Director of Public Prosecutions v Jones
[2022] VCC 1769
•11 October 2022
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
KOORI COURT DIVISION
CR 22-00516
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ISAIHA JONES |
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JUDGE: | HIS HONOUR JUDGE JOHNS |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 26 September 2022 |
DATE OF SENTENCE: | 11 October 2022 |
CASE MAY BE CITED AS: | DPP v Jones |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1769 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW SENTENCE
Catchwords: Koori Court Jurisdiction – Home invasion – Armed robbery – Conduct endangering persons – Drive whilst disqualified – Application of Bugmy principles – Application of Verdins principles
Legislation Cited: Sentencing Act 1991
Cases Cited:Bugmy v The Queen 249 CLR 571; DPP v Jones [2020] VCC 121; DPP v Meyers [2014] VSCA 314; Verdins v The Queen 16 VR 269
Sentence:Three years’ and 6 months’ imprisonment with a non-parole period of 20 months.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms A. Dearman | Office of Public Prosecutions |
For the Accused | Mr M. Senia | Gallant Law |
HIS HONOUR:
1Isaiha Joseph Jones, you have pleaded guilty to two charges of home invasion, one charge of armed robbery, one charge of conduct endangering persons, and the uplifted summary offence of drive whilst disqualified.
2The maximum penalty for home invasion is 25 years’ imprisonment – for armed robbery, 25 years’ imprisonment – for conduct endangering persons, 5 years’ imprisonment – and for drive whilst disqualified, 240 penalty units or 2 years’ imprisonment.
3You have admitted relevant prior criminal convictions.
4The circumstances of your offending are clearly and succinctly set out in the Summary of Prosecution Opening which was Exhibit A on the plea and form part of these reasons for sentence.
Circumstances of Offending
5Your offending took place in two separate incidents 6 days apart.
Incident 1 (Charge 1 – home invasion; Charge 2 – armed robbery; Summary offence 8 – drive whilst disqualified)
6On Friday, 26 November 2021 at approximately 10.24pm, your victims Mr Seitz and Mrs Seitz were at home with their two children. Mr Seitz received a notification on his phone from the motion sensor doorbell at his front door. He got up from the lounge in his living area and walked down the hallway to investigate. He then saw you at his front door window. You were captured on CCTV peering into the house through the windows, wearing a dark coloured Kathmandu brand puffer jacket, a black cap, a black and white bandana across your face, distinctive bright red gloves, and Nike black running shoes.
7You retreated from the front door and walked to the driveway where a black BMW X3 wagon belonging to your victim, Mr Seitz, was parked. Mr Seitz unlocked and opened his front door where he observed you and your co-offender outside. A short conversation between Mr Seitz and your co-offender was captured on CCTV. Your co-offender demanded that Mr Seitz gave him the keys. Your co-offender said, “give me the fucking keys to your car right now” before running towards Mr Seitz, whilst you followed closely behind.
8Your victim immediately closed and locked the front door and stood in front of it to try and prevent it from opening and yelled out to his wife to call the police. Your co-offender forcefully kicked the door five times causing the door to break away from the door frame and lock. Whilst in his kicking motions, he yelled at Mr Seitz, “give me the fucking keys. Give me the fucking keys, right now, cunt.” Once ajar, you pushed the door open with both your hands and entered the house. The co-offender followed immediately, brandishing a knife (Charge 1 – Home invasion).
9The family dog Charlie approached the offenders and Mr Seitz asked you not to harm him. Either you or your co-offender responded, “Don’t worry, I won’t hurt your dog”, whilst brandishing the knife and pointing it towards Mr Seitz in a threatening manner, making a demand stating, “keys and wallet”. Your victim could not find his keys initially so he went to the garage. You and your co-offender followed, where Mr Seitz produced a key to his BMW X3 wagon and gave it to you. Your victim told you his wallet was in his car in response to the threat. Either you or your co-offender upturned a bowl in the hallway alcove which contained keys and children’s costume jewellery. A key to Mrs Seitz Hyundai i35 wagon was taken by you and your co-offender, however, no attempt was made to steal the vehicle which was parked in the garage at the time.
