Director of Public Prosecutions v Fuss

[2020] VCC 1367

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 20-00693

CR 20-00754

DIRECTOR OF PUBLIC PROSECUTIONS

v

HARLEY FUSS

MONIQUE KAZIUKAJTIS

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF HEARING:	18 August 2020
DATE OF SENTENCE:	1 September 2020
CASE MAY BE CITED AS:	DPP v Fuss & Anor
MEDIUM NEUTRAL CITATION:	[2020] VCC 1367

REASONS FOR SENTENCE

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms M. Zammit	Office of Public Prosecutions
For Accused FUSS	Ms N. Karapanagiotidis	Stary Norton Halphen
For Accused KAZIUKAJTIS	Ms A. Addamo	Leanne Warren and Associates

HER HONOUR:

1Harley Fuss, you have pleaded guilty before me to one charge of aggravated burglary, one charge of common assault, one charge of intentionally causing injury and one charge of contravening an order intending to cause harm or fear for safety.  Monique Kaziukajtis, you have pleaded guilty to one charge of aggravated burglary and one charge of common assault.  The facts underlying your offending are as follows.  The two of you were previously in a relationship and have two children together, but the relationship ended in about 2016.  About three years ago, you both became good friends with the victims Leo Bailey[1] and Kelsey Carroll[2].  Mr Bailey and Ms Carroll who were partners for 15 years, separated in July of 2018, after which Ms Carroll started a relationship with you, Harley Fuss.

[1]A pseudonym.

[2]A pseudonym.

2This relationship ended in June 2019 because of a family violence incident, where you were arrested Mr Fuss and remanded in custody.  On 21 August 2019, the Frankston Magistrates' Court issued a family violence intervention order where Ms Carroll and her five children were protected persons, which order is to expire on 20 August 2024.  That order prevented you from contacting Ms Carroll or being within five metres of her, or any place where she lives or work.  Between 5 January and 7 January 2020, you Harley Fuss called
Ms Carroll 168 times and you sent her 280 messages, asking her to call him, professing your love for her.  Between 6 January and 7 January 2020, you and Mr Bailey exchanged 89 text messages and 22 calls, as Mr Bailey had commenced his relationship with Ms Carroll and you were jealous.

3On 6 January at 6.55 pm, you, Ms Kaziukajtis sent text messages to Bailey saying 'Sleep with one eye open, I'm pretty sure he wants your blood.  Leo will make it happen, just you wait'.  That is referring to you, Mr Fuss.  At about 7.54 on 7 January 2020, you, Mr Fuss, sent a text message to Ms Carroll saying 'You're gonna have to deal with coming back to Dromana at some point you mole and if you don't even message me'.  Ms Carroll showed this message to Mr Bailey who called you Mr Fuss and said to leave Ms Carroll alone, you replied 'I'm going to come up there and get you, I'm going to fucken kill you'.  Ms Carroll could hear you and Ms Kaziukajtis screaming through the phone, but could not make out what you were saying and Mr Bailey perhaps say 'Well they are on their way', although neither of them believed you would actually come.  At about 8.55 pm on 7 January, Ms Kaziukajtis sent a message to
Mr Fuss' mother saying 'I'm fucking fuming, Harley won't let me hurt her', followed by 'I'm still going to do it anyway though lol', referring to Ms Carroll.

4On 7 January 2020, the two of you were at Mr Fuss' house in Dromana, celebrating his birthday and at some stage got into your vehicle, Ms Kaziukajtis, and drove to Mr Bailey's residence in Canberra Street, Patterson Lakes.  At about 12.30 am on 8 January, the two of you arrived at the house and you smashed a glass window, Mr Fuss, to the left of the front door and climbed into the house.  Mr Bailey and Ms Carroll heard the glass smash and Mr Bailey went to the hallway and yelled out, 'Who is it?'.  Mr Fuss said 'You're fucking dead, I'm coming to get you'.  Mr Bailey saw you climbing through the window, you were wearing a hoody pulled over your head and he heard you
Ms Kaziukajtis yelling 'I'm coming to get you Kelsey'.  Both Mr Bailey and
Ms Carroll retreated to their bedroom and tried to barricade themselves inside using a chest of draws. 

