Director of Public Prosecutions v Jameson

[2019] VCC 1873

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

AT LATROBE VALLEY
CRIMINAL JURISDICTION

CR 19-01969

DIRECTOR OF PUBLIC PROSECUTIONS

v

KRISTOPHER JAMESON

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Latrobe Valley
DATE OF HEARING:	14 November 2019
DATE OF SENTENCE:	14 November 2019
CASE MAY BE CITED AS:	DPP v Jameson
MEDIUM NEUTRAL CITATION:	[2019] VCC 1873

REASONS FOR SENTENCE
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Subject:
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Cases Cited:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr R. Hammill	Office of Public Prosecutions
For the Accused	Ms S. Bailey	Richard Davis & Associates Lawyers

HIS HONOUR: 

1Kristopher Jameson, you have pleaded guilty to one charge of aggravated burglary and one charge of intentionally damaging property.  Those crimes carry maximum penalties of 25 years and 10 years respectively.

2You were 21 years of age at the time of the offending and are still only 21. 

3Accordingly, I sentence you as a very young man, only slightly over the age at which I could have been able to give you a youth justice sentence.  Unfortunately, that is not the case.

4Firstly, pursuant to s.464ZF of the Crimes Act, I make an order that you provide a saliva sample for DNA purposes.  That order having been made, I must advise you that should you refuse to provide such a sample, police may use reasonable force to take it from you. 

5You pleaded guilty at the earliest reasonable opportunity, despite having made denials to police and you must get the utilitarian benefit of that plea of guilty.  It would seem to me, in this particular situation, this would have been a difficult trial for the Crown to effectively run and accordingly I do give proper regard to the utilitarian benefits of it.

6Insofar as remorse is concerned, whether there is remorse towards the victim is another matter, but there is certainly appropriate remorse expressed, in terms of the overall effect that this has had, not only on any potential victim, but also upon your family. 

7You do have a prior matter from the Children's Court, but that is of little significance in this sentencing process and as I understand it, you have no matters pending.

8The situation was that you have a younger brother.  He was residing with a
Mr Tuckerman, who was apparently involved in drugs, as was your younger brother.  You and Mr Tuckerman have known each other for some 10 years.  You had apparently, sometime prior to the incident, gone round to the address in Clyde North and spoke to Mr Tuckerman, wanting to know the whereabouts of your brother.  I am not privy to what the rest of that conversation was about, but apparently it ended without gross dispute. 

9However, on 6 July 2019 at approximately 10.30 in the morning, Mr Tuckerman was feeding his four month old daughter, sitting on a couch in the lounge room.  His partner, a Ms Newman, was asleep in the master bedroom with her two year old son.  You walked past the address of the victim, carrying a length of wood in your right hand and approached his vehicle, which was parked across the front driveway.  You smashed the windscreen and back passenger window of that vehicle.  There was substantial damage to it, though no estimate has been given to me.

10You then walked to the front of the house and used the length of wood to smash the glass panel at the front entrance door.  You then opened the front door and entered the house, proceeding to walk down the hallway towards the lounge room.  You were yelling at Mr Tuckerman, but he says he was unable to understand what you were saying.

11Your brother was apparently in the garage at the time that you entered the house.  He, upon hearing glass smash and footsteps in the hallway, he left the garage and went into the backyard.  He then jumped a fence into a neighbouring property.  Whether he saw you or was aware it was you, I do not know.  There is one reference that has been tendered on your behalf which seems to indicate that he did see you but your brother's reference indicates that he thought it was the police.

12In any event, you became more aggressive and walked up to the victim, who was still sitting on the couch, holding his four month old daughter.  You said things like, 'Where is he?' and, 'Get up and come outside.'  He then recognised you.  You continued to yell at him, asking where 'he' was.  He understood that you were referring to your brother.

13You suddenly, in that situation, swung the length of wood at the left side of his legs.  He attempted to shield himself and his daughter by raising his legs.  You then hit him twice to the left side of his shin and you continued to yell at him.  The woman, Newman, was awoken by your yelling and walked out of the bedroom into the lounge room and she, on the Crown opening, told you to get out of the house. 

14You turned around and used the length of wood to smash a hole in the plaster wall at the end of the hallway.  You then continued walking down the hallway towards the front entrance.  You entered the garage door through an internal door located next to the front door.  You walked from the garage into the rear of the house.  While walking down the side of the house, you smashed the window of a rear bedroom. 

15Upon hearing the glass smash, the victim called out to his dogs.  He and
Ms Newman went to the back glass sliding door and you were also out the back of the house at that time.  You apparently yelled that you were not going to hurt the dogs and immediately hit the glass sliding door with the length of wood, causing that glass to smash as well. 

16All those incidents of smashing glass and cars are all part of the one, effectively, rolled-up charge of intentionally damaging property. 

