Director of Public Prosecutions v Jackson

[2022] VCC 1582

IN THE COUNTY COURT OF VICTORIA

AT Melbourne

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-21-01761

DIRECTOR OF PUBLIC PROSECUTIONS

v

Callum JACKSON

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JUDGE:	His Honour Judge Moglia
WHERE HELD:	Melbourne
DATE OF HEARING:	16 March 2022
DATE OF SENTENCE:	21 September 2022
CASE MAY BE CITED AS:	DPP v Jackson
MEDIUM NEUTRAL CITATION:	[2022] VCC 1582

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentence upon plea of guilty

Catchwords:              aggravated burglary – criminal damage – theft possessing cannabis – unlawful assault - contravention of family violence intervention order –broke into partner’s apartment following argument – assaulted partner once inside – accused stole personal effects – history of chronic drug dependency and offending – risk of institutionalisation – general and specific deterrence – moderate performance under CCO with reasonable prospect of rehabilitation – custody with low non-parole period.

Legislation Cited:      Crimes Act 1958 (Vic); Sentencing Act 1991 (Vic.

Cases Cited:Verdins v R (2007) 16 VR 269; Brown (aka Davis) v The Queen [2020] VSCA 60; Worboyes v The Queen [2021] VSCA 169.

Sentence: total effective sentence or term of imprisonment 2 years and 7 months. 578 days pre-sentence detention reckoned as already served. s6AAA: 3 years 6 months with a non-parole period of 2 years and 6 months.

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APPEARANCES:	Counsel	Solicitors
For the DPP	A. McGowan	OPP
For the Accused	A. Patton	Sarah Pratt Lawyers

HIS HONOUR:

1Callum Jackson, you have pleaded guilty to charges contained in two indictments.

2Firstly, on indictment L12420338 relating to the events of 12 October 2020, you pleaded guilty to aggravated burglary (maximum penalty 25 years), criminal damage (maximum penalty 10 years), theft (maximum penalty 10 years), possessing cannabis (maximum penalty 5 penalty units) and to related summary offences of unlawful assault (maximum penalty 3 months) and possessing a controlled weapon (maximum penalty 1 year).

3Secondly, on indictment M11723082 relating to the events between 20 October and 14 November 2020, you pleaded guilty to persistently contravening a family violence intervention order (maximum penalty 5 years each).

4The agreed basis of your guilty plea is set out in the prosecution summaries dated 28 February 2022 and 28 April 2022. Those documents, while they refer to other evidence including video footage, provide an agreed position between the parties sufficient for sentencing purposes and upon which I rely. You are to be sentenced on the basis of these facts, which I summarise as follows.

5During the early part of October 2020, your long-time friend and then partner of 18 months was living at the Crest Hotel in St Kilda, where you were a regular visitor. You lived nearby and would visit her room, sometimes with others, and use drugs together. You had left some of your property in her room and could not return home without it. It is not suggested that your relationship was otherwise a violent one.

6Soon after 2.20 am on 12 October 2020, you visited the hotel room with an acquaintance. About 15 minutes later, you and your partner argued, and you and the acquaintance left the hotel. You returned alone within minutes and knocked on her door, but she did not answer. You left. You returned again about 20 minutes later, knocking, and sending her messages asking her to open the door, with no response. You then walked to the balcony outside her room and knocked on her window, but she refused to let you in.

7

About 10 minutes later you returned to her door in the hallway yelling and demanding to be let in, which she refused. Frustrated, you then kicked the door and continued to yell. She told you to leave her alone to which you responded,

'two seconds, just open the door'. You kicked the door again breaking the lock (Charge 2 – criminal damage). You then pushed the door open and entered the room. Your intention at that point was to retrieve your own property, but also to take items belonging to your partner (Charge 1 – aggravated burglary).

8Once inside, the argument between you recommenced and developed into a physical struggle. You assaulted her, causing bruises to her arms and face (Summary Charge – unlawful assault; Exhibit 2 photos).

