Director of Public Prosecutions v Jackson
[2016] VCC 2003
•21 December 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-16-00392 & CR-16-01672
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| CALLUM JACKSON |
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JUDGE: | HIS HONOUR JUDGE WISCHUSEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | Trial 26, 27, 28 September 2016; and | |
DATE OF SENTENCE: | 21 December 2016 | |
CASE MAY BE CITED AS: | DPP v Jackson | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 2003 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr D Gray | OPP |
| For the Accused | Ms S Poulter | Greg Thomas Barrister and Solicitor |
HIS HONOUR:
1 Callum Jackson, on indictment number F13048161 you were found guilty by the jury of one charge of armed robbery.
2 In addition, on indictment number F13048161.1 you have pleaded guilty to the following offences: three charges of aggravated burglary (Charges 1, 9 and 14), which carry a maximum penalty of 25 years' imprisonment; one rolled up charge of reckless conduct endangering serious injury (Charge 6), which carries a maximum penalty of five years' imprisonment; eight charges of theft (Charges 2, 3, 5, 6, 10, 13, 15 and 16), which carry a maximum penalty of ten years' imprisonment; one charge of robbery (Charge 4), which carries a maximum penalty of 15 years' imprisonment; one charge of possessing a drug of dependence (Charge 11), which carries a maximum penalty of 30 penalty units, one year’s imprisonment or both; and two charges of burglary (Charges 7 and 12), which carry a maximum penalty of ten years' imprisonment. You also indicated your intention to plead guilty to a summary charge, numbered 18, driving whilst disqualified, which carries a maximum penalty of 30 penalty units or four months' imprisonment.
3 All of the offences for which you are to be sentenced today occurred in a period of just under two hours on 28 August 2015.
4 The circumstances in which the armed robbery, which is the trial indictment, occurred were explored in detail during the trial and I will not restate them here. The single issue agitated in the trial was whether, at the time you demanded that Subdoh Rajbandari give you his keys, you were then in possession of a handgun. By its verdict, the jury was satisfied beyond reasonable doubt that you were. I am satisfied on the basis of the evidence given in the trial that whilst demanding that Mr Rajbandari give you his keys you produced from the rear of your shorts a silver handgun which you pointed in his direction from close range in the course of the robbery.
5 Once you had discovered that the keys you took from Mr Rajbandari would not open any of the nearby cars, you ran from his place to an address in Talbot Street, St Kilda East.
6 The offences to which you have pleaded guilty on the plea indictment immediately followed your arrival in Talbot Street. There, Nicole Hertzog had just parked her Range Rover in her garage. She was unloading it from the passenger side when you arrived. You jumped into the driver’s seat, started the vehicle with the keys she had left in the ignition, reversed out of the garage and driveway and drove off towards Hotham street. At the time you took the car, it contained a Samsung mobile phone and GPS device. Charge 1, aggravated burglary, Charge 2, theft of a motor vehicle, and Charge 3, theft.
7 The manner of your driving after that time was consistent with observations made of you by witnesses who gave evidence in the trial on the armed robbery charge, and was so erratic that numerous members of the public reported your driving to the operator on 000. In the depositions, there are over one hundred pages of transcripts of 000 calls and they contain real-time descriptions of your driving activities over the 90 odd minutes that followed.
8 Charge 6, reckless conduct endangering serious injury, covers an episode of dangerous driving endangering many members of the public over a substantial part of the inner Melbourne metropolitan area. Your driving is the subject of Charge 6, a rolled up charge of reckless conduct endangering serious injury. It is described in more detail than I will soon set out in paragraphs 5-14 and 18 of the opening. The opening became Exhibit 1 and through your counsel, you accepted in substance the accuracy of it.
9 The first event occurred as you drove north on Hoddle Street Collingwood in heavy traffic. You ran into the back of a slow-moving Toyota Prado, and forced it into the rear of the vehicle immediately in front of it, a Commodore. Significant damage was sustained to the Prado and damage was also caused to the rear bumper of the Commodore.
