Director of Public Prosecutions v Jones
[2022] VCC 1939
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-22-01209
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JOHN JONES |
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JUDGE: | HER HONOUR JUDGE TODD | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 24 October 2022 | |
DATE OF SENTENCE: | 27 October 2022 | |
CASE MAY BE CITED AS: | DPP v Jones | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1939 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Plea of guilty – one charge aggravated burglary – one charge causing injury recklessly – County Koori Court sentencing conversation – Aboriginal Community Justice Report
Legislation Cited: Crimes Act 1954; Sentencing Act 1991
Cases Cited:Bugmy v The Queen [2013] HCA 37; R v Gladue [1999] 1 SCR 688; Fernando v The Queen [2017] VSCA 208; DPP v Drake [2019] VSCA 293; DPP v Hermann [2021] VSCA 160; R v Verdins 16 VR 269
Sentence: Total effective sentence of 25 months’ imprisonment, with a non-parole period of 14 months’ imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr M. Roper | Ms F. Coppini |
| For the Accused | Mr A. Vincent | Ms A. Croft |
HER HONOUR:
Pleas and maximum penalties
1John Baymus Jones, you have pleaded guilty to one charge of aggravated burglary, one charge of causing injury recklessly, and to the related summary offence of committing an indictable offence while on bail.
2The maximum penalty for aggravated burglary is 25 years’ imprisonment. The maximum penalty for recklessly causing injury is five years' imprisonment. The maximum penalty for committing an indictable offence on bail is 30 penalty units or three months’ imprisonment.
Factual basis
3The facts giving rise to your offending are set out in the prosecution opening dated 3 October 2022, which became Exhibit A on the plea. That document is attached to, and forms part of, these reasons. I will summarise just some of the facts giving rise to your offending here.
4In January 2022 you had known Adam Moore for about seven years. He was living in a rooming house in Grey Street, St Kilda. You had also lived there for a time, just before these events took place.
5Just before 7:00pm that evening, you went to his address, as I understand, to get your things at the request of Mr Moore.
6You managed to gain entry into the building by following another resident in as she entered. You had with you an unidentified woman.
7You went to Mr Moore’s room and banged on the door. He told you to go away because he had company.
8You began to shout angrily outside Mr Moore’s room. You forced entry into the room by kicking open the wooden door which caused part of the architrave to fall off. You picked up a sharp piece of wood that had splintered off the door and started hitting Mr Moore with it. Mr Moore attempted to protect his head by raising his arms. You then hit him to the head with the wood causing him to fall to the ground. You then broke the piece of wood over your knee and continued to hit him while he was on the ground, then using the wood to stab him to his head. The woman with you begged you to stop. Mr Moore asked you to stop but you did not. Eventually you left.
9Mr Moore required medical treatment. His medical records set out the following:
· one approximately 6 centimetre wound to the middle of his head;
· one approximately 9 centimetre wound to the right side of the head at the hairline; and
· his treatment included the application of ‘10 staples and six sutures’.
10You were arrested in St Kilda the next day. You took part in a police interview. In that interview you confirmed that Mr Moore was the person you had stayed with a while back. You made some general denials about the offending, though you admitted going to Mr Moore’s room to collect your belongings. You admitted you had been in dispute with Mr Moore over drugs.
11On the date of your offending, you were on bail for other offences, including recklessly causing injury.
Nature and gravity
12I am required to assess the seriousness of your offending before sentencing you. You entered another man’s room in what was an unplanned, but highly aggressive manner. You broke his door open. You invaded his privacy and place of safety. When you entered, you intended to assault Mr Moore. It was nasty, confrontational and aggressive.
13Once inside, and the aggravated burglary complete, you then committed the offence of recklessly causing injury to Mr Moore. I accept that you did not go to his room with any weapon in order to assault him, but you opportunistically used part of the door you had destroyed to then attack him in a violent way.
14As I have already noted, you were on bail when you did this.
15Parliament has imposed a maximum penalty of 25 years’ imprisonment for aggravated burglary; that is the measure of how seriously this offence is regarded.
16I acknowledge that your offence occurred in the context of ongoing homelessness, and themes of rejection in your life, to which I will return later in this sentence. Considering those issues will shed some light on why you did what you did. But it does not excuse it.
