Director of Public Prosecutions v Jacobsen

[2017] VCC 1051

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-01252

DIRECTOR OF PUBLIC PROSECUTIONS

v

KENRICH JACOBSEN

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	2 August 2017
CASE MAY BE CITED AS:	DPP v Jacobsen
MEDIUM NEUTRAL CITATION:	[2017] VCC 1051

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr S. Ballek
For the Accused	Ms E. Hill

HER HONOUR: 

1Kenrich Jacobsen, you have pleaded guilty before me to one charge of using a carriage service in a menacing or harassing way, one charge of burglary, two charges of criminal damage and one charge of making a threat to kill.

2You also pleaded guilty to two summary charges, contravening bail conditions which summary offences were uplifted by agreement pursuant to s.145 of the Criminal Procedure Act.

3The facts underlying your offence are as follows:

4You met the victim, Sarah Jans in November of 2015 through a mutual friend, one Sanjeven Balendran known as Sanjev with whom the victim Ms Jans had an argument that night.  You ended up taking her home and staying the night at her unit. 

5Following that initial meeting, you called Ms Jans on her phone on 25 occasions between November 2 and November 5.  She ignored the calls but one of her friends, pretending to be Ms Jans' mother, did answer one of your calls during which you stated that you intend to marry Ms Jans.  Your use of the telephone service in that way underlies Charge 1 on the indictment, using a carriage service to menace or harass.

6On November 9, Ms Jans left a message on your voice telling you to leave her alone and she did not hear back from you.  On November 20, 2015, Ms Jans came home to her unit and found a hand-written note had been pushed under the door which was you.  It was dated 16 November 2016 at 10am and read "To Sarah and Sanjev, good luck.  Lily will have a great future being prostituted by - kinda no surprises there.  How foolish are you?  Kenrich Jacobsen". 

7This note scared Ms Jans and she went and stayed at a friend’s house.  Early in the morning of Saturday 22 November 2015, you rode a bicycle to Ms Jans' flat, knocked on the door and when there was no answer, used a rock or bin to smash windows to the bathrooms, main bedroom, kitchen, laundry and lounge.  While smashing the units, you were yelling "Sarah" and called the police.  You ultimately smashed most of the windows in the unit and were causing such a commotion that a number of neighbours were woken up by the noise.

8In the meantime, you got inside the unit by climbing in through a broken window.  Your actions in entering the premises underlie Charge 2 on the indictment, burglary.

9Once inside the unit, you turned on the lights and set about intentionally damaging the unit and its contents which included a microwave oven, a television, a washing machine, a dryer, a fridge and a computer.  You smashed a shower screen and lightbulbs in the bathroom and you damaged a toilet.  You broke statuettes, you damaged walls and a bedframe.  You pulled out drawers and cupboards, threw clothes and other items around the house and you opened the front door of the unit and threw a wooden chest, couch cushions, documents and various items onto the drive way area.

10Your actions in smashing the windows and damaging the property inside underlie Charges 3 and 4 on the indictment, damaging property.

11You wrote a note while you were inside the unit which you left on the coffee table.  During the incident, you cut yourself and left blood on the laundry door.  You did not enter or cause any damage to Lily's bedroom, Lily being Ms Jans' daughter.  The damage to the unit was valued at $4,223.46. 

12HER HONOUR:  The damage to Ms Jans' personal items has never been determined.

13Police arrived at about 5am and saw you standing in the lounge room.  You had about ten knives at your feet which you had collected from the kitchen and you were screaming and mainly yelling "Sarah" and appeared highly agitated.

14Eventually, you complied with police requests to come outside and lie down where you were forcibly hand-cuffed and taken to Box Hill Hospital for a mental health assessment due to your erratic behaviour.  You were released from hospital about 9 am that morning but police were only advised of this after you had been released and tried to locate you but were unable to do so and matters were left there.

15At about 12.10 am on 24 November 2015, you were on a Belgrave bound train when you saw Ms Jans and Mr Balendran sitting in the next carriage and you began to kick and hit the glass door between the carriages and screaming at her, including "Somebody better call the police because I'm going to kill her".  These actions underlie Charge 5 on the indictment, threat to kill.

16Ms Jans tried to ignore you but you walked into the carriage and began arguing with her and Mr Balendran face to face.  Eventually, another passenger pressed an emergency button.  The train then stopped at Nunawading Station and Protective Services Officers entered and approached the three of you. 
Police were called and you were arrested by them and taken to Box Hill Police Station where you were interviewed.

17You made full admissions regarding the burglary and were released the next morning on summons.  You were bailed in relation to the complaint and warrant for a Family Intervention Order which you subsequently breached by failing to report to police on three days.  You were ultimately returned to custody on
17 November 2016.  Your failure to abide by the conditions of bail underlie the summary charges of contravening condition of bail.

