Director of Public Prosecutions v Judge
[2020] VCC 1952
•2 December 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. 19-01563
19-01557
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BENJAMIN JUDGE AND JARA DIX |
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JUDGE: | HER HONOUR JUDGE RIDDELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARINGS: | 11 June 2020 & 8 October 2020 | |
DATE OF SENTENCE: | 2 December 2020 | |
CASE MAY BE CITED AS: | DPP v Judge & Anor | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1952 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW -- Sentence
Catchwords: Kidnap -- Intentionally Cause Injury -- Category 2 Offence -- Extra Curial Punishment
Legislation Cited: Sentencing Act 1991
Cases Cited:R v Verdins & Ors. [2007] VSCA 102 -- R v Teh [2003] VSCA 169 -- R v Armstrong [2014] VSC 256 -- Director of Public Prosecutions v Oatley, Seth (a pseudonym) [2014] VCC 1995
Sentence: Three years and four months imprisonment – Non Parole Period of 22 months imprisonment
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr D. Cordy | Office of Public Prosecutions |
For Accused Judge For Accused Dix | Ms S. Wallace Mr T. Sullivan | Docherty Legal Peter Baker & Associates |
HER HONOUR:
Background Summary
1 On the night of 15 March 2019 Anthony Brown was tricked into accompanying a member of his girlfriend’s family and her friends to an isolated area in bushland near Spring Gully outside Bendigo. They lured him there with the intention of assaulting him and chaining him to a tree where they proposed to leave him for several days. They took weapons and chains to execute their plan. Their spurious reason for doing so, was that they did not approve of the way he was treating his girlfriend, their family member. There was little foundation for that belief, and even if there had been, their decision to punish him by way of personal harm was vigilante behaviour of high order.
2 The risk of serious consequences was borne out, not only to Mr Brown who was physically beaten and bruised, but also to one of the assailants who was killed during the fight which evolved.
3 There are four persons charged over this matter, 2 of whom – Jara Dix and
Benjamin Judge have pleaded guilty before me.
4 Harley Dix was aged 26 years at the time of these events. Although older than her, he is the nephew of Jara Dix. Jara Dix, was 20 years and Benjamin Judge 28, at the time of the offending. He and Jara Dix were close friends and at the time of these events Jara Dix was living at the Judge family home.
5 The fourth accused, Bo VALLI, was aged 23 years. He is the cousin of
Harley Dix. At the time of the offending he was living with Harley Dix in a unit in Flora Hill. His matter is currently listed for Trial.
6 Harley Dix originally pleaded guilty to these offences, however has indicated the possibility of a change to his plea. That matter has now been adjourned.
7 The victim, Anthony Brown, was aged 19 years. In February 2019 he moved into the unit with Harley Dix and Bo Valli. While living there he became romantically involved with Harley Dix’s younger sister, 19 year old Starr Dix.
Background to Offending
8 Harley Dix was unhappy with what he decided was Brown’s treatment of his sister Starr. According to him Brown was rejecting her, telling her he needed space. There is no evidence that Starr Dix made any such complaint. Mr Dix and Mr Valli were also unhappy with Mr Brown’s behaviour at the unit, where he had walked in on people without knocking, and according to Harley Dix had ‘perved’ at the breasts of Mr Dix's partner. Further that he took
Mr Valli’s shoes.
9 Ms Dix gave evidence this morning to the effect that
Harley Dix relayed to her that Anthony Brown had sexually assaulted or sexually abused Starr Dix. She said this played on her mind. I'll return to that.
10 In the days before this offending there was an occasion where Harley Dix assaulted Mr Brown and Starr intervened. On another occasion Mr Brown and Mr Valli were at Jara Dix’s family home and had an altercation. That occurred on Jara Dix's father's birthday and therefore she was not happy with that behaviour.
11 That is the apparent extent of the justification for what transpired.
12 Jara Dix, you, along with Harley Dix, decided that Mr Brown needed to be taught a lesson. You formulated a plan, whereby he would be kidnapped and taken by you and Ben Judge out to the bush and beaten up. That plan was hatched over several days and is evidenced by text messages, then to a degree by your testimony this morning. Those text messages included repeated entreaties by Harley Dix to you Ms Dix, that you should ‘deal with’ Anthony Brown. He asked you if you were going to let Brown ‘break up the family’. You eventually messaged him, 'I told you I will deal with it.'
13 On Friday, 15th of March 2019, you Ben Judge, sent a message to Harley Dix stating 'This shit will get sorted today. I’m letting Jara do it her way ATM as I respect that she wants to get to the bottom of it. I honestly don’t give a fuck about Y.'