9Removing yourself from the struggle, you set about collecting various things from the room, including 2 handbags, chargers, 2 mobile phones, earbuds and other personal items belonging to your partner (Charge 3 – theft).

10About 2 minutes after entering, you left the room with those items and your partner clinging to you attempting to prevent you from leaving. You left the hotel through a fire exit and walked along Princes Street where you accidentally dropped one of your partners phones on the nature strip. Meanwhile, she ran to the hotel foyer and reported the incident to the manager, who called police.

11Police arrived soon after and spoke to your partner, but she refused to give them your name or provide a statement.

12Later in the morning, about 8:30 am, police returned and spoke with her again but she maintained her silence. During that time you sent her messages apologising and offering to return her belongings, saying 'I'm sorry just tell me we're [sic] to drop it' and “I was just so angry”.

13Just before noon, you returned to the hotel to return your partners property. The manager called police who attended and arrested you at a nearby tram stop. They searched you, finding a small kitchen knife and a Stanley knife in your backpack (Summary Charge – possess controlled weapon) and a small bag of cannabis (Charge 4 – possessing a drug of dependence) along with the items you took from your partner.

14Police took you to the Prahran police station and interviewed you. While you admitted that you went to the hotel to return your partner's property, you said that she had left it at your house. You made no comment about assaulting her or breaking into her room and questioned whether her bruises were caused that night. You admitted possessing cannabis to smoke but said the knives were in your bag for legitimate reasons. Where you answered questions, you were largely evasive. Following the interview, you were remanded in custody.

15After your remand, on the same day, police obtained an intervention order, prohibiting you from contacting your partner, among other things. It was served on you a week later in prison on 19 October 2020.

16While in custody, you nevertheless registered your partner's phone number on your call list under a false name. Between 20 October 2020 and 19 November 2020, you contacted her by phone in breach of the order 6 times (Charge 1, indictment M11723082). Then between 19 November 2020 and 23 November 2020 you phoned her a further 6 times (Charge 2).

17Aggravated burglary attracts a maximum sentence of 25 years, the second highest level imprisonment under Victorian law. This is unsurprising. In a community such as ours a person is entitled to safety and security in the place where they live, even when that is a temporary hotel room. You were previously sentenced to significant terms of imprisonment for this very offence, albeit not in the context of a relationship dispute.

18While you did not break into your partner's room in company or with weapons and only with an intention to steal, kicking down her door at 2.30 in the morning was a shocking display of violence which can only have terrified her and perhaps others staying in the hotel. You should be ashamed.

19Likewise, resorting to violence and taking your partner's personal things from her room was beneath you. It is not justified by your anger or the effects of your drug taking. Nor is it justified in any way by her role in the argument between you.

20To your credit, you have since told a psychologist who assessed you that you have felt guilty and ashamed about such conduct and that violence is not your usual way. In this case, I trust that your memory of her terrified face on the night stays with you and motivates you to make better decisions in the future.

21Consistent with her refusal to make a statement to police, your ex-partner has declined to make a victim impact statement. Regardless, I have taken into account her undoubted fear on the night and the likely effect it will have on her psychological well-being into the future, as is to be expected.

22The Courts over the years have come to understand better the serious consequences of family violence and are increasingly bound to impose longer sentences in order to deter others from that conduct. Whilst I take this into account in calculating the length of your sentence, I note that your relationship with your then partner was not characterised by violence and there is no suggestion that your violence extended beyond 20 October 2020. These are matters in your favour.

23As for the telephone calls from prison, I note that while most of them remained unanswered, you spoke with your partner at length on two occasions about your relationship and the court proceedings. While I accept that you were no doubt keen to talk to her at the time about the trouble you were in, you must understand that intervention orders are between you and the court, not a private matter between you and your then partner. Breaches are therefore to be punished and should be understood in a similar way as contempt of court.

