Director of Public Prosecutions v JK
[2024] VSC 24
•31 January 2024
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2023 0257 & S ECR 2024 0011
| Between: | |
| DIRECTOR OF PUBLIC PROSECUTIONS | |
| -and- | |
| JK | Accused |
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JUDGE: | Croucher J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 31 January 2024 |
DATE OF SENTENCE: | 31 January 2024 |
DATE OF PUBLICATION OF REASONS: | 7 February 2024 |
CASE MAY BE CITED AS: | DPP v JK |
MEDIUM NEUTRAL CITATION: | [2024] VSC 24 |
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CRIMINAL LAW — Sentence — Assault of two NDIS workers by one act of threatening behaviour — Breach of condition of supervision order by skolling cans of vodka‑mix in bottle shop — Attempted breach of condition of supervision order by trying to depart scene in taxis, unescorted by NDIS workers — Accused, aged 48, of borderline intelligence and suffers treatment‑resistant schizophrenia — Following service of seven‑year prison sentence for intentionally causing serious injury (part of which involved detention at Thomas Embling Hospital), accused placed on interim supervision order in June 2022 and final supervision order in October 2022 — Thereafter, housed at secure extended care unit (“SECU”) pursuant to condition of interim and final supervision orders — Present offending occurred 12 months later, when on supervised release from SECU for personal appointments — Comparatively minor assaults — No physical contact or harm — Supervision order offences at lower end of spectrum of gravity — Accused mentally unwell at time of offending, and unfit for police interview — Prior convictions for assaults, armed robberies, etc, but none for breaching supervision order — Early pleas of guilty — Relatively poor prospects of rehabilitation — Punitive sentencing purposes of lesser weight than usual — Parsimony — Sentenced to adjourned undertaking to be of good behaviour for six months, with conviction — Serious Offenders Act 2008 (Vic), ss 169 & 173-176; Crimes Act 1958 (Vic), ss 321M & 321P; Summary Offences Act 1966 (Vic), s 23.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr R Kornhauser | Solicitor for Public Prosecutions |
| For the accused | Mr C McLennan | Chris McLennan & Co |
HIS HONOUR:
Overview
On 31 January 2024, JK pleaded guilty to two charges of assaulting his NDIS workers by threatening behaviour, one charge of breaching a condition of his supervision order by drinking alcohol in a bottle shop, and one charge of attempting to breach a condition of the same supervision order by trying to depart the scene unescorted by either of his NDIS workers.
After hearing a summary of the offending, a plea in mitigation, and submissions, I sentenced JK on all offences by releasing him on an adjourned undertaking to be of good behaviour for six months, with conviction.
I gave brief ex tempore reasons for sentence. With the concurrence of counsel, I deferred giving my detailed written reasons. I now publish those reasons.
Procedural steps
Before turning to summaries of the background to and circumstances of the offending, I should explain the procedural steps which resulted in one of the charges being heard by a plea on indictment and the other three police charges (one alleging an indictable offence, the other two summary offences) being heard summarily and concurrently.
Initially, police laid five charges, three of them alleging indictable offences and two of them alleging summary offences. Those charges were transferred from the Magistrates’ Court to this Court with a view to having them all dealt with summarily. This is commonly done in matters of this nature, where, as here, police charge an indictable offence or offences against s 169 of the Serious Offenders Act 2018 (Vic) (“the SOA”) — which proscribes contravention of a condition of a supervision order imposed by this Court — and related summary offences.[1]
[1]See Serious Offenders Act 2018 (Vic), ss 173-176. Charges alleging contravention of conditions of supervision orders made by the County Court are, by the same provisions, transferred to that court and may be dealt with summarily as well.
Mr Kornhauser, who appeared for the Director of Public Prosecutions, explained that, upon subsequent consideration, it was thought that a charge alleging an (indictable) offence of attempting to contravene a condition of the supervision order would capture JK’s behaviour in trying to leave the scene, unaccompanied, in the taxis and the Uber.[2] However, because an attempt to commit an offence proscribed by s 169 of the SOA is not picked up by the transfer provisions in that Act, simply having police lay another charge in those terms would not get that charge before this Court via the transfer procedure. An alternative would have been to have the police lay that charge and bring the matter to this Court via a committal hearing in the Magistrates’ Court, but that would have delayed the matter unduly. Thus, instead, the Director decided to lay that charge by direct indictment to this Court so that, more promptly, it may join the other charges already transferred here. That is why the charge alleging an attempt is on indictment. When arraigned on that charge, JK pleaded guilty.
