.
18I turn now to your personal circumstances.
19You were born on 13 December 1991 and you are now 27 years of age. You were 26 years old at the time of this offending. You were born in Moe, with your parents separating shortly after your birth. You have four siblings on your father's side, whom you do not see often, and five on your mother's side, with whom I am told you are quite close.
20Your father did not play an active role in your upbringing. Your mother struggled to cope with parenthood and, in light of her substance abuse issues, you spent much of your childhood moving between the care of your mother, aunt and grandmother. There were numerous interventions by the Department of Health and Human Services (DHHS). When you were removed from your mother's care, you reported that you would "get angry" in order to be placed back in her care. It seems to me, Mr Fox, that you learnt at an early age to use extreme emotional responses to get what you want. Unhappily, it seems that you did not learn to curb such emotional displays as you moved from childhood into adulthood.
21Your mother frequently relocated both within Victoria and interstate. Your mother had relationships with men who were physically abusive towards her and sometimes you. In response, you assumed a protective role from a very young age, wanting to protect your mother from these men. You witnessed your mother attempt suicide when you were a child. Your childhood, in short, was one of violence, trauma and disruption.
22You also suffered the loss of your brother and your stepfather. Your stepfather had been in a relationship with your mother for five years and had married your mother only seven weeks prior to his decease. You reported that your stepfather had been a positive influence on you and had been a good partner to your mother, and that his death was especially tough for you to cope with. Your mother was consumed, it seems, with her own grief, and consequently you were not helped in any way to deal with this loss.
23When living in foster homes and DHHS residential units, you report both being bullied and also bullying others. You returned to your mother's care at age 16 before moving out of home at the age of 21. It seems in your later adolescent years, your mother taught you that you had to be a man, and that included using violence to solve emotional problems.
24Your schooling was significantly disrupted by your mother's frequent relocations. You found it difficult to concentrate at school and struggled to keep up with the curriculum. You were diagnosed with attention deficit hyperactivity disorder (ADHD) at the age of ten and were prescribed medication, but stopped taking it at age 12, again, it seems, on your mother's instructions. Your mother having implanted in you the belief that to be a man you had to respond to situations with force, you did what your mother told you. You were suspended on multiple occasions for fighting before being expelled in Year 11 because you had fallen too far behind in your schoolwork.
25Since leaving school, you have completed several certificates in security and hospitality, and gained employment in a variety of industries. Currently, you work as a bartender and also run your own furniture restoration business. You report that you find it easier to focus on these types of hands-on work.
26You were diagnosed with depression approximately two years ago and trialled medication, but you did not continue with it due to the side-effects. You attempted suicide approximately ten months ago, and have been on antidepressants since that time. You report some recreational drug use which ceased at age 20. You describe binge-drinking in the past to cope with anxiety and block out depressive thoughts. You report now that you do not drink regularly.
27Your partner, Hailey, has been a positive and stabilising influence in your life. She has two children from an earlier relationship and you are eager to be a good role model for them. Hailey became pregnant in 2018 but unfortunately you lost the baby due to complications. That was clearly a very difficult time for both of you.
28You have prior court appearances for unlawful assaults in 2014 and 2008. You have no pending matters. You were dealt with in relation to those prior matters by means of a good behaviour bond and a fine. You readily accept that you have an issue with anger and that it forms your default response to situations where you feel your wellbeing is challenged.
29Ms Guesdon, on behalf of the prosecution, submitted that this was serious offending. She pointed to the fact that the door to your victim's unit was kicked in and that both occupants were assaulted, and that the second victim was assaulted when he had gone to the aid of his partner, your first victim.
30Moreover, Ms Guesdon submitted that the assault did not merely consist of one punch but was, to a certain extent, sustained. She pointed me to your record of interview where you were frank and conceded that you had "lost it".
31Such an assault, submitted Ms Guesdon, in the victim's own home meant that the sentencing purposes of general and specific deterrence and just punishment were to the fore in my sentencing exercise.
