Director of Public Prosecutions v Jones
[2022] VCC 374
•24 March 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-21-00380
CR-22-00252
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| CHRISTOPHER MARK JONES |
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JUDGE: | HER HONOUR JUDGE GWYNN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | Trial - 25, 28 February, 1, 2, 3 & 7 March 2022 | |
DATE OF SENTENCE: | 24 March 2022 | |
CASE MAY BE CITED AS: | DPP v Jones | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 374 | |
REASONS FOR SENTENCE
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Subject:Criminal law.
Catchwords: Make threat to kill; intentionally damage property; causing injury intentionally; causing injury recklessly; aggravated burglary – offensive weapon; possess drug of dependence.
Legislation Cited: Sentencing Act 1991
Cases Cited:Hogarth v The Queen [2012] VSCA 302, and DPP v Meyers (2014) 44 VR 486; Bugmy v The Queen (2013) 249 CLR 571
Sentence: Total effective sentence: 5 years 1 month imprisonment
Non-parole period: 3 years 8 months imprisonment
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr M. Perry | Office of Public Prosecutions |
| For the Offender | Mr D. McGlone | Balmer & Associates |
HER HONOUR:
1Christopher Mark Jones, you were found guilty by jury of make threat to kill, intentionally damage property, aggravated burglary, and two charges of intentionally causing injury. This offending all took place on 4 August 2020. No verdict was taken for alternative charges of recklessly cause injury.
2In addition, prior to your trial commencing, you entered a guilty plea to a charge of possessing a drug of dependence, namely cannabis, on indictment number L11864716B.
3You have now also entered a guilty plea to a related summary offence of unlicensed driving.
4In sentencing you for your crimes, I am obliged to have regard to the maximum penalties for the offences which you have committed. The maximum penalty for make threat to kill, intentionally damage property, and intentionally cause injury is one of 10 years' imprisonment. The maximum penalty for aggravated burglary is 25 years' imprisonment.
5The charge of possess cannabis carries a maximum penalty, in the circumstances, of five penalty units. Unlicensed driving carries a maximum penalty of six months imprisonment
6These maximum penalties reflect the seriousness with which Parliament regards each of these offences.
7The defence at trial was that you were not guilty of each offence as you were mentally impaired at the relevant time. The prosecution case, in terms of the alleged facts, was otherwise largely accepted. Given that, and the jury's finding, the evidence as given in the trial is the factual basis for sentencing.
The offending
8
In terms of the evidence as given, on 4 August 2020 you visited Jamie Franklin at his home where he lived with his then partner, Lou-Ann Furmston. You and
Mr Franklin had known each other a couple of months. Whilst there you consumed alcohol.
9Whilst you were at his premises, Mr Franklin and Ms Furmston argued. It was after this when you offered to Mr Franklin to 'sort her out'.
10When Mr Franklin was asked about the words that you said to Mr Franklin, he answered '"I'll kill her", that's what he said'. In response, Mr Franklin asked you to leave his premises. It is these facts which reflect the charge of make threat to kill.
11From Mr Franklin's premises, it appears that you made your way to the premises of Glenn Madgwick, who in fact lived opposite you and the house you shared with your grandmother, Irene Algers, in Findlay Street, Strathmerton.
12You returned to Findlay Street from Mr Franklin's address on your motorbike and were driving whilst unlicensed, the subject of Summary Charge 9.
13
Mr Madgwick was in his bedroom getting ready for bed when there was a knock at the door. When he opened the door you were there saying 'If there's gay people in your house I am going to kill ya'. To Mr Madgwick, you appeared drug or alcohol affected. You had a can of Johnny Walker Red and a knife. You told Mr Madgwick that you were not sure whether you were hearing voices or having an episode.
Mr Madgwick slammed the door on you. In response you kicked the front door, breaking a glass panel, and you also broke a bedroom window, forming the basis for the charge of intentionally damaging property.
