Director of Public Prosecutions v Jensen
[2024] VCC 219
•1 March 2024
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR-23-01463
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| KYLIE JENSEN |
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JUDGE: | HIS HONOUR JUDGE MAIDMENT |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 15 February 2024 |
DATE OF SENTENCE: | 1 March 2024 |
CASE MAY BE CITED AS: | DPP v Jensen |
MEDIUM NEUTRAL CITATION: | [2024] VCC 219 |
REASONS FOR SENTENCE
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Subject:Plea - sentencing
Catchwords: Common assault - attempt to cause injury intentionally - breach family violence intervention order
Legislation Cited:
Cases Cited:
Sentence:187 days' imprisonment plus 18-month CCO
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr M. Cookson | Office of Public Prosecutions |
For the Accused | Mr J. Portelli | James Dowsley & Associates |
HIS HONOUR:
1Ms Jensen, you have pleaded guilty to an indictment containing two charges: one of common assault and one of attempting to cause injury intentionally. You have also pleaded guilty to one related summary offence of breaching a family violence intervention order. All of the offences occurred on 21 August 2022.
2You have also admitted a number of prior convictions set out in your criminal history. We noted that the criminal history showed your date of birth in 1989, whereas it is 1987 and I think that might have been amended now, has it?
3MR COOKSON: There is a process that needs to be undergone. The informant is requesting formal information from Births, Deaths and Marriages, so that is still in process.
4HIS HONOUR: I am going to proceed on the basis that 1987 is the correct date and you are 36 years of age.
5MR COOKSON: As Your Honour pleases.
6HIS HONOUR: In the plea hearing the prosecution relied upon a prosecution opening which was Exhibit A, and although that had been produced for the sentence indication hearing it was used for the purposes of the plea hearing which followed.
7In short compass, the relevant events occurred on Sunday 21 August 2022 when you attended the home of a former partner in Frankston. He had obtained a family violence intervention order against you and despite that fact, he allowed you to come into his apartment and you spent the day there. The events which gave rise to the offending occurred from about 7.20 pm on that day.
8You and your former partner apparently had an argument. As a result of that argument, you threw a steel drink bottle from the kitchen towards him, at a time when he was in the spa bath. You then followed that up by plugging a power board into the power point, turning the electricity on and throwing the power board into the bath where, by that time, he was standing. Fortunately, the safety switch on the power board activated and the electricity was then turned off. When he got out of the spa and sought to approach you, he found that the front door was open and you had gone. You returned to the property shortly afterwards with a friend and he refused to allow you in.
9You were interviewed by police that same day. You indicated that you were aware of the family violence intervention order and that your former partner was the protected person, the subject of that order. You claimed that nothing occurred between yourself and him that night.
10Your counsel provided me with an outline of submissions dated 2 February 2024, which is Exhibit 1, and a psychological report from Naomi Cameron, forensic psychologist, dated 7 November 2022. Your counsel relied significantly on the content of that report, which indicates that you had what could only be described as a seriously deprived upbringing. You were the subject of significant abuse and emotional and physical deprivation. It is common ground between your counsel and Mr Cookson that your early life, the deprivations and the abuse that you suffered during that period trigger the application of principles known as the Bugmy principles, which are well known in the sentencing law in Australia.
11The report goes on to identify the link between your serious drug abuse and your upbringing. It indicates the existence of a number of serious mental impairments, which include Post Traumatic Stress Disorder, major depressive disorder, generalised anxiety disorder and various substance abuse disorders. You were also diagnosed with borderline personality disorder.
12In combination, your counsel submitted that not only do the Bugmy principles apply but also the Verdins principles, particularly limbs 5 and 6 having application to sentencing in your case.
13It was submitted that your plea of guilty has a significant utilitarian value and I accept that submission.
14You have a very poor criminal record, particularly beset with many instances of breaching court orders, and the suggestion that you be the subject of a community correction order now has to be assessed in the light of your past history.
15You are presently living by yourself in Moe. You have some supports but substantially you are dependent upon your own resources. Your counsel submitted that the appropriate sentence, despite the serious nature of the offending, is a term of imprisonment which equates with the period you have already spent in custody (totalling 187 days) coupled with a community correction order which is designed to have, amongst other things, rehabilitative programs built into it to assist you with your drug issues and your mental health and with programs to reduce your risk of reoffending. I note that the psychological report suggests that there is a high risk of you committing further offences of violence.
16The submissions of your counsel are well founded. The prosecution does not seek to argue against those submissions. I had you assessed for a community correction order. The assessment report finds you suitable and the accompanying Forensicare report supports the utility of a rehabilitative order relating to your mental health.
17In all the circumstances the sentence that I impose is:
18On Charge 1 of common assault, you are convicted and sentenced to imprisonment for 30 days.
19On Charge 2 of attempting to cause injury intentionally, you are convicted and sentenced to imprisonment for 187 days.
20On the related summary offence of breaching the family violence intervention order you are convicted and sentenced to imprisonment for a period of 30 days.
21All of those sentences will run concurrently. The total effective sentence is therefore 187 days.
22I declare 187 days pre-sentence detention as time to be reckoned as served on the sentences that I have imposed.