10 Next you managed to jam the Range Rover between another vehicle and a light-pole. In order to extricate the Range Rover, with liberal use of the accelerator, you drove the Range Rover back-and-forth until it was free, you then mounted the median strip, made a U-turn across all lanes of Hoddle Street and then drove southbound towards South Yarra on the footpath, before turning left into Victoria Street - through a red light.
11 It is not clear from the depositions how you got from Victoria Street to where you were next observed which was driving in a dangerous manner and at speed northbound on Nicholson Street in Carlton. As you did so you sideswiped a stationary silver Holden Calais and mounted the curb as you made a turn left onto Kay Street. The Calais was damaged by this impact.
12 Next seen, you were driving in a dangerous manner westbound along Cemetery Road East in Carlton where you caused a series of collisions as you forced your way through stationary traffic that was waiting at a red light at the Swanston Street intersection.
13 In the course of this you sideswiped a white Honda, you hit the rear left of a Holden utility, you hit the rear passenger side of a black Ford Falcon and then collided with a Volkswagen Passat. All these vehicles were damaged.
14 None of these collisions much slowed your progress. Next you drove over the gutter, footpath and nature strip, to continue your erratic driving southbound on Cardigan Street. By this stage, damage to the stolen Range Rover was such that its rear bumper had fallen off. Your continued driving included - driving on the wrong side of the road, a collision with a white Suzuki that was stationary at a red light, reversing from this impact and continuing south on Wrekyn Place, on the wrong side of the road, at fast speed, weaving in and out of traffic. By the time you reached Flemington Road the Range Rover was badly damaged and you abandoned it on the divide between the out bound lanes. All of that driving is part of the rolled up charge.
15 You were not without a vehicle for long. After abandoning the Range Rover you ran towards an orange Kia Rio then occupied by Rocco Agresta and his two children - aged 12 and 13 - who had just been collected from school. You opened the front passenger door and forced Agresta out of his vehicle. He managed to get his children out before you drove off in his car at high speed northbound on Flemington Road. As you drove, you threw Agresta’s mobile phone, garage remote control and the car service books and manual from the vehicle. Charge 4 Robbery, Charge 5 theft.
16 The driving that followed was also the subject of numerous 000 calls and eventually the orange Kia you had taken from Mr Agresta was detected by toll road gantries which showed it was travelling inbound on City Link towards Footscray.
17 By 4 pm, you were seen driving the Kia at a fast rate of speed through a car park in an industrial estate in Brooklyn. You stopped suddenly and then reversed, accelerating hard into a parked White Nissan utility. Next you reversed, hard enough this time to cause wheel spin, into a blue Ford Ute parked in the same car park. Both cars were damaged. By then, the stolen Kia had mounted the curb and become stuck. You got out and tried to push it back into operation without success. This driving is also part of the rolled up Charge 6.
18 You left the industrial estate on foot climbing under a wire section of the fence, and crossing the Westgate Freeway on foot towards Altona North. As you crossed the freeway, vehicles could be heard sounding their horns.
19
In Altona North you entered the rear yard of premises at 21 Marigold Avenue and, via an unlocked garage door, entered the garage which had been remodelled into a bedroom. There you left a pair of gumboots and a white
T-shirt, and rifled through the drawers of the bedside dresser stealing a handbag (later found to contain three small resealable plastic bags containing amphetamine) and some bathers. Charge 7 burglary, Charge 8 theft.
20 Next you and made your way to the rear yard of a residence at 18 Cyclamen Avenue Altona North. You entered the residence through an unlocked rear door, walked into the kitchen and picked up vehicle and house keys that were on the dining table. The resident, Carl Ruban, was at home at the time and came to investigate the noise your arrival had made. He confronted you in the hall and attempted to physically remove you from his property. A struggle ensued during which you dropped Ruban’s house keys and the items you stolen from Marigold Avenue (including the bags of amphetamine mentioned earlier). The struggle ended when you broke free and ran out of the premises into the street. These events give rise to Charge 9 aggravated burglary, Charge 10 theft, Charge 11 possess drug of dependence.