14Upon smashing his property, Mr Madgwick came out of his home and called you a 'dickhead C-U-N-T'. Mr Madgwick gave evidence that you then pulled the knife out of your pocket and attacked him in the left bicep. He said that he was stabbed six times: in the left bicep, twice in the leg to the right calf, twice in the back, and once in the face. At one point Mr Madgwick was on the ground. Mr Madgwick gave evidence that 'I tripped over that and I was trying to get up and he stabbed me twice in the leg and then I was still trying to get up and he stabbed me twice in the back'.
15These facts and the injuries described by Mr Madgwick form the basis for Charge 3, intentionally cause injury. There is one photograph tendered of Mr Madgwick with blood on his left bicep.
16Mr Madgwick then went back to his own premises to call for assistance. He went into his kitchen and called Triple 000. Whilst on the telephone he heard a knock on the door, and you walked in holding a galvanised iron bar. The aggravated burglary is particularised as entry with an intention to assault and that, at the time, you had with you an offensive weapon, namely the iron bar.
17Immediately upon entry you tried to discharge a shotgun cartridge concealed in the galvanised iron bar by striking it with the knife which you also still had with you. When that was unsuccessful you punched him to the face and grabbed the pipe and swung it at Mr Madgwick's head. These actions immediately upon entry inform your intention.
18When you swung the iron bar at Mr Madgwick, he put up his left hand to protect himself. He gave evidence that all the bones in his hand were broken by the iron bar and that he still has trouble with one of his fingers. Again, his evidence is the only evidence for this charge of intentionally cause injury; no medical evidence was called or provided.
19You were arrested by police in the early hours of 5 August 2020, at which time you were found in possession of a small amount of cannabis. This is the subject of a single charge of possess drug of dependence on the second indictment.
Victim impact
20The purpose of a victim impact statement is to give those affected by your crime the opportunity to participate in the criminal justice process by informing the court about the effects of the crime upon them.
21The victim impact statement of Glenn Madgwick dated 9 November 2020 was read to the court. In that document he speaks of the profound and ongoing effect upon him from your actions. He speaks of being in fear for his life and fear of not seeing his family again. He believed that he was going to die. At the time of his victim impact statement, he describes being uncomfortable and not feeling safe in his own home. He regretted having to rely on others to take him to appointments and to feed and shower him. Mr Madgwick suffers from schizophrenia and found that his mental health took what he describes as a 'giant step backwards' following your assaults and invasion of his home.
22The impact of your offending on Mr Madgwick appears intense and enduring, adversely affecting all areas of his life and his sense of wellbeing.
Offence gravity
23It is trite to say that this is serious and extremely concerning offending, both in its own right and in the context of your relevant prior history to which I will later refer.
24Your mindset of that night appears to be one which found its focus on violence, given your threat to kill Lou-Ann Furmston after she and Jamie Franklin fought. I accept that this offence is not one at the higher end for an offence of make threat to kill, but I note Mr Franklin took your threat particularly seriously, given he asked to you to leave and was unwilling to leave you alone with Ms Furmston when you later returned to his premises. You have some five relevant prior matters. This is separate offending to what later unfolded.
25The primary focus of the sentencing exercise is on the charges of intentionally cause injury and the aggravated burglary. The only evidence of injury, as I have already said, is that of Mr Madgwick - there is no medical evidence.
26Whilst your offending all occurred within a relatively short timeframe, each still represents a separate offence - both factors affecting the degree of cumulation to be applied between the charges.
27The evidence at trial was clear that in advance of your offending you had delusional beliefs about Mr Madgwick, although those beliefs varied and included concern that he was going to rape you grandmother, concerns that he had raped your grandmother, concerns that he was protecting those who had or were going to rape your grandmother, and concerns that he was going to hurt or steal your dog.
28Accepting that you were experiencing delusions, they do little to explain your actions which appear both brutal and vengeful.
29It is from Mr Franklin's premises that you found your way to Glenn Madgwick's home, your neighbour from across the road. There was no evidence of any adverse history between you.
30Your initial approach was aggressive and threatening such that Mr Madgwick shut the door in your face. Your response to this was one of anger, smashing his front door and bedroom window. This circumstance would have been frightening, although I accept that for a charge of intentionally damaging property that it is also at the lower end.