24Your offending all occurs while you were the subject of a community correction order imposed in the Dandenong Magistrates' Court on 21 August 2020. Offending on such an order is relevant to my assessment of your prospects of rehabilitation among other things. You will no doubt be brought up on breach proceedings in due course in that court.

25To your credit you have pleaded guilty to these charges and that is a significant thing. It shows you have taken responsibility for your actions and done your part in helping justice to be done. It has saved the State the expense and inconvenience of a trial. I also find that it demonstrates your remorse for what you did.

26Your willingness to settle these cases and plead guilty during the pandemic significantly accentuates the value of your plea, as well as indicates a degree of remorse. I will increase the sentencing discount for your plea so that there is an actual and palpable amelioration of sentence.

27The effects of Covid have added further burdens on you, as with most others in custody. Your access to programs and visits has been all but eliminated. Lockdown in your cell has been regular. Your ability to take steps to avoid infection from others has been subject to the direction of prison authorities. Your time on remand has been more onerous than a mere count of days would tell, and I will reduce your sentence accordingly.

28You are now 31 years old and, for at least the last 13 years, you have been before the courts on numerous occasions for sentence. While you are not to be punished for your past offences, they inform your prospects into the future and the need to deter you from further offending.

29You are the second eldest of four sons to your parents. You grew up in Melbourne and left school at Year 9. Whilst you engaged in various jobs over time, you have not worked since 2014 when your offending provided too great an interruption to ongoing employment.

30Since an early age, drug use has been a problem for you. You commenced smoking cannabis at around 12, various forms of amphetamine by 16 and by 18 you were a daily heroin user. I find you to have fallen into addiction at an age when you did not have the benefit of adult judgment or the ability to engage in consequential thinking. The resulting chronic addiction explains and moderates your moral culpability for your offending when in the grips of drugs. This is apparent in the sentencing orders made over the years.

31Your history of offending, consistent with chronic addiction, includes multiple terms of imprisonment. In 2009 you were sentenced to 3 years in youth detention for intentionally causing serious injury and attempted robbery. In 2010 you were sentenced to 1 year for theft and drug offences. In 2012 you were sentenced to 12 months for arson and theft. In 2013 you were sentenced to 4 months for theft and related offences and placed on a community corrections order for arson and other property offences. In 2015 you were sentenced to 3 months for theft, a further 98 days for breaching the 2014 community correction order and placed on another CCO for multiple drug offences. In 2016 you were sentenced in this court to 5 years for armed robbery, reckless conduct endangering serious injury, aggravated burglary, robbery and related offending. Within weeks of being released from the 5 year sentence in 2020 you offended again by possessing a weapon, breaching bail, dealing with proceeds of crime and poor driving for which you were sentenced to 2 months' imprisonment. Your release at the end of that sentence was only a short time before the offending currently before this court.

32

You have conceded, candidly, that since the age of 18 you have spent only about 2 years at large in the community – most of that in one 11-month stretch in

2013-14. While your re-offending in recent times is of very great concern, it must be acknowledged that both of your releases in 2020 were into a community paralysed by the COVID-19 pandemic. Services generally, including those specifically tailored to prisoners in transition, were either closed or very restricted. Your relapse into drug use in that context, whilst unjustified, was perhaps not unsurprising.

33The significance of your drug use to your offending history was acknowledged as early as 2013 when psychologist Aaron Cunningham in his report of 27 September 2013 (Exhibit B), noted your experience of psychosis when using methamphetamine and a suicide attempt when withdrawing from it on remand. The risk of your institutionalisation was observed even then.

34Similar findings were made by psychologist Alice Crole in her report of 9 March 2021 (Exhibit A). She found you to be at risk of, if not actually institutionalised. Whilst you demonstrated to her good insight into your mental health, substance use, and offending behaviour, this alone has not equipped you with the skills to navigate the transition from prison to the community.

