Director of Public Prosecutions v Jackson

[2022] VCC 1643

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR-19-00621

DIRECTOR OF PUBLIC PROSECUTIONS

V

ZARA LEE JACKSON

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JUDGE:	HIS HONOUR JUDGE CAHILL
WHERE HELD:	MILDURA
DATE OF HEARING:	16 August 2022; 17 August 2022; 18 August 2022; 17 October 2022
DATE OF SENTENCE:	21 October 2022
CASE MAY BE CITED AS:	DPP v Jackson
MEDIUM NEUTRAL CITATION:	[2022] VCC 1643

REASONS FOR SENTENCE
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Subject:   Intentionally cause serious injury

Catchwords:             Guilty plea – complicit with partner in an attack on an elderly man – offender injured – long-standing anxiety and consequent PTSD – 5 year delay in sentencing – Category 2 offence – impaired mental functioning and substantial and compelling reasons exceptions established

Legislation Cited: Sentencing Act 1991 (Vic); Mental Health Act 2014 (Vic)

Cases Cited:DPP v Milson [2019] VSCA 55; DPP v Millin Bell [2022] VCC; R v Pajic (2009) 23 VR 532; Boulton v The Queen (2014) 46 VR 308

Sentence:Community Correction Order for 3 years; 200 hours unpaid community work

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms C. Pezzimenti Mr A. Buckland	Director for Public Prosecutions
For the Accused	Mr G. Davis	Martin Middleton Oats Lawyers

HIS HONOUR: 

1Zara Jackson, you have pleaded guilty to one charge of intentionally causing serious injury.

Circumstances of your offending

2The circumstances of your offending are described in the Summary of Prosecution Opening for Plea.[1]

[1] Exhibit A: Further Amended Summary of Prosecution Opening dated 15 August 2022.

3In December 2017, you were living with your partner, Millin Bell, at Almond Avenue, Mildura.

4On 13 December 2017, Bell and you visited a friend’s house where you were drinking.

5Sometime after midnight Police were called to the house and found Bell and you drunk. They told you to leave and you did. Police followed you outside. When Bell stopped and sat down on the side of the road, police told you to get Bell and take him home. Police watched as you got Bell and the two of you walked along Tenth Street towards your home.

6That night, Brian Landsborough was at his home in Tenth Avenue, with his son, Alex. Before Alex went to sleep, around midnight, he heard the sounds of the television and his father laughing.

7Around 3 AM, on 14 December 2017, Brian Landsborough walked out of his home, on Tenth Street, into a laneway.

8Around 6.50 AM, passers-by found him in Almond Crescent. He was bloodied and dressed only in his underwear and socks. He couldn’t explain what had happened or how he got there. Police were called and he was taken to hospital for treatment of his injuries.

9Mr Landsborough had been drinking during the evening. He had a blood alcohol content of 0.013.

10In the laneway, police found a large pool of blood and a broken drinking glass, which belonged to Landsborough, and bloodied glass fragments.

11Around 3 AM, a neighbour had heard banging against a tin fence in a nearby laneway. She also heard a lady’s voice in the street, possibly near the laneway, shouting “yeah” and then she heard, in Almond Street, the voices of two men, the sounds of three car doors closing and a car driving off.[2]

[2] Statement of Alesia Marie Ferguson dated 24 January 2018.

12After receiving information from a neighbour, police came to your home later that morning.

13When they asked Mr Bell and you about the incident, Bell told them he, and not you, had assaulted the man.[3]

[3] Record of Interview dated 14 December 2017, Q175-176.

14You had lacerations to your left eye and your cheek.

15Police took you to hospital where your wounds were cleaned and sutured.

16You had suffered a 2.5cm open wound to your left cheek and a 1cm open wound to your left eye socket consistent with sharp trauma from a shard of glass.[4]

[4] Exhibit 3: Psychological Report of Dr Jason Schreiber dated 7 May 2018.

17From hospital, police took you to Mildura police station where they questioned you about the assault of Mr Landsborough.