32Ms Guesdon fairly accepted that you were remorseful, she accepted that your plea was entered at the earliest opportunity, but nonetheless she submitted that the objective gravity of the offending was such that it could only be met by an immediate term of imprisonment, although she conceded that such a term could be in combination with a community correction order.
33Mr Davis, on your behalf, identified that you are now 27 and were 26 at the time of the offending. He confirmed the personal circumstances and history as I have already set out above.
34He took me to your record of interview, of which he said the full and frank admissions that you made were an indication of genuine remorse on your part for your offending. Genuine remorse means that you feel sorry, not for the situation that you are now in, but for the impact of your offending upon your victims.
35After the incident, Mr Davis accepted you left your premises, but you went to a nearby reserve to dip your feet in some water to calm yourself down. I accept, Mr Fox, that your absence when police arrived was an attempt by you to calm yourself down rather than a deliberate attempt to avoid detection and arrest.
36You handed yourself in at about 10.30 that evening and were openly compliant and cooperative with the police, as they have accepted. The circumstances of your offending you detailed with stark honesty in your record of interview at question 35 onwards and then again at questions 121 to 136.
37You were diagnosed with depression in 2015, prescribed the drug Pristiq, and at the time of this offending, you were not taking that medication due to the adverse side-effects that included making you sweat profusely, leading you always be hungry, and exacerbating your frequent migraines. In parts, said
Mr Davis, it was the case of the excessive sweats that you were experiencing that led you to go and find the creek in which you could place your feet to calm down.38As a result of committing this offence, you immediately went back to your GP and started taking your medication. I was told on the plea on 18 September 2018 that your medication had recently changed to escitalopram. You had then been on this medication for only two days but were already noticing some improvement in your state of mind without any side-effects.
39I was also told that your aunt recently attempted suicide. She survived the attempt but has since been placed in a unit at a local hospital.
40As background to this offending, I was told that your aunt had just told you that allegations of physical and sexual abuse being made by your six-year-old sister against your stepfather, that is to say your mother's partner.
41You had started up your own business as a furniture restorer, participating in the new enterprise incentive scheme (NEIS), which supports the unemployed in acquiring business skills and training to start up small businesses. From the NEIS, you received $270 a week. When you get work, it is quite well paid. But as with any new business, it takes time to grow. You were averaging about $100 a week by way of income. You also work as a bartender one night a week and get $120 for your shift. The start-up of the new business was yet another source of stress for you.
42Other factors playing on your mind at the time of the offending was that your relationship with your partner, Hailey, was going through a rough patch. As I have already mentioned, shortly after the offending, you discovered that she were pregnant. Scans, however, revealed that your unborn child was suffering from spina bifida, and following consultation, a joint decision in June 2018, your child was induced, stillborn.
43You live at your address with your partner, Hailey, and her two children, aged four and three. You are effectively a father to both of them and thus you have a support of a loving family but also have the responsibility, Mr Fox, to be a role model to those children. They need to know that violence cannot ever be a response.
44You describe the complaint made by your neighbours to the police as "the straw that broke the camel's back". Mr Davis conceded that this was serious offending. His ultimate submission was that the objective gravity of this offending places it at the lower range of offending of aggravated burglary and having regard to the circumstances of your offending and to your personal circumstances, a term of imprisonment was not warranted.
45In support of this submission, Mr Davis pointed to your prospects of rehabilitation, which he described as excellent, having regard to your stable accommodation, your stable relationship, your active engagement in programs designed to prevent your reoffending (see Exhibit 6JF), your absence of outstanding matters, your consent to the intervention orders taken out by your victims, and the fact that you do not currently have an issue with alcohol or drugs.
46He pointed to your relative youth, your plea of guilty entered at the earliest opportunity and the attendant benefit that brings, your genuine remorse, and your full and frank admissions in your interview.
