Director of Public Prosecutions v Jakubowski
[2011] VCC 2004
•20 October 2011
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for publishing |
AT MELBOURNE
CRIMINAL DIVISION
Case No.CR-11-00383
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SHAYNE ANDREW JAKUBOWSKI |
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JUDGE: | HER HONOUR JUDGE CANNON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20 September 2011 | |
DATE OF SENTENCE: | 20 October 2011 | |
CASE MAY BE CITED AS: | DPP v Jakubowski | |
MEDIUM NEUTRAL CITATION: | [2011] VCC 2004 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – Pleas of guilty – Stalking – Aggravated burglary – Breakdown in relationship - Extensive criminal record related mainly to dishonesty and drug offences – History of drug abuse
Cases: R v Jakubowski 6 February 2004 (Sentence)
Sentence:Convicted and sentenced top Total Effective Sentence of 2 years and 6 months’ imprisonment with non-parole period of 18 months’ imprisonment – s.6 AAA Sentencing Act 1991 declaration – Ancillary order disposal order
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms A. Bhai (Plea) Ms E. Allan (Sentence) | Solicitor for Office Public Prosecutions |
| For the Accused | Mr B D Nibbs (Plea) Mr J. Behan (Sentence) | Stary Lawyers |
HER HONOUR:
1 Shayne Andrew Jakubowski, you have pleaded guilty to two charges of stalking and one charge of aggravated burglary. The maximum penalty for stalking is ten years imprisonment, whilst the maximum penalty for aggravated burglary is twenty-five years' imprisonment.
2 Your plea was opened as follows by the Crown.
3 You were born on 15 September 1973 and at the time of the offending you were thirty-six years old. You are now thirty-eight years old.
4 Between April 2009 and December 2009, you were in a relationship with a Lauren Clark. When that relationship ended, Ms Clarke commenced another relationship with Matthew Ratcliffe. Mr Ratcliffe was a friend of yours.
Re Charges 1 and 2
5 After you and Ms Clark separated, you rang Ms Clark, to quote her, “all the time”. On some days, you rang her thirty-five times. She stopped answering her phone and you rang less frequently. Further, on about twenty occasions, you loitered outside the Boronia Police Station where Ms Clark was required to report on bail. You waited there for Ms Clark and Mr Ratcliffe. On some occasions Ms Clark would see you and then drive away, having to return later to report to police. On other occasions, you approached Ms Clarke, asking if there was any chance of a reconciliation. On the last occasion, a police officer escorted Ms Clark from the police station to her car.
6
On, again to quote, “a couple of occasions”, you loitered outside a chemist where Ms Clark collected her medication. On one occasion Mr Ratcliffe was driving Ms Clark to an appointment at St Vincent’s Hospital. You ran to the vehicle as it was stopped at traffic lights near the hospital. You had a knife in your hand and launched this at Mr Ratcliffe through the open car window.
Mr Ratcliffe drove away and was uninjured.
7
On one occasion, you went to Wonthaggi where Ms Clark, Mr Ratcliffe and
Mr Ratcliffe’s three children were staying for the weekend. You entered the backyard of the property and banged on the kitchen window, calling out, “Lauren, I know you’re in there, come out, come out”. You then went around to the front of the house and banged on the front door. Mr Ratcliffe told you to leave or he would call the police. You started to kick the front door and
Mr Ratcliffe called the police. You then left before police arrived.
Re Charge 3
8 At about 1.00 pm on Sunday, 28 March 2010, you went to the Boronia home of Mr Ratcliffe. Mr Ratcliffe was lying on the bed in an upstairs bedroom and Ms Clarke was downstairs in the kitchen. Mr Ratcliffe’s father was in the back garden.
9 You opened the side sliding door and ran into the house and up the stairs toward the bedrooms. Ms Clark called out to you, but you continued up the stairs.
10
Mr Ratcliffe ran to the bedroom door. He saw you in the doorway and pushed the door, trying to hold it closed. You kicked the door and were yelling
“I’m going to kill you, I’m going to kill you”. You kicked the door about five times.
11 Ms Clark, who had run up the stairs after you, grabbed you and pulled you away from the door. You told her that you wanted her back and would do anything to get her back.
