Director of Public Prosecutions v Jones

[2020] VCC 844

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT GEELONG
CRIMINAL JURISDICTION

CR 19-02555

DIRECTOR OF PUBLIC PROSECUTIONS

v

GAIGE JONES

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Geelong
DATE OF HEARING:	11 June 2020
DATE OF SENTENCE:	11 June 2020
CASE MAY BE CITED AS:	DPP v Jones
MEDIUM NEUTRAL CITATION:	[2020] VCC 844

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms F. Livingstone	Office of Public Prosecutions
For the Accused	Ms E. Millar	Victoria Legal Aid

HER HONOUR: 

1Gaige Jones, following a successful application for a sentence indication,
you pleaded guilty to two charges of attempted home invasion and two charges of criminal damage.  These crimes occurred on the same night, 16 March 2019, and they were connected in a number of ways.

2You had been in a relationship with a young woman.  Her family and yours had had difficulties with each other for some time.  The end of your relationship saw the young woman seek and be granted protection from you with a family violence intervention order.

3You did not abide by that order, but rather, on 16 March 2019, you and others from your family went first to the premises of the young woman's uncle, where you and a co-accused broke a front window and attempted to get inside to commit violence.  You did not get in, and you left and went to the young woman's house.  Before leaving, there was damage also, considerable damage, to the uncle's car.

4At the young woman's house, again, others and you attempted to get in but were rebuffed.  You then damaged a neighbouring fence.  The young woman came out and hit you, and she was assaulted by other women related to you or your side of this unseemly fracas.  The father of the young woman also was punished.

5There were other aggressive interactions between the two groups that night.  As I noted, there was a history of aggression between your family and the victim's family over some time.

6You initially denied the offending.  Serious charges, including mandatory incarceration, were initially laid.  You conducted a committal after some direction hearings and intensive case management, the matter proceeded to a sentence indication hearing where these lesser charges, not requiring immediate incarceration, were preferred.

7You pleaded guilty after the sentence indication hearing, or have done so formally today, to attempted home invasion of the uncle's premises and criminal damage to his window and car, and to an attempted home invasion of the young woman's home, and criminal damage to the neighbour's fence.

8I have added into the sentencing equation your plea of guilty, a significant matter in these times of the suspension of jury trials due to the COVID-19 pandemic. 

9The crimes were plainly serious and ordinarily would result in significant gaol.  However, I do not see that these particular examples of the crimes of attempted home invasion or criminal damage to be at the high or even the mid-level in the scale of things.

10Nonetheless, offending of this kind must be denounced and others deterred from attempting to break into private homes.  The victims were entitled to feel safe in their homes.  Attacking the house in numbers, carrying sticks and poles that your group had, cannot be tolerated. 

11The young woman and her father, the victims at that premises, have been adversely affected.  They do not feel as secure as they should be.  The young woman has had to be treated for post-traumatic stress disorder.  These are not small matters. 

12What allows for the sort of non-custodial disposition that I indicated is an array of mitigatory matters, mostly arising from your personal circumstances.

13The first of those is your youth.  You were 19 at the time and have only just turned 21.  It has long been the case that rehabilitation will be given significant weight when a young offender comes before the courts, especially if they are, as is the case here, someone with limited or no prior offending.  It is in the community's interests that such a person be reclaimed and set back on law-abiding paths.

14You have limited prior court appearances, two good behaviour bonds in the Children's Court, and one adjourned undertaking on appeal. 

15The principles as set out in R v Mills and Azzopardi v The Queen play a particular role in this sentencing task.  I have applied those principles, which can be best summarised by reference to what was said in Azzopardi v
The Queen from paragraph 34 through to paragraph 38.  The principles concerning sentencing youth were there set out.

16I will not read everything that the court there said, but the principles identified were:  firstly, young offenders, being immature, are therefore:

'more prone to ill-considered or rash decisions.'

17The point being made is that moral culpability is lower in respect of young people because of their immaturity.

18Secondly, the courts recognise the potential for young offenders to be redeemed and rehabilitated.  That is because they are young in their stage of mental and emotional development, and may be more open to influences that positively change their behaviour as they grow older, rather than established patterns of anti-social behaviour.  That certainly is the case here.

19Thirdly, the courts, in sentencing young offenders, are cognisant of the effect of incarceration in adult prisons on a young offender or indeed, any Youth Justice Centre.  That would more likely impair rather than improve an offender's prospects of rehabilitation.  It was very much to the forefront when I gave the indication that I did.