47As stated previously, Mr Davis accepted this was serious offending but, nonetheless submitted sentencing purposes could be sufficiently met by the imposition of a stand-alone community correction order with suitably punitive conditions.
48As you know, Mr Fox, your plea was adjourned and thus, the matter has been delayed, to a certain extent, because I wanted to know more about you. Mr Davis, despite his best efforts, could not inform me as to why a young man who, on the face of it, appears to have many decent qualities, should react with such uncontrolled rage to the actions of your victims. The psychological report I have referred to above was Exhibit 9 on the plea.
49Mr Fox, aggravated burglary is a serious offence, and that is clear by the maximum penalty imposed by Parliament, which is a term of imprisonment of 25 years. Of course, the offence covers a large range of offending, but in a moment of rage, you went down to your neighbour's unit, kicked in the door, and then assaulted not one but both of them.
50These are actions that have had a lasting impact upon your victims. It has robbed them of their sense of security. Their home was no longer a place of safety and refuge where they could feel safe and secure. I accept that your offending was not premeditated, that there were no weapons used, that you were not in company, and therefore an absence of those aggravating features so often found in such offending when it comes before this Court.
51I accept that it was, to a certain extent, spontaneous. Nonetheless, you went into your neighbour's unit uninvited, fully intending to assault them and, as you candidly and, in my view, concernedly admit, came to a point where you did intend to hurt your victim prior to you blacking out. Your offending is, in my view, serious offending, the objective gravity of which emerges from the facts as I find them to be, and candidly admitted by you from the very outset.
52Mr Fox, you have had a childhood that no child should have. You have been denied any sense of security as a child, any sense of self-worth by those whose duty it was, by virtue of being your parents, to so provide you. In my view, there is a clear and a very stark link between this offending and your childhood, and the responses that you use for emotional challenges.
53As such, I find that your moral culpability for your offending is reduced. You are a man who otherwise presents as having many good qualities. The simple fact, Mr Fox, is that you need to control your rage. I accept that you are remorseful. I accept that your remorse is genuine, and I have no doubt that you are ashamed and are concerned by what you have done, by the fact that your reaction was so extreme. However, such displays of rage triggered by no more than a sense that people have not done that which you have told them to do cannot be permitted to pass without both condemnation and punishment.
54In my view, the objective gravity of your offending is such that it must be met by a term of imprisonment. However, after long reflection, I can pass a sentence of imprisonment that is combined with a community correction order that is longer than I would otherwise pass because I want to lock in treatment and supervision as well as a term of imprisonment. I need to pass a sentence that sends a message that no one, no matter what their childhood, Mr Fox, can behave as you have done, and to remind you of that. However, I want to give you the opportunity, should you wish to take it, of engaging in treatment so that you can learn different responses to life.
55In sentencing you, I have to balance your personal circumstances with the circumstances of your offending. I must have regard to principles of general deterrence, as I said, sending a message to the world at large, specific deterrence, sending a message to you that you cannot do this, denunciation, just punishment. I have to have regard to the impact of your offending upon your victims, to the sentences that have been passed and upheld by Their Honours in the Court of Appeal, and to the maximum penalty imposed by Parliament. I have to combine all these competing considerations and balance your personal circumstances with the circumstances of your offending.
56I want you to understand, Mr Fox, that you are being provided with an opportunity to find that your childhood need not define you. I believe that you are capable of that, but it will require work on your part.
57I have had regard to your positive prospects of rehabilitation; to the support that you have of your partner; to your family life; to your absence of outstanding matters; to your ready compliance with the intervention orders. You are still a relatively young man, still able to learn and still able to change. I have regard to your plea of guilty entered at the earliest opportunity, to your genuine remorse, to your admissions in interview and, in part, to the delay of finalising this matter.
58If you could stand please, Mr Fox.
59On Charge 1, aggravated burglary, you are sentenced to a term of imprisonment of eight months and community correction order of 30 months’ duration.