12
You got past Ms Clark and kicked the door a few more times. Ms Clark pushed you away from the door towards the stairs. You then went down the stairs and left the house. As you left the house, you were calling out for
Ms Clark to go with you. You said that it was not worth living if you could not have her.
13 The bedroom door was cracked and had holes in it from where it was kicked by you.
14 After you left the house, you rang Ms Clark. You told her you thought that you both had a future together. You then called her four or five more times but she did not answer.
15 That afternoon, police attended your home. You were not there. Later that evening, Detective Brown called you on your mobile phone. He told you that he wanted to speak with you. You agreed to attend the Boronia Police Station the following afternoon. However, you did not attend the police station as arranged.
16
On 15 April 2010, you were arrested at the Ringwood Railway Station.
You were taken to the Ringwood Police Station where you were interviewed.
17 You said to the police:
“I still wanted to speak with her to sort it out – ‘cos we never properly split up.”
18 You said that Mr Ratcliffe owed you $500 to $600 for work that you had done on his bathroom and you also said that you just wanted to get your stuff back, being clothing and toiletries. You said that you were angry with Matthew Ratcliffe as well, because of the money situation.
19 You admitted that you were repeatedly calling Ms Clark because, to quote you, “I just couldn’t get through”. You also admitted going to the Boronia Police Station because you knew what time Ms Clark signed in. You said, “When I went to the police station I was actually going to see him as well, not just her”. You also admitted approaching Ms Clark and Mr Ratcliffe in their car near St Vincent’s Hospital, but denied having a knife. You said that you had no idea that they were going to be there and, to quote you, “I just probably ran towards Matthew and just probably yelled at him to stop, come back. I probably tried to grab hold of him but I didn’t really get the chance because he took off straight away.”
20 Further, you admitted going to the Wonthaggi property saying, “I could see Matthew, two of his daughters and Lauren. I called out ‘I want my stuff’ and ‘Matthew, I want to speak to you as well’.”
21 Further, you admitted entering the Boronia house without permission, trying to shove your way into the bedroom and kicking the bedroom door a couple of times. You said that you tried to ring Mr Ratcliffe and that he would not answer. You wanted to confront him face to face. You said that you threatened that if he did not come out he was going to make it worse for both of you. Further, you said that you lost your temper. You could not say that you may not have done anything at all – that you may have had some sort of physical confrontation with Matthew Ratcliffe.
Plea of guilty
22
On 7 March 2011, the charges against you were listed for contested committal hearing. However, you entered pleas of guilty, the matter having been resolved the previous day, and as a result, the matter proceeded by way of
a straight hand-up brief.
23 The Crown acknowledges that your pleas of guilty, in the circumstances, were early, albeit that they were not at the first reasonable opportunity.
24 There is no pre-sentence detention in relation to your offending.
25
I was told by the learned prosecutor that at the time of your offending, you were on bail. Mr Nibbs, on your behalf, elucidated that you had been granted bail (on 10 October 2009), and that bail related to charges of burglary, two charges of theft and one charge of using heroin. These matters were dealt with at the Ringwood Magistrates’ Court on 10 February 2011 and you were sentenced to four months' gaol, wholly suspended for fifteen months.
26 You were also ordered to undergo a community-based order with 150 hours of unpaid community work to be completed within twelve months, and there were also conditions that you submit for testing for alcohol and drug use as well as undertaking assessment and treatment for drug and alcohol use and that you undergo counselling, as required. The counselling which you have been undergoing is with a Mr Cussen, from EastCare, who you describe as a hard task master. You have not offended further and have no matters pending since the offences which are before me.
27 I have been handed just before sentence a handwritten report from Mr Cussen, dated 18 October 2011 which I have read. I take into account its contents which are consistent with what I was told upon the plea by your counsel.
28 You have a most extensive criminal history and it is acknowledged by your counsel that an aggravating feature of your offending is the fact that you committed these offences whilst on bail. Your criminal history is largely in respect of dishonesty offences and relating to drug possession and use. However, on 6 February 2004, you were convicted of aggravated burglary, on the basis of a person being present, and intentionally causing injury, amongst other offences, and you received a total effective sentence of fifteen months with a non-parole period of nine months imprisonment.
