Director of Public Prosecutions v Jennings (a Pseudonym)

[2023] VCC 1346

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

STEFAN JENNINGS (A PSEUDONYM)

---

JUDGE:	HIS HONOUR JUDGE LYON
WHERE HELD:	Melbourne
DATE OF HEARING:	25 July 2023
DATE OF SENTENCE:	3 August 2023
CASE MAY BE CITED AS:	DPP v Jennings (A Pseudonym)
MEDIUM NEUTRAL CITATION:	[2023] VCC 1346

REASONS FOR SENTENCE

---

Subject:  Criminal Law

Catchwords:

Legislation Cited:                  

Cases Cited:Bugmy v The Queen [2013] HCA 37; DPP v Herrmann [2021] VSCA 160; R v Verdins [2007] VSCA 102; Worboyes v The Queen [2021] VSCA 169; Al Wahame v The Queen [2018] VSCA 4; Mazzonetto v The Queen [2022] VSCA 153; Hawre Sherwani v The Queen [2017] VSCA 26; McLean v The King [2023] VSCA 6; Troy Ian Sarjeant v The Queen [2020] VSCA 45; Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41

Sentence:  5 years imprisonment with a non-parole period of 3 years

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. Hogan	Office of Public Prosecutions
For the Accused	Dr J. Murphy	James Dowsley & Associates

HIS HONOUR:

1Stefan Jennings,[1] you have pleaded guilty to the following charges which carry the following maximum penalties:

[1] A Pseudonym.

Charge No.	Offence	Maximum Penalty
1	Persistently contravene family violence intervention order pursuant to s125 Family Violence Protection Act 2008 (Vic)	5 years imprisonment
2	Recklessly cause serious injury pursuant to s 17 Crimes Act 1958 (Vic)	15 years imprisonment
Summary Charge 1	Contravene Family Violence Intervention Order pursuant to s 123(2) Family Violence Protection Act 2008 (Vic)	2 years imprisonment

2You have admitted your criminal history, which is relevant to this offending. I shall return to your history later in these remarks.

Circumstances of Offending

3The Crown tendered the summary of prosecution opening as Exhibit A. A summary of your offending is as follows.

4You had previously been in a relationship with the first victim of your offending, Elizabeth Montgomery.[2] By 14 January 2022, the relationship had ended.

[2] A Pseudonym.

5On 14 January 2022, Elizabeth Montgomery and her two children were identified as the protected persons in an interim family violence intervention order, where you were identified as the Respondent. By that order, you were prohibited from (inter alia):

a)     Committing family violence;

b)     Intentionally damaging property;

c)     Attempting to locate or follow the protected persons, or approach or remain within five metres of the protected persons; or

d)     Go or remain within 200 metres of the protected persons' home, work or school.

6You were served with the order on 11 February 2022.

7On 31 May 2022 you attended Ms Montgomery’s home address and got into a verbal argument with her son. Ms Montgomery asked you to leave. You eventually left and she called the police (Summary Charge 1, contravene family violence intervention order).

8On 6 August 2022 you were at Ms Montgomery’s home address. The pair of you were arguing about drug use and a drug debt. You transferred a total of $662 from Ms Montgomery’s bank account without her consent and left the house. You told the police you did so to ensure she did not spend the money on drugs.

9You and Ms Montgomery argued about ownership of the family dog. You took the dog with you when you left after withdrawing Ms Montgomery’s money from her account.  The pair of you met at a train station later that day, after you assaulted your father in the incident I am about to describe. Ms Montgomery did not agree to meet you. She thought you were leaving the dog for her to pick up. When she could not find the dog, you met with her and the pair of you argued. She called the police. Together these matters constitute Charge 1 on the indictment.

10Between leaving Ms Montgomery’s home address and returning the dog to her at the Laverton station, you went to your father's home. You intended to stay there for a while and you went into the rear bedroom.

11Your father was concerned for the fact that you had brought the dog. It appears an argument developed and it is agreed by all that your father punched you. When you were interviewed by police, you produced a tooth that he had punched loose from your mouth, and you had marks on your face. When police searched his house, they found a bloodstained washcloth in the bathroom. You told police that you had wiped the blood from your mouth with the washcloth.

12You commenced punching your father to the face. You punched him multiple times with a clenched fist and you dragged him by the hair across the floor. Your father lost consciousness and yet you continued to repeatedly punch him. Your father told police that you punched him, then stopped and did something else, and then would return to punch him again.

13It is apparent that your father collapsed. He had suffered a subdural hematoma. At a point when he regained consciousness, he rang his stepdaughter. In that call, you took the phone and told her that you had punched your father and there was blood everywhere.