[2]Contrary to the Crimes Act 1958 (Vic), s 321M, and the Serious Offenders Act 2018 (Vic), s 169.
Mr Kornhauser then applied to make minor amendments to two of the transferred charges (Charges 3 and 5), which were made unopposed. Mr McLennan, who appeared for JK, applied for summary jurisdiction in respect of Charge 5, which alleged the indictable offence of contravening a condition of the supervision order by drinking alcohol.[3] That application was granted, unopposed. Through Mr McLennan, JK pleaded guilty to that charge and to the two other transferred charges alleging related summary offences of assault (Charges 3 and 4).[4] Charges 1 and 2 of the transferred charges (which alleged other contraventions of the supervision order) were withdrawn and marked struck out.
[3]Contrary to the Serious Offenders Act 2018 (Vic), s 169.
[4]Contrary to the Summary Offences Act 1966 (Vic), s 23.
Background
I turn next to the background to this matter, which commenced some years ago.
In 2016, at the age of 41, JK attacked a woman at his housing commission flat in Melbourne. He used a knife to stab her multiple times, including to her neck. JK was arrested and charged with attempted murder, but ultimately pleaded guilty to a charge of intentionally causing serious injury. He had suffered from treatment‑resistant schizophrenia since he was a teenager. At the time of the offence, he was experiencing a relapse of his psychotic disorder, which resulted from his failure to take prescribed anti‑psychotic medication and his ingestion of illicit drugs and alcohol. As we shall see shortly, he had an extensive criminal history for offences of various kinds, including for violence, although nothing nearly as grave as the serious injury offence. In 2017, he was sentenced for that offence by a judge of this Court to seven years’ imprisonment with a non‑parole period of four years.
JK served the whole of that sentence, without parole. On 16 June 2022, a week before the head sentence was due to expire, the Secretary to the Department of Justice and Community Safety applied to this Court for an interim supervision order under the SOA. Justice Hollingworth made the order, unopposed by JK. A condition of the order was that, upon his release from prison, JK would reside at a secure extended care unit (“SECU”).
On 6 October 2022, upon a further application by the Secretary, which again was unopposed, I placed JK on a final supervision order under the SOA.[5] The order was expressed to last for four years (with a two‑year review period).
[5]On 6 October 2022, I also ordered that any information before the Court that might enable JK or his whereabouts to be identified must not be published until further order. Thus, in my reasons for judgment, I assigned the letters JK to him, and I described in elliptical ways other information that might enable him to be identified. See Secretary to the Department of Justice and Community Safety v JK [2022] VSC 727. The same order, and the reasons for it, cause me to take the same approach in the current matter.
At the time of the offending, which occurred on 25 October 2023, condition 6.3 of the order provided inter alia that, when residing at the nominated SECU, JK “must not leave and/or be absent from that address except in the company of a person approved by a General Manager of Community Correctional Services, unless otherwise directed by the [PSA]”. Also at that time, condition 6.5 provided that JK must not consume alcohol except in accordance with the written directions of the PSA.
Summary of offending
The circumstances giving rise to and surrounding the offences to which JK pleaded guilty were summarised in the following way in an opening read to the Court by Mr Kornhauser.
On 25 October 2023, JK was residing at the nominated SECU in suburban Melbourne. That day, in the company of two NDIS support workers (LM, a woman, and OP, a man), he left the SECU to attend a bank and a dental appointment at a shopping centre.
On their way to the shopping centre, JK asked LM and OP if they could take him to the injecting rooms in Richmond. They advised him that he was not permitted to use illicit drugs (which was also a condition of his order), and that the plan was to escort him to the bank and his dental appointment. JK agreed to that plan.
After completing his bank withdrawal, JK headed towards the local RSL. LM and OP directed JK to return with them to the SECU, but he ignored their direction. They ended up following him into the RSL, where JK went straight to the bar and asked for a beer. LM and OP advised the RSL staff not to serve alcohol to JK. When the staff refused to serve him alcohol, JK agreed to leave.