Circumstances of the Offending
14 On 15 March, Jara Dix, you arranged to borrow Bo Valli’s car. He had previously told you to take his car, take Brown for a drive, and ‘hurt him a little bit’.
15 You Ms Dix and Mr Judge, collected Anthony Brown and Starr Dix around 9 pm and drove Brown to Bendigo police station. You then returned, collecting Harley Dix and his girlfriend and all six of you travelled to Flora Hill where Harley Dix and his girlfriend were dropped off. Starr Dix was dropped off at her father’s house. Jara Dix, you invited Brown to go with you and smoke a bong at One Tree Hill. He agreed.
16 You both drove with Brown via the Judge family home, where you both loaded a tool box, sledgehammer, bag of ropes and chains, and a tarp into the boot of the white Lancer, while Brown sat in the rear shed with 24 year old
Steven Judge, Ben’s brother.
17 Steven Judge decided to go for a ride and have a smoke and so, all four of you got into the car and drove up Edwards Road to the One Tree Hill Lookout.
18 Those facts form the foundation for the kidnap charge to which you have pleaded guilty. That is, Mr Brown was fraudulently lured to go with you to smoke cannabis. Both of you intended that he would be kept captive and would be assaulted. That charge is an ongoing one, covering the events which unfolded.
19 Brown was driven to a remote location past a 'Road closed' sign on One Tree Hill Road, near the Mandurang Road entrance. There you shared a bong. Steven Judge and Mr Brown stayed in the vehicle while you both got out.
20 Ben Judge, you removed the sledgehammer, bag of ropes and chains from the boot of the car and walked into the bushes. You tied the chain to a tree.
Jara Dix, you also walked into the bushes and checked what Ben Judge was doing.
21 Jara Dix, you then asked Brown to get out of the car. He stood next to the car, watching Ben Judge walk in and out of the bushes. Whilst he was standing there, Ben Judge, you picked up the sledgehammer and came towards Brown with it raised. Brown tried to push the sledgehammer away, using the car door to push you away. Mr Brown was grabbed from behind and dragged to the ground, where he was assaulted for approximately five minutes by both
Steven Judge and Ben Judge. He was kicked and hit. Ben Judge, you and your brother, then dragged Brown by his hood and his legs, towards the site where the chain had been set up. Brown was continually hit and kicked. Brown believes he was hit in the head at least one time with the sledgehammer.
22 While the assault was occurring, Jara Dix, you were yelling out, 'You shouldn’t have fucked with the family.' Ben Judge, you were carrying out most of the assaults, while your brother was assisting, by holding the victim down and was also hitting and kicking him. Those are the facts founding Charge 2, intentionally cause injury.
23 At one point, Mr Brown tried to run away but you Mr Judge, grabbed him from behind and dragged him to the ground in a choke hold. He began to lose consciousness and he believed he might die. Brown had a kitchen knife in his pants pocket. As you Ben Judge, were holding him in the headlock, your brother Steven was on top of Brown. Brown pulled out the knife from his pocket and jabbed Steven three times, one impacting the left arm, one hitting him in the chest, and one hitting him under his left arm in the chest area.
24 Steven Judge backed away. He was bleeding heavily. Brown made his escape, running into the bushes to get away.
25 You both managed to put Steven into the car. You drove to try and get help. However. at one point the car stopped and would not start again. You both tried to carry Steven, however could not go far. Ben Judge, you ran to a house and asked the occupant to call an ambulance.
26 Two ambulance units arrived at the scene at 11:29 pm, as well as several police units. Resuscitation was commenced, however Steven Judge was pronounced dead at 11:47 pm. He was 24 years old.
Initial Accounts
27 Ms Dix and Mr Judge, you spoke to police at the scene and made up a story about being ambushed by unknown attackers. Neither of you mentioned the plan in relation to kidnapping or assaulting Mr Brown. Mr Judge you claimed you had blacked out, and only remembered Brown holding your brother against the car. You both made sworn statements reflecting those untruths.
Arrest of Victim – Anthony Brown
28 The following morning Anthony Brown was found hiding in a shed and was arrested in relation to the death of Steven Judge. At the time, he was in possession of a small kitchen knife.
29 Brown was injured and had a significant amount of dried blood covering his head, face, and clothes. He was examined at Bendigo Hospital and found to have multiple lacerations, abrasions, and bruises to the face and neck, including an injury to the right side of his head which required three stitches. He also sustained multiple abrasions, bruising to the chest, upper and lower back and ribs, along with bruises and abrasions to the legs. A photograph taken by him on his mobile phone demonstrates the injured state he was in.