29 On 1 February 2008, amongst other offences, you were convicted and sentenced in relation to recklessly causing serious injury and were sentenced to a total effective term of one year, three months, with a non-parole period of nine months.
30 Your counsel pointed out that your first sentence involved a period of detention in youth training centre relating to offences of criminal damage and drug offences. I note that you were sentenced in relation to sixty-seven charges of criminal damage which, as I understand it, related to graffiti. It is most unfortunate that your first sentence involved incarceration in a youth training centre, rather than a more lenient approach being taken, notwithstanding the number of charges.
31 However, since that time you have been dealt with by the courts by way of wholly suspended sentences and community-based orders on occasion. Notwithstanding such opportunities, you have continued to offend and you have breached suspended sentences, as well as community-based orders. You have appeared before the courts on a constant basis from 1992, committing offences regularly since that time.
32 I was told by your counsel that your offending on this occasion and your past offending is very much tied up with your drug abuse which has afflicted you for most of your life. It appears to me that you have had a number of dispositions which would indicate to you that your offending is very much tied up with drug use and I note from the sentence that His Honour Judge Bourke imposed upon you in 2004, that this was made abundantly clearly to you when his Honour said the following:
“You came to heroin at the age of twenty-five. Much of your offending has been drug related. Your arrest photographs support the submission that you were badly addicted at the time. You weighed sixty kilograms. In gaol you have been drug free and your Methadone dose is down to
8 millilitres daily. You plan total abstinence from that in the near future.Ms Warren’s report places you in at least the high average category of intelligence. Despite your history I accept that you have prospects of rehabilitation if you remain drug free. You have commenced rehabilitation in gaol.
… The sentence I propose will mean that you have the supervision and assistance of parole when you move off Methadone. …” (R v Jakubowski dated 6 February 2004 at paragraphs 12 – 14).
33 Significantly, these were part of the sentencing remarks in respect of the aggravated burglary and intentionally causing injury to which I have previously referred. I note that in relation to that offending, however, it was in the context of you entering premises with the intention of stealing and being reckless as to the likely presence of people within the premises. In view of His Honour’s sentencing remarks in 2004, I take the view that you were on ample notice and understood that if you continued to take heroin or abuse illicit substances, that you were at risk of committing criminal offences. Therefore, I treat the fact that you were affected by heroin on the occasions of the offending before me as aggravating your offending. It defies belief that you could not understand or did not understand that there was a connection between your offending and abusing drugs. Whilst it may well be that you have struggled with your addiction, which is completely understandable, the fact is that you have chosen to imbibe heroin knowing that it places you at significant risk of reoffending. This much is reflected not only in His Honour Judge Bourke’s sentencing remarks to you, but what he records as matters that you relied upon in mitigation, which indicated an awareness on your part that there was such a link.
34 Mr Nibbs referred to your record of interview and submitted that you had given a great deal of detail to police in relation to your offending. You had been in a relationship with Ms Clark and said that she had disappeared off the scene and you were unclear as to whether the relationship was at an end or not when you were phoning her. You said that this was the reason that you were phoning her and that you had never properly discussed the end of your relationship. You were of the view that the discussion that you did have with her left you in some doubt as to whether she regarded the relationship as over or not. You also had an issue with Mr Ratcliffe concerning a debt which he owed you.
35 Accordingly, it was submitted that it was a combination of concern about whether there was a future in your relationship with Ms Clark and moneys owed by Mr Ratcliffe, which led to your offending.
36
Your sense of confusion in relation to Ms Clark has to be seen in the context of someone who was abusing drugs but, even so, it must have been abundantly clear to you after numerous phone calls went unanswered and after you had observed Ms Clark and Mr Ratcliffe together, that your relationship with Ms Clark was over. A good deal of the stalking in which you engaged insofar as it related to Ms Clark in particular, smacked of a refusal to accept that the relationship was over. It did not appear that you mentioned moneys owed to Mr Ratcliffe upon any encounter with him, even if it be the case that he did owe you money. Again, the circumstances of the aggravated burglary really bespeak a refusal by you to accept that your relationship with Ms Clark was over. Your conduct which amounts to stalking was, no doubt,
a frightening experience for both of the victims; and the commission of the aggravated burglary, with the events leading to it, must have also been distressing to them. In relation to the aggravated burglary, the victims were entitled to enjoy the sanctuary of their home, without intrusion from you.