Outside the RSL, JK began pacing around. OP asked him to come back, whereupon JK turned around and said, “Fuck off and leave me alone, you dogs.” JK then marched towards OP and LM with his fists raised. No injuries were sustained and no contact was made. However, JK’s actions caused the two support workers to fear him. This incident was captured on CCTV, and stills from that footage were before the Court. This is the conduct constituting the two assault offences.
Also while outside the RSL, JK removed the battery from his electronic monitoring bracelet and threw it on the ground. During this incident, LM rang JK’s case worker, who in turn called police for immediate assistance.
JK then entered a nearby bottle shop and tried to buy a six‑pack of Jim Beam double‑strength. LM and OP followed, and advised staff not to sell JK alcohol. He was then escorted out of the store by security at the shopping centre.
Once outside the bottle shop, JK got into a taxi. LM and OP advised the taxi driver not to accept the fare, and JK was refused service.
At this point, LM again directed JK to return with them to SECU. JK told her, “Fuck off, you rat.”
JK then re‑entered the bottle shop, and took a four‑pack of cans of Vodka Cruiser from the fridge. In breach of condition 6.5 of his supervision order, he drank one of the cans in the shop, and started to drink a second, and then went to the counter and paid for them in cash.
He then left the bottle shop and made two further attempts to leave the area in separate taxis. On each occasion, the support workers again instructed the driver not to take him, and JK was refused service. Next, JK got into an Uber, but police arrived and removed him from the car.
JK’s attempts to depart in taxis and an Uber are relied on in combination as constituting the offence of attempting to contravene condition 6.5 of his supervision order.
JK was arrested and taken to Springvale Police Station. He was deemed unfit for interview, and was bailed by a bail justice later that same day.
Prior convictions
JK has a prior criminal history in Victoria, as well as a limited criminal history in New South Wales. Unless otherwise indicated, the following sentences were imposed in the Magistrates’ Court in Victoria or in the Local Court in New South Wales.[6]
[6]See also Secretary to the Department of Justice and Community Safety v JK [2022] VSC 727 at [35]‑[49], where I summarised JK’s criminal history in similar terms.
In 1999, JK was sentenced on dishonesty and assault offences to a 12‑month community‑based order (“CBO”), which included a condition that he undergo drug and alcohol treatment.
In 2000, JK was again placed on a 12‑month CBO, this time for assaulting and resisting police, burglary, dishonesty offences and possessing a regulated weapon. The CBO had various conditions, including with respect to drug and alcohol treatment.
Later in 2000, JK was sentenced to 12 months’ imprisonment, with eight months suspended, for larceny, unlicensed driving and receiving stolen property.
In 2001, after breaching the CBOs imposed in 1999 and 2000, JK was re‑sentenced to three months’ imprisonment.
Later in 2001, JK was sentenced in the County Court to 15 months’ imprisonment with a non‑parole period of eight months on armed robbery and possessing an imitation revolver (as a prohibited person). A psychiatric report before the court opined that JK was most likely intoxicated at the time of the offences, that there was no indication of psychosis during the offending, and that his state of depression and intoxication, together with his borderline intellectual functioning, contributed to impaired judgment which led to the offending behaviour.
In 2003, JK was placed on a 12‑month CBO for assaulting police, possessing a controlled weapon without excuse, and public drunkenness.
Later in 2003, JK was sentenced to six months’ imprisonment for theft, attempted robbery, assaulting police and breaching an intervention order.
Also in 2003, after breaching the earlier CBO, JK was re‑sentenced to two months’ imprisonment,[7] to be served concurrently with extant custodial sentences.
[7]In Secretary to the Department of Justice and Community Safety v JK [2022] VSC 727 at [43], I incorrectly recorded this sentence as one of two years’ imprisonment.
In 2005, JK was sentenced in the County Court to two‑and‑a‑half years’ imprisonment with a non‑parole period of 12 months on armed robbery and common law assault. The offences involved robbery at a 7‑Eleven store with a 12‑inch knife, including a threat to stab a customer in the process.
