Director of Public Prosecutions v Jack
[2024] VCC 333
•27 February 2024
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT LATROBE VALLEY
KOORI COURT
CR 23-01797
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| LEWIS JACK |
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JUDGE: | HIS HONOUR JUDGE MCINERNEY |
WHERE HELD: | Latrobe Valley |
DATE OF HEARING: | |
DATE OF SENTENCE: | 27 February 2024 |
CASE MAY BE CITED AS: | DPP v Jack |
MEDIUM NEUTRAL CITATION: | [2024] VCC 333 |
REASONS FOR SENTENCE
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Subject: Criminal Law - Sentence
Catchwords: 1 Charge of Aggravated Burglary- 1 Charge Damage Property – two other co-accused- criminal history – Koori Court.
Legislation Cited: s77 of the Crimes Act1958 (Vic); s197(1) of the Crimes Act 1958 (Vic);
Cases Cited: Honeysett v The Queen [2018] VSCA 214; DPP v Meyers (2014) 44 VR 486; Bugmyv The Queen [2013] 249 CLR 571; s44 of the Sentencing Act 1991(Vic); s18 of the Sentencing Act 1991 (Vic)
Sentence: Combined sentence: 271 days imprisonment, 2-year Community Correction Order.
6AAA: If not for pleading guilty, a four and a half year term of imprisonment would have been imposed with a minimum period of two and a half years before being eligible for parole.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr A. Cecil | Office of Public Prosecutions |
For the Accused | Ms T. Theocharous | Kurnai Legal |
HIS HONOUR:
Before the Court today was Lewis Jack who pleaded guilty to two charges on Indictment No. P11198732. The Koori Court, of the County Court of Victoria, is sitting at Latrobe Court House and indeed that was the position today. The Elder present at the hearing was Auntie Di Hurren. The solicitor appearing for the Director was Mr Cecil. The solicitor appearing for Mr Jack was Ms Theocharous, a solicitor from Kurnai Legal Practice. The Koori Court Officer was Terrie Stewart. The representative from Corrections was Mr Collier and the Drug and Alcohol Counsellor present at the Court was Kerrie Knight. At the conversation Peter Hood was also present from Koori Legal Practice, as was Mr Jack's mother, Eileen Hurley, who appeared remotely.
All of the above parties were involved in the sentencing conversation conducted by the Court's Koori Court, and in that regard the principles set out by the Court of Appeal in Honeysett v The Queen[1], insofar as they apply to a person who consents to this matter, apply.
[1][2018] VSCA 214
I consider that in consenting to be part of this process Mr Jack was not only apologetic but quite contrite.
Mr Jack is now aged 32, having been born in May 1992, he was 31 at the time of these offences. As I said, there were two charges in the Indictment.
The first charge is one of aggravated burglary and that was committed at approximately 12.53 am on 22 January 2023 on a property at 13 Stead Street, Sale when the back door was kicked in and entry was obtained. Such is an offence under s77 of the Crimes Act 1958, the seriousness of which is demonstrated by the fact that the Parliament prescribes as a maximum penalty imprisonment of 25 years.
The second charge was one of damage property. While on the property, a co-accused Ebony Pedretti, damaged the house, the interior of the house, the windows of the house, car and a fence. The charge of damage property unlawfully is an offence under s197(1) of the Crimes Act for which the maximum penalty proscribed is one of 10 years.
As I said, the co-accused Pedretti was 21 at the time of these offences. She was dealt with by Judge Quin in sentencing remarks recorded on 1 November 2023, when she was given an aggregate sentence for all matters of 15 months with a CCO of three years.
Mr Scott, who is aged 38, is yet to be dealt with.
The exhibits tendered by the prosecution were Exhibit A, prosecution summary of opening dated 23 February 2024; Exhibit B, victim impact statement of Karen Portlock dated 5 September 24, Exhibit C, prosecution sentencing submissions dated 26/02/24, and Exhibit D, the report from Corrections which was prepared today, and for which I thank Mr Jason Collier, that will be Exhibit D.
10The materials tendered by the defence was firstly Exhibit 1, the outline of defence submissions dated 25/02/24, Exhibit 2 was the psychologist report from Megan Rogers dated 8 February 24, Exhibit 3 was the Kangan Institute statement of results achieved while on remand by Mr Jack, and Exhibit 4 was a character reference received from Serena Pedlingham from the Opal Justice Worker at Lakes Entrance Aboriginal Health Association dated 20 February 2024.
11Exhibit A was accepted as presenting the facts upon which I am to sentence Mr Jack and those facts describe, as I have indicated, the aggravated burglary achieved by way of the kicking in the back door, when all the parties had knowledge of at least the presence of one person inside the home. The damage to the property, which I have described, was carried out by Ms Pedretti.
12The role of Mr Jack in regard to this matter was by of complicity, as I have said, with the two co-accused.
13The victim impact statement tendered as Exhibit B, Mrs Karen Louise Portlock describes the circumstances which she was subjected to in, a manner which I think is quite reasonable, quite restrained given the circumstances, the impact upon her was such that she subsequently did not feel safe in her home and such as, as I said, quite unexceptional when you think the attack took place upon her and her son at 12.23 am in the morning in a person's own home.