17I accept that the aggravated burglary, while confrontational and aggressive, was unplanned and spontaneous. Once inside, you committed the offence of recklessly causing injury, which required your victim to be treated in hospital. I consider all these matters in arriving at your sentence, and I conclude that the objective gravity of your offending falls in the midrange of similar offending.
Impact on victim
18Your victim did not file a victim impact statement. But I sentence you on the basis that this was a terrifying event for him, that it occurred in the place he called home, and that he received injuries that were both painful and distressing.
Prior criminal history
19
I have considered your prior criminal history. It commences in
Mildura Magistrates’ Court in 2004, and includes offending dealt with in
New South Wales. Your early offending seems to have been mostly directed at property. I understand that for many years you struggled with alcohol, and your offending reflects that story. By 2012 you were being dealt with for the possession of drugs of dependence, and from this time your history shows offences against people emerging as a pattern. You have several prior convictions for assaults against others, including recklessly causing injury, unlawful assault, and intentionally causing injury. Alongside these offences against people are offences of possession of methylamphetamine and methamphetamine.
20You have been in a cycle of alcohol or drug use and offending, earning you, before this offending, a string of relatively minor prison terms. This event represents an escalation in the seriousness of your offending. You have already spent more time in custody than you have ever spent before.
21I take your prior history into account, particularly when considering the role for specific deterrence in your case.
Personal circumstances
22Turning now to your personal circumstances. You were 35 years old when you committed this offence and you are now 36.
23You are a proud Barkindji man. Your mother is a Barkindji woman, your father a Jawoyn man from the Northern Territory.
24I will return later to consider the deeper history of your family when I come to consider the content of the ‘Aboriginal Community Justice Report’ tendered on your plea.
25You were raised in Melbourne and Mildura. By the time you were four you were taken into the care of your Aunt Jemmes Handy, whom you now call Mum. I note here that Jemmes made the journey from Mildura by bus to sit beside you at the sentencing conversation table. You have irregular contact with your birth parents.
26Your education was disjointed. You went to several primary schools in Mildura. You had trouble with your concentration and were diagnosed with ADHD.
27You did well at sport and dance. You played for South Mildura football club and later Brunswick East football club. You were a member of the Latje-Latje indigenous dance group in Mildura from 1991 to 2002.
28You have worked in your adult life as a travelling carnival employee, setting up and taking down carnival rides in the travelling circuit. The Covid-19 pandemic shut this work down, and it has not restarted for you.
29You have a son, also named John, who lives with your ex-partner in Mildura. John has autism and is now 14. Your relationship with your former partner is troubled, and you have not had regular contact with your son.
30You were exposed to neglect, violence, and trauma from a young age. In response, you began to drink alcohol at around 16 years of age. Later, after you had grappled with the alcohol addiction, you began to use illicit drugs.
31You have experienced relentless homelessness, and the insecurity and deprivation that goes with it, for most of your adult life.
32I will return in more detail to your personal circumstances in a cultural context when I consider the ‘Aboriginal Community Justice Report’.
Matters in mitigation
33Turning to matters in mitigation advanced on your plea. First, the plea itself.
Plea of guilty
34You pleaded guilty to these offences and that is a very significant matter and I take it into account in the reduction of your sentence. You get an additional discount because your plea takes place in the wake of the pandemic and the delays in court listings. You stand to receive an additional and palpable discount for your sentence in these circumstances. I make it clear that were it not for this feature, your sentence would have been longer.
35Your case went through a range of procedural steps in the Magistrates’ Court but by 6 July 2022 the prosecution received an offer by you to plead guilty. It was conceded that this plea was an early one. I accept that your plea contains within it an aspect of remorse.
Participation in ‘sentencing conversation’ in County Koori Court
36
Turning now to your participation in the sentencing conversation in the
County Koori Court.
37You elected to have your case heard in the Koori Court jurisdiction. You sat at the sentencing table and listened to Auntie Pam Pedersen and Auntie Jackie Stewart, elders of the County Koori Court, as they held you to account for what you did. It was your first time in Koori Court. It was clearly an unfamiliar process for you.
38I observed the sentencing conversation. There were times, when the elders addressed you, that you were clearly uncomfortable. One of the elders described feeling shocked when she read about your offending. She told you that what you did was nasty and cruel; one of the Aunties also noted you had committed this offence on Wurundjeri country, and that it was therefore disrespectful to the traditional owners of that country.