35Your institutionalisation is not only a risk to you and your future, but also ultimately to the safety of the community. It should be avoided if it is reasonably possible to do so. The best protection of the community will be provided by your ultimate recovery from addiction.

36In that context, it was a positive sign that during your remand on these matters, you worked to become a billet in your unit, demonstrating some aptitude and reliability even though your counsel conceded your time has not been without incident.

37By the time of your plea hearings on 16 March and 29 April this year, you had been on remand for approximately 17 months. At that time, I formed the view that the increased access to services, as compared to last year during lockdown, provided an opportunity to address your transition into the community with appropriate monitoring and supports under the CISP program.

38Upon assessment you were found suitable for CISP, in part due to your genuine interest in abstinence and willingness to engage in case management. You agreed to live at a designated address, commence pharmacotherapy and engage in counselling (Exhibit C).

39During the 4 months of your participation in the program, you engaged positively with your case manager. You attended counselling, commenced buprenorphine therapy, albeit after a delay, and remained living at the nominated address. A feature of your participation was the candour with which you dealt with your counsellor and case manager. You were honest to them, even about struggles you had with drugs.  Similarly, you attended judicial monitoring hearings consistently at least until the end of July.

40I find all of this to have demonstrated the genuineness of your attempt to change past drug-related habits. You impressed your case manager, Ms Pugliesi, who attended hearings to reassure the Court of your positive and candid engagement. So much so, it seemed feasible that you be referred for full neuropsychological assessment, which would require you to be drug-free and cooperative. This in spite of there being signs of your possible relapse. She made it clear that your efforts in the program warranted them keeping a place for you in case you were granted further bail after your recent remand.  This is very much to your credit.

41That remand occurred when you failed to attend a CISP review hearing in this Court on 7 September 2022 in the context of having been charged with new drug-related offending in August and more certain signs that you had relapsed.

42The importance of your efforts on CISP is that you have demonstrated your ability to engage with support services and your genuine interest in making changes to your life. Whilst you are now waiting in custody to resolve your new matters, it is a credit to you that you have your sights set on your next attempt to further those positive changes, perhaps with the assistance of residential rehabilitation services or under a drug treatment order. I propose to sentence you in a way that encourages that purpose. 

43On the first indictment, L12420338, I sentence you as follows:

(i)Charge 1, Aggravated burglary, Charge 1 – 2 years, 5 months;

(ii)Charge 2, criminal damage – 3 months;

(iii)Charge 3, theft ­– 3 months;

(iv)Charge 4, possessing cannabis – convicted and discharged;

44I order that 1 month of the sentence on Charge 2 and 1 month of the sentence on Charge 3 be served cumulatively upon each other and upon the sentence on Charge 1, resulting in a total sentence on this indictment of 2 years and 7 months.

45On the related summary offence of unlawful assault, I sentence you to 1 month and order that this sentence be served concurrently with all other sentences imposed today.

46On the related summary offence of possessing a controlled weapon, you are convicted and discharged.

47On the second indictment, M11723082, I sentence you as follows:

(i)Charge 1, persistent contravention of family violence intervention order – 1 month;

(ii)Charge 2, persistent contravention of family violence intervention order – 1 month.

48I order that the sentence on Charge 2 be served concurrently with the sentence on Charge 1, resulting in a total sentence on this indictment of 1 month.

49I order that the total sentence on the second indictment be served concurrently with the total sentence imposed on the first indictment, resulting in a total effective sentence of 2 years and 7 months.

50I fix a non-parole period of 1 year and 7 months.

51I declare that you have served 578 days of pre-sentence detention and direct that those days be reckoned as having already been served under this sentence.

52In accordance with s6AAA of the Sentencing Act 1991, but for the plea of guilty, I would have imposed 3 years and 6 months and fixed a non-parole period of 2 years and 6 months.

53The cannabis seized in relation to Charge 4 is forfeited and to be dealt with according to the Disposal Order as sought.

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