In 2008, JK was sentenced in the County Court to two years and ten months’ imprisonment with a non‑parole period of 18 months on aggravated burglary, intentionally causing injury, threatening to kill, and threatening serious injury. The offences arose out of two incidents in 2007. The first incident involved JK attending a neighbour’s flat, yelling at him, accusing him of being a paedophile, and threatening to kill him. The second incident involved him attending another neighbour’s flat, screaming abuse at him while banging on his window, causing it to break, and then climbing through the broken window holding a large knife, and once inside, stabbing and punching the neighbour.
In 2010, JK was sentenced to two months’ imprisonment, wholly suspended, on charges of unlawful assault. The offences occurred earlier that year, when JK attended the house of his mother and stepfather and verbally abused his mother. His stepfather attempted to intervene, and JK punched him to the face and grabbed him around the neck, causing him to fall to the ground. He then returned to his mother and punched her to the face. He was also placed on a community treatment order (“CTO”) at this time.
In 2011, upon a breach of the suspended sentence imposed in 2010, JK was not re‑sentenced. This was because there was a finding of exceptional circumstances — being diagnoses of schizophrenia and opioid dependence, and against a background of chronic back pain and congenital hypothyroidism.
As I said earlier, in 2017, JK was sentenced in this Court to seven years’ imprisonment on the offence of intentionally causing serious injury.
Also in 2017, JK was sentenced to six months’ imprisonment (concurrent with the seven‑year sentence) on robbery, theft of a motor vehicle, driving offences, resisting an emergency worker on duty, and committing an indictable offence while on bail.
While it is a subsequent — not a prior — conviction, on 22 November 2023, JK was sentenced to an undertaking to be of good behaviour, with conviction, for assaulting an emergency worker on duty. The incident involved an assault on a prison officer in 2020, while JK was serving the parole period of his seven‑year sentence.
Maximum penalties
The attempt offence carries a maximum penalty of two years’ imprisonment.[8]
[8]See the Crimes Act 1958 (Vic), s 321P(1)(a), and the Serious Offenders Act 2018 (Vic), s 169(1).
While the completed offence of breaching the supervision order carries a maximum penalty of five years’ imprisonment, the offence is restricted to a maximum penalty of two years’ imprisonment when heard summarily.[9]
[9]See the Serious Offenders Act 2018 (Vic), s 169(1), and the Sentencing Act 1991 (Vic), s 113(1).
The maximum penalty for each assault is 15 penalty units or imprisonment for three months.[10]
[10]See the Summary Offences Act 1966 (Vic), s 23.
Plea in mitigation
As I noted earlier, JK has suffered treatment‑resistant schizophrenia since he was a teenager. He is also afflicted with borderline intellectual functioning, and has been a long‑term user of various illicit drugs.
In his plea in mitigation, Mr McLennan explained that his instructions were that, at the time of the offences, JK was very unwell mentally and was frustrated with the restrictions imposed on him. In my view, his actions, his presentation at that time and his unfitness for interview shortly afterwards reflected his poor mental state and borderline intellectual functioning at the time of the offending.
Further, Mr McLennan submitted — correctly, in my view — that the offences were at the lower end of the spectrum of gravity. While the support workers were frightened by JK’s actions, especially given their cognizance of his criminal history and his poor mental health, there was no physical contact or harm suffered. The breach and attempted breach of the conditions of the supervision order by drinking alcohol and by attempting to leave the area without the support workers, while flagrant, showed JK’s desperate state, and necessarily would be detected immediately, which in turn showed his troubled state of mind.
Mr McLennan pointed out that, while JK’s prospects of rehabilitation at the age of 48 are bleak, he has the support of his mother and his stepfather. His family is concerned about the numerous medications he takes (which include clozapine, an anti‑psychotic) and their side‑effects, which include drowsiness.
More positively, JK has been moved to a different SECU since this offending. This facility, Mr McLennan explained, is one that JK considers less restrictive and about which he feels grateful and more positive. He has also had the support of NDIS and his family in recent times.
Finally, Mr McLennan pointed to JK’s early pleas of guilty, his acceptance that he did the wrong thing, and his gratitude at being granted bail.
Submissions on sentence
Mr McLennan submitted that an undertaking to be of good behaviour would be a sufficient sentence to account for the relevant sentencing purposes, including general and specific deterrence, punishment, denunciation, community protection, and rehabilitation. Initially, he submitted that that sentence should be without conviction, but he withdrew that submission when I suggested that his prior convictions in general, and for assault in particular, might make that disposition inappropriate.