14The pre-sentence detention served to date is a period of 271 days and
Mr Jack's counsel has admitted his priors.15The offending will in fact be a breach of a CCO which will have to be subsequently dealt with, but hopefully these remarks may assist in that regard.
16Given his background, albeit there are eight pages of priors, the more substantial matters as I mentioned to Mr Jack today, have occurred more recently. That is the sentences on which he has been sentenced to gaol occurred in June of 2019 with an affray and unlawful assault, when he was given two months' gaol and a community correction order for 24 months, and in March of 2022 when he was convicted of threat to kill, damage property and assault when he got a period of imprisonment of three months with a community correction order of 12 months.
17Given the background that I have read of in the reports before the Court, and the circumstances put to me by his counsel, all I can say is his background is not too bad.
18The conversation conducted, under the Koori Court auspices, was of great assistance to the Court. The questions asked and advice given by Auntie Di Hurren was also of assistance, when she spoke to Mr Jack of the importance of him not allowing himself to be dragged into such criminality. The reason for that advice is that as indicated Ms Pedretti was apparently homeless. She went to live with Mr Jack in Sale. The three of them had apparently been consuming alcohol when they decided to go to this address to obtain cannabis.
19The circumstances that I have described of which he has pleaded guilty by way of complicity, which obviously is a plea of some worth, did not involve
Mr Jack entering the home or being involved in the damage occasioned to the home, but for the kicking of the door.20As a consequence thereof, following upon the history that I have indicated, he has now spent nearly nine months in gaol. He has found that time very difficult. He has worked well and assiduously in the kitchen, and I am told by counsel that Mr Maynard, an Aboriginal Officer at Fulham Prison has remarked on the manner in which he has served his time. The exhibits indicate the steps he has taken.
21We heard from his Mother today and that he intends to go back to Bairnsdale, clearly that is in his interest. We have heard about his musical skills and his desire to get a job and take steps to see his child. All of those matters are very important, Mr Jack, if you are going to effect a rehabilitation in your life. No doubt this nine months has been pretty tough given the circumstances, but you are 32 now and that life has to cease. If you want to stay out of gaol, and you have had no better experience than you have just had of how bad it is, and what it is like, then you have got to change. And that means change totally. No drugs and no getting involved stupidly with other people.
22The first charge which you have pleaded to is inherently serious. The maximum penalty of 25 years is the highest penalty involved in the Crimes Act, but for life imprisonment. It is not only inherently serious but determined by decisions of the Court of Appeal in particular in DPP v Meyers[2] as criminality deserving of most serious punishment. I have no doubts that objectively this crime is serious. A crime requiring not only punishment, but a sentence which effects specific deterrence and general deterrence. It involved, as I have already said, an attack upon people in their own home at 1 o'clock in the morning, and I have read the impact of that on the victim. However, the Courts, when sentencing persons, do not only look at the objective offending and at the maximum penalty. One has to look at the subjective factors; both counsel have referred to those.
[2]DPP v Meyers (2014) 44 VR 486
23The first of course is the role you actually played. That was a limited role, albeit that you are guilty, by way of conspiracy. Secondly, not only have you entered a plea of guilty, which I am satisfied effects remorse, but it is utilitarian in the circumstances of this case and of assistance to justice. You have also, as I have indicated, undergone the conversation process that the Koori Court promotes with members of your race and the indigenous community of Australia.
24The other matter that was of importance in determining your sentence is the issue of parity in that regard I take into account Judge Quin's sentence.
25I also take into account your background, the socialisation and difficulties that you have been through in the manner required by the High Court in Bugmy[3] [2013] 249 CLR 571, 592-3, [37]. I do not find any direct connection to this criminality, but I of course take into account those factors and give those factors the full weight that should be given, as explained in that case.
[3]Bugmy [2013] 249 CLR 571 at 592-3 in particular [37]
26The submission of your counsel was for the totality of all those factors that I should consider a combined sentence which involves gaol and a community correction order. There was no submission by the prosecution that that would be inappropriate.
27The community correction report, as I said, was obtained this day. It notes, and I thank Mr Collier again for the time involved and the whole purpose of that was to hopefully keep you out of further gaol. It notes the requirement for you to undertake community work which I intend to set 100 hours over a period of two years. To be subject to drug and alcohol treatment and rehabilitation. To be subject to mental health treatment. To be subject to programs helping you to reduce reoffending. And to be subject to supervision.
28The opinion of the officer was that there was a high risk of you reoffending. I would be very upset, Mr Jack, if I heard that that occurred. You impressed me today and I am satisfied that you do not intend to reoffend. You had very strong advice from Auntie Di, and you heard what your Mum said. It would be a great shame if in fact you did reoffend.
29It is my intent to impose a community correction order upon,you but before I do that, I have to get you to consent to that matter. You have indicated in the report that you consent. I will have to have the Court advised.