10Thirty seconds after your co-offender first entered the house, he ran out the front door into the front yard, unlocked the BMW X3 wagon, and got into the front passenger seat. You left the house five seconds later and got into the front passenger seat. Mr Seitz followed you outside and asked for his work ID, stating that he worked in a hospital. You threw his lanyard, a pair of sunglasses, and an identification card out of the driver’s window before reversing out of the driveway in the stolen BMW. You were disqualified from driving at the time (Charge 2 – armed robbery and Summary offence 8 – drive whilst disqualified).
11The entire incident lasted 1 minute and 59 seconds and is captured by CCTV footage which was Exhibit G on the plea. At the time of the incident, Mrs Seitz and your victims’ two children were upstairs asleep. Mrs Seitz was woken by the sound of the confrontation. She jumped out of bed, walked to the upstairs front of the house where she could see and hear the offenders downstairs. Mr Seitz called 000 and police responded. D/S/C Benjamin Fox and S/C Natalie Briggs attended and obtained the CCTV footage of the subject of Exhibit G.
12Later that evening, your co-offender was arrested in Brookfield for unrelated offending. Police seized from his possession the key belonging to Mr Seitz’s stolen BMW X3 wagon and a knife believed to have been used in the home invasion.
Incident 2 (Charge 3 – home invasion; Charge 4 – conduct endangering persons)
13On 2 December 2021, at approximately 4.42am you and an unidentified co-offender were captured on CCTV footage attending Clarkes Road, Fyansford, in a white Toyota Camry. You entered the driveway of a property at Clarkes Road with your co-offender on foot. The vehicles of your victims, Ms Alleyn and Mr Alleyn, were parked side by side. That was a Toyota Prado and a Mercedes Benz. You and your co-offender walked between the two vehicles and attempted to open the front driver's side door of the Mercedes Benz and then the front passenger side door of the Prado. Both cars were locked. Again, you were depicted on CCTV footage.
14You and your co-offender then entered the rear yard of the home where you threw a pot plant through a window. Ms Alleyn was upstairs in bed, asleep, but was woken by the sound of the window smashing and jumped out of bed. Mr Alleyn was downstairs, in bed, asleep, and was also woken by the window smashing. You and your co-offender entered the house through the broken window and stole Ms Alleyn’s wallet and the key to the Mercedes from her handbag (Charge 3 – home invasion).
15Mr Alleyn got out of the bed and saw you and your co-offender leaving the house and following you. He followed you up to the point of the broken glass. You and your co-offender ran into the driveway where you were collected by a white Toyota Camry at 4.45am.
16
Ms Alleyn took the keys to the Prado and did laps of the block, looking for, and ultimately finding you and your co-offender. At around 4.50am the white
Toyota Camry returned to the scene where you used the stolen keys to unlock the Mercedes parked in the driveway. You got into the driver's seat of the Mercedes. Ms Alleyn drove into the driveway and positioned the Toyota Prado directly behind the Mercedes in an effort to prevent you from stealing it. You reversed the Mercedes into the Prado on two occasions before driving forward into the garage roller door, causing substantial damage. You then reversed into the Prado a third time and manoeuvred around it before driving south down Clarkes Road, that incident was also captured on CCTV footage, being
Exhibit H on the plea.
17Later that morning police located the stolen Mercedes and it was towed to Geelong Accident Repair for forensic examination. Swabs of apparent blood were taken from inside the driver's door panel and DNA analysis was done, indicating a ratio of 100 billion consistent with your involvement, which is, of course, admitted.
Victim Impact Statements
18
Turning to the victim impact statements, your victims, Mr Seitz,
Mrs Seitz, Ms Alleyn and Mr Alleyn, each wrote victim impact statements and also attended your plea hearing, at least the Seitz did. The statements express the severe and enduring impacts that have resulted from your conduct. These are terrifying and traumatic episodes for anyone in our community to contemplate, much less be involved in. To have family homes and property violated in the way you and your co-offender have leaves lasting impacts on adults and children who are affected. Your violent and threatening confrontation with people who are simply defending their homes and property has devastating impacts upon your victims. I take these impacts into account.
19You were pressed in the sentencing conversation as to your understanding of these impacts, pressed by your Elders. You have acknowledged the limitations of your victim empathy in the past. The sentencing conversation provided a degree of realisation for you as to the impacts on your victims. I am satisfied that you are starting to develop some understanding in this regard.
Objective Gravity of Offending
20The objective gravity of your offending is high, particularly in relation to the charges on the indictments and the objective gravity of those charges is reflected in the maximum penalties, being 25 years' imprisonment for home invasion and armed robbery and five years' imprisonment for conduct endangering persons.