37 In your favour, since these offences were committed, there has been no further offending and you have earnestly sought to address your substance abuse problems. You come from a fine and supportive family and currently reside with your father. Your father works in window furnishings and your mother works as a carer for intellectually disabled or physically handicapped individuals, with the Department of Human Services. Your sister, April, also works in this field.
38 You attended Knoxfield College, initially, as your parents were keen for you to have a good education. However, the college did not suit your needs and you experienced some difficulty fitting in there because you suffered from eczema and also from asthma; the latter condition required your mother to bring respiratory equipment to the school, which, no doubt, drew unwanted attention to you from fellow students. You left this college, and then attended Upwey High School, where you demonstrated that you were a very creative person, especially when it came to art. You commenced Year 11 at that school. However, you did not complete this year.
39 When you were fifteen years of age, you had started to use cannabis and gradually, this became your focus rather than your education.
40 After you left school, you worked in labouring jobs. You worked for an art supplies depot run by a municipal council and you also worked for a blind manufacturer. The nature of the second job was seasonal and when you were not working, you were engaging in more and more drug use. This was the situation from when you were sixteen years old, and when you were about twenty-five years old, you commenced using heroin. To your credit, you never stole from your parents or family, as is often the case, notwithstanding that you had developed an addiction.
41 Once you started using heroin, your mother had some suspicions about this. However, you denied any such use and as your mother said in evidence, in support of you, she put this to the back of her mind, not wanting her suspicions to be vindicated.
42
About ten years ago, when you were twenty-eight years old, your mother became aware of your problem with heroin and was instrumental in you commencing a Methadone programme. I was told that this occurred in the context of you approaching your mother for money to pay for drugs.
She refused and took you to a doctor in order to have you placed on a Methadone program. You were able to comply with this program for the next four months, however, you relapsed back into heroin use. You continued to battle your heroin addiction over the ensuing ten years, turning to Methadone from time to time during that period. Mr Nibbs said that there were four major blocks of a period of months when you were able to return to the Methadone program. You were unable however to maintain this.
43 Mr Nibbs said that following your offending for which I now sentence you, you recommenced on the Methadone program and for about twelve months before your Court appearance in February 2011 at the Ringwood Magistrates’ Court, you had returned clean drug screens. It was put that from February 2010 until now you have remained free of illicit substances, although in view of the fact that it was also put that you were affected by drugs when you offended on these occasions, for which I now sentence you, it may be that the period for drug free screens was slightly less than that put. Since the community-based order was imposed, I was told that there has been one drug screening test which also returned clear, and I also have further information in that regard, which was provided at today's hearing. I should indicate that the letter that was handed up will be marked as an exhibit in this matter.
44 You have been unable to access the drug screen tests, as such, which were relied upon, notwithstanding attempts to do so. Your mother also gave evidence that she observed in you a change in your behaviour such that she was convinced that you have not been imbibing heroin since the commission of the offences which brings you before me today.
45
A psychological report was tendered on your plea. It was prepared by
a Rachel Freeland and is dated 30 June 2011. She assessed you on 27 June 2011 and in doing so, she had a summary of charges and was reliant on the interview she had with you at the East Melbourne office. I take into account the contents of that report in sentencing you. According to that report, you had committed to the Methadone program after your second relationship ended. The report reads: “Since February 2010, he admits to two lapses, both times after meeting up with acquaintances with whom he previously used heroin. The first lapse occurred in August 2010, the second in December 2010.” Upon your plea, Mr Nibbs said that the report was in need of amendment, changing the date ‘December 2010’ to ‘December 2009’. I must say that this presented some confusion in terms of when it actually was that you stopped taking heroin and when the relapses occurred. I sought clarification of this by email to your Counsel with the Prosecution copied in.