30Ms Theocharous, I indicate that all of those conditions will apply. I have kept it at 100 hours and I have left the condition in, which I normally do not do, that work hours can be offset by treatment hours and I note in the report, which I assumed you both had, that the officer suggested that they could be worked off, so to speak, by his assistance to an uncle or auntie in a relevant location. So that seems a very good suggestion. That would be appropriate, I think, for him.
31MS THEOCHAROUS: Yes, Your Honour.
32HIS HONOUR: Fundamentally and most important is no breach of these conditions. The fundamental condition, Mr Jack, before I ask whether you consent or I get your counsel to ask you, is that in the period of two years that this community correction order will last. You have served your actual gaol, I am not going to make you serve any more, in the next two years the most important factor is there is no criminal offending by you. Do you understand that because that is a breach.
33There can also be breaches if you do not do what you are told, so all of this has been put in place to try and assist you, because fundamentally unless you change you are not going to be seeing your son. If you instruct your solicitors to take action to see your son, and you are still getting into trouble, you can forget it. You just will not get permission, all right. So if that is what you want to do, then you have got to comply with these orders.
34For formality, Ms Theocharous, I will get you to seek instructions that your client consents to enter a community correction order in that form and I will ask my Associate to take the order up for your client to sign.
35MS THEOCHAROUS: Yes, Your Honour. If I may approach the client?
36HIS HONOUR: Yes.
37MS THEOCHAROUS: Your Honour, Mr Jack consents to the making of that order.
38HIS HONOUR: Thank you. You will explain to him the full terms of that. Nothing worse than coming up on breach for failing to just follow the terms ‑ ‑ ‑
39MS THEOCHAROUS: I will, Your Honour.
HIS HONOUR: ‑ ‑ ‑ but fundamentally for him, no more trouble.
41MS THEOCHAROUS: Yes.
42HIS HONOUR: Yes, if you could stand up, Mr Jack. Yes, formally you will be sentenced to a period of imprisonment for both offences of 271 days together with, pursuant to provisions of s44 of the Sentencing Act 1991 a community correction order. That community correction order will start today and part of that order is that you will have to report to the Bairnsdale police station within two days. I assume it is to you, Mr Collier, is it?
43MR COLLIER: No, Your Honour. Bairnsdale Community Corrections and I don't believe a staff member has been allocated as yet.
44HIS HONOUR: Right, all right, thank you. So that is the first point. That community correction order will be for two years. As I have said, the steps recommended are that you undertake mental health. It was helpful to the Court to see that you are in good mental health. There was a misdiagnosis in your past, but I think it is a good suggestion for you to seek that assistance.
45That you undertake assistance with drinking alcohol in a responsible way and no drugs.
46It has also been recommended that you undergo programs to help you to make sure you do not further offend, and that you are being subject to supervision while that is being done.
47It has also been recommended that I set a period of work for you. I was concerned because obviously it is important that you get a job, it would be obviously good if you were in a musical job of some sort, if you could. I am conscious that you want to be involved in creative work, so I have made it only 100 hours over that period. Mr Collier suggested that perhaps you can achieve that by working with one of the Uncles or Aunties to assist, so that is probably something that you will be able to work that program off, in that regard. That will be explained to you.
48This, as I said, community correction order commences today. The imprisonment period now being fulfilled.
49Pursuant to s18 of the Sentencing Act I order that the combined imprisonment for the two charges under this sentence, it be deemed that the 271 days required to be served have been served to this date, and that therefore you are eligible to be released.
50Pursuant to s6AAA I am required by Parliament to indicate the benefit to you of coming before the Court and pleading guilty. Given the multi-purpose factors that are involved in your sentence, that is a very complicated demand by Parliament. However, doing as best I can, had you not pleaded guilty I would have sentenced you to a period of gaol of four and a half years with a minimum two and a half. Again, your counsel will explain what that is and what that requires.
51From either counsel, anything that I need to clarify? I have signed that I think. Has that been forwarded? Yes, signed that and that is it.
52Mr Jack, good luck. I want to see you in the top of the charts, not in prison, all right. Just remember what auntie had to say, pretty tough words but straight down the line, I think. All right. So as I understand it, so I am told today,
Mr Jack - what steps have to be taken for him to be ‑ ‑ ‑53MS THEOCHAROUS: He'll be taken back to the police station so that (indistinct) ‑ ‑ ‑
54HIS HONOUR: All right, he's released from there.
55MS THEOCHAROUS: Yes.
56HIS HONOUR: Is that after the order arrives or what happens?
57MS THEOCHAROUS: Yes, Your Honour. Once the paperwork is received at the custody centre over the road, they'll email that to Central Records, who will confirm a clearance and I'll assist Mr Jack to get to the (indistinct words).
58HIS HONOUR: And have a little chat to him.
59MS THEOCHAROUS: I will, Your Honour.
60HIS HONOUR: Yes, I will excuse you and Mr Jack. Thank you, gentlemen, for your assistance.
61MS THEOCHAROUS: As Your Honour pleases.
62HIS HONOUR: Thank you, Mr Collier.
63MR COLLIER: My pleasure, Your Honour.
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