5The two of you, Mr Fuss and Ms Kaziukajtis started punching the door to gain entry.  Mr Bailey placing his weight against the door to prevent you from getting in.  After twenty seconds, he fell backwards and the two of you forced your way in, you coming first Ms Fuss, closely followed by Ms Kaziukajtis.  Your actions in entering the house in this way underlie Charge 1 on the indictment, aggravated burglary, person present and Charge 5, in relation to you Harley Fuss, being the contravention of an order, intending to cause harm or fear for safety.  The two of you immediately attacked Ms Carroll at which stage, you were saying Mr Fuss 'Come here you' before punching her in the face, causing Ms Carroll to fall and hit the back of her head on the window frame.  Her jaw and neck felt sore and she was terrified you were going to kill her.

6In fear for her life, she picked up a glass mug and swung it at you Mr Fuss, hitting you and causing you to stumble back.  She swung the mug again and hit you Ms Kaziukajtis in the face, breaking the mug and injuring your right eye.  As you Mr Fuss stumbled back from the force of the mug, Mr Bailey got to his feet and managed to get on top of you, pinning you to the bed and punching you several times to the head.  You, Ms Kaziukajtis, got on top of Ms Carroll, punching her in the upper arms and (indistinct) her several times and bleeding from the cut to your eye, Ms Carroll saying to you 'You are bleeding, we have to stop'.  Mr Bailey who had control of you Mr Fuss, yelled 'This has got to stop.  If I let you go, will you leave?'.  You said 'Yes'.  Mr Bailey took his hands off to help Ms Carroll and this gave you an opportunity to get back on your feet.

7You stood up and yelled 'Barricade them in, I'm going to get a knife' and went to the kitchen where you took a kitchen knife from the cutlery draw and came back to the bedroom.  At this stage, you, Ms Kaziukajtis were all fours on the bed realising you had been injured and stopped fighting.  Ms Carroll, fearful that you, Mr Fuss were coming back with a knife to kill them, tried to open the bedroom door, then kicked in the window shattering the glass and crawled out.  Your actions, Ms Kaziukajtis, in hitting Ms Carroll underlie Charge 2 on the indictment, common law assault and your actions, Mr Fuss, in hitting
Ms Carroll underlie Charge 3 on the indictment, common law assault.  You, Harley Fuss, attempted to force your way back into the room, sticking your arm through a gap in the door which was holding the knife.  Mr Bailey on seeing this, recognised it as coming from his cutlery draw and remained against the door, using his body to hold it closed.

8You swung the knife around hitting Mr Bailey in the right temple and lodging the knife in his head.  Mr Bailey then released the door and grabbed the knife from his head and dropping it to the ground.  Ms Carroll yelled at Mr Bailey to run, as she escaped through the bedroom window.  Mr Bailey dived through the window head first and ran towards the back of the property.  The two of them climbed the fence into MacLeod Road and ran to the Cove Hotel, about 200 metres away.  On entering the foyer of the hotel, Mr Bailey collapsed, where he was assisted until medical assistance arrived and was treated at the scene for injuries by paramedics and trauma staff, before being taken to the Alfred Hospital.  He received the following injuries - right sided bruise measuring six millimetres in depth, which means it was a bruise inside the skull, but outside the brain.

9This was managed by CT imaging and planned follow up in neurosurgery outpatient clinic, a right temporal incised wound, about 15 metres in length, which was the stab wound to his right temporal which was stitched up, a laceration of the foot, which was cleaned and dressed, abrasions to his right chest wall, left elbow, both hands, feet and ankles and an un-displaced fracture of the bone that attaches to the fifth finger, which required a cast.