14You then left your father's house and went to the Laverton station to meet
Ms Montgomery.

15When your step sister arrived, your father was on the couch with multiple lacerations to his face. He vomited and lost consciousness. He was taken to the Royal Melbourne Hospital where he underwent immediate surgery to relieve the haematoma.

16The evidence shows that the injury you inflicted on your father was life threatening. In other words, without surgical intervention, he would have died.

Objective Gravity and Moral Culpability 

17I now turn to a consideration of the objective gravity of your offending and an assessment of your moral culpability. 

18The law provides a maximum period of imprisonment of five years for those who persistently contravene family violence intervention orders. In other words, the law seeks to punish those who engage in family violence, intimidation and fear, and it usually runs concomitantly with that persistent contact.

19The real focus of your offending on this occasion is on the violent assault on your own father in his home. Your attack was vicious, prolonged and intermittent. In other words, you went back to your father on multiple occasions to continue the assault.  It is apparent that your father was incapacitated from the outset. Moreover, the intensity of your assault apparently caused him to fall and hit his head, causing the life-threatening injury. The seriousness of that injury cannot be overstated. But for the call to your stepsister and the medical intervention, your father would have died as a result of the assault you inflicted on him.

20You instructed your counsel that you were not using drugs at the time of the offence, but you were coming down from the effects of methylamphetamine use.  This does not mitigate your offending of course.

21The effect on your father has been profound. He did not want his victim impact statement read to the court, and I will respect his wish for privacy by not repeating the physical, emotional and psychological injuries that he suffered as a result of your attack. It is sufficient to say however that across all three, the impacts have been long lasting and will likely continue into the future.

22Your stepsister has been left feeling guilty for not immediately realising the devastating impact of your offending on your father. She was left with much of the responsibility of caring for him in the months after your assault.

23Similarly, Ms Montgomery continues to suffer in the aftermath of your relationship and your offending. Dr Murphy correctly submitted that I must be careful in my reliance on Ms Montgomery’s victim impact statement – it goes well beyond what is allowed by the legislation. I can however take into account the fact that the victims of domestic violence often have the harder road to rehabilitation than the perpetrators.

24I am left with a clear picture that your offending has had a terrible effect on your family and loved ones. You have now cut yourself off from your most obvious, closest support networks.

25In assessing the objective seriousness of your offending, I take into account your intent in causing serious injury (recklessness), the seriousness of the injury (as I have already outlined), the impact on the victim; at least once you had punched him to the ground and continued your attack, and the persistence of your attack and the violence with which it was inflicted. Further, although you spoke to your stepsister, you did not seek or call for medical assistance for your father, notwithstanding that you knew that he was bloodied, injured and incapacitated. I do take into account the fact that your attack was not premeditated, that you did not use a weapon and the fact that your father initiated the violence against you. I take into account also your immediate admission to your sister of causing injury.

26Dr Murphy submitted that your actions must be seen against the background of your family history and upbringing, your exposure to family violence and alcoholism and how these inform your cognitive functioning in family dynamics and relationships. Dr Murphy submitted that I should conclude that provocation is made out. Dr Murphy pointed to the fact that your father stated that he was as much hurt by your remark that he was absent as a father as his physical injuries, and at this point to your state of mind during the assault – that is, that the neglect, violence and alcoholism you were exposed to as a child came welling back when you assaulted your father.

27In my view, this is the case, but it can only be given only very limited weight. Further, in taking into account the provocation, it goes without saying that your reaction, if it ever was, moved swiftly and far beyond the realms of self‑defence to become a cruel and callous episode of sustained violence against your father.

28You were on a CCO at the time of this offending. This affects my assessment of the seriousness of your offending and your moral culpability for it, as you failed to comply with the order, and the chance that it gave you.

29Your actions across these charges must be met by principles of general and specific deterrence, denunciation, just punishment and an element of protection of the community.

Personal Circumstances

30You are now 43 years old, being born in Shepparton, before moving to Melbourne in your infancy.

31Your parents had one other child together and separated when you were
18 months old. Both subsequently re-partnered and had more children.

32You initially lived with your mother and stepfather; seeing your biological father on weekends.

33In your mother and stepfather's home you report you were often neglected, exposed to their alcohol abuse and family violence and subjected to excessive physical discipline at their hands.

34Your father was also a violent alcoholic and in both houses you state that your siblings were treated more favourably than you.