20In R v Mills, the concepts were set out in this way:  (1), youth and the offender, particular a first offender, should be the primary consideration for the sentencing court where that matter properly arises; (2), in the case of a youthful offender, rehabilitation is usually far more important than general deterrence.  This is because punishment may, in fact, lead to further offending.

21And finally, a youthful offender is not to be sent to an adult prison if such a disposition can be avoided, especially if he is beginning to appreciate the effect of past criminality.  The benchmark for what is 'serious' as justifying adult imprisonment may be quite high in the case of a youthful offender.  That, in my view, is also applicable in a moderated form to incarceration in a Youth Justice Centre, which was but just available in your case.

22In addition to your youth and the good prospects of reform, I have taken into account a number of matters from your upbringing.  Although you still reside with your parents, your upbringing has been chaotic and involved trauma. 
Your family has moved often and have had periods of homelessness. 
Your father is a chronic alcoholic, has inflicted violence on your mother and you and other children.  The atmosphere was often volatile and threatening. 
You gained little from schooling.

23You were assessed by a psychologist from the Department of Education who noted your borderline intellectual disability and language difficulties.  You were diagnosed as being on the autism spectrum with attention deficit disorder and obsessive-compulsive traits as well.  Your cognitive abilities are not strong. 
You have an IQ assessed at 77.

24The psychologist assessments done by Dr Anderson noted your suicide attempts and emotional immaturity.  She wrote the following:

'Mr Jones is a 20-year-old man who has experienced an extremely chaotic upbringing which appears to have had a devastating impact upon his developmental trajectory.  A prevalent feature of Mr Jones' childhood was a lack of safety and security.  For a child, a lack of a sense of protection is a traumatic experience in and of itself.  Mr Jones appears to have experienced repeated traumatic events on top of experiencing a general sense of danger and uncertainty in his life.  A lack of perceived safety creates an early pattern in which hypervigilance is normalised as a protective factor for a child, which increases the likelihood of violent behaviour developing as a defence mechanism, which is clearly the case for Mr Jones.  As his defiant aggressive behaviour emerged throughout his primary school years, his family was then experiencing homelessness. 
In addition to this, it appears that conflict, violence and antisocial attitudes were normalised in the home environment and Mr Jones from an early age.  Once again, it is not surprising that, when a child is consistently exposed to aggression and violence in the family home, they demonstrate these behaviours as their default approach to conflict resolution.'

25Dr Anderson considered that you were properly diagnosed with autism spectrum disorder with additional differential diagnosis of low borderline cognitive function, borderline personality disorder, and complex trauma. 

26Other mental health reports also emphasise your depression and anxiety. 
Your counsel submitted that these matters gave rise to an impaired mental functioning that enlivened aspects of the Court of Appeal decision in Verdins - in particular, that general deterrence and specific deterrence ought be moderated; that is, in addition to the moderation that arises because of your youth.

27Further, it was submitted that I should consider alternative forms of punishment than imprisonment.  I have, of course, already indicated that there will be no incarceration. 

28The steps you have taken of late to engage in rehabilitation are important, and this dovetails with the Mills and Azzopardi principles that I have just spoken of.  The Sentencing Act requires me to establish conditions that may have facilitate your rehabilitation.  What has occurred with your engagement with Ms Todd, your youth worker, and the other specialists is encouraging and should,
in accordance with the Sentencing Act, be further encouraged.

29As a consequence of your mental health problems, Ms Todd was able to secure for you NDIS funding.  You are treated as best you can be in the circumstances of COVID-19 by Ms Hollin, a mental health nurse.  You have been connected to vocational employment and training with Ms Pren from ReConnect. 
You were placed on supervised bail from April to recent times, and the reports indicate your positive engagement in particular with mental health professionals assisting you with your depression and anxiety.

30In my view, you have taken solid steps to ensure you deal with underlying problems.  The future for you is likely to be better managed and focused.  You have been dealt with by a magistrate subsequent to this offending.  Of concern is that the offending relates to breaches of an intervention order taken out by another young woman that you had formed a relationship with after this offending.  You and this young woman have a child, and you not being involved or informed about the child's birth caused difficulties.  You were placed on a program-only community corrections order.  It is early days, but its broad programs are targeted to your underlying problems. 

31In my view, it is a moment to be seized in order to consolidate your rehabilitation.  As I said in the sentence indication hearing, a sentence of incarceration would very likely entrench poor habits and behaviour. 
A community corrections order can act as punishment and simultaneously rehabilitate.  All sentencing principles are met by an onerous community corrections order.