10The two of you were arrested in Dromana on 8 January 2020.  You, in a record of interview, Harley Fuss, made no comment in relation to the allegations and you, Ms Kaziukajtis, were taken to the Frankston Hospital for your eye injury to be treated and then in a record of interview said that the previous night had been a blur, that you had been hit in the face, but you could not remember anything and denied knowing either Mr Bailey or Ms Carroll.  You were both remanded in custody.  You, Harley Fuss remained in custody.  You,
Ms Kaziukajtis, were bailed after 124 days in custody on 11 May 2020 and remain on bail.  The maximum penalty for aggravated burglary is 25 years imprisonment.  The maximum penalty for common law assault is five years imprisonment.  The maximum penalty for intentionally causing injury is 10 years imprisonment and the maximum penalty for contravening an order, intending to cause harm or fear for safety is five years imprisonment.

11Mr Bailey made a victim impact statement, in which he described the invasion of his home as the worst six to ten minutes of his life.  He said he had never been more traumatised or horrified.  It has increased the level of depression he had been suffering for about four years and the progress he had made this condition has simply been lost.  He suffered constant headaches and blurred vision.  He said that diving through the window and escaping from the house caused tearing of the muscles from his neck to the left side of his body, for which he had to take anti-inflammatory tablets.  He now fears to be alone, feels vulnerable in his home, is constantly on alert, wakes at night if there are any loud noises and cannot return to sleep.  He said his anxiety has elevated to the point that leaving home 'Imposes an almost shutdown.  My ability to make instant decisions because of fear and the insecurities I now have'. 

12He said he has real insecurity, concluding:

'My home was my sanctuary, a place I felt safe and secure in and when I moved into my home three years ago, I began to build my new beginning and future and now I must consider packing up and leaving, as I no longer feel that this is my home'.

13I now turn to your personal circumstances, beginning with you Harley Fuss.  You are 32 years of age and your biological parents separated when you were one.  Your mother then formed a relationship with your step-father, with whom she remains.  She works as a team leader for the Stonnington Council.  Your step-father was quite violent and you have a strained relationship with him.  You did not see your father again until you were seven.  He is a self-employed concreter and you remain in good contact with him.  You were not told he was your biological father until you were seven.  You have a younger half-sister and two younger half-brothers.

14There was an amount of violence at home and so you moved between the houses of your parents and often slept rough or in transition housing.  You attended a number of schools, ultimately being expelled from Blackburn High.  You told psychologist Jeffrey Cummins, whose report was tendered on the plea, that you were diagnosed with Attention Deficit Disorder, but received no treatment for this.  You began using drugs at an early age, starting with cannabis at the age of 14 and by the age of 18, were injecting both heroin and ice.  You have remained addicted to, in particular, ice ever since.

15In 2012, you suffered head injuries in an accident where you were a passenger in a car, driven by your brother, which collided with a tree.  I received a neuropsychological report from Susan Carey, who however did not find that you were suffering from any acquired brain injury.  You were in a nine year relationship with Ms Kaziukajtis.  That relationship ended in 2016 and you have two daughters from that relationship aged seven and nine.  You have done some labouring and concrete work, but have no real employment history, essentially because of your addiction to drugs.

16In 2016, the children were removed from yourself and Ms Kaziukajtis and in that year, you underwent six months drug rehabilitation treatment at Windana, with a view to getting the children back.  On your release, you remained drug free for a couple of months, but told Mr Cummins that you discovered that
Ms Kaziukajtis was using ice, which you regarded as a betrayal and you, yourself, relapsed into use.

17You are very attached to your daughters, but have been in no position to care for them.  You have lived in your housing commission house in Dromana for the past nine years.  You do have a relatively concerning prior criminal history, involving burglaries, thefts, driving offences, drug offences including trafficking offences, but in particular, and which is most concerning to this court, you have a number of community corrections order breaches and you have been gaoled both for assaulting Ms Kaziukajtis and Ms Carroll.  There was a period of stability between about 2014 and 2017, where there was no offending and this was a point when the two of you were relatively stable, but that very much collapsed and your children are now with their maternal grandmother.  It was Mr Cummins' that you had anger difficulties and he strongly recommended that you undertake anger management treatment.  He said that you presented as being anxious to undertake therapy and keen to enter into residential drug treatment.