35At age 12, you were made a ward of the state and placed into out-of-home care, moving through four different foster homes between the ages of 12 and 16. To this day, you are estranged from most of your family and have no contact with your parents. You describe an 'alright' relationship with your siblings, but on further examination you have little or no contact with them.

36Despite your turbulent home life, you described yourself as a 'good kid' and 'happy go-lucky'. You had no issues making friends and report no behavioural issues at school. You left school in Year 11, reporting you had some learning problems and were not academically gifted. This period of your life coincided with your leaving foster care and beginning a more unstable lifestyle.

37Upon leaving school, you spent a period couch-surfing with friends and staying with your aunt. She helped you obtain your first serious job as a cabinet maker, which you held for a number of years until your drug use resulted in the loss of that job.

38You have since worked in several fields including landscaping, forklift driving and loading and driving trucks. You were last employed in a full-time role over 12 months ago and have expressed a desire to return to work driving trucks.

39Your drug use has escalated throughout this time, beginning with cannabis as a means of self-medication for your untreated anxiety and depression, then moving to ice when you began driving trucks.

40You identify your drug use as being the catalyst for the breakdown of the three significant relationships you have had in your life, through which you have one daughter each from your first and second partners. You currently have no contact with your children.

41You have a significant prior criminal history dating back to July 2001. You have been given the opportunity of several community-based dispositions and you have served a number of periods of imprisonment. In all, you have 12 prior convictions for contravening family violence/intervention order type matters, five prior convictions for assault and multiple priors for recklessly causing injury. Disturbingly, on 13 May 2022 you were placed on a CCO (which I have already noted you breached by this offending) by committing offences of contravening family violence intervention orders and recklessly cause injury.

42I received a report of Naomi Cameron, psychologist, dated 30 May 2023. Ms Cameron provided a detailed history of your report of neglect and excessive physical discipline by your mother and stepfather, after your mother and father separated when you were 18 months old. She reported on you going into care at age 12 and your lack of contact with your parents and siblings over much of your adult life.

43Ms Cameron noted your limited education and previous diagnosis that you suffered from an adjustment disorder, major depressive disorder (recurrent) and mental and behavioural disorder arising from substance abuse in the context of your significant drug taking through your teen years and adult life.

44Ms Cameron considers that you still suffer from difficulties of insight into your current offending, your mental health and your substance abuse issues. She notes that while you take some responsibility for your actions, you still also continue to externalise these issues and justify your behaviour. Ms Cameron considers you have poor insight into the effect of drug use as an aggravating feature in your offending.

45Ms Cameron notes your severe depression and moderate levels of anxiety and stress and provides formal diagnoses of major depressive disorder and cannabis and stimulant use disorder. Ms Cameron considers that you remain a medium to high risk of reoffending.

46Ms Cameron in her report notes you have suffered from suicidal ideations in the context of your relationship breakdowns. You have self-harmed in the past and in 2014 attempted to hang yourself. Despite your lack of contact with your daughters, you have identified them as your main protective factor to mitigate your risk of attempting suicide again.

47Ms Cameron considers that on your path forward, you will need to engage in mental health treatment, significant alcohol and drug abuse treatment and a men's behavioural change program. Your progress to re-enter the community will need to be strictly monitored if you are to remain free from offending.

48I have been provided with letters from support workers, Trish McRitchie of the ATLAS Remand Program and Kim Howard of the Australian Community Support Organisation (ACSO). Ms McRitchie outlines that you have successfully completed all 10 modules of Corrections Victoria's ATLAS program, designed to help address your transitional needs in prison and into the community. Likewise, Ms Howard speaks to your voluntary participation in the ReStart program and re-asserts that a support network is in place for you upon your release, particularly in regards to managing your mental health, your alcohol and drug addiction and independent living.

Sentencing Submissions

49Dr Murphy, who appeared on your behalf, submitted that the following factors should operate to mitigate your sentence:

a)     Your plea of guilty at the earliest opportunity, and the fact that it was entered during the COVID pandemic calls into play the Worboyes[3] principles;

[3] Worboyes v The Queen [2021] VSCA 169.