32I intend to impose an aggregate sentence, as the offences were so connected.  Clearly, though, the attempted home invasion is the most serious of your crimes.

33What I propose to do in respect of two charges of attempted home invasion, and the two charges of criminal damage, and the summary offence, the breach of the intervention order, is to impose with conviction a two-year community corrections order.  You will have to do unpaid work for a total of 100 hours. 
You will also have to do programs that will assist you with respect to offending and being under supervision.

34I will impose a further requirement of judicial monitoring, but I will put that off for some time to see whether, with a community corrections order from the magistrate and this community corrections order, you have been reformed or act in a rehabilitative way, and that what is needed for you has been provided.  That judicial monitoring will be at 9.30 am on 14 December 2020. 

35Once a document is produced, Mr Jones, I will go through the various conditions that apply to everyone in a community corrections order and also on you, and seek from you your consent.  Just bear with us.  Are there any other matters that I have to attend to, Ms Livingstone-Clark?  The disposal order ‑ ‑ ‑ 

36MS LIVINGSTONE-CLARK:  Yes, Your Honour.  Just in relation to the disposal order and s.6AAA.

37HIS HONOUR:  Yes.  I am not sure that I have to give a 6AAA with imposing a community corrections order. 

38MS LIVINGSTONE-CLARK:  It does apply where a community corrections order is for a period of two years of more.

39HIS HONOUR:  Thank you. 

40MS LIVINGSTONE-CLARK:  And given that this is two years, I think it may fall under that.

41HIS HONOUR:  Yes, thank you.  Had you pleaded not guilty to these offences and been found guilty of them, Mr Jones, I would have imposed a term of imprisonment.  The imprisonment would have been, given that the trial would have been at a point where you were no longer eligible for a Youth Justice Centre, the imprisonment would have been for two years and six months with a minimum term of 18 months.  I will sign the disposal order when it is produced.

42MS LIVINGSTONE-CLARK:  As Your Honour pleases.

43HIS HONOUR:  Mr Jones, the community corrections order will last for two years.  It starts today and ends on 10 June 2022.  All community corrections orders have the following mandatory terms, so they apply to you. 
Most importantly is the first:  you must not commit another offence which you could be imprisoned during the time that this order is enforced.  So you must not commit any offences in that time.  Do not commit any offences ever again, but if you do so in the next two years, you will be back before me, and I am not likely to be as lenient as I have been here. 

44The other conditions really relate to your cooperation.  You must comply with the sentencing regulations.  You must report and receive visits from the Office of Corrections.  You must report to the Ballarat Community Corrections Service there in Mair Street within two clear working days.

45You must let the community corrections officer know within two clear working days if you change your address or your job.  You cannot leave Victoria without getting permission to do so, and you must obey all lawful instructions and directions.  The first connections with them - that is, reporting to them within two clear working days -as I understand it occurs via telephone, and there are telephone numbers here that you need to ring. 

46Now, in addition to those terms that apply to everyone, the conditions that apply just to you in respect of this matter is that you must perform 100 hours of unpaid community work.  You must be under the supervision of a community corrections officer for two years.  You are already under supervision in respect of the Magistrates' Court, but you are under supervision for longer.  They need to be clear as to how you are going.

47You must participate in programs they consider will assist you in respect of your offending, and you must reappear before me on 14 December 2020 at 9.30 for judicial monitoring. 

48Ordinarily, a document would be provided to you, Mr Jones, setting these things out.  It will get to you in due course.  But what I have to understand from you is:  do you consent to this community corrections order? 

49OFFENDER:  Yes, Your Honour. 

50HIS HONOUR:  Thank you.  I will make the disposal order in respect of the various items.  If there is nothing further, I thank counsel for their assistance throughout this matter, resolving it, and getting the matter before the court as soon as possible in the circumstances.  I thank Ms Todd very much for all your assistance. 

51MS TODD:  Thank you, Your Honour. 

52HIS HONOUR:  It is obvious you are providing Mr Jones with considerable assistance as part of your youth worker tasks, which look like they cover just about everything.  But the court is particularly grateful that you are able to secure a link for yourself and for Mr Jones on this occasion.  Thank you. 

53MS TODD:  Thank you, Your Honour.  I appreciate it.

54HIS HONOUR:  If there is nothing further, Ms Millar, if you want to have some quick discussion with your client.  Is that needed, or can you just ring him on the phone? 

55MS MILLAR:  I will give him a call.  Thank you, Your Honour. 

56HIS HONOUR:  Thank you.  We will just end the connections now.  Thank you. 

57MS TODD:  Thank you, Your Honour. 

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