39The sentencing conversation was more personal and more confronting than the court cases you’ve previously experienced, and I take into account your participation in the process in arriving at your sentence.
40
Initially, during the conversation, you appeared hesitant to accept responsibility for what you did. However, as the conversation progressed, it seems that what you really wanted was an understanding that you had been asked by Mr Moore to go and collect your things from his room that day. I accept that, having once been allowed to stay in his room, you were in the process of being excluded from it. That of course does not make you less responsible for what you did. But your account of that day, and your conduct in the sentencing conversation, takes on a different complexion when regard is had to the contents of the
Aboriginal Criminal Justice Report which became Exhibit 2 on the plea.
ACJR Report
41
I turn now to the contents of that report. In the case of Bugmy v R,[1] the
High Court was careful to articulate the principle that sentencing an Aboriginal offender does not authorise the taking into account of an offender’s aboriginality per se, but rather should focus on the particular deprivations (which may or may not be derived from specific cultural circumstances) of the individual.[2]
[1]Bugmy v The Queen [2013] HCA 37 (‘Bugmy’).
[2]ibid [37].
42In that case, the High Court also considered the Canadian case of R v Gladue,[3] where the Canadian Court considered the sentence of an Aboriginal offender in the context of an amendment to Canadian sentencing legislation. That amendment required judges to take into consideration the principle that:
“All available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.”[4]
[3]R v Gladue [1999] 1 SCR 688.
[4]Bugmy [29].
43No such legislative warrant is available to me, and I will sentence you according to the principles in the Sentencing Act and the common law, and in particular the cases of Fernando,[5] Bugmy, Drake[6] and Hermann.[7]
[5]Fernando v The Queen [2017] VSCA 208.
[6]DPP v Drake [2019] VSCA 293.
[7]DPP v Hermann [2021] VSCA 160.
44Often the evidentiary basis for making findings about the particular axes of deprivation that might give rise to the application of these sentencing principles for an Aboriginal person is unavailable; or, if available, derived from the disciplines of medicine or psychology.
45The information relied on for submissions about deprivation often appear in the form of background in a psychological or psychiatric report, completed by a professional with no cultural context for their subject, and often obtained after a very brief consultation. Diagnoses may or may not arise in that material, which may or may not create the evidentiary basis for particular legal considerations, such as those in the case of Verdins.[8]
[8]R v Verdins 16 VR 269.
46The forensic report writing process is unable and unauthorised to investigate the broader, generational, historical context of an Aboriginal person’s circumstances.
47In applying the sentencing principles in such cases, the narrow nature of the evidence received by the court risks impoverishing the decision making on account of some of the same factors that have caused the deprivation in the first place: ignorance on the one hand and distrust on the other.
48In this case, however, I received an Aboriginal Community Justice Report which confronts this problem.
49This report has been provided as part of a pilot program over a five-year period, whereby reports, modelled on the Canadian Gladue reports, are commissioned and included in the sentencing process. It was researched and written by two Aboriginal women, who work within an Aboriginal-controlled Justice Unit of the Victorian Aboriginal Legal Service. The authors are employed by the University of Technology Sydney, and supervised by Professor Thalia Anthony. The intention, as I understand it, is to create a report that can authoritatively analyse an Aboriginal person’s circumstances of deprivation and place this into a broader community, cultural and historical context.
50The first notable thing about the report is that it was written after 10 separate conferences with you, Mr Jones, over both video connection and in person. There was also consultation with your mum, Jemmes Handy, and with others.
51The history of your background of deprivation begins with a review of Barkindji history, to provide an understanding of the enduring and inherited trauma in Barkindji descendants today.
52This account starts with a description of Barkindji country, which is river country in the north west of Victoria, where there is evidence of 60,000 years of habitation. The report traces the decimation of the relationship between the Barkindji people and their country over the last five generations. The report details the different attacks on the Barkindji way of life, from the introduction of disease, to the imposition of discriminatory law imposed by European settlers, to discriminatory economic practices.
53The report also details the tenacity with which Barkindji people have retained their connection to culture, which is strongly expressed through art, family and knowledge of country. It is also a history of endurance and resilience.
54You, Mr Jones, participated in the process of the creation of that report, which in itself was a lengthy and very personal experience.