b)     Your plea has utilitarian benefit and is indicative of remorse, as it has spared the victims having to give evidence;

c)     You made expressions of remorse to Naomi Cameron, psychologist, and have taken steps in prison and you have undertaken courses whilst on remand; taking actions consistent with someone who is taking responsibility for their offending and demonstrating insight;

d)     Dr Murphy submitted that your deprived background, wherein you were placed into out of home care at 12 years old, witnessed alcohol abuse and violence calls into play the principles enunciated in the case of Herrmann[4] and the principles in Bugmy[5] to mitigate your moral culpability in a general sense and to reduce your moral culpability and moderate the effects of specific and general deterrence;

e)     Dr Murphy submits the report of Naomi Cameron provides an evidentiary basis for the court's application of the principles of Verdins for limbs 3,4 and 5. You have a diagnosis of severe major depressive disorder and moderate anxiety and stress. The report makes it clear that you are presently experiencing severe symptoms of your mental health issue and no reason to suggest you were any better at the time of the offending;

f)   Specifically in relation to Verdins[6] limb 5, Dr Murphy submits the burden of imprisonment on your mental health due to your psychological conditions is more so than that of a person of normal health in the general prison population;

g)     Dr Murphy submitted that I should use your mental health issues as context or background against which your offending occurred and this should inform the court's assessment when fixing a non-parole period;

h)     Dr Murphy referred to the principle of totality; that is that I must not impose a crushing sentence by cumulating all the constituent parts of the sentence I must impose;

i)   Next, Dr Murphy referred to the provocation, to which I have already referred, where it was the victim who threw the first punch.  He did so not to shift any blame, however it ought mitigate the sentence I impose;

j)   Dr Murphy pointed to the fact that you have shown insight by consenting to an indefinite family violence intervention order taken out by Ms Murray and others; and

k)     Finally, Dr Murphy referred to your prospects of rehabilitation, submitting that some of the opportunities taken by you already show insight.  Dr Murphy submits that you are not without prospects of rehabilitation and that you intend to remain abstinent from drugs when released back into the community.

[4] DPP v Herrmann [2021] VSCA 160.

[5] Bugmy v The Queen [2013] HCA 37.

[6] R v Verdins [2007] VSCA 102.

50Ms Hogan, who appeared for the Crown, submitted that the only appropriate sentence is a term of imprisonment with a head sentence and non-parole period.

51The Crown concedes that the following matters are relevant as mitigating considerations:

a)     Your plea of guilty at an early stage facilitates the court of justice;

b)     Your expression of remorse, but these should be given extremely limited weight. The Crown points to the fact that you blame your father in the record of interview and otherwise sought to justify the assault that you inflicted on him;

c)     The Crown conceded your personal circumstances, including your deprived childhood background, should be taken into account such that Bugmy and the wider principles in Herrmann apply;

d)     The Prosecution submits that Verdins principles 3 and 4 have some limited application, but given the connection between your substance abuse and your offending, any moderation ought to be minimal; and

e)     The Crown conceded that Verdins limb 5 has application.

52The Crown submitted that your prospects for rehabilitation should be considered to be guarded due to your long-standing drug addiction, your relevant criminal history and the past opportunities of rehabilitative sentences that you have squandered. You have a lack of community support, you have previously relied on the victims of the offending for housing, and you will face difficulties in finding accommodation upon your release.

Analysis

53The Crown submitted that the objective seriousness of your offending on the charge of recklessly causing serious injury should be viewed as mid-range. While I am loathe to adopt specific labels, I have already set out the seriousness of your offending and the factors which I must take into account in assessing it and your moral culpability.

54I am prepared to conclude that your disadvantaged childhood and background enlivens the principles enunciated in Herrmann and Bugmy. The psychological report of Naomi Cameron refers extensively to your childhood ([87 – [90], esp [89]; [93] – [95]) and concludes that your offending, 'was predisposed by implicit offence supportive attitudes such as violence is an act of self-defence and violence is justifiable', which you learned from your childhood.

55I also conclude that Verdins principles 3 & 4, moderating general and specific deterrence are enlivened, but should only be given very limited weight in mitigating your sentence. Although you have suffered from a long-standing major depressive disorder and anxiety, it is not entirely possible to disentangle this offending from your associated drug use. Dr Murphy readily conceded that you were coming down from drug use on 6 August 2022. Nevertheless, the presence of the major depressive disorder and the effect on your offending was described by Ms Cameron in her report ([93] – [95]). I accept her opinion on this aspect.

56I also accept that Verdins principle 5 has application in the sentencing consideration.

57Your plea of guilty has utilitarian benefit.  I am prepared to conclude that you have expressed some remorse for your offending, but your insight is very limited indeed. You initially expressed no real remorse for what you did to your father in the record of interview, Ms Cameron does not consider you understand the effect of drugs on your offending behaviour and you have continued to externalise and justify aspects of the assault.

58In my view, your prospects for your rehabilitation are guarded. The plea of guilty, your willingness to undertake drug counselling and the courses you have undertaken whilst in prison do provide some signs of encouragement. You also have a reasonable work history. Nevertheless, you have cut yourself off from any family/relationship support in the community. You were homeless and drug using at the time of this offending, and I mean generally, not drug using on this day. Both of these issues will need to be substantially addressed if you are to make any progress towards a reintegration back into the community.