21
Considerations relevant to the assessment of home invasion, Charges 1 and 3 on the indictment, were set out by the Court of Appeal in the case of
DPP v Meyers.[1] Your offending included several features which are set out in that case and also set out in the prosecution submissions on plea and sentence. Those submissions were Exhibit B on the plea.
[1]DPP v Meyers [2014] VSCA 314 at [48].
22Both home invasions took place late at night when it was dark and most of your victims were asleep. You and your co-offender used deliberate force to enter the premises, kicking open the door for your offending, the subject of Charge 1, and throwing a pot plant through the window for the incident the subject of Charge 3. Both home invasions involved some degree of planning, although I accept that the level of planning was low. Charge 1 is a more serious example of the offence of home invasion than Charge 3, as it was accompanied by several additional aggravating features. The intent at the point of entry was confrontational, involving kicking down the door while your victim pressed his back up against it, following a verbal confrontation, although there were no overt verbal threats at that stage, and of course your co-offender was armed with a knife.
23
Criminal conduct such as yours is deserving of imprisonment and condign punishment. By virtue of the operation of s 5(2)(h) of the Sentencing Act I am required to impose a term of imprisonment with a head sentence and a
non-parole period in your case, and this is not disputed by your counsel. Indeed, even in the absence of s 5(2)(h) given your antecedents and the serious level of criminality before me, a gaol term would be the only disposition which could reflect the community's denunciation of your conduct and give effect to general deterrence, specific deterrence and the protection of the community.
Personal Circumstances
24I take into account your personal circumstances. You are 22 years of age and you were 21 at the time of the offending. You have had a most unfortunate childhood and early adulthood in many respects. Disadvantage and family dysfunction have been factors throughout your life. I also accept that the legacy of intergenerational trauma and disadvantage in your case have left profound impacts upon your cognitive functioning as well as your vulnerability to substance abuse. The links between your cognitive functioning, poor consequential thinking, substance abuse and the offending is present in an explanatory sense. Whilst affected by substances your cognitive limitations and impulsivity are increased. Your moral culpability for your substance abuse issues is negligible given your early exposure to trauma and substance abuse and your lack of parental and family support in this regard.
25You are a Barkindji man through your father's line with strong ties to the Wathaurong community in Geelong through your mother. I was told that your mother passed away. She was a Wathaurong woman. Your parents were both teenagers when you were born. Both had alcohol and substance abuse issues. It is likely that each of them had suffered the effects of trauma and intergenerational trauma in their formative years. You have many half-siblings from each of your parents' other relationships. You have a lot of family living in the Mildura area and surrounds.
26You had limited contact with your parents, growing up. You were subject to a protection application when you were four months of age. You were first placed with your Grandpa Joe, Joseph Jones, your maternal grandfather. You were later placed with a maternal cousin, whom you call aunt, Aunty Kacey Elston. Aunty Casey looked after you from infancy to age 16. You spoke fondly of Aunty Casey during the sentencing conversation. Aunty Casey worked hard to ensure that you maintained strong connections with your Aboriginal culture through your involvement in the Wathaurong Co-Op.
27At age 16 you went to live with your grandfather Joe in Corio in a bungalow at the back of his house. Your grandfather sadly passed away in February 2019. His passing affected you deeply. Following his passing you were homeless, mixing with negative peers and using substances daily.
28You have a son from a relationship you commenced during this period. You were in the relationship for three years I was told after 2019. Your son, Iluka, is now around three years of age and living in Mildura with his mother's family. I was told you have never met your son although Youth Justice have been working towards that taking place.
29
You were exposed to heavy drug use throughout your life, largely due to the presence and influence of a large family group. You were also exposed to criminal activity from a young age by the same means. You have a history of polysubstance abuse. You started smoking cannabis at 15 and you were using methamphetamines daily from age 16. You have also abused alcohol,
Xanax, Valium and Seroquel through those years. You struggled at school with literacy and numeracy. You left North Geelong Secondary College partway through Year 10. I also understand from the materials in front of me, including the sentencing remarks of Judge Lawson from February 2021 that you have a history of suicide attempts, the first of which happened in 2017 and the second in 2018 in the context of heavy drug use and relationship difficulties.