31
In terms of Charge 3, intentionally cause injury occurring first in time, you stabbed Mr Madgwick on multiple occasions and at one point whilst he was on the ground, elevating the seriousness of this offence. The weapon used appeared to be some form of Stanley knife or box cutter, although this fact was never conceded.
Mr Madgwick was unarmed and unable to protect himself in the circumstances.
32When he did manage to get away from you to call for help, you armed yourself with an iron bar which encased a shotgun cartridge and entered Mr Madgwick's private home, entry which he had denied you only moments earlier. Being unsuccessful in your attempt to discharge the shotgun cartridge by striking it with the knife, you attacked Mr Madgwick with the iron bar, and it was in his own home, an environment in which he was entitled to feel safe.
33When you did attack, it was again with a weapon, this time the iron bar, and you struck towards the head region. Mr Madgwick's fingers were broken when he put up his left hand in order to protect himself. Again, he was vulnerable in the circumstances, given he was still unarmed and had already been stabbed, again elevating the seriousness of this offence.
34In terms of the aggravated burglary, it is trite to say that this is a serious offence. General deterrence must have prominence in order to deter others from committing offences of this nature. I am assisted by your counsel referring me to the decisions of the Victorian Court of Appeal, including that of Hogarth v The Queen [2012] VSCA 302, and DPP v Meyers (2014) 44 VR 486. I have had recourse to each of those decisions.
35Further, in the decision of Meyers, the Court of Appeal referred to determining the appropriate sentence for an offence of aggravated burglary through an assessment of the seriousness of the offence and included a number of non-exhaustive considerations as being relevant to such an assessment. These include:
· the offender's intent at the point of entry (whether to steal or commit assault or cause damage);
· the mode of entry (e.g., by forcing a door or breaking a window);
· whether the offender was carrying a weapon;
· whether the offender was alone or in company; the time of day at which the burglary took place;
· what the offender knew or believed about who would be inside and/or about where the person(s) would be; and
· whether the offender was someone of whom the victim was particularly frightened.
36In your particular case, the intent on point of entry was to assault Mr Madgwick. You had taken time to retrieve a second weapon, the iron bar with the shotgun cartridge inserted. You may have knocked before entry but otherwise you entered immediately, at night, and in circumstances where you had been refused entry by Mr Madgwick earlier and had just in fact stabbed him six times. He had sought refuge in his own home and he had sought assistance from Triple 000. In fact, he was on the phone to them at the time of your entry. Given what had just transpired, I have little doubt he would have been terrified.
37You then again sought to injure him, knowing, as I have said, that you had already done so .
Prior criminal history
38At only 36 years of age, your criminal history spans close to 20 years with some 19 court appearances.
39Concerningly, it is littered with violence.
40For example, on 4 December 2002 you were dealt with at the Ringwood Magistrates' Court for charges of intentionally cause injury and assault with a weapon and were detained in a youth training centre for a period of four months.
41On 24 October 2003, you appeared in the Melbourne County Court in relation to charges of attempted armed robbery, attempted robbery, armed robbery, and attempted theft and were convicted and sentenced to 12 months' imprisonment with a non-parole period of six months.
42You had previously appeared in the Melbourne Children's Court on 5 March 2003 in relation to charges of attempted armed robbery, intentionally threaten serious injury, unlawful assault, and attempt to commit indictable offence and were detained in a youth training centre for a period of six months.
43On 31 March 2006, you were sentenced by the County Court to five years' and four months' imprisonment with a non-parole period of three years and four months' imprisonment for a single charge of intentionally causing serious injury.
44On 29 September 2016, you appeared at the Shepparton Magistrates' Court in relation to charges of making a threat to kill, unlawful assault, and criminal damage and were convicted and sentenced to 36 days' imprisonment, reckoned as having already been served.
45Other appearances in your criminal history reflect dishonesty, possession of weapons and drugs, driving offences, and various failures to comply with court orders which include sentencing orders, such as a drug treatment order, as well as family violence intervention orders, and bail orders.
46It would appear that substantial gaol sentences have not deterred you, nor have supervisory sentencing orders assisted you.
47Whilst you are not to be punished for your prior history a second time, it is relevant from a sentencing perspective to the weight to be given to specific deterrence, denunciation, and the need to protect the community, all of which are factors of some weight in the sentencing exercise.