It has been explained to me now that as at December 2009, you were trying to get off heroin, but were unable to do so. After commission of the aggravated burglary, you made more concerted efforts in this regard, and you were able to abstain in 2010, with the help of the Methadone program, save for two relapses in August 2010 and December 2010. However, since, December 2010, you have abstained from heroin and have only been taking methadone since then. This is a real credit to you in light of your battles with drugs, and it is to be hoped that you can maintain this.
46 Ms Freeland was concerned that you were continuing to be prescribed Xanax which she indicated ought be reviewed. She said that as you had successfully maintained abstinence, with no lapses, from heroin for the last six months, which was the date from which time she had seen you, and referred to in her report, you did not appear to need or want drug and alcohol counselling.
47 However, she said that counselling may be of benefit if you did attempt to withdraw from benzodiazepine, as the subsequent discomfort may trigger cravings to use heroin. I must say that I would have thought that in light of the past difficulties with drug abuse, it is surprising that you neither want nor, according to Ms Freeland, need assistance in respect of heroin addiction. In any event, it is now about 10 months since you have remained completely heroin-free, which, as I have said, is very much a credit to you.
48
I accept that your record of interview evidences remorse for your conduct,
as do your pleas of guilty. I take into account the stage at which you offered to plead guilty to these matters, but bearing in mind that it would appear you were prepared to take responsibility for your conduct before the time that the matter was actually resolved. In the circumstances, I am prepared to allow a significant discount in the sentence that you would otherwise receive because of your plea of guilty. This has saved the witnesses the time and trauma of giving evidence – particularly the victims. Also, you have saved the community the time and expense of running contested proceedings.
49 You do have good, staunch support from your family and I do note that upon your release from gaol, it is intended that you reside with your sister on the Mornington Peninsular, away from your peer group. It is certainly encouraging that you have indicated that you do not want to return to drugs, as well as the steps that you have taken in order to address this problem.
50
I accept that in your record of interview you realised that you had taken things too far in relation to the offending, and so has some insight into what you had done. But that being said, the difficulty for you will be to remain drug free. Despite your insight, family support, your most recent attempts to abstain from drug use, and your mother’s evidence that you have expressed to her adamant resolution never to use drugs again nor to reoffend, I am afraid that in light of your extensive criminal history and struggles with drug abuse,
I assess your prospects of rehabilitation as rather poor. This does not mean that you are without hope of changing and it is my sincere wish that you continue on a road to recovery. If you fail to do so, you know very well that you risk being required to serve ever-increasing periods of gaol.
51 In your case, I must impose a just punishment upon you and denounce your conduct. I must give significant weight to the principles of specific deterrence and general deterrence so that people in the community who may be tempted to offend, as you have, will know that if they do so, they will be met with appropriate sanction. I must also impose a sentence that gives weight to the need to protect the community, but which also takes account of the matters put in mitigation.
52 In all of the circumstances, I am afraid that I am unable to accept Mr Nibbs’ submission that a wholly suspended sentence and community-based order ought be imposed in your case. I am also of the view that it is in no one’s interests for the matter to be adjourned for a period to see how things pan out for you. As the learned prosecutor indicated on the plea, such an approach in your case would result in undue anxiety and unfairness to you, given that in your case immediate imprisonment is the only appropriate disposition in my view. Please stand up, Mr Jakubowski.
53 I make the disposal order sought by the Crown, which I understand is not opposed.
Sentence
54 In relation to Charge 1, you are convicted and sentenced to five months' imprisonment.
55 In relation to Charge 2, you are convicted and sentenced to three months' imprisonment.
56 In relation to Charge 3, you are convicted and sentenced to two years, three months' imprisonment.
57 I order that two months of the sentence imposed on Charge 1 and one month of the sentence imposed on Charge 2 be served cumulatively with each other and with the sentence imposed on Charge 3, producing a total effective sentence of two years, six months’ imprisonment.
58 I order that you serve eighteen months' imprisonment before becoming eligible for parole.
59 If not for your pleas of guilty, I would have sentenced you to a total effective sentence of three years, six months’ imprisonment with a non-parole period of two years four months’ imprisonment.
60 Are there any further matters, counsel?
61 MR BEHAN: No, Your Honour.
62 MS ALLAN: No, Your Honour. That is everything.
63 HER HONOUR: Thank you. You may remove the prisoner, thank you.
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