18In your record of interview, you told police you had gone Ms Jans' house because you were concerned about her daughter and wanted to protect her from Sanjev whom you had somehow come to the view was going to prostitute her.  You made admissions about your actions about smashing windows, destroying property and entering the premises.

19This matter resolved at a third committal mention on 18 July 2016 which is conceded to be an early plea.  The maximum penalty for using a carriage service to harass is three years' imprisonment.  The maximum penalty for burglary is ten years' imprisonment.  The maximum penalty for damaging property is ten years' imprisonment.  The maximum penalty for threatening to kill is ten years' imprisonment and the maximum penalty for contravening a condition of bail is 30 penalty units or three months' imprisonment.

20I now turn to your personal circumstances.

21You are now 44 years of age.  At the time of this offending, it is to be accepted you had gone in to a difficult and erratic psychological state.

22You were born in Canada and were brought to Australia with your two sisters.  You have got two biological sisters and one half-sister from your mother's previous relationships. 

23Your mother was a Pentecostal Christian and there were frequent arguments between your parents over religious practices.  You had a good relationship with your father but eventually your parents separated when you were aged 13.

24You lived then with your family around the northern suburbs over the next few years.  You had regular contact with your father and sporadically met him.  Unfortunately, he ultimately committed suicide.  You reported to psychologist Dr Prashant Pandrurangi that you had good memories of school and you completed an electrical engineering degree from Swinburne University then worked for an electrical company called CPE Systems for eight and a half years.

25In 2000, your then partner was diagnosed with breast cancer and she died in 2002 which, unsurprisingly, you described as a difficult time in your life as you supported her through her treatment.

26You then found it difficult to focus at work and had to leave your job and afterwards you were able to find employment but were unable to stay in the jobs for long periods saying that you appeared to have lost your ability to think clearly and focus on work.  You also felt depressed following your partners death and had little energy or motivation to work.  It appears you have been working sporadically, your last job being as a dishwasher at the restaurant Lentils as Anything which this job finished about two years in circumstances, it would seem, of some difficulty in that the owner of Lentil as Anything took out an intervention order against you.

27HER HONOUR:  You have had other short-term and long-term relationships since 2002.  One of those partners died of heavy alcohol use in 2014 and essentially it seems that since 2002 your life has just, to use a very common phrase, spiralled out of control in many ways.  You have been unable to maintain employment, you have had all sorts of relationships with various people, your living conditions have been chaotic.  One of your sisters gave evidence on the plea and I found her evidence extremely helpful. 

28She described heightened concerns by herself and her sisters over the years.  She described you as an intelligent man, a kind man, a man with whom she had a good relationship but who since the death of his partner had become, and I am not seeking in any way to try and judge you Mr Jacobsen, someone prone to strange behaviour which first manifested itself in hoarding and then all the stable things in your life seemed to come apart.  The employment situation, as I have already described, became unstable.  So did your living situation.  In fact, by the time you ultimately went into custody, you were living in a tent by the Yarra.

29It would appear that there has been some psychiatric history.  You provided the psychologist with a chronological history of your contact with mental health system and services.  You described suffering depressive episodes over the years, you describe having medical and psychological treatment, and you described first seeking psychiatric treatment in 2004 and had voluntary admission to the Alfred Hospital where you were treated with an antidepressant and lithium, which is a mood stabiliser.

30You were on these medications from about 2006 but were sporadic with compliance after that.  Recently, you had had a ten day admission to the Royal Melbourne Hospital for erratic behaviour.  You denied using illicit drugs although you did report experimenting with ice in 2015 to 2016 and some sort of sporadic use of synthetic cannabis. 

31It appears in your description of the offences to the psychologist that you have formed a fairly rational view of what happened, that you regarded Ms Jans as an amazing person and became concerned in an unreasonable way about her.  That you became stressed about her, that you were worried that Sanjev was going to cause trouble for her and place her daughter in jeopardy and you became aware, it would seem over time, that these were not rational thoughts that you were having at the time, without being, frankly unwell.

32There was a summary in the psychological report about your psychiatric history.  There was a discharge summary from the Alfred Hospital on 24 November 2006.  At the time, you were referred there from your private psychiatric because you had had a manic episode and were homeless.  You were treated with lithium and olanzapine and there was a diagnosis of bipolar affective disorder.

33You were admitted to the North West Mental Health for ten days in March 2016 where you were taken by police because you were behaving erratically in public and running into traffic at which time you were homeless and had been using synthetic cannabis.  You, again, were diagnosed with a manic relapse of a bipolar affective disorder/drug-induced affective disorder and you were held in the secure unit, received anti-psychotic medication but did not return to the unit from unescorted leave. 