60On Charge 2, common law assault involving Mr Natt, you are sentenced to a term of imprisonment of three months.
61On Charge 3, common law assault involving Mr Langenakker, you are sentenced to a term of imprisonment of six months.
62I make no orders for cumulation, making a total effective sentence of eight months' imprisonment.
63Now, in terms of the community correction order, Mr Davis will explain the core conditions to you.
64You must perform 150 hours of unpaid community work over the period of 30 months as directed by the regional manager. I order that all hours of treatment and rehabilitation that are satisfactorily undertaken are to be counted as hours of unpaid community work for the purposes of that condition.
65You must be under the supervision of a community correction officer for a period of 30 months.
66You must undergo assessment and treatment, including testing for alcohol abuse or dependency as directed by the regional manager. I know you believe that you do not have an issue, but I note from your history you have binge-drunk in the past, and clearly with the issues that you have from your childhood, it is easy to use substances in order to block out feelings.
67You must undergo any mental health assessment and treatment, and that may include psychological, neuropsychological, psychiatric treatment in a hospital or residential facility.
68You must participate in programs and/or courses that address factors relating to offending as directed by the regional manager.
69You must engage in anger management programs.
70You must engage in men's behaviour change programs.
71You must re-attend at this Court for judicial monitoring. If it is difficult for you to come up from Morwell to Melbourne, I will be able to monitor you by means of videolink. This gives me the advantage to see how you are going, and you are able to talk to me about issues and problems that you have. But it also enables me to monitor Community Corrections to make sure that they are enabling you to get the greatest benefit from the order. Do you consent to being placed on the order?
72OFFENDER: Yes, Your Honour.
73HIS HONOUR: The first judicial monitoring hearing will be on 8 November 2019 at 9.30 am. I will allow you to appear via videolink from Morwell.
74I am also going to sign an order enabling the authorities to take a forensic sample from you. In my view, the seriousness of the offending warrants the making of the order. Now, that is usually done by means of a buccal swab, a swab of saliva from your mouth. The sample then gets put on a database and it is used as an investigative tool. I have to inform you that should you refuse to provide the sample when it is asked of you, the police will be entitled to use such force as is reasonably necessary to take that sample.
75I declare pursuant to s.6AAA of the Sentencing Act, had you not pleaded guilty, you would have been sentenced to a total effective sentence of two years and six months, with a non-parole period of 18 months.
76I have marked the following custody management issues: first time in prison, in receipt of medication, young person. Anything else?
77MR DAVIS: No, thank you, Your Honour.
78HIS HONOUR: Thank you, Mr Fox. You are not your past, you know? Otherwise we would all be doomed.
79Thank you very much for your attendance, Ms Harrold, Mr Davis.
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| IN THE COUNTY COURT OF VICTORIA AT LATROBE VALLEY | Court Reference: CR-18-01255 Indictment No: J10204363 |
CRIMINAL JURISDICTION
IN THE MATTER OF Section 182 of the Criminal Procedure Act 2009
Prosecution of Jack Michael FOX
SUMMARY OF PROSECUTION OPENING ON PLEA
Date of Document:
Filed on behalf of:
Prepared by:
JOHN CAIN
Solicitor for Public Prosecutions
565 Lonsdale Street
Melbourne Vic 3000
26 July 2018
Director of Public Prosecutions
Solicitors code: 7539
Reference:
Telephone:
File Number:
BACKGROUND
The accused in this matter, JACK MICHAEL FOX, (DOB: 13 December 1991) is 26 years old and was residing in Moe at the time of this offence.
The two complainants in this matter are JOSHUA NATT, 24, and BRENDAN LANGENAKKER, 22. NATT and LANGENAKKER were both residing at a unit in a building in Moe at the time of this offence.