48Your history is also relevant to the assessment as to your prospects for rehabilitation.
Personal circumstances
49On any view of it there are aspects of your upbringing that are troubling.
50In terms of what I have been told of your childhood, you were apparently born in prison, your parents separating when you were a young child.
51You were primarily raised by your maternal grandmother, with your mother occasionally visiting. You had no meaningful contact with your father in your early childhood but reacquainted with him when you were seven years of age and thereafter had on-and-off-again contact.
52With your grandparents, you had a limited degree of supervision and a high degree of freedom during your childhood as your grandparents ran a video store. You were permitted to watch whatever you wished, including that with violent content. You report a good relationship with your grandmother which continues to this day.
53Your counsel relies on what are referred to as the Bugmy principles.
54Without turning to the dire personal circumstances and upbringing of Mr Bugmy, which was in an environment of extreme dysfunction and disadvantage, the High Court in Bugmy v The Queen (2013) 249 CLR 571, made a number of significant findings which include:
(a) A person's background of social disadvantage may mitigate sentence.
(b) The effect of a person's background of social disadvantage may vary but it does not diminish over time. .
(c) The impact on an individual sentence of a person's history of social disadvantage can and should vary as the weight to be afforded social disadvantage does requires individual assessment.
(d) Most importantly, '…in any case in which it is sought to rely on an offender's background of deprivation in mitigation of sentence it is necessary to point to material tending to establish that background.'
55Other sentencing decisions since have reinforced the Bugmy principle that the effects of profound deprivation do not diminish over time and are to be given full weight in sentencing. There is a need for an appropriate evidentiary foundation before an offender's disadvantaged background can be taken into account.
56Your first intersection with the mental health system was when you were around eight to nine years of age. You described yourself as being uncontrollable and with violent behaviour. You were seen at Maroondah Hospital and diagnosed with attention deficit hyperactivity disorder. You did not comply with the recommended treatment.
57Child protection authorities apparently became involved, and you were apparently placed into group homes. You recall some ten placements between the ages of eight to 18 years and to alternatively being placed with your grandparents. I do not know the circumstances of child protection being involved in your life.
58You struggled with school both academically and maintaining peer relationships and were often involved in fighting. You only completed a Grade 5 education.
59Your abuse of drugs and alcohol commenced at an early age. Whilst reports vary somewhat, your use of cannabis commenced around the age of nine years, smoking 2 grams of cannabis per day. You were using heroin by the age of 14 years and also commenced methylamphetamine use in your teenage years.
60Aspects of your upbringing appear difficult in the sense of your parents separating and you having limited contact with them, and then your grandparents setting few boundaries, but I do not have a sufficient evidentiary basis to find that what is known to me amounts to a background of social disadvantage. That does not mean that your background is without relevance to the sentencing exercise.
61Your lack of education has limited your employment prospects, as has your early involvement in the use of drugs and alcohol, and problems with your mental health.
62Drugs and alcohol have remained in your life and seem to be your primary method of managing your emotions and wellbeing, however ill-conceived that may be.
Mental health
63A comprehensive range of materials was tendered outlining your psychological and psychiatric history, much of which was referred to in your trial and was accordingly tendered on your behalf at your plea hearing to give context to the evidence of Dr Roth Trisno, psychiatrist, who gave evidence for the prosecution at your trial.
64When aged 11 years, you were seen by the Maroondah Hospital psychiatric services and diagnosed with a conduct disorder of an aggressive type with mixed emotional disturbances. The diagnosis of conduct disorder was confirmed in August 1998. This condition is apparently characterised by oppositional behaviour, increasing aggression, sometimes admitting to violence.
65You also had contact in 1999 and 2016 with psychiatric services, although no formal diagnosis was noted in those contacts.
66You have not had any periods of in-patient psychiatric admission or compulsory treatment.
67In October 2011 you were assessed by a Dr Jennifer McGrail who diagnosed you with an antisocial personality disorder, and substance use disorder. There was concern at that time that you presented with a high risk of general offending and of future violence.