17Newman apparently then contacted the police upon your leaving. 

18You were arrested by police, interviewed and essentially gave yourself a false alibi and said that you were not even there.  It was put on the plea that you went around there on the basis of your brother, who you are very protective of, having been using drugs or supplied drugs by the victim, Tuckerman. 

19It is clear that you went around there and you pleaded guilty to entering the premises with the intention to assault.  Had this escalated from some argument or fight inside, it might be a different story, but you smashed the car, you smashed your way in without any attempt to gain peaceful entry and then, in those circumstances, attacked a man holding a small child.  You had been around there previously.  I do not accept the assertions put through your counsel that you did not realise that the infant was there and it is in those circumstances that this has occurred.

20Insofar as your plea of guilty is concerned, I note that - a number of references were tendered on your behalf, but it was of concern to me that in your reference from Mr Bulmer, who is, as I understand it, the partner of your grandmother, you told him this, that - or so he says you said:

'Kristopher took it upon himself to look for his brother.  He found him staying at the address of the incident and that the persons at that address were supplying his younger brother with illegal drugs.  Kristopher fearing for Nathan, went to the address to retrieve the young brother, however Nathan ran away upon seeing Kristopher.  Kristopher then confronted the occupants of the house over Nathan and the occupants' supplying of drugs to his juvenile brother.  An argument ensued and the situation escalated, resulting in the matter before you.'

21That is not what happened at all.  This is a situation where you did not go around there on a rescue mission, you went around there clearly by the objective nature of your conduct to assault.  It is conceded by your counsel in the terms of the plea material, that it was a vigilante attack and as I say, it is not, in that sense, a rescue mission.

22The offending has to be regarded as serious.  It calls for the application of general and specific deterrence.  There must be appropriate denunciation and appropriate punishment.

23The authorities in regard to these sorts of matters are very clear and have been now for some time, all stemming really from a decision in the matter of Hogarth, as to the sort of sentences that should be imposed for these vigilante confrontational aggravated burglaries. 

24One of the main concerns about aggravated burglaries taking place with a weapon, where the intention is to assault, that far, far more serious consequences can arise.  Sentences for this type of offending of four and five years in the adult jurisdiction are far from uncommon. 

25Your situation is that you are still very young and that assists you greatly in this situation.  You are also getting a significant benefit for your plea of guilty.  And whilst, in my view, a non-custodial disposition here would be appellable error, the Crown have conceded, very generously, I might say, that a combination sentence is within range.  I think that is appropriate in these circumstances and I would not go beyond a Crown concession like that, particularly where the accused is one as young as you.

26I then looked at the matters personal to you and tendered on your behalf were references.  Clearly you had some difficulties at school.  You have had problems with family.  You, upon leaving school, have always, it would seem, worked and you appear to be a very diligent and good worker.  You were good at sport when you were younger and apparently continue, at least, to participate in that.

27I do accept for these purposes the your rage, as I think it must be described, was brought about by the circumstances of your younger brother, but this is the sort of situation that the, as I said before, the Court of Appeal has said just has to be stopped. 

28The prospects of your rehabilitation, I think, should be good.  The risk of you
re-offending, as described by Corrections, is as moderate, if your position is that you do not use alcohol to excess and you do not use drugs, I think the prospects of your rehabilitation, sorry, the risk of you re-offending should be low, as time goes by. 

29I have read those references and do take them very much into account.  But in the end here, even though I have got one so young with no priors and good prospects for the future, with a good work ethic and a strong, as best you can, family support.  This ultimately is a premeditated attack on a person.  You entered premises with a weapon, displayed your anger outside, before you even went in and carried out the assault in the presence of children and certainly aware of one of those children being present, in my view.

30Even if, as you put through your counsel, you were not aware of the presence of the infant until after you had struck Mr Tuckerman, even in that situation, you continued to put a hole in the wall and smash windows and just keep on with the violence. 

31The best I can do in a situation such as this, is to give you a sentence which reflects your age, but still shows the seriousness of this type of conduct. 

32I have had you assessed for a community corrections order and you were found to be acceptable.  If you agree to be on that community corrections order, it will be for a period of two years, with the conditions that have been outlined in court and it will be conviction.

33In this situation with the criminal damage, bearing in mind you have no priors, two months. 

34On the charge of aggravated burglary and I have already indicated the sort of sentences that are passed these days for this crime, I am going to give you eight months.

35I direct that the two months be served concurrently with the eight months, making a total effective sentence of eight months. 

36If you agree, that will be followed by a two year CCO, with the conditions that
I have indicated. 

37All right, that order is made and the CCO is in place. 

38Pursuant to s.6AAA, I say that, but for your plea of guilty, I would have sentenced you to be imprisoned for a period of two years and three months, with a minimum term of 18 months. 

39MS BAILEY:  As Your Honour pleases.

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