21 Next, you entered the property at 3/6 Cyclamen Avenue, Altona North by climbing over the rear fence into the backyard. You removed the flyscreen from the rear lounge sliding window, lifted the sliding window pane out of its track to climb through the window. After you did this, you placed the window pane on the lounge room floor. Once inside, you stole yet another set of keys and some money from the kitchen bench. You then walked to the master bedroom where you picked up a white timber bedside table and threw it through the bedroom window. Next you used a rug from the occupant’s bed to drape across the jagged glass edge of the window you had broken so you could climb out of the building which you did. Charge 12 burglary, charge 13 theft.
22 Next you went to a unit at 3/45 Kyle Road. The front door was unlocked and the occupant, Mary Guglielmi, was standing in her kitchen when you walked in. You grabbed a set of keys hanging next to the front door, but when challenged, returned them to her. Next you walked through the house asking for clothes and car keys – she managed to convince you that she had no car. At 4:36 pm you used Ms Guglielmi’s mobile phone to call a taxi and then asked her to text the message “he loves you” to a number you provided. You then attempted to climb out a window before running from the house via the back door. These events give rise to Charge 14 aggravated burglary, Charge 15 theft.
23 This criminal rampage came to an end when you were arrested in the backyard of a nearby property wearing clothes you had stolen earlier in the day. Charge 16 theft.
24 By this stage about 90 minutes had elapsed between the armed robbery, which had been the subject of the trial, and your arrest. On arrest, you were found unfit to be interviewed, and had been seen talking to a fence before the police arrived. You have been remanded in custody since.
25 The procedural history of these matters is that you contested a committal in relation to the matters which were the subject of the trial indictment. The plea indictment had been the subject of protracted negotiations as to two matters in particular – the way the endangering serious injury charge was to be put, and the aggravated burglary charge concerning Ruban. Offers to plead to the remaining matters were made in December of last year. In the circumstances, I regard your plea on the second indictment as an early one.
26 You are now 26 years of age. You have admitted a long history of offending going back to appearances before the Children’s Court in 2007. Your criminal record shows numerous sentencing occasions for a variety of drug, driving, dishonesty and violence offences, many of them serious. You have offended so regularly, that I was informed that the longest period of time you have spent out of custody since your 18th birthday was about 11 months. Previous sentencing dispositions have included a range of supervision orders, periods on parole, and community corrections orders. None seem to have altered the rate at which you reappeared before the courts. Your criminal record is in keeping with a history of drug abuse since at least the age of 12, and episodes of psychosis since 2012.
27 Mr Jackson, I state to you that I have taken into account all the matters put on your behalf in the course of the plea, during which Counsel spoke to detailed written submissions – Exhibit 4.
28 I have taken into account your plea on the plea indictment. It has saved the cost of a lengthy trial and the many victims the trauma of giving evidence. It is also evidence of your remorse. You are entitled to have these matters taken into account in mitigation of penalty and I have done so.
29 On the plea, your bizarre behaviour was sought to be characterised as “pointless mayhem”. It was pointed out that it was preceded by your release from custody without accommodation,[1] followed by almost immediate relapse into drug abuse. I was informed that during the episode you were paranoid and felt driven to escape “things you thought were going on”. On your behalf it was acknowledged that your behaviour was gravely wrong, and pointless – the submission was that it was all irrational, rather than driven by malice or greed – and features of your behaviour during this episode were identified as confirming that you were then a person who was “not in his right mind”. I accept this as far as it goes, and think it likely that the history of drug use preceding this episode, given to Ms Cidoni,[2] and your limited memory of these events, is the truth of the matter.
[1]Report of Gina Cedoni dated 2 December 2016 (‘Exhibit 5’), p.5.
[2]Of using Ice, Heroin and a handful of Xanax not long before, Exhibit 5.
30 Of course, your consumption of drugs in no way excuses the behaviour that followed, and, given your past history, you cannot have been in any doubt about the likely consequences of taking the drugs concerned.