The parties are known to each other as neighbours only, they have never previously socialised and FOX has never previously been allowed into their unit. Over the months prior to this incident, the Accused and the complainants have had on-going issues regarding the Accused's loud music. FOX has previously advised the victims that if they take issue with the volume of his music, they should consult him before contacting the Police.
SUMMARY
On Sunday, 21 January 2018, the complainants were both at home. FOX was on the top level of the units at the unit occupied by KELLY MULLINS, the sister of his ex-partner HAILEY MULLINS, who was also there. The accused and both MULLINS were consuming alcohol and listening to music.
At approximately 3:20pm an anonymous complainant contacted police regarding loud music coming from the upstairs units. Police attended at approximately 3:30pm and instructed the Accused to turn down his music, which he did. The Police then left.
A short time after Police left, the Accused attended at the complainant's unit and banged on their front window, asking why they had contacted the police instead of speaking to him about his music. NATT contacted Police in response FOX banging on his window and requested they re-attend.
At approximately 4:06pm police re-attended and again spoke with the Accused. FOX made admissions to knocking on someone's door but didn't nominate which unit. Police deemed that the music was still too loud and a further request was made by them to turn it down, which happened. The Police then left.
This second police attendance angered the Accused. Almost immediately after police left he attended at the front door of the unit. He manually opened the front wire door then forcibly kicked the wooden door. The force of this kick caused the door to swing open, and the lock separated from the door and landed several metres inside the unit.
The Accused then approached NATT who was standing in the lounge room and immediately grabbed him by the throat with one hand. FOX then forcibly pushed NATT into a small bar fridge, causing NATT's microwave to fall off the top of it and NATT to fall to the floor.
10. LANGENAKKER, hearing the commotion, went to investigate, and observed the Accused with his hand around NATT's throat. LANGENAKKER attempted to punch FOX in an effort to protect NATT but the strike missed.
11. FOX then set upon LANGENAKKER and punched him to the face with his right fist approximately three times. The force of the punches caused LANGENAKKER to fall to the ground, in the kitchen, near the cupboards. The Accused then took LANGENAKKER's head and attempted to forcibly ram it into the kitchen cupboard handles. He was unsuccessful in doing so. FOX then proceeded to knee LANGENAKKER in the face approximately three times.
12. Both MULLINS heard screaming coming from the ground-floor unit and went to investigate. Once there they observed the accused on top of LANGENAKKER. They then intervened and dragged the Accused off LANGENAKKER. FOX returned to his own unit, washed himself and then left the address prior to police arrival.
13. At approximately 4:23pm, police arrived. LANGENAKKER was observed to have blood on his face and clothing and the complainant's unit was found to have blood all about the kitchen and lounge room. Efforts then made to locate FOX were unsuccessful.
14. NATT suffered pain and red marks to his neck and has since been suffering from high levels of anxiety. LANGENAKKER was taken to the Latrobe Regional Hospital where he was treated for his injuries. He suffered bruising, swelling and bleeding to his nose and face, a welt to the left side of his ribs, a chipped tooth, scratches and red marks to his back.
15. At approximately 10:20pm that night, FOX went to the Moe Police Station. He was subsequently arrested and later interviewed. He made full and frank admissions to all allegations. He stated that he attended the victims unit with the intention of hurting them because he was angry about the Police being called and that he knew he did not have permission to go inside. He stated that he didn't particularly want to hurt LANGENAKKER until he had punched him the third time, then he really wanted to hurt him but also blacked out and couldn't recall what he had done.
16. The accused was compliant, co-operative with police and showed remorse during his record of interview. He was subsequently charged and bailed to a Filing Hearing at Latrobe Valley Magistrates' Court on 23 January 2018 and served with Personal Safety Intervention Orders on behalf of both complainants. He appeared on that date where the matter was adjourned for committal mention on 19 April 2018, and later to 14thJune 2018, on which date he entered a plea of guilty (the matter having resolved by 23rd May 2018.
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PROSECUTOR
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