18You told them, after drinking at a friend’s house, you were walking home with Mr Bell when a man wearing socks and jocks attacked you. You described him as the “bee” man. You said, although you could not see the man, you recognised his voice. You said he slashed your face and cut you under the eye and left cheek. You said you called out to your partner, Mr Bell, who came to your aid. When you were asked what happened next, you said you could not recall because your shirt was over your face to stop the bleeding. You also said you were affected by alcohol and in shock due to your injuries.

19You voluntarily gave police your bloodied clothing, a saliva sample for DNA analysis and your fingerprints. They released you without charge.

20Subsequent DNA profiling strongly supported the proposition your top, singlet and shorts, and Mr Bell’s shirt and one of his thongs, were stained with Mr Landsborough’s blood.

21Police interviewed you again on 17 August 2018.

22You confirmed the account you had given them in the first interview.

23You agreed, when police came to your home the first time, you gave them your clothing when they asked for it. You agreed it was under the bed. When asked why it was there, you said “I didn’t want my kids to see the blood”.

24When you were told DNA profiling indicated the strong possibility Mr Landsborough’s blood was on your clothing, you asked to speak to a lawyer. After you had spoken to a lawyer, you exercised your right to silence.

25Both Mr Bell and you were charged with intentionally or recklessly causing serious injury in circumstances of gross violence (“gross violence charge”) and remanded in custody.

26On the same day, you were released on bail with a surety, provided by your mother, on stringent conditions including reporting to police, residing at your mother’s address, and keeping a curfew unless in your mother’s company.

27After a contested committal, on 29 March 2019, Bell and you were committed to stand trial in this court at Mildura on the gross violence charge.

28On 15 December 2020, on Bell’s application, His Honour Judge Smallwood made an order for separate trials on the grounds that prejudicial evidence, which would be otherwise inadmissible against Bell, would likely be led by you in support of your defence, that you did not assault Mr Landsborough and were afraid to intervene to stop Bell who was assaulting him.[5]

[5] Ruling dated 15 December 2020 (Smallwood J).

29In July 2021, you stood trial in this court on the gross violence charge. The jury was discharged on the sixth day of the Trial without verdict, for public health reasons.

30You stood trial for a second time in March 2022. Again, the jury was discharged without verdict when, near the end close of the prosecution case, one of the jurors recognised a police witness.

31In August 2022, when your third trial was listed before me, you sought a sentence indication in the event you pleaded guilty to the lesser crime of intentionally cause serious injury.

32On 18 August 2022, after I gave an indication that I would not imprison you, you pleaded guilty to the charge now before the court.

33The prosecution case against you is that you:

(a)   intentionally assisted or encouraged Bell in the commission of the crime of intentionally causing serious injury to Mr Landsborough; or

(b)   assisted him in the commission of another cause injury offence being aware it was probable the offence of intentionally causing serious injury would be committed.

34By your guilty plea, you admit you were complicit with Bell in the crime of intentionally cause serious injury.

Victim

35Mr Landsborough was hospitalised, for a number of weeks. He he was treated for severe injuries which included sub-arachnoid haemorrhage (bleeding over the brain), multiple facial fractures, multiple torso fractures and abdominal bruising.

36In the opinion of a forensic physician, Mr Landsborough was then a frail person who suffered blunt and friction trauma to his head, trunk and limbs from at least three blows of substantial force.[6]

[6] Exhibit 3: Psychological report from Dr Jason Schreiber dated 7 May 2018.

37The physician also opined:

(a)   Mr Landsborough’s injuries “will have adverse consequences for (his) work and social life with low quality-of-life” and “there may be mental health and psychological problems in the future”; and

(b)   “without [treatment] it is likely Mr Landsborough would have deteriorated and died”.

38He noted Mr Landsborough had pre-existing urinary tract problems, deep vein thrombosis (‘DVT’), osteoarthritis (‘OA’) and lung and breathing problems (‘COPD’).

Victim impact statements

39Two of his sons each made a victim impact statement.[7]

[7] Exhibit C: Victim Impact Statement of William Landsborough dated 17 August 2022; Exhibit D: Victim Impact Statement of James Landsborough dated 17 August 2022.