18I also received a letter from your mother who is supportive of you, who wants you to move from the Dromana area and it is your plan on release, to live with your mother and to take steps to reunite with your daughters.  Your counsel, Ms Karapanagiotidis, pointed out that there was an amount of provocation leading up to this incident.  The communications between yourself and
Mr Bailey were nasty to say the least.  They involved a number of violent threats and abusive communications from you and a number of communications from Mr Bailey, which can only be described as gloating, referring to the resumption of the sexual relationship between himself and
Ms Carroll and sending videos of the two of them in bed.

19Of some concern to me Mr Fuss is that whilst you are clearly aware that you had a dysfunctional and difficult upbringing, you tend, from what I can see, to blame the difficulties that you have on this dysfunction rather than taking responsibility for your own actions.  No one is denying that you have had a difficult history, but ultimately, the road to reformation lies with you.  The relationship with Ms Carroll is not clear cut.  It appears that she continued to regard herself in a relationship with you, at the same time she was with
Mr Bailey.  In any event, you have finally decided that the relationship with her is ended and that is important, in terms of your prospects - on being released from custody.  This is extremely serious offending and whilst I note and indeed, it was pointed out by your counsel, that whilst Ms Carey, the neuropsychologist, found that most of your mental capacities were intact, you did have a low frustration tolerance, and that you had an inability to make decisions when there were a large number of issues and factors that you had to decide between - certainly you seem to have done well in custody.  You have not been using drugs.  You have very much thought about your position and have formed some admirable ambitions for the future.

20However, whilst I accept that at the time of this offending, you were under the influence of both ice, GHB and alcohol, these were substances, not necessarily GHB, but certainly ice and alcohol, you had well used before and it seems to me that the provocation and the combination of the substances you were taking, led to you becoming enraged and behaving in the way that you did.  I do take into account that you have made an early plea of guilty, which has saved the community the time and expense of a trial and your victims, the trauma of giving evidence and being cross-examined.  I also accept that the restrictions arising from the COVID pandemic have made things very difficult for prisoners there, including the cessation of recreational activities and programs that can be undertaken and requiring prisoners to be held in their cells for extended periods of time.  I also note that you have asthma and have put on a great deal of weight and are anxious about the possibility that you could contract the COVID virus whilst in custody.

21Nevertheless, it was conceded by your counsel in a very well prepared and well delivered plea, that I can only deal with you by way of a term of imprisonment to be immediately served.  The problem for you, Mr Fuss, is whilst you are capable of forming good intentions and capable of spending periods of time where you are offence free, there is a great deal of domestic violence in your history and this particular event involved some very nasty domestic violence, quite apart from the assault that you launched on Mr Bailey.

22The fact that you broke into his home, that you terrorised and assaulted
Ms Carroll in the way that you did, the fact that when given the opportunity to cease fighting, you instead ran to the kitchen and grabbed a knife and used it to stab Mr Bailey, are very much serious actions and decisions which count against you.  In the circumstances, I accept that you must be sentenced to a term of imprisonment to be immediately served.   

23Charge 1, you are sentenced to two years imprisonment.  On Charge 3, you are sentenced to eight months imprisonment.  On Charge 4, you are sentenced to twelve months imprisonment and on Charge 5, you are sentenced to six months imprisonment.

24I order that four months of the sentence imposed on Charge 3, six months of the sentence imposed on Charge 4 and two months of the sentence imposed on Charge 5 be served cumulatively to the sentence imposed on Charge 1, giving a total effective sentence of three years and I order that you serve 18 months before becoming eligible for parole.  What is the pre-sentence detention please Ms Zammit?

25MS ZAMMIT:  Yes, Your Honour, 237 days, not including today.

26HER HONOUR:  I declare that 237 days of this sentence have already been served by way of pre-sentence detention. 