Other Factors in Mitigation
30In her sentencing remarks in February 2021 Judge Lawson, as she then was prior to her retirement, stated at paragraphs 106 and 107 as follows:
'I accept that you were significantly disadvantaged whilst growing up. You have not had the advantage of being cared for by your parents. Your life has been significantly disrupted. You have been exposed to drug taking at a young and vulnerable age by members of your family. That disruption and neglect has contributed to your chronic abuse of drugs. I find the principles in Bugmy have been engaged'.[2]
[2]DPP v Jones [2020] VCC 121 at [106].
31And then referring to Bugmy v The Queen (“Bugmy”):
'There High Court recognised that the effects of profound deprivation do not diminish over time and repeated offending and it is right to speak of giving full weight to an offender's deprived background in every sentencing decision'.[3]
[3] Ibid at [107]; Bugmy v The Queen (“Bugmy”) 249 CLR 571.
32I also accept those matters and accept that the Bugmy principle has significant mitigatory effect in your case. The prosecution conceded that the engagement of the Bugmy principle was appropriate.
33
I have had the benefit of the following expert reports: the expert report of neuropsychologist, Linda Borg, dated 10 February 2021; the report of
Sandra Cokorilo, the psychological report dated 16 October 2020. Those two reports were also before Judge Lawson; I have also had the benefit of the report of Lisa Jackson, dated 20 May 2022. Those reports have assisted me in arriving at the conclusions in relation to your cognitive functioning. In particular, the report of Dr Linda Borg revealed that she had assessed you in her opinion as - excuse me. She confirmed the opinion that you are a victim of Foetal Alcohol Spectrum Disorder, which is known FASD. That was a matter that was also noted in the prior sentencing remarks of Judge Lawson, and I will not go into detail as to the background of that diagnosis. It is well set out in Dr Borg's report and for my purposes it is of no use to go through the family history in relation to that matter that supports that diagnosis.
34
Dr Borg's report was also significant in relation to your experience in custody and the particular management issues that have presented by someone with FASD and your other cognitive functioning limitations. There was an
IQ assessment done by Dr Borg, who found you to have an IQ in the vicinity of 76. Ms Cokorilo, in October 2020, noted your immaturity, low intellectual capacity, susceptibility to negative influences and the risks associated with exposure to the prison environment, which of course you are now in the
midst of.
35Ms Cokorilo concluded that your low intellectual functioning associated with lowered ability to learn, reason and make sound judgments and decisions made you more susceptible to negative peer influences than for others without those limitations. Furthermore, your substance abuse heightens your risk of impulsive and reckless behaviour, further impairing insight, decision making and judgment. I accept those matters.
36Ms Jackson also made observations in relation to cognitive deficits and how a term of imprisonment weighs more heavily upon you due to those challenges and limitations. At 28 of her report, she writes:
'His childhood identifies significant instability. He was removed from his mother's and stepfather's custody as an infant and placed in the custody of relatives. Mr Jones has had a history of learning and behavioural difficulties at school and has had no history of employment. Independent at 17, he has struggled to manage he demands of self-care and with limited coping skills evident, has been highly vulnerable to deteriorating mental health'.
37
I accept that due to the matters referred to principally by Dr Borg but also by
Ms Cokorilo and Ms Jackson, that imprisonment will weigh more heavily upon you than it would for another who does not suffer those cognitive challenges and limitations.
38You took part in the sentencing conversation. You participated fully in it. You were challenged by your elders, Auntie Faye and Auntie Lynne. In your own way you endeavoured to express some remorse and I have assessed that in light of what emerges from the expert reports to which I have just referred, and what I assess as your poor verbal skills. It is clear that you are a man who is connected to your Aboriginality and culture and you were urged by your elders to pursue connection to culture in a more meaningful and substantial way upon your release on parole.
39I also heard during the conversation from Rebecca Miller, who gave the court substantial information in relation to the services that are available to you and the care team that is around you, including NDIS support, OTS support at home and, of course, Youth Justice support, there is an extensive care team surrounding you. You also have the Wathaurong Co-Op as a support for you going forward and during the sentencing conversation, particularly Uncle Alfie and Justice workers at Wathaurong were referred to.
40Your participation in the sentencing conversation is a matter I take into account in mitigation. I also take into account your relative youth. As I have said, 22 now, 21 at the time of offending, and your plea of guilty. Your plea of guilty has a significant utilitarian value at this time for reasons relating to the pandemic. I also take into account the fact that you have been in custody for 313 days on this matter thus far, the duration of which the pandemic related conditions in custody have applied, and for those reasons that experience has been more difficult than at previous times.