40William Landsborough wrote, before the attack, and I quote:

My dad was a completely independent 85-year-old. He still drove a car. He lived independently and took care of himself. To me he was more like a 60-year-old. He was physically strong, had a lot of muscle on him. He was a fantastic conversationalist. Always interested in others wanted to hear all about his family members. He was happy. He enjoyed life and enjoyed living. [8]

[8] Exhibit C: Victim Impact Statement of William Landsborough dated 17 August 2022.

41He continued, his father was “crushed” by his injuries, “physically and mentally”.

42James Landsborough wrote, you robbed him of his father who, he described, as “just a shell of a man” after your attack.[9]

[9] Exhibit D: Victim Impact Statements of James Landsborough dated 17 August 2022.

43Both sons were sickened and deeply hurt by your crime.

Criminal record

44You have admitted a criminal record which includes appearances for violent offending.

45On 6 November 2007, at Wentworth local Court, you were released on a bond for Common Assault.

46On 23 October 2013, at Mildura Magistrate’s Court, you were convicted of recklessly cause injury and released on a 12-month adjourned undertaking conditional on you continuing psychological counselling.

47Subsequent to the index offending, on 7 February 2018, again at Mildura Magistrate’s Court, you were fined $750, without conviction, for recklessly cause injury and wilfully damage property. On 23 March 2018, in the same court, you were convicted of recklessly cause injury and placed on a 12-month Community Correction Order with mental health and offender behaviour programs conditions.

48I have read the police summaries of this subsequent offending.[10]

[10] Exhibit E: Summary which relates to the offending on 5 November 2017; Exhibit F: Summary which relates to the offending on 26 January 2018.

49On 5 November 2017, you confronted a woman who was sitting in her car and punched her and kicked her car. She suffered a bloodied nose. Police arrested you nearby. At interview, you made full admissions. You told police you had had an ongoing dispute with the woman[11] and you assaulted her when she wouldn’t get out of the car.[12]

[11] Your counsel told me you had known her since you were 16 years old.

[12] Exhibit E: Summary which relates to the offending on 26 March 2018 5 November 2017.

50On 26 January 2018, you had an argument with another woman at the Mildura Gateway Tavern car park and punched her to the face. When police arrived both of you were intoxicated and uncooperative. The other woman reported your assault four days later. You voluntarily attended at the police station and, at interview, admitted assaulting the other woman. You told police she provoked you into a fight and pushed you to the point where you lost control. You said you were seeing a psychiatrist for your “problems”.

Personal circumstances

51Your personal circumstances are set out in the report of Dr Mirabel McConchie dated 24 August 2022.[13]

[13] Exhibit 2: Report of Dr Mirabel McConchie dated 24 August 2022, at 1-6.

52You were born in March 1987. You were 30 years old when you offended. You are now 35.

53You are an indigenous woman.

54You were born in Wagga Wagga. When you were two years old, your family moved to Pomona, near Wentworth, where you lived for most of your childhood.

55You have an older brother and stepsiblings from your father’s first marriage.

56When you were 11 years old, your parents separated. A short time later, they got back together.

57You attended Pomona primary school, and Coomealla high school. You had many friends as a child, some Indigenous and some not. Some of your aboriginal friends bullied you “for hanging around the white kids”.[14]

[14] Ibid.

58When you were 14 years old, you left home and went to live with your best friend until her house burnt down. Earlier, your family home also burnt down. In a short period of time you lost your belongings twice.

59When you were 16 years old, you had your first serious relationship. Your first child, a boy, who is now 18, was born of that relationship which ended because your partner was jealous and controlling.

60You had your second child, another boy, to your next partner who was supportive when your father was battling cancer until you eventually parted ways.

61In 2007, your father died. You had been close to him. His death devastated you.

62In 2013, you had your third child, a girl.

63You have been in a relationship with Mr Bell for several years. With him, you have a daughter who is 16 months old.

64Your mother has supported you throughout.

65After you were charged, you were bailed to live at her Mildura home. I was shown photos of your children and you living with her.[15] While the house was crowded, with her, you kept a neat and comfortable home. Despite her own health problems, she has helped you through the difficult stages of these proceedings.

[15] Exhibit 4: Two photographs of Ms Christine Pearce’s home.