27I now turn to you Ms Kaziukajtis.  You are now 28 years of age and you have an extremely difficult history.  You have only one prior criminal matter, a matter that was heard in the Children's Court in 2011, being charges of recklessly causing injury and assault by kicking, for which you were placed on a good behaviour bond.  Your parents divorced when you were six of age and you have a younger brother.  Your father remarried and had two more children and you remained with your mother, who was apparently often absent due to work and you were essentially raised by your maternal grandmother, to whom you are far more connected.  She is now in a nursing home suffering from dementia.

28Your mother had many partners who you described as being unsettling for you, although you suffered no abuse at their hands.  However, on visits to your father, you would instead be sent to his parents and you were sexually abused by your grandfather between the ages of six and eight, this ending only it would seem because he died.  You grew up in a situation where your mother ultimately re-partnered to a man with whom she still remains in a relationship, but he was violent, often hitting your mother and yourself.  There was both physical and emotional abuse.  This deepened your fractured relationship with your mother and you felt that you never came first.

29You met Mr Fuss when you were aged only 14 and began a sexual relationship with him when you were 16.  You left school after Year 9, you were asked to leave and believed at the time that you were not concentrating, as obviously you were not, on your studies, but felt that nevertheless you had done quite well.  You worked at Kentucky Fried Chicken for six months.  You undertook Years 10 and 11 at Lynall Hall after being asked to leave Canterbury Girls School.  You also obtained a retail certificate at Boost Juice over a year and then you had your first baby at the age of 19.

30Four years ago you undertook a dental nursing qualification which you did not finish, you still have two units to go.  Whilst in custody, you undertook your white card certificate and a Stop and Go qualification which may allow you to have some employment in the future.  You were introduced both to cannabis and methamphetamine by Mr Fuss.  You did not use any drugs whilst you were pregnant.  You have a strong connection to Mr Fuss' mother who you described as your second mother.  You said that your relationship with Mr Fuss was a good one when he was not using drugs.  However, when he was, he was extremely violent to you.  He was gaoled when your first child was born and when he was released, he managed not to use drugs and the relationship was a stable one, but he then relapsed into heroin use when you were pregnant with your second child.  This caused arguments and fights separations and then reconciliations, you ultimately separating in 2016 as I said.

31The violence you have described at Mr Fuss' hands has been concerning, it involved strangling and punching and one occasion, where you were thrown onto a window when you were 26 and for which Mr Fuss was gaoled.  You took out an intervention order against him.  Ultimately your children were placed in DHHS care, but you got them back and were in transitional housing, however, there was a report of you slapping your elder daughter and she was placed with your mother.

32You again got your children back, but after six months, relapsed into drug use.  Ultimately the children were finally removed from you in May of 2019 and remain with their grandmother.  You understand that DHHS are seeking to place the children in permanent care with your mother, which is extremely distressing to you due to your poor relationship with her.  You have sought in the last couple of years in particular, a great deal of assistance, at first with psychologist Donna Zander, who first met you when you went for treatment with her in relation to your daughter Alana.  On Ms Zander discovering the violence that you had received, you began attending upon her for assistance in relation to this.

33You have continued to see Ms Zander on and off since 2018.  I received two very long reports from Ms Zander, who clearly has a great deal of sympathy for your situation.  She believed that when you were in transitional housing and doing well with the children, that situation was very much undermined by constant visits by Mr Fuss in breach of the intervention order that had been placed and arguments arising and you ultimately being caught between a desire to build an amicable relationship with Mr Fuss, and your desire to ensure your children had contact with their father.

34In 2019, you began a relationship which lasted for nine months, with a man who was, however, controlling and abusive.  When this ended, you were,
Ms Kaziukajtis, lost, lonely and alone.  I also received a report from psychologist Alison Mynard, and both she and Ms Zander were of the view that you became involved in this offending essentially because your relationship had ended.  You were in great deal of grief over your children being removed from you, and Mr Fuss was released from gaol in October and you essentially began having contact with him, both of you being in other relationships, and you feeling an amicable relationship could be maintained.