34At the Melbourne Assessment Prison you gave a history of polysubstance abuse which included cannabis, amphetamines, heroin and cocaine.  
You described your mood as depressed but there was no evidence of manic or psychotic features.  You were reviewed by a psychiatric nurse on 21 November and it was noticed you had disorganised thoughts but no delusions. 

35It was the view of Dr Pandrurangi that there was no history of significant trauma in your early life.  He notes that you were able to complete a university degree and held a stable job for many.  He stated "He appears to have lived an isolated and itinerant life over the past few years with no stable relationship or sustained period of employment".

36He said your life had been indicative of a psychosocial deterioration.  He believed you suffered from a mood disorder with depressive and manic features.  And he believed that at the time of your offending, although you did not have a frank mental impairment, you were suffering from an untreated bipolar mood disorder which would have affected your ability to think clearly and your capacity to make calm and rational decisions.

37You have some prior criminal history, nothing that I regard of being of great relevance to the matter before me and certainly nothing in the nature of this offending which I am satisfied did take place in the context of a deteriorating mental health condition.

38You have now been in gaol for 259 days and whilst it has been stabilising for you, undoubtedly it has also been very difficult for you.  This is the first time you have ever been held in custody. 

39The offending is, of course, serious.  You did a lot of damage.  A victim impact statement revealed enormous trauma suffered by Ms Jans.  She sent her daughter away, she is not a person with a great deal of money, she was living in housing commission accommodation and it has been difficult for her to replace her belongings.  So the whole incident has been extremely traumatic for her and the court notes that, of course, this would have been an extremely frightening incident for her and has done her a lot of damage physically, in a physical sense in the long term in terms of her general well-being and her capacity to, as I have said, to live comfortably as she had been before with the objects around her and to care for her daughter.

40I am satisfied, however, that the time that you have served is sufficient taking into account the mitigatory factors; that is, your disturbed mental condition at the time, your lack of prior and subsequent history insofar as this sort of offending is concerned, and it is my view that I should deal with you by way of a combination sentence of imprisonment and a community corrections order which I propose to do.

41I am going to order that you seek mental health treatment and I am going to make the comment that it should be both psychiatric and psychological treatment.  That is because you may require medication again, Mr Jacobsen.  Do you understand that?  And the psychologist cannot do that. 

42All right, could you stand up please?  I note that no objection is taken by the prosecution to this disposition.

43On Charge 1, you are sentenced to one month imprisonment.  This sentence is a, pursuant to - sorry, that Charge is laid pursuant to the Commonwealth Crimes Act so I note that that sentence is to begin on 17 November 2016.

44On Charge 2, you are sentenced to 259 days imprisonment.

45On the remaining charges, that is Charges 4 to 6, you are to be placed on a community corrections order for a period of 18 months.

46I need to outline to you the core conditions, the conditions that are, at present, in any community corrections order.  They are that you must report to the Office of Corrections within two days of making of this order.  Secondly, whilst on the order you must not commit any offence punishable by imprisonment.  So that doesn't mean you have to be gaoled, it simply means that you must commit an offence who which you theoretically could be gaoled like knocking off a box of matches from Woolworth's.  Whilst on the order, you must report to and receive visits from the community corrections order.  You must not leave Victoria without the permission of the community corrections order.  You must attend upon community corrections whilst under the influence of drugs or alcohol. 

47You must inform the community corrections office of any change of address or employment within 48 hours of that change and you must obey all lawful direction of the community corrections office. 

48I am going to order that you undertake 100 hours of unpaid community work.  You are also to attend for assessment and treatment for medical, psychological and psychiatric difficulties.  You also need to attend an assessment for drug use, all right?  It appears you had been dipping into that before the time of your offending and if you have got a mood disorder, Mr Jacobsen, drug use is only going to make that worse.  All right?  I think that is all.

49I am going to order that you attend for judicial monitoring.  I am going to order that you report for judicial monitoring at 9.30 on Friday 25 August, all right? 
Do you think you will be able to manage that?

50OFFENDER:  Yes, Your Honour.

51HER HONOUR:  Good on you.  All right.  Now, the aim is that on your release today that you will go to the Collingwood Neighbourhood Justice Centre and you will attend upon Launching Pad - Launching Place.

52MS HILL:  Launch Housing, Your Honour.

53HER HONOUR:  Launch Housing, sorry, where hopefully accommodation can be organised for you.  The aim is to try and get you back on, obviously, to get you back on track Mr Jacobsen, to get you back to, as far as possible, the man who is intelligent and who did hold down a stable job and who enjoyed a more stable life that you clearly have been doing for the past few years.  All right?  Are you willing to enter the order?