41As I indicated earlier in these remarks, the only disposition available that can meet all of the sentencing factors that I must have regard to is a gaol term. The terms I impose and the total effective sentence and non-parole period will reflect significant Bugmy mitigation in your case, significant Verdins v The Queen[4] considerations in relation to hardship in custody, and the nexus I find between your cognitive functioning, substance use and disadvantage, and I include in that the notion of intergenerational trauma and well-established historical trauma and disadvantage often attendant in Aboriginal communities to which you belong.
[4]Verdins v The Queen 16 VR 269.
42It is the experience of the courts that Aboriginal communities such as those to which you belong are fine examples of resilience and strength of Aboriginal people who have survived and dealt with extreme disadvantage and systemic disadvantage due to the impacts of colonisation. Unfortunately, it is also the experiences of the court that some families, some people, and to which you belong, have suffered extreme disadvantage and intergenerational trauma due to those impacts. I take that into account in a general sense in your case as part of the Bugmy type mitigation.
43The combination of all those matters are matters through which I assess your moral culpability. Consideration of these factors results in a distinctly lenient sentence in all of the circumstances compared to what it might otherwise be absent those factors.
Sentence
44I sentence you as follows:
45In relation to Charge 1 you are sentenced to two and a half years' imprisonment. That is the base sentence:
46In relation to Charge 2 you are sentenced to two years' imprisonment.
47In relation to Charge 3 you are sentenced to two years' imprisonment.
48In relation to Charge 4 you are sentenced to six months' imprisonment.
49In relation to the relevant summary offence, you are sentenced to three months' imprisonment.
50I make the following orders for cumulation. Six months of the sentence imposed on Charge 2 will be cumulative upon the base sentence and other sentences imposed.
51Six months of the sentence imposed on Charge 3 will be cumulative upon the base sentence and other sentences imposed.
52The sentences will otherwise run concurrently.
53That makes a total effective sentence of three and a half years' imprisonment. I set a non-parole period of 20 months. That is a longer than usual period on parole and in your case given the factors I have referred to that have contributed towards a lenient sentence, I consider that a longer than normal period of parole, if you are indeed admitted to parole when you become eligible, will be a pathway through which hopefully in your case the cycle of incarceration can be broken.
54I had assessed your prospects of rehabilitation and concluded that I must be guarded in relation to those prospects. The sentencing remarks that I referred to from Judge Lawson were, as a February 2021; a sentence that saw you sentenced to a period in detention in a Youth Justice centre. As I understand it, you were on Youth Justice parole at the time of the commission of these offences. I have endeavoured to construct a head sentence and non-parole period that reflects general deterrence and denunciation and the other factors, but also has built within it the opportunity for you on parole to take steps towards rehabilitation you have not taken thus far.
55I declare that you have served 313 days as pre-sentence detention in relation to this matter.
56Pursuant to s 6AAA of the Sentencing Act, were it not for your pleas of guilty I would have sentenced you to a total effective sentence of four and a half years' imprisonment with a non-parole period of three and a half years' imprisonment.
57I make orders against your licence in respect of the drive whilst disqualified matter of 12 months' cancelation and disqualification of your licence. If I am required to make that in relation - I do not think I am required to make that in relation to any of the other offences. No. I can see Ms Dearman agreeing with me there.
58All right, now, are there any other orders I need to make, Ms Dearman? Is there forfeiture? There is a forfeiture order, was there not?
59MS DEARMAN: Yes, Your Honour, a draft order has been filed.
60HIS HONOUR: All right, I have got that. Yes, I make that order.
61MS DEARMAN: Thank you, Your Honour.
62HIS HONOUR: All right, are there any other orders that I need to make? No? All right. Is the sentence sufficiently clear? It is always a bit awkward on this remote facility to make sure that I have been heard. Everyone is agreeing, yes, all right.
63MS DEARMAN: Yes, Your Honour.
64HIS HONOUR: All right, Mr Jones, you have probably got somewhere between 10 and 12 months before you are eligible for parole so prepare and get ready, try and get yourself in the best position to be admitted to parole and then take advantage of any available support. Yes, thank you, everyone. We will adjourn the court.
65MS DEARMAN: As Your Honour pleases.
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