35You were particularly traumatised over the way in which Christmas Day of 2019 went, you believing you were spending the day with your mother and children, but discovering on your arrival that your mother had decided you could only be there for half the day.  You made contact again with Mr Fuss on 27 December and you told both Ms Mynard and Ms Zander that you kept seeing him on a daily basis, because you were lonely, because you felt familiar with Mr Fuss, you felt that there was some stability and comfort.  You even talked of it being like coming home, although you had no intention of resuming a relationship with him.

36Ms Zander refers in her report to you seeking an inpatient psychiatric admission during 2018, as a means of seeking safety from Mr Fuss' escalated violence, but returned to him.  She said:

'In order to protect and be with her children after learning Mr Fuss had abandoned their daughter at a train station while drug offended during a time in hospital'.

37I know I am jumping back somewhat chronologically, but it seems to me there is a build up to you in fact spending this time with Mr Fuss and then engaging in this offending which I find to be uncharacteristic, given your previous history.  Ms Kaziukajtis actually hearing this?  I do not see her up there on the screen.

38OFFENDER KAZIUKAJTIS:  (Indistinct words) call.

39HER HONOUR:  Thank you.  Very well, thank you.  All right, Ms Zander writes:

'Following this, Ms Kaziukajtis eventually managed to end her relationship with Mr Fuss due to his incarceration on unrelated charges and she experienced a brief period of stability, reunifying with her children and appeared to be actively working towards full reunification with them.  Engaging them both in therapeutic support via play therapy with myself. 

This process was, however, disrupted when Mr Fuss was released from incarceration in early 2019 and breached the IVO on multiple occasions by attending her residence to contact their daughters, with her becoming overwhelmed and too fearful to assert herself and ask him to leave or report the breaches to police for fear of repercussions.

Ms Kaziukajtis experienced a brief drug relapse at this time of methamphetamine, again utilising drugs to self-medicate and during this period, relapse period, Ms Kaziukajtis again lost custody of her daughters when Child Protection investigated a report of her slapping Alana when dis-regulated and overwhelmed.  Ms Kaziukajtis reports that this relapse of methamphetamine from March 2019 continued on and off until September 2019 and not since.

Ms Zander said that you had a dependent attachment to Mr Fuss in his role as her children's father.  Being at times unable to determine and enforce healthy boundaries and upholding the belief that "the children need their father", despite the trauma that he has put them through.  This is further complicated by the fact that she was receiving report from Mr Fuss' family and she did not wish to do anything to risk losing their relationship, as she feels unsupported by her own family of origin with this relationship being conflict fuelled and trauma triggering due to his historic family violence and childhood sexual abuse that she experienced as a child and which she feels has gone unacknowledged by her own mother'.

40Ms Zander referred to your extreme amounts of grief and loss of purpose in life since your daughters have been placed with your mother.  It is your desire to contest the DHHS placement and you have been working towards this.  You apparently last used drugs in October 2019.  On your release from custody, homelessness became a big problem for you.  You started living with a friend, but there was an argument between you.  You ended up then living in a tent in the backyard of another friend, but are now in motel accommodation and are being supported by Gateways Housing to find you more permanent accommodation.  You have made determined efforts to remain drug free and indeed, during the days that you were with Mr Fuss, leading up to this offending, you certainly drank alcohol, but you did not use methamphetamine.

41In any event, you spent several days with Mr Fuss, drinking with him and then accompanying him and engaging in the offending that occurred on 8 January 2020.  Ms Zander stated:

'At the time of the offences, Ms Kaziukajtis was in a period of acute decompensation, following the demise of another abusive relationship and feeling that her mother and step-father were using their custody of her daughters as a tool to manipulate her withholding contact visits that had been approved by DHHS, due to unrelated familial conflict'.