54OFFENDER:  Yes, Your Honour.

55HER HONOUR:  Thank you, we'll just the paperwork down.

56MR BALLEK:  Your Honour, there's just a couple of matters to clarify?

57HER HONOUR:  Yes, sure.

58MR BALLEK:  Just firstly, the community corrections order, I think Your Honour said it on Charges 4 to 6.  Just to clarify, that's Charges 3, 4, and 5 on the indictment.

59HER HONOUR:  Three, four, five, six and seven

60MR BALLEK:  And summary charges 6 and 7?

61HER HONOUR:  Seven - yes, sorry, I should have been more explicit.

62MR BALLEK:  Thank you, Your Honour.  With the PSD, I'm not sure whether Your Honour actually made the declaration.

63HER HONOUR:  Yes, I declare that - thank you - I declare that the 259 days has been already served by way of pre-sentence detention.

64MR BALLEK:  And, Your Honour, a 6AAA will be required given the term of imprisonment.

65HER HONOUR:  Pursuant to s.6AAA, I declare that had you not pleaded guilty, I would have sentenced you to a term of imprisonment and ordered that you serve a minimum term of 18 months.

66MR BALLEK:  And Your Honour, there's just the two ancillary orders, the 464 order and the compensation order.

67HER HONOUR:  Yes, all right.

68MR BALLEK:  Which were handed up previously.

69HER HONOUR:  I am prepared to order, in the circumstances, I am prepared to grant a s.464 application.  Where are they?  And I also order that you are to pay to the Department of Health and Human Services compensation in the sum of $4,223.46.  Now I don't want you going away and stressing out about "How on earth am I going to pay that?".  That is a matter for the department to follow up. 

70So you simply wait to hear the department about that, all right?  There doesn't seem to be a place for me to sign on this but I've just put my signature and my - and these.   All right, so what you need to do is within the next four weeks - have we got the list of police stations?  That's not for you.

71MS HILL:  Perhaps Collingwood is appropriate in the circumstances where the community corrections order is arising out of the Neighbourhood Justice Centre?

72HER HONOUR:  All right, so I'll put in Collingwood.  Yes please, I'll just get to - thank you.  All right, there are those orders.  So Mr Jacobsen, within 28 days you must attend upon the Collingwood Police Station and they will take a swab from your mouth and I need to advise you that if you resist while they're taking that swab, police are entitled to use reasonable force to obtain it.  Now promise me you're not going to go out and find some chronic?  Okay?  Thank you. 
All right, so there's those orders signed.  I just need to sign that.  Can I again thank you Ms Hill for the immense amount of work that you have done in sourcing the appropriate way to deal with the various difficulties presented by Mr Jacobsen.  You've just been so helpful.

73MS HILL:  Thank you, Your Honour.

74HER HONOUR:  Because your client is one of those people where it's extremely difficult to find an appropriate disposition simply because we don't cater properly, in this state, for people with the sorts of difficulties that he suffers and, as I've said, you've been enormously helpful.  And also Mr Ballek, I thank you very much for your consistency and assistance and cooperation throughout this process.

75MR BALLEK:  Thank you, Your Honour.

76HER HONOUR:  It's made it so much easier.

77MR BALLEK:  Thank you, Your Honour.

78HER HONOUR:  I'm very grateful to you both.  Now I think that's everything.  I'll just give you that.  I should add that you, of course Mr Jacobsen was found suitable for placement on a community corrections order.  So good luck with that Mr Jacobsen.  Are you feeling a bit optimistic about how it's going to go?

79OFFENDER:  Ah, yes, Your Honour.

80HER HONOUR:  You sure?  You're not feeling too - you're feeling a bit overwhelmed or do you think you can manage it?

81OFFENDER:  I think I can manage it.

82HER HONOUR:  I think you can too.  I mean, if you've managed to navigate your way through gaol for the last 259, I think you'll manage on the outside world all right.  All right?  Thank you very much, all right now, I think
Mr Jacobsen has to be taken down and released from there.  Is that right? 

83VOICE (from the body of the court):  Yes, Your Honour.

84HER HONOUR:  Thank you very much.  If that could be done.

85MS HILL:  As Your Honour pleases.

86HER HONOUR:  Thank you, counsel are excused.

87MR BALLEK:  As Your Honour pleases.

88HER HONOUR:  Thank you very much.  Thank you Mr Jacobsen, remember that I'm going to see you on 25 August, all right? 

89OFFENDER:  Yes, Your Honour.

90HER HONOUR:  Thank you.  Ms Hill will see you downstairs.  Thank you Mr Ballek.

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