59Speaking bluntly, if you do not address your drug issues, you are unlikely to be able to address your mental health and social issues. Your prospects for rehabilitation are very much dependent on your determination and ability to stay away from drugs.  I was not referred to any particular comparable cases, but through my research and that of my staff I intend to refer to a number of cases on the charge of recklessly cause serious injury.

60I start with the case of McLean [2023] VSCA 6.[7]  That was a case where on the charge of recklessly cause serious injury the applicant on appeal and in the court below was sentenced to five years' imprisonment on the charge of RCSI.  That was a single surprise punch to a stranger.  It was characterised as a random unprovoked attack on a stranger who had his hands in his pockets and was in no position to defend himself.  He was unconscious for eight or nine minutes, and the applicant's actions occasioned a high risk of death.

[7] McLean v The King [2023] VSCA 6.

61That case refers to the case of Sarjeant [2020] VSCA 45,[8] which also examines the meaning of serious injury.  I have looked also at the case of Sherwani [2017] VSCA 26.[9]  That was a premeditated attack and continued whilst the victim was on the ground.  The accused in that case also had a significant history of violence and was a member of I think of an outlaw motorcycle gang.  In that case the applicant was sentenced to six years with four years to serve.

[8] Troy Ian Sarjeant v The Queen [2020] VSCA 45.

[9] Hawre Sherwani v The Queen [2017] VSCA 26.

62In the case of Mazzonetto [2022] VSCA 153,[10] there was a single punch which caused a traumatic brain injury.  It was a life-threatening injury with ongoing impairment to cognitive functions in the victim.  The injuries were described as catastrophic.  Eight days before this attack the applicant had been sentenced to 55 days' imprisonment, which was already served on charges of intentionally cause injury where he punched a stranger in disturbingly similar circumstances.  The Court of Appeal in that case re-sentenced the applicant to six years with four years to serve.

[10] Mazzonetto v The Queen [2022] VSCA 153.

63Then I refer to the case of Al Wahame [2018] VSCA 4,[11] where the applicant punched a stranger who was in surrender mode, that is the stranger had his hands up and then Al Wahame approached him.  In that case the victim again suffered catastrophic lifelong injuries, and Al Wahame was sentenced to six years on the charge of recklessly cause serious injury.

[11] Al Wahame v The Queen [2018] VSCA 4.

64I note from the earlier cases, going back to about 2014, that since that time sentences for recklessly cause serious injury in the circumstances of surprise punches or coward punches have increased, but I note that when I look at the cases that I have referred to, that your situation is not entirely comparable to those cases.  I also bear in mind the principles enunciated in Dalgleish,[12] that is I must not be overly influenced by the results or outcomes in other cases.  I must look at the objective circumstances of your case, your moral culpability and your own circumstances and come to a view appropriate to the circumstances of your case.

[12] Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41.

65Taking all the matters I have referred to through the course of my remarks into account, I order the following sentences.

Orders

66On the charge of persistent contravention of a family violence intervention order, you are convicted and sentenced to 18 months' imprisonment.

67On the charge of recklessly cause serious injury you are convicted and sentenced to a term of four years and nine months' imprisonment.

68On the summary charge of contravene a family violence intervention order you are convicted and sentenced to six months' imprisonment.

69I make three months of the sentence on Charge 1 cumulative on Charge 2 and the summary charge.  As I have made no order for cumulation the summary charge remains concurrent.  That makes, Mr Jennings, for a total effective sentence of five years' imprisonment.

70I order that taking into account all of the matters that I have enunciated, you will serve a non-parole period of three years and three months.

71The 6AAA declaration is that but for the plea of guilty, all things being equal, I would have sentenced you to a term of seven years, with five years to serve.

72I order that the pre-sentence detention of 362 days, excluding today, be reckoned as already served.

73I will make the ancillary orders sought in chambers.

74From your perspective, Mr Liaw, does that cover all matters and is there anything you wish to raise?

75MR LIAW:  It does, Your Honour, nothing further is sought.

76HIS HONOUR:  Thank you.  Dr Murphy, does that cover all matters from your perspective?

77MR MURHPY:  It does, may it please the court.

78Mr Jennings, the sentence of the court is five years with three years to serve.  Dr Murphy and your instructing solicitor will be in touch with you to discuss the matters shortly.  The ancillary orders will be made in chambers.  Thank you, I will cut the link at this time.

‑ ‑ ‑