68In preparation for a court appearance for charges of reckless conduct endangering life and serious injury, drive in a manner dangerous, threats to kill and threats to cause serious injury, amongst other charges, Dr Aaron Cunningham, psychologist, opined in April 2017 that you presented with autism spectrum disorder, as you had longstanding deficits in emotional regulation and independent functioning. He viewed that you used drugs to manage your emotions. You struggled with outbursts of anger when triggered and your drug abuse increased your disinhibition Drug and alcohol treatment with psychological intervention was recommended.
69
In 2018 you were seen by Dr Helen Schirmer, clinical neuropsychologist.
Dr Schirmer was of the opinion that you displayed some cognitive weaknesses consistent with a substance related brain injury and that your presentation was more consistent with antisocial personality disorder rather than autism spectrum disorder.
70
A report from Dr Leon Turnbull, occupational and forensic psychiatrist, dated
16 November 2020, was commissioned on your behalf to investigate the issue of mental impairment. Dr Turnbull had access to the report of Dr Aaron Cunningham. In his report, Dr Turnbull supported a diagnosis of an autism spectrum disorder, although did not believe it to be severe, rather that your main problem was drug use. He was unable to determine if your beliefs at the time of your offending represented drug induced psychosis or a chronic condition.
71
The jury rejected the defence of mental impairment based on the evidence of
Dr Jaqueline Rakov, who had diagnosed you with schizophrenia.
72
At your trial, as I have said, the prosecution called evidence from Dr Roth Trisno, psychiatrist. Dr Ria Zergiotis was also called to give evidence, who supported
Dr Trisno's opinion.
73At your trial, Dr Trisno gave evidence that antisocial personality disorder is the adult version of conduct disorder, with which you had previously been diagnosed. He gave evidence that antisocial personality disorder is a personality structure where individuals have difficulty abiding with the law, tend to present as quite aggressive and oppositional in behaviour and, at times, violent. The hallmark symptom is a lack of empathy and the feelings and emotions of others, it can be difficult to understand what the feelings of others can be and the consequences of actions on those others. He did not see evidence suggesting autism spectrum disorder.
74Your counsel submits that given the jury's findings of guilt, the defence of mental impairment was not accepted, and the evidence of Dr Trisno can be accepted for sentencing purposes. Your counsel tendered his report dated 1 July 2021.
75Given that concession, and the comprehensive evidence of Dr Trisno at trial, the weight of the evidence before me is that at the time of your offending you suffered from an antisocial personality disorder.
76Your counsel does not call into your aid the principles of R vVerdins & Ors (2007) 16 VR 269. Drugs and alcohol were clearly the additional participants.
77You had told Dr Trisno that prior to your arrest you had been smoking a gram of cannabis daily, were drinking 10 cans of Wild Turkey daily, and had used hallucinogens LSD and DMT the week prior. You had 10 cans of Wild Turkey shortly before committing the offences, and I note your two calls to Triple 000 on 4 August 2020 in which you described yourself as 'pissed as a maggot'.
78You told Dr Trisno that you were enraged and were intent on bashing Mr Madgwick as you heard the voice of Mr Madgwick telling you that he was going to rape your grandmother, a differing delusion to what you told Dr Rakov, which again differed from what you had told Dr Turnbull. When you returned to Mr Madgwick's property with the iron bar on 4 August 2020, you told Dr Trisno that you wanted to 'cave his head in', that is Mr Madgwick's head. You felt no remorse for your actions.
79Essentially I accept the evidence of Dr Trisno that at the time of your offending your underlying antisocial personality disorder had a major contributing factor. This was combined with your excessive use of alcohol as well as cannabis and recent use of LSD and DMT, which Dr Trisno opined could contribute to a drug induced or transient psychosis and impaired judgement. This sets the circumstance for your offending; it does not reduce your moral culpability or mitigate your offending in any way. A lack of remorse is part and parcel of your personality disorder.
80I also accept Dr Trisno's opinion in his report dated 1 July 2021 that you experienced early developmental trauma following the early separation of your parents and your mother's inconsistent presence in your life until she left completely when you were seven years old. Dr Trisno refers to seeing reports indicating that your grandfather was violent and that your early behavioural problems and resort to drug and alcohol abuse likely shaped your personality development.