23In addition, for each of those three offences I propose that you will be the subject of a community correction order for a period of 18 months, which will be administered from the Morwell Correction Services. The address of the Morwell Correction Services is 25 Ann Street, Morwell. You will be required to report there within two clear working days which will be Tuesday of next week, 5 March 2024.
24The order will be subject to mandatory terms that apply to all community correction orders, and they are that:
· you must not commit another offence for which you could be imprisoned during the time that the order is in force;
· you must comply with any obligation or requirement under Regulation 15 of the Sentencing Regulations, which means that you must not turn up for supervision appointments or other appointments that are arranged for you under the order, drug-affected or drunk;
· you must report to and receive visits from the Secretary of the Department of Justice or his or her delegate;
· you must, as I have indicated, report to the Community Corrections Centre at Morwell within two clear working days, that is by the end of Tuesday of next week;
· you must let a Community Corrections officer know within two clear working days of you changing your address or job;
· you must not leave Victoria without first getting permission to do so from the Secretary or his or her delegate; and
· you must obey all lawful instruction from and directions of the Secretary of the Department of Justice or his or her delegate.
25In addition to those terms, I would order that:
· you must perform 100 hours of unpaid community work over a period of 18 months as directed by the Regional Manager, but I propose to order that all of those 100 hours can be offset against treatment and rehabilitation satisfactorily undertaken - in other words, if you undertake up to 100 hours of treatment and rehabilitation, each hour satisfactorily undertaken can be counted against the hours of unpaid community work for the purposes of the unpaid community work condition, in other words, you can do all of your unpaid community work by satisfactorily undertaking the treatment and rehabilitation that I have in mind - if you fail to comply with the order for the 100 hours of unpaid community work, the Secretary of the Department or his or her delegate may give you a direction to perform additional hours of unpaid community work in accordance with the Sentencing Act;
· you must be under the supervision of a Community Corrections officer for the period of the order, namely the 18 months;
· you must undergo assessment and treatment (including testing) for drug abuse or dependency as directed by the Regional Manager;
· you must undergo any mental health assessment and treatment that may include psychological, neuropsychological, psychiatric or treatment in a hospital or residential facility as directed by the Regional Manager;
· you must participate in programs and/or courses that address factors relating to the offending as directed by the Regional Manager; and
· you must reappear at this court for a review of your compliance with the order as directed by the court. The date that we propose is 28 May 2024 at the Morwell County Court at 9.30 am on that date. You will have to attend in person on that day.
26Mr Portelli, would you like a few minutes just to discuss the order with your client and perhaps send her a photocopy of the proposed order?
27MR PORTELLI: Yes, Your Honour.
28HIS HONOUR: Do you have a copy of the proposed order?
29MR PORTELLI: No, Your Honour.
30HIS HONOUR: My associate will hand one to you in a moment, but I will leave the court whilst you do that.
31MR PORTELLI: Thank you, Your Honour.
32HIS HONOUR: You can explain to your client that if you and she are satisfied that she understands the order and she is willing to comply with the terms of it, she can indicate that to me and I will treat that as consent to participate in the order and that will suffice for the purposes of the requirement that she consent.
33MR PORTELLI: Yes, thank you, Your Honour.
34HIS HONOUR: All right, I will leave the court.
35(Short adjournment.)
36HIS HONOUR: Mr Portelli, are you happy that your client understands the order and is willing to comply with it?
37MR PORTELLI: She is, yes, Your Honour.
38HIS HONOUR: Ms Jensen, you have heard what I have just said to your barrister.
39OFFENDER: Yeah.
40HIS HONOUR: Are you willing to comply with the order?
41OFFENDER: Yes.
42HIS HONOUR: Do you understand the terms of it?
43OFFENDER: Yes.
44HIS HONOUR: Do you understand that if you are in breach of the terms of the order, you could be liable for up to three months' imprisonment just for breaching the terms of the order? Do you understand that?
45OFFENDER: Yes.
46HIS HONOUR: Do you also understand that you could also be brought back before this court and probably before me, if you commit a further offence punishable by imprisonment during the period of the order and if that happened, that I could resentence you for these offences as well as for any offence that you committed in breach of the order? Do you understand that?
47OFFENDER: Yes.
48HIS HONOUR: So the order really is a bit like a suspended sentence hanging over your head, so it is important that you do comply with the terms of it and particularly important that you do not commit any further offences punishable by imprisonment during the next 18 months. Do you understand?
49OFFENDER: Yes.
50HIS HONOUR: And knowing all of that you are willing to be placed on this order, is that right?
51OFFENDER: Yes.
52HIS HONOUR: I will treat that as your consent to be placed on the order. I shall sign the order and once I have done that, the order will be in place.
53MR COOKSON: As Your Honour pleases.
54MR PORTELLI: As Your Honour pleases.
55HIS HONOUR: Now we are going to see you again on 28 May of this year at the Morwell County Court at 9.30 am.
56OFFENDER: Yeah.
57HIS HONOUR: ‑ ‑ ‑ you will be required to attend that court in Morwell on that day at 9.30 am. Do you understand?
58OFFENDER: Yes.
59HIS HONOUR: All right. But for your pleas of guilty I would have sentenced you to a total effective sentence of imprisonment of 15 months with a non-parole period of 9 months' imprisonment.
60Any other orders that I need make, counsel?
61MR COOKSON: Not from my end, Your Honour.
62MR PORTELLI: No, Your Honour, thank you.
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