42Ms Zander said whilst you had demonstrated the ability to remain abstinent from drugs, mentally stable and provide appropriate parenting when given the necessary support, it appears that your lack of housing stability, coupled with no access to therapeutic services and recent traumatic life events “led
Ms Kaziukajtis to decompensate severely and relapse into the familiarity of alcohol use and Mr Fuss, who appears to be a catalyst for her decompensation and poor decision making, when he re-emerges in her life.”  I accept, as I have said, that the offending you engaged in, which is serious offending, is uncharacteristic of you.  I accept that in the year leading up to this offending, you had been through an extremely difficult time.  You have continued to see Ms Zander when you can, that is by way of mental health plans that ultimately end after the ten sessions allowed.  You have always gone back to see her and in my view, you have made continuous attempts to overcome your drug use and place yourself in a position where you are able to have your children back with you.

43On release from custody, you contacted Ms Zander.  You paid for sessions with her for yourself and then have been able to continue with sessions with her, through counselling afforded to you through Victims of Crime Compensation and I note that you have seen her some fifteen occasions since your release from custody.  Both Ms Mynard and Ms Zander were of the view that in a strange sort of way, you were seeking to re-establish your relationship with
Mr Fuss on a platonic basis only, as the father of your children and because of your loneliness at the time and that you accompanied him on this occasion as a way of showing loyalty and re-establishing your relationship with him.

44It was the view of both that a term of imprisonment would be difficult for you.  Ms Zander stating:

'I hold significant concerns about the impact of a custodial sentence on
Ms Kaziukajtis’s mental health and ability to work towards healthy relationships, as she is vulnerable and susceptible to being led by coercive individuals and I fear that her exposure to other inmates in a correctional setting, would serve to further normalise antisocial behaviours for
Ms Kaziukajtis'.

45It was the prosecution's submission that a combination disposition, that being a term of imprisonment combined with a community corrections order was open as a disposition for you however, further submitted that the amount of time you had spent in custody was not sufficient in reflecting the seriousness of the offending.  I very much understand why that submission was made, but I have decided that it is not appropriate in your case, largely for the reasons I have outlined, they being essentially the opinions of both Ms Mynard and Ms Zander that whilst I will deal with you by way of a combination, it will not involve a term of imprisonment which is longer than the time you have already served.

46I am satisfied that you are making significant strides in your life, that are to the benefit of the community, but in particular, of benefit to you and that a further term of imprisonment could be ruinous to you emotionally, in particular, that could very much interfere with your capacity to seek custody of your children once more and could result in a long term decompensation, a relapse into drug use and possibly offending.  It is my view that a community corrections order is important for you.  You have been assessed and found suitable for such an order.  The assessing officer stated:

'At the time of offending, Ms Kaziukajtis was in a very bad place.  She was in a toxic relationship which had just ended and she was missing her children, who were at the time were in the care of her mother. 
Ms Kaziukajtis stated that she felt isolated and lonely and the only friend she had at the time was the co-accused, Mr Fuss.  When talking about the offending, Ms Kaziukajtis stated that she is remorseful for her poor behaviour and feels deeply for the victims.  She said she wished this had never happened'.

47I also note you expressed similar remorse to both Ms Mynard and Ms Zander.  In all the circumstances therefore, and taking into account your early plea of guilty and the mitigatory factors that I have outlined, I therefore sentence you as follows.  I am going to sentence you on an aggregate basis.  What is the pre-sentence detention please Ms Zammit?  It is 134 days?

48MR ZAMMIT:  No, 124 Your Honour.

49HER HONOUR:  Yes.  IN relation to both - can I ask please Ms Zammit, because I have not sentenced Mr Fuss on this basis, but is it appropriate for me in your view that I deal with her with an aggregate term?

50MS ZAMMIT:  Yes, Your Honour.

51HER HONOUR:  Thank you.  So in relation to Charges 1 and 2, you are sentenced to 124 days imprisonment and then placement on a community corrections order, which will last for a period of two years.  I declare that the 124 days has been served by way of pre-sentence detention.  Before I can place you on the order Ms Kaziukajtis, I must first gain your consent and I must outline to you the conditions which will attach to the order.  They are firstly that you must report to the Community Corrections Office within two working days.  That is by Thursday of this week.