81That personality, unfortunate, now seems well entrenched.
82Your associated disregard for others and difficulty in being able to experience remorse, combined with your continuing interest in drug use, raises obvious concerns about the need to protect the community from you.
COVID-19 pandemic
83You were remanded into custody upon your arrest on 5 August 2020. As such, your remand has been impacted by the corrections response to the COVID-19 pandemic.
84In general terms, this has meant less freedom of movement, less access to rehabilitative programs and less access to personal visits. This, in my view, does make both the remand and sentenced prisoner experience more difficult than it would otherwise be. This is a factor to be taken into account in sentencing exercise.
85Materials tendered on your behalf would indicate that you have chosen an isolated existence within the prison system.
Prospects for rehabilitation
86Your most meaningful relationships remain with your grandmother, with whom you maintain contact, and with your much loved dog, Buffy. You intend to return to your grandmother's home upon your release.
87At the time of Dr Trisno's assessment of you in July of 2021, you were presenting as stable in terms of your mental health.
88Within the gaol setting you have recently been prescribed an antipsychotic. Notes tendered on your behalf and authored by Psychiatric Registrar Dr D'Arcy Hipgrave, dated 2 February 2022, indicate that 'overall diagnoses include anti-social personality disorder, polysubstance use disorder and psychosis "not otherwise specified"'. Your counsel submits that this new medication may help to make a difference in your mental health and functioning.
89You were to be reviewed in four weeks, but no additional information has been provided.
90Your criminal history, your actions on 4 August 2020, and your established diagnosis would indicate that, at least at this point in time, your prospects for rehabilitation are guarded, if not poor.
Sentencing
91The basic purposes for which a court may impose sentence are just punishment, general and specific deterrence, rehabilitation, denunciation, and protection of the community. In sentencing you, I am required to have regard to a range of matters which include the seriousness of the offending, your culpability for it, your personal circumstances, and those of your victim.
92I must also balance the interest of the community in denouncing criminal conduct with the interest the community clearly has in seeking to ensure, where possible, that offenders are rehabilitated and are reintegrated into society.
93I have taken into account the relevant sentencing purposes referred to in s5 of the Sentencing Act where relevant to your case. I have taken into account current sentencing practices for the offences to which you have been found guilty, as well as the principles of totality and proportionality.
94Before I turn to sentence, I will check with Mr Perry if there is any matters that he wishes to raise?
95MR PERRY: No, Your Honour.
96HER HONOUR: Mr McGlone?
97MR McGLONE: No, Your Honour.
98HER HONOUR: On Indictment L11864716B, the charge of possess drug of dependence, namely cannabis, you are convicted and discharged.
99On the summary charge of unlicensed driving, you are convicted and fined the amount of $1200.
100On Indictment L11864716.1 - Charge 1, threat to kill, you are convicted and sentenced to three months' imprisonment with one month being cumulative on other sentences imposed this day.
101On Charge 2, intentionally damage property, you are also convicted and sentenced to three months' imprisonment. Given its relatively minor nature and the need to look at your sentence overall, no order for cumulation is made.
102On Charge 3, intentionally cause injury, you are convicted and sentenced to 18 months' imprisonment, of which six months is cumulative on the charge of aggravated burglary.
103On Charge 5, aggravated burglary, you are convicted and sentenced to four years' imprisonment. That charge forms the base sentence.
104For Charge 6, intentionally cause injury, you are convicted and sentenced to two years' imprisonment, of which six months is cumulative on the base sentence and on the other charges imposed this day.
105The total effective sentence is therefore one of five years' and one months imprisonment.
106I fix a period of three years and eight months before being eligible for parole.
107Five hundred and ninety-six days are reckoned as having already been served.
108
Mr McGlone, I will give you the opportunity to just speak to Mr Jones privately.
I will just check there is nothing I have missed. An additional check, Mr Perry?
109MR McGLONE: No, that is everything, Your Honour.
110MR PERRY: No, there is nothing arising, Your Honour.
111HER HONOUR: All right, thank you.
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