Director of Public Prosecutions v Jennings

[2015] VCC 1297

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-15-01261

DIRECTOR OF PUBLIC PROSECUTIONS

v

ANDREW PAUL JENNINGS

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JUDGE:	HIS HONOUR JUDGE DEAN
WHERE HELD:	Melbourne
DATE OF HEARING:	14 September 2015
DATE OF SENTENCE:	15 September 2015
CASE MAY BE CITED AS:	DPP v Jennings
MEDIUM NEUTRAL CITATION:	[2015] VCC 1297

REASONS FOR SENTENCE
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Cases Cited:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P Bourke	Office of Public Prosecutions
For the Accused	Mr M Turner	H.B.H. Legal

HIS HONOUR: 

1Andrew Paul Jennings you pleaded guilty to one charge of intentionally causing serious injury, contrary to s.16 of the Crimes Act 1958.  The maximum penalty for that offence is 20 years' imprisonment. 

2You pleaded guilty at committal mention and I have taken your early plea into account in your favour in mitigation of sentence.

3You have admitted an extensive criminal history that sets out that you have served a number of terms of imprisonment and you have also been the subject of dispositions intended to facilitate your rehabilitation.  However, the last term of imprisonment was in 2004.

4On 30 January 1998, in the County Court at Melbourne, you were sentenced to seven years' imprisonment, with a non-parole period of five years for charges of aggravated burglary, armed robbery and other associated offences of violence.  Whilst this prior conviction is relevant for sentencing purposes in this case, it must also be noted that it occurred over 17 years ago.

5A prosecution opening was read to the court and tendered in evidence.  Your offending may be summarised as follows –

6On the evening of 5 April 2014, the victim in this matter was consuming alcohol and cannabis with two other men, at a premises located at Laverock Road in Warrnambool.  You and three other males entered the premises apparently without invitation and in an agitated and intoxicated state.  For reasons that remain unclear, a fight erupted and a victim was threatened by you with a knife.  Shortly afterwards he was then thrown through a window at the premises.  As a result, he suffered an 8 cm wound to his abdomen, that required emergency surgery on two occasions at the Warrnambool Hospital.

7You were arrested on 10 April 2014 and denied any knowledge of your offending.  Subsequent DNA analysis and exhibits obtained at the premises disclosed a match to you.

8It is clear that your offending on this occasion may be described as serious and acts of violence occurring in other person's properties are all too prevalent.  Accordingly general deterrence and specific deterrence are important sentencing considerations in your case.  Furthermore, you must be punished for what you have done.

9I now turn to your personal circumstances.  You were born on 18 November 1971 and are now aged 43.  You are indigenous and a member of the Yorta Yorta language group.  You were adopted out at the age of 13 months old to a family in Warrnambool, and thereafter were educated and raised by them.  However you returned to your birth family at the age of 11 and commenced living in Shepparton.

10In your early teens you began abusing alcohol and drugs and your criminal history commenced.  You returned, however, to your adopted family in Warrnambool in your early 30's and you now continue to reside with them.  I have heard evidence from your adopted mother, Carol Howlett and your adopted sister Linda Jennings, who both gave impressive evidence as to their ongoing commitment and care for you and that you now reside in a home in Warrnambool owned by that family.

11I have received in evidence a psychological report of Mr David Ball a forensic psychologist, setting out your developed mental history and psychological and psychiatric condition.  It is plain in my opinion that you suffer from an acquired brain injury as a result of your history of being the victim of numerous assaults and your extensive drug and alcohol abuse.

12You suffer from significant impairment in your cognitive functioning and in Mr Ball’s opinion, these impairments are of a permanent nature.  He further observed that your impairment has resulted in unsophisticated social reasoning and an incapacity to exercise appropriate judgment and control.

13I have also received in evidence a medical report of Dr Mark Page, setting out your physical condition, which includes severe pulmonary hypertension, cirrhosis of the liver, hepatitis C infection and a history of seizures, no doubt as a result of your acquired brain injury.  In Dr Page's opinion, "Andrew's health problems are very significant, and his long-term prognosis is guarded at best."

14Your adopted mother and sister both gave evidence that they provide the necessary support to you to ensure that you continue to receive ongoing medical support and treatment.  It is plain, in my opinion, from your appearance in court that your physical and psychological condition, may appropriately be described as precarious. 

15Whilst the offending in this case is plainly of a serious nature, in my opinion your case may properly be described as an exceptional one, by reason of your acquired brain injury and physical illnesses.  In my opinion, a term of imprisonment would inevitably have a seriously adverse impact upon your conditions. 

16All of the relevant sentencing considerations in this case also need to be considered in the context of your history of indigenous disadvantage.  You were adopted to a non-indigenous family when you were 13 months old and then returned to your indigenous family when you were 11 years old.  No doubt this had a very significant impact upon your functioning, development and ultimate capacity to live in two societies.  Your adopted family have nevertheless stood by you and their support and ongoing care for you can only be described as exemplary.

17In the result, in my opinion, the purposes for which this sentence is to be imposed may be achieved by the imposition of a Community Corrections Order in your case.  Accordingly, I had you assessed as to whether or not you are appropriate for such a disposition, and I have received a report from Corrections Victoria that you are.

18Any assessment of your prospects for rehabilitation must be approached with a high degree of caution. But for rehabilitation to be achieved in your case, it is plain, in my opinion, that you require ongoing support, treatment and supervision are in the community.  Your case is, in my opinion, a very good example of the appropriateness of the imposition of a Community Corrections Order, and I have decided that it is the appropriate proportionate penalty to impose in your case.

19In the result in relation to the charge of intentionally causing serious injury, you are convicted and released on a community corrections order for a period of three years on the usual core conditions, which your counsel will explain to you.  You are required to report to the Warrnambool Community Corrections Office today prior to 4 pm. 

20I also order that you be the subject of the following special conditions.  You undertake treatment and rehabilitation for drug addiction.  You undertake treatment and rehabilitation for alcohol addiction.  You undertake treatment, assessment and rehabilitation in relation to your medical condition.  You undertake treatment, assessment and rehabilitation in relation to your mental health.  That you undertake programs to reduce reoffending, in particular anger management and for the duration of the order, you be under the supervision of Community Corrections.  Does your client agree to enter an order in those terms Mr Turner?

21MR TURNER:  Yes, Your Honour.

22HIS HONOUR:  It is appropriate having regard to his cognitive impairment that I ask you that question.  You have taken those instructions from them have you?

23MR TURNER:  Yes, Your Honour.

24HIS HONOUR:  Yes, all right.  Thank you.  I will make an order in those terms. 

25All right.  Mr Turner, will you explain to Mr Jennings and perhaps his mother and sister can explain to him as well that if he reoffends that will constitute a breach of the order.  So and he will come back and be resentenced, which means he may well end up in prison.  Now everyone knows what is going to happen to him if he ends up in prison, so it is essential that he does not reoffend and that he complies with this Order.  So without putting a too fine a point on it Ms Howlett, Ms Jennings, you are going to have to ensure that he complies with the order, do you follow?  He has got quite a bit, there will be quite a bit of attendance involved and supervision and appointments and so on but he has got to comply with the Order.  If he does not, and he gets intoxicated and violent again, then there will be a problem.  You will explain that to him as well.

26MR TURNER:  Yes, Your Honour.

27HIS HONOUR:  We will adjourn it to 10 am.

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