66After a number of months you were able to obtain a rental home at Swan Hill where you live with your older son and daughters. Your younger son lives with his paternal grandparents in Mildura so he can continue his schooling there.

67Bell also lives at Swan Hill, with his mother. Your bail conditions have prevented you living together. He is working and is committed to your daughter and you.

68You also have a good work record. You have been working as a cleaner at a motel. You hope one day to buy a house, move in with Bell and raise your family together.

69At age 14, you started smoking cannabis. Between the ages of 16 and 30, you were a heavy cannabis user. You said you used it to feel calm, cope and “to not think” about your personal problems. You also began drinking alcohol at the age of 14. You would drink heavily on weekends.

70As your bail has required, you have been drug and alcohol abstinent for the past five years.

71In Dr McConchie’s opinion, you would have met the criteria for severe Cannabis Use Disorder and alcohol intoxication at the time of your offending.

72You told Dr McConchie you have difficulty recalling details of the offending.[16]

[16] Exhibit 2: Psychological report from Dr Mirabel McConchie dated 24 August 2022, p.5.

73You described severe grief and depression following your father’s death. You continue to feel low mood and distress. You report experiencing anxiety and a disconnect from your emotions since you were a teenager.[17]

[17] Ibid, p.6.

74In Dr McConchie’s view, there were no relevant pre-existing mental health concerns that would have contributed to your offending.[18]

[18] Ibid.

75You told Dr McConchie, following the episode with Mr Landsborough, you were traumatised and could not leave the house. You said you became extremely depressed, had panic attacks, experienced flashbacks of the assault and disconnected from reality and dissociated from your emotions.[19]

[19] Ibid.

76You said your general practitioner referred you to a psychologist and while you found the counselling sessions helpful, you found it hard to complete the breathing and relaxation techniques due to your panic symptoms and disconnect.[20] You said you are currently on a waitlist for further trauma counselling in Swan Hill.

[20] Exhibit 2: Psychological report from Dr Mirabel McConchie dated 24 August 2022, p.6.

77Dr McConchie reports that you currently experience:

severe anxiety, panic attacks, ongoing prolonged grief and post traumatic symptoms including dissociation, flashbacks, physiological arousal and avoidance of anything associated with the current offence.[21]

[21] Ibid.

78She concludes that you will require ongoing therapy to deal with your mental health conditions.[22]

[22] Ibid, p.7.

79In her opinion, there would be “a significant detrimental impact on [your] children should [you] be incarcerated”.

80Moreover, in the event you were incarcerated, you would “likely completely decompensate in custody” due to your “long history of severe anxiety, panic disorder, sustained bereavement related depression and trauma” and “post traumatic symptoms”.[23]

[23] Ibid, p.7.

81Her opinions, and your history to her, are supported by the medical records of Deakin Medical Centre, Mildura[24] and Swan Hill Medical Centre.[25]

[24] Exhibit 5: Patient notes from Deakin Medical Centre.

[25] Exhibit 6: Patient notes from Swan Hill Primary Health Medical Centre.

82In 2016 and 2017, you were being treated with medication and counselling for depression and anxiety. You were also seeing a drug and alcohol counsellor to help you address a marijuana addiction.

83On 18 December 2017, you consulted your GP who referred you to a counsellor for treatment of panic attacks and nightmares following the incident on 14 December 2017.

84After you were charged, in August  2018, your anxiety and depression escalated and you were continued on antidepressant medication until late 2020 when you fell pregnant.

85You are currently prescribed an anti-depressant, Sertraline, which helps your mood. You are also prescribed Diazepam (Valium) for your anxiety.[26]

[26] Exhibit 2: Report of Dr Mirabel McConchie dated 24 August 2022, p.6.

Defence submissions

86Your counsel, Mr Davis, acknowledged the law requires the Court to impose upon you a sentence of imprisonment, without a Community Correction Order, unless one of the statutory exceptions is established.[27]

[27] Sentencing Act 1991 (Vic), s 5(2H).

87He submitted there are two bases to justify departure from the legislative norm. They are:

(a)   firstly, your psychological conditions would make prison substantially harder for you; and

(b)   secondly, a number of factors, in combination, compel the conclusion prison is not justified in your case .