Mr Kornhauser submitted, on instructions, that an aggregate fine, with conviction, was a necessary and appropriate sentence. He emphasised the importance of general and specific deterrence when it comes to sentencing for breaches of conditions of supervision orders, the heightened risk involved in JK’s consumption of alcohol, and the importance of his being accompanied when in the community. In all the circumstances, he submitted, the offending is just too serious for an adjourned undertaking.
Sentence
Notwithstanding JK’s extensive criminal history (including for assaults), his relatively poor prospects of rehabilitation, and the nature of the offending, I am satisfied that an undertaking to be of good behaviour, with conviction, is an appropriate sentence in this case. There are several reasons, including the following.
First, I regard each of the offences as involving a relatively low level of objective gravity.
Second, JK suffers serious afflictions which, I am satisfied, contributed to his loss of control and ill‑considered actions on this occasion.
Third, for a person as afflicted as JK, and as one who had spent the previous seven years in prison (or, at times, at Thomas Embling Hospital), it is, I think, of some significance that he did not breach the supervision order until 12 months after its imposition (and 16 months after the imposition of the interim order). It is relatively common for those placed on supervision orders after long stints in prison to find it very difficult to adjust to living in the community again, with the result that the strict conditions of such orders are sometimes breached within a short time of release. But not so here.
Fourth, JK accepts responsibility for his offending, both through his counsel and by his early pleas of guilty.
Finally, notwithstanding his criminal history, the nature of his lifelong afflictions and his relatively poor prospects of rehabilitation, there appears to be a glimmer of hope in JK’s attitude to his new SECU and in the support he is receiving from NDIS and his family.
For these reasons alone, I consider an adjourned undertaking is a sufficient sentence in this case to meet the sentencing purposes. The weight to be accorded to general and specific deterrence, denunciation and just punishment must be muted to some extent on account of JK’s afflictions of the mind, which, as I have said, I accept were operative at the time of the offending. While the same factors suggest a more prominent role for community protection in the sentence, I think that is not so important a sentencing purpose when the offending is at such a comparatively low level of objective gravity. Finally, while JK’s prospects of rehabilitation are poor, they are not hopeless. As I have said, there is a glimmer of hope, which must not be extinguished by a punitive sentence, which would only tend to thwart the goal of community protection through rehabilitation, which would be in nobody’s interests — neither the community’s nor JK’s.
I should add that I considered whether, if a fine was open on the assaults (especially given his prior convictions for that offence), but I thought that a fine was not open on the other two offences (as he has no history of breaching his supervision order), different sentences might be imposed on separate offences. As I understood him, Mr Kornhauser submitted that, given the offences all occurred close in time and as part of the one ongoing episode, it would seem preferable to impose an aggregate sentence for all offences, whether that be by way of fine or an undertaking. Thus, the submission (as I understood it) continued, if an aggregate sentence were to be imposed, parsimony might dictate that the less punitive form of sentence should apply, for fear that the wrong message would be sent about the supervision order offences which, ex hypothesi, required a less punitive sentence than a fine.
If I may say so, it is a thoughtful submission, and one which may have been necessary or open to act on in different circumstances. However, in this case, if I had thought that a fine should be imposed for the assaults but that an undertaking was an appropriate disposition on the supervision order offences, I think it would have been open to impose separate (aggregate) sentences accordingly. This is because, notwithstanding the fact that all four offences were committed close in time and as part of the one ongoing episode, in my judgment, the assaults and the supervision order offences were sufficiently distinct to warrant separate (aggregate) sentences, and that totality would allow that outcome as well. However, since I am of the view that an adjourned undertaking is sufficient for each of the four offences, I do not consider it either necessary or appropriate to impose separate sentences in this case.
Mr McLennan also explained that, given JK is on a disability pension and that a large proportion of his income is taken out to cover his expenses at various facilities, he would struggle to pay any meaningful fine anyway. Instead, he submitted that, given JK’s particular circumstances, it is preferable and sufficient to have him on an undertaking to be of good behaviour for a period. I accept that submission.
Thus, in all the circumstances, I consider that, on all offences, JK should be placed on a single undertaking to be of good behaviour for six months, with conviction.
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