31 I have taken into account your background and personal circumstances. They are set out in Ms Cidoni’s detailed history. Shortly, you grew up in a stable environment but started substance abuse at the age of 12, which had reached the point where you were asked to leave your family home by the age of 15. Your life since leaving home has been a life of crime, substance abuse, detention and incarceration – if not already, you are at grave risk of becoming institutionalized.
32 Your mental health is described with in the detailed reports[3] – the diagnosis is that you suffer from a long established substance abuse disorder with episodic psychosis, relationship difficulties and poor impulse control.
[3]Cidoni, Exhibit 5; Report of Aaron Cunningham dated 27 September 2013 (‘Exhibit 6’); Report from Department of Justice on the Contravention of Community Correction Order dated 29 July 2015 (‘Exhibit 7’ part 2 of 2).
33 On your behalf it was submitted that, in the range of offence gravity that armed robbery and aggravated burglary cover, the offences here were at the lower end as many of the commonly occurring aggravating circumstances were not present. So, as far as aggravated burglary is concerned, the point was made that no doors were forced, no weapons were used, it was broad daylight and there were no assaults. As for the armed robbery, it was characterised as opportunistic, unplanned and of short duration. It was submitted, and I accept, that in relation to a number of the charges, there was a degree of overlap. For example, theft of Range Rover, and the theft of items in it at the time, the phone and the GPS, Charges 2 and 3, overlapped in great degree. I accept that there is a degree of overlap between a number of the charges and I have made allowance for this in making orders for cumulation.
34 Having regard to your long history of incarceration and failed attempts at supervised periods in the community, your youth and the necessity to avoid a sentence which would, for a 26-year-old be crushing, the submission was made that a sentence of imprisonment combined with a long-term Community Correction Order would meet all relevant sentencing considerations.
35 In my view, the gravity of the offending and your failure to comply in any meaningful way with previous non-custodial dispositions, lead to the conclusion that a term of imprisonment of less than two years (which would allow a Community Correction Order to follow) is not appropriate here.
36 Against the matters to be taken into account in mitigation of penalty must be balanced the fact that, although it only took less than two hours, you committed a large number of offences, a number of them serious, and terrified considerable number of members of the community. As the nine victim impact statements – Exhibit 3 – read or tendered on the plea, show, your actions however mindless or pointless, have had lasting and adverse consequences for the many people put in fear by your actions on this day.
37 Because of the prevalence of this form of offending and your extensive history of offending, both general and specific deterrence must be given weight in the sentencing consideration and I am called upon Sentencing Act to manifest the community’s denunciation of your conduct and otherwise to impose just punishment.
38 Although each of the aggravated burglaries is serious in its own way, I regard as more serious the armed robbery with the use of the gun, and the robbery –carjacking – of Mr Agresta’s car in the presence of his young children as particularly serious. Moreover, the driving endangering serious injury – Charge 6 – was sustained, involved numerous collisions and widespread vehicle damage.
39 On indictment F13048161, the trial indictment, on Charge 1, armed robbery, you are convicted and sentenced to a term of imprisonment of three years. On the summary Charge 18, drive whilst disqualified, all licences are cancelled and you are disqualified from obtaining a licence or permit for a period of two years.[4]
[4]On this offence Mr Curic was convicted and discharged. The order was administratively amended on 23 January 2017 pursuant to s 104A of the Sentencing Act 1991.
40 On indictment F13048161.1, the plea indictment, on Charge 1, aggravated burglary, you are convicted and sentenced to two years' imprisonment. On Charge 2, theft of the Range Rover, you are convicted and sentenced to one years' imprisonment. On Charge 3, theft of the items in the vehicle, you are sentenced to one months' imprisonment. On Charge 4, the robbery of Mr Agresta's car, you are convicted and sentenced to two years' imprisonment. On Charge 3, theft of the items of the car, one months' imprisonment. On the rolled up Charge 6 of reckless conduct endangering serious injury, you are convicted and sentenced to two and a half years' imprisonment. On Charge 7, burglary, you are convicted and sentenced to one years' imprisonment. On Charge 8, theft, you are convicted and sentenced to one months' imprisonment. On Charge 9, aggravated burglary of Mr Ruban's house, you are convicted and sentenced to two years' imprisonment. On Charge 10, theft, you are convicted and sentenced to one months' imprisonment. On Charge 11, possess a drug of dependence, you are convicted and discharged. On Charge 12, burglary, you are convicted and sentenced to one years' imprisonment. On Charge 13, theft, you are convicted and sentenced to one months' imprisonment. On Charge 14, aggravated burglary of Ms Guglielmi’s house, you are convicted and sentenced to a term of imprisonment of two years. On Charge 15, theft, you are convicted and sentenced to one months' imprisonment. On Charge 16, theft, you are convicted and sentenced to one months' imprisonment.