52Whilst on the order, you must not commit any offence punishable by imprisonment.  That does not mean you have to be in gaol, it means that if you get charged and convicted of an offence for which you could be gaoled, that will breach the order.  You will be brought back before me and I will resentence you on this offending.  Whilst on the order, you may not leave Victoria without the permission of the Community Corrections Office.  You must report to and receive visits from the Community Corrections officer.  You must report any change of address or employment within 48 hours of the making of this change.  You must not attend upon the Community Corrections Office under the influence of drugs or alcohol and you must obey all lawful directions of the Community Corrections Office.  I am going to order that you undergo assessment and treatment for drug use and that you undergo assessment and treatment for mental health difficulties.

53I am going to order that there be supervision and I am going to order that there be judicial monitoring.  What that means is that at regular intervals, you will come back, I will get a report from Corrections about how you are travelling and you will need to appear and we will have a discussion.  All right?  Are you prepared to enter this order?

54OFFENDER KAZIUKAJTIS:  Yes, Your Honour.

55HER HONOUR:  Thank you very much.  Pursuant to s.6AAA in relation to
Mr Fuss, I declare that had you not pleaded guilty, I would have sentenced you to a term of imprisonment of four and a half years and order that you serve a minimum term of three years.  In relation to you, Ms Kaziukajtis, I declare that had you not pleaded guilty, I would have sentenced to a term of imprisonment of fourteen months and order that you serve a minimum term of eight months.  Thank you.  Is there anything else I need to attend to?

56MS ZAMMIT:  Your Honour just in relation to - there was two ancillary orders, I'm not sure if they were mentioned on the last occasion.  But there's a disposal - disposal orders sought for Mr Fuss' mobile phone and the (indistinct words) used in the commission of the offending.

57HER HONOUR:  Very well.  Yes, I will make those orders.  Thank you.  They will be forwarded to you. 

58MR ZAMMIT:  Thank you, Your Honour.

59HER HONOUR:  Now I'll just refer to my associate.  Gemma, what do you need me to do in relation to you preparing the ‑ ‑ ‑

60ASSOCIATE:  Those disposal orders.

61HER HONOUR:  No the Corrections - the community corrections order.

62ASSOCIATE:  I just need to pick a judicial monitoring date Judge.

63HER HONOUR:  Very well, we'll just get a date for you.  Thank you
Ms Kaziukajtis.

64OFFENDER KAZIUKAJTIS:  Thank you, Your Honour.

65HER HONOUR:  That's all right.

66ASSOCIATE:  Would you like it in one month's time Judge or a bit later?

67HER HONOUR:  No we'll make it a bit later, we'll make it in three months' time.  What will happen Ms Kaziukajtis is in terms of the counselling, you will probably be referred back to Ms Zander.  It is all being done by telephone at the moment, but you will also be undertaking drug treatment as well, yes.

68ASSOCIATE:  Yes I have a date of 3 November at 9.30.

69HER HONOUR:  All right, so 3 November at 9.30.  It may be that we - it is set up exactly the same way as it is now, through WebEx all right?  I thank counsel very much for their assistance.  Is there anything else I need to deal with?

70MS KARAPANAGIOTIDIS:  Your Honour, may my client just remain on video after Your Honour rises just for a few minutes?  I appreciate that it's open court, I won't have a detailed conversation, but I wanted to have a word.

71HER HONOUR:  That's fine. 

72MS KARAPANGIOTIDIS:  Thank you.

73HER HONOUR:  I'll get Mr Cooper, my tipstaff, to organise that and I'll remove myself somewhere else so I don't have to listen, but yes, you should certainly be afforded that opportunity then.  Is there any way Kevin it can be muted, so that I can't hear the conversation or ‑ ‑ ‑

74TIPSTAFF:  I'll have to move you to the lobby, Your Honour.

75HER HONOUR:  I like to call it the green room for celebrities.

76TIPSTAFF:  Green room.

77HER HONOUR:  But in any event, if you just move me into the lobby and please just have your conversation as you require Ms Karapanagiotidis, thank you.

78MS KARAPANAGIOTIDIS:  Thank you, Your Honour.

79HER HONOUR:  Otherwise we will stand down to 11.30, thank you.

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