55The result is a detailed account of how your personal history, and the systemic racism imposed upon Barkindji people over the last five generations, merge. Just one example is how your whole life has been framed by housing insecurity and homelessness. While you have often had places to sleep, your presence in other people’s homes often causes conflict, and has left you feeling unwelcome and unwanted. The report writers observe that displacement is a recurring theme in your life and a distressing parallel to your Barkindji ancestors, who were subjected to direct and indirect dispersal due to colonial policies and violence.
56There is a rigour and solidity to this report; it gives me the evidentiary basis to accept that intergenerational trauma is relevant to both your circumstances and to the content of your offending now before me, and I take it into account in moderating my assessment of your moral culpability for your offending, and in applying more generally the Bugmy principles. I also take into account your willing and courageous participation in the report’s construction.
57Having regard to the content of the report, I have a much more informed appreciation of the matters personal to you, and I also have evidence of the profound and structural disadvantages you have endured, and which inform your responses to the world around you. I give these matters full weight in my sentencing decision.
58The summary and proposed interventions at the end of the report are a particularly useful guide, to both your past and your future.
59It is clear that secure housing, and the stability, dignity, and sense of belonging that comes with it, is your goal. I was encouraged to read the letter of your participation in the ‘Homeless to a Home’ program.
60You have already started to do some of the things the report recommends. You are painting and participating in an Aboriginal men’s group in custody. As the elders said, you will need to be determined, but there is a plan now for you that takes both your history and your future into account.
Covid-19
61Turning now to the circumstances of the Covid-19 pandemic. You have now spent nearly 277 days in custody during the uncertainty and additional burdens that have been imposed on prisoners to meet the demands of this time. I take this into account in moderation of your sentence.
Current sentencing practices
62I have had regard to a range of other cases for similar offending and I sentence you in that landscape, however, my job is to do individual justice in your case.
Sentencing principles
63Turning to sentencing principles that are engaged in your case. Your sentence must deliver just punishment for what you did. It must also deter you personally from doing something similar again. Mr Jones, if you hurt other people, you will keep getting put in custody and the sentences get longer until you stop.
64I am aware of the other side of the Bugmy sword which is the need for community protection – I have had regard to this particularly in the fixing of what will be a relatively lengthy period on parole. I have had regard to your prospects for rehabilitation; which I find are significantly enhanced by the process of the creation of the Aboriginal Community Justice Report. It will not be easy. The elders said they thought you could do this if you ask for the right help.
65This sentence must announce your offending: it is unacceptable for any person to break into anyone’s home and to injure them. There is also a need for your sentence to act as a deterrent to other people who might act in a similar way.
Cumulation and concurrency
66Turning now to questions of cumulation and concurrency. I must balance the principle of totality, the requirement in 16(3C) of the Sentencing Act 1991 given that your offending was committed while on bail, and the requirement not to impose double punishment in arriving at your sentence.
67It was submitted that your offences occurred in effect as part of a single incident and that a high degree of concurrency was warranted. I accept that submission.
Disposition
68So, Mr Jones, I am going to tell you now your sentence so you can stand up for me now. Thank you.
69
On Charge 1, aggravated burglary, you are convicted and sentenced to
23 months’ imprisonment.
70
On Charge 2, recklessly causing injury, you are convicted and sentenced to
six months’ imprisonment.
71On the related summary offence of committing an indictable offence while on bail you are convicted and sentenced to seven days' imprisonment.
72I direct that two months of the sentence on Charge 2 is to be served cumulatively on the sentence on Charge 1, resulting in a total effective sentence of 25 months’ (or two years and one month) imprisonment.
73I direct that you must serve 14 months’ imprisonment before becoming eligible for parole.
Section 6AAA Discount
74Pursuant to s6AAA of the Sentencing Act, I declare that had you been found guilty rather than pleaded guilty I would have imposed a sentence of three years with a non-parole period of two years.
Pre-Sentence Detention
75Pursuant to s18 of the Sentencing Act, I declare a total of 277 days to be reckoned as already served pursuant to this sentence.
76Thanks, Mr Jones, take a seat. Mr Roper, have I missed any orders?
77MR ROPER: No, Your Honour.
78HER HONOUR: All right. Mr Vincent?
79MR VINCENT: No, Your Honour.
80HER HONOUR: No. All right. Thank you, counsel, both, for your assistance.
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