41 On the plea indictment, taking Charge 6, the rolled up charge of reckless conduct endangering serious injury as base, so that is the two and a half years, I direct that three months of the sentence imposed upon Charge 1, two months of the sentence imposed upon Charge 2, three months of the sentence imposed upon Charge 4, two months of the sentence imposed upon Charge 7, three months of the sentence imposed upon Charge 9, one month of the sentence imposed upon Charge 12 and four months of the sentence imposed upon Charge 14 be served cumulatively upon each other and upon the sentence imposed upon Charge 6, making a total effective sentence on the plea indictment of four years' imprisonment. For the sake of completeness, I should state that all other sentences on that indictment are to be served concurrently.
42 I order that one year of the sentence imposed upon the trial indictment F13048161 be served cumulatively upon the sentence imposed upon the plea indictment F13048161.1, making a total effective sentence of five years on the two indictments.
43 Taking into account all relevant matters, I fix a non-parole period on the two indictments of three years and six months.
44
Indictment F13048161 – CR-16-00392
Charge
Offence
Maximum
Sentence
Cumulation
1
Armed Robbery
25 years
3 years
Summary Charge 18
Drive whilst disqualified
30 penalty units or imprisonment for 4 months
Convicted and disqualified from obtaining a licence or permit for 2 years[5]
[5]Ibid.
Indictment F13048161.1 – CR-16-01672
Charge
Offence
Maximum
Sentence
Cumulation
1
Aggravated Burglary
25 years
2 years
3
2
Theft
10 years
1 year
2
3
Theft
10 years
1 month
nil
4
Robbery
15 years
2 years
3
5
Theft
10 years
1 month
nil
6
Reckless Conduct Endangering Serious Injury
5 years
2 ½ years
base
7
Burglary
10 years
1 year
2
8
Theft
10 years
1 month
nil
9
Aggravated Burglary
25 years
2 years
3
10
Theft
10 years
1 month
nil
11
Possess Drug of Dependence
30 penalty units, 1 year or both
Convicted and dismissed.
nil
12
Burglary
10 years
1 year
1
13
Theft
10 years
1 month
nil
14
Aggravated Burglary
25 years
2 years
4
15
Theft
10 years
1 month
Nil
16
Theft
10 years
1 month
nil
45 Pursuant to s.18, I direct that the period of time that you have spent in custody on remand on these charges being 481 days is to be reckoned as time served under the sentences I have imposed and I direct that this be entered into the records of the court.
46 When sentencing across plea and trial indictments, the exercise required by s.6AAA is more difficult than it is even usually, but pursuant to s.6AAA, I state that had you been found guilty of the charges on the plea indictment after a trial, on that indictment, I would have sentenced you to a term on those charges of six years with a non-parole period of four years and six months.
47 There are ancillary orders to be made, which are forfeiture orders and compensation orders. Have you checked my arithmetic?
48 MR GRAY: I am doing it, Your Honour.
49 HIS HONOUR: Good.
50 MR GRAY: They all come to the same totals, Your Honour.
51 HIS HONOUR: Yes, all right. Thank you for the additional submissions about sentencing across indictments, they were helpful. Are there any other orders sought?
52 MR GRAY: No, Your Honour.
53 HIS HONOUR: Officers, will you please remove the prisoner?
54 (Prisoner removed.)
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