88He relied, principally, on the long delay in sentencing, nearly 5 years, in sentencing, during which you have endured the uncertainty of two trials without verdict and, at the same time, substantially progressed your rehabilitation.

89Additionally, he relied on the high utilitarian the value of your plea, which has avoided a third trial, in circumstances where you had an arguable defence to the charge. 

90He also relied on the hardship to your children in the event they lost you, as their primary caregiver, to prison.

91And he relied on the additional hardship of prison on you, because of your psychological conditions, and the likelihood these conditions will deteriorate if you are imprisoned.

Prosecution Submissions

92Ms Pezzimenti, who appeared for the prosecution, on the sentencing hearing, and Mr Buckland, who appeared on the plea hearing, in helpful written[28] and oral submissions, contended, considering you were involved in the attack on an elderly and vulnerable man, who suffered serious injuries, the imposition of a prison term with a non-parole period is the appropriate sentence for you.

[28] Exhibit A: Summary of Prosecution Opening for Plea dated 19 September 2022.

93It was submitted neither of the exceptions to the mandated prison term are made out.

94It was acknowledged your guilty plea has utilitarian value.

95I was told Judge Smallwood sentenced Mr Bell for the same crime on 12 October 2022. It was accepted the parity principle is relevant in sentencing you.

Consideration

96It is very difficult to determine what happened after police left Bell and you walking along Tenth Avenue toward your home and generally in the direction of Mr Landsborough’s address. That was some time after midnight.

97Sometime between 2 and 3 AM, Mr Landsborough left his home and walked into a nearby laneway.

98At some point he was violently assaulted.

99Police found him nearby.

100He had walked out of his house with a drinking glass. It was found, broken, with bloodied fragments in the laneway where he was attacked.

101It is not possible to determine who inflicted his injuries or how they were inflicted.

102It was not suggested you personally caused Mr Landsborough any injury.

103By your presence and, perhaps, a word, you, at least recklessly encouraged Mr Bell in the commission of the crime of intentionally causing serious injury to Mr Landsborough.

104You were a secondary participant in a vicious attack on a vulnerable old man. He was struck at least three blows with significant force and suffered life-threatening injuries. He was never again the active and affable father his sons had known.

105Without any evidence of what happened in the laneway it is difficult to assess the objective seriousness of your offending other than to say, as the maximum penalty of 20 years imprisonment shows, the crime of intentionally cause serious injury is inherently serious.

106I accept Mr Landsborough caused your facial injuries with his drinking glass. It is impossible to determine whether or not he was acting in self-defence when he struck you.

107Intentionally causing serious injury is a Category 2 offence.

108A sentence of imprisonment, without a Community Correction Order, is mandated unless one of the statutory exceptions is established.

109Your conviction was not inevitable. Considering there is no witnesses as to how Mr Landsborough’s injuries were inflicted, or by whom, and there is evidence of the presence of two men, apart from you, I am satisfied, by entering a guilty plea, you have given up the opportunity of an arguable defence. In the circumstances, in addition to its high utilitarian value for the avoidance of another trial, an additional level of discount is warranted for your guilty plea.[29]

[29] R v Pajic (2009) 23 VR 532, at [19] – [20].

110There has been a delay of 5 years in sentencing. During that time you have endured the anxiety of two aborted trials and, as well, cared for your children, obtained work, sought help for mental health problems and, since 26 January 2018, not reoffended. Both the unfairness and rehabilitation limbs of delay are engaged to substantially mitigate your sentence.

111You are the primary caregiver for three of your children. The youngest is not yet 2 years old. Your incarceration would have “a significant detrimental impact” on them.[30]

[30] Exhibit 2: Psychological report from Dr Mirabel McConchie dated 24 August 2022, p 7.

112You also suffered injuries, which have caused you permanent facial scarring, and symptoms of Post-Traumatic Stress Disorder (‘PTSD’) which, with your anxiety and depression, have required ongoing treatment.

113On 12 October 2022, Judge Smallwood sentenced Mr Bell to 161 days’ imprisonment, equivalent to the time he had served on remand custody, in combination with 42 month Community Correction Order.[31]

[31] DPP v Millin Bell [2022] VCC, 12 October 2022 (Smallwood J).

114I have read his Honour’s unrevised reasons for sentence.

115With regard to his Honour’s findings as to the circumstances and the consequences of the attack on Mr Landsborough, I respectfully agree.

116Mr Bell faced the same delay in sentencing as you. Since his release on bail he has worked continually and not reoffended.

117His Honour was told I had given you an indication I would impose a non-custodial sentence upon you in the event you pleaded guilty to the offence now on the indictment.

118His Honour considered delay and parity to be important sentencing factors. Again, I respectfully agree.

119I am satisfied, together, the matters I have referred to, are substantial and compelling circumstances that justify not making an order for your imprisonment.

120In reaching this conclusion, I have had regard to Parliament’s intention only a sentence of imprisonment should ordinarily be imposed for a Category 2 offence, and also the cumulative impact of the circumstances of the case.[32]

[32] Sentencing Act 1991 (Vic), s 5(2I).

121I accept Dr McConchie’s opinions, which were unchallenged.

122In particular, I accept you have suffered long-standing severe anxiety, panic disorder, depression and PTSD, which constitute a mental illness within the meaning of the Mental Health Act 2014 (Vic).[33]

[33] Ibid, s 10A.

123I also accept, in custody, your mental health would seriously deteriorate resulting in you being subject to significantly more than the ordinary burden or risk of imprisonment.

124While I am satisfied exceptions to the statutory presumption of gaol have been made out, that is not the end of the matter.

125I do not lose sight of the terrible consequences of your crime for Mr Landsborough and his sons who were shocked by his injuries and profoundly hurt.

126I must take into account the impact of your crime on their father and them.

127Deterrence, punishment and denunciation are prominent sentencing factors. Protection of the community is another.

128In many cases, community protection ultimately is best served by the offender’s rehabilitation.[34]

[34] DPP v Milson [2019] VSCA 55, at [20].

129I consider the care of your children, your supportive mother and your good work ethic are protective factors. Conscientious management of your mental health is another.

130I accept, after a disruptive period, between November 2017 and January 2018, you have substantially advanced your rehabilitation.

131Sentencing practices, in the last 5 years, indicate most, around 85 per cent, but not all, offenders are sentenced to a term of imprisonment for the crime of intentionally cause serious injury.[35]

[35] Sentencing Advisory Council, Sentencing Snapshot, Causing Serious Injury Intentionally, December 2021.

132However, as the Court of Appeal stated in Boulton v The Queen:

… a CCO may be suitable even in cases of relatively serious offences which might previously have attracted a medium term of imprisonment.[36]

[36] Boulton v The Queen (2014) 46 VR 308, at [57].

133In your case, I am satisfied a condition Community Correction Order of lengthy duration is capable of satisfying all sentencing objectives.

134I have had you assessed for a Community Correction Order and you have been found suitable.

135The Community Correction Order will be intensive and punitive.

136I have moderated the duration of the order, and its punitive component, to take into account you are the carer for three of the children and are gainfully employed to support them.

137By the sentence I impose I must denounce your conduct, punish you, and deter you and others, from committing crimes of the same or similar kind. I must also look to your rehabilitation.

138Considering the circumstances of your offending, your personal circumstances and antecedents, and endeavouring to produce a sentence which reflects and promotes the purposes of sentencing in a manner appropriate to you, on the charge of intentionally cause serious injury you are convicted and ordered to undertake a Community Correction Order which will commence today.

139The duration of the order will be 3 years.

140In addition to the mandatory conditions I attach the following special conditions:

(a)   Supervision;

(b)   200 hours unpaid community work;

(c)   Mental health treatment and rehabilitation;

(d)   Alcohol treatment and rehabilitation; and

(e)   Programs to reduce reoffending.

141I direct up to 100 hours of your treatment programs can be credited towards your community work.

142It is a condition of your order that you attend the Swan Hill Community Correction Service office within 2 working days.

143While there is some artificiality in stating the benefit you have received because of your guilty plea, doing the best I can, I declare, but for your plea of guilty, I would have sentenced you to 2 years and 6 months’ imprisonment and imposed a minimum non-parole release period of one year and 3 months.