30 Forensic examination concluded those injuries were consistent with multiple episodes of blunt force trauma to his face and head, at a minimum total number of five impacts. Abrasions to his face, torso, back and legs were caused by moving contact with an abrasive object such as fingernails or twigs. The abrasions to the back, suggest the cause could also be from a sole of a shoe with imbedded stones. Brown's lower legs were subject to multiple episodes of blunt trauma, in the form of blows or other impacts.
31 Mr Brown was interviewed and gave a truthful account of what had occurred. He later made a sworn statement reflecting his record of interview.
Arrests and Interviews of Accused
32 Harley Dix was arrested and interviewed on 16 March 2019. He made admissions and a sworn statement reflecting that interview.
33 Bo Valli was arrested and interviewed on 16 March 2019.
34 Ben Judge, you were arrested and interviewed on the 17 March 2019. Initially you were not honest in your interview, saying nothing of the plan to assault Brown. You claimed tools were in the car due to your mowing business. You claimed Brown hit Steven and you intervened but blacked out. You claimed not to remember hitting Brown with the sledgehammer.
35 You then admitted there was a plan which was to tie Brown up so Jara Dix can ‘have a chat with him’. You said Jara Dix did not approve of the relationship between Brown and Starr Dix. You admitted having a chat with Harley Dix about Brown being disrespectful and about Jara speaking with Brown. You said you told Harley Dix that you would sort it out. You admitted removing the bag containing ropes and chains from the boot and carrying it into the bushes off the track and admitted tying it there. You said Jara was going to leave him there for a couple of nights. You and Jara were then going to use Brown's phone to tell Starr the relationship was over.
36 You admitted you and your brother probably hit Brown but you claimed you couldn’t recall. You said that you had agreed to tie Brown to a tree, but you had not thought about whether force would have to be used to do this. Once the assault started, you said you just fought Brown off your brother. You agreed if your brother had not gotten stabbed, you would possibly have gone through with the plan to leave Mr Brown tied up in the bush.
37 You admitted that Mr Brown would not have gone with you if he knew what was going to happen. You stated Brown would have been shitting bricks and terrified. You agreed that you knew what you were going to do that night was not right.
38 Jara Dix, you were arrested and interviewed on 17 March 2019. During your record of interview, you were dishonest and made up a story to explain the presence of tools in the car. You said you would never invite Brown to go with you and that you did not like him from the first day you met him. You said you did not want him around Starr Dix. You repeated the version you had given to police initially, about being ambushed by Brown and others in the bush. You said Mr Brown was a liar and was not acting in self-defence, claiming he only had a bit of blood on his head from the boys defending themselves. You admitted slapping Mr Brown in the face.
39 You denied agreeing with Harley Dix that you would take care of Brown. However, you later admitted that there was a plan to tie Mr Brown to a tree and leave him for a couple of days just to teach him a lesson. You agreed discussing the plan with Ben Judge. Your record of interview makes no mention of sexual assault allegations.
40 By your plea you both now admit the prosecution opening which describes not only the planning of these events, but how they unfolded.
Sentencing Principles
41 This is a serious matter. Principles of general deterrence and just punishment are paramount in sentencing you both.
42 The kidnapping, while committed by fraud rather than force, is a most serious offence. That is, you tricked the victim into coming with you on the premise that you would smoke marijuana together. Once in the vehicle with you after leaving the Judge premises, it is clear that you had all formed the intention that he would not be permitted to leave and that he would be assaulted. The offence of kidnapping is effectively an ongoing offence from that time.
43 Here, it involved planning and premeditation, largely by you Ms Dix, but
Mr Judge you also knew of and agreed to the plan. It involved a planned violence which you both then carried out. You both obtained tools and chains in order to execute your plan. You Mr Judge, actually inflicted violence on the victim, brandishing the sledgehammer and swinging it towards him.
44 I find as a matter of fact, that he was hit with the sledgehammer at least once. I make that finding to the requisite standard for the following reasons. That was a weapon brought along for the sole purpose of injuring Mr Brown. At the very commencement of the confrontation it was brandished at him. He stated he believed he was hit with the sledgehammer at least once. The sledgehammer was forensically examined and had only the victim’s blood on the head of it. His injuries are consistent with blunt force trauma. I could not however conclude who hit him with it. However, given the joint enterprise, who hit him with it is not particularly relevant to the sentence.
45 You Ms Dix, encouraged the ongoing violence by your behaviour of slapping the victim and screaming at him while others assaulted him. He was repeatedly hit and kicked and dragged along the ground. He suffered injury at your joint hands.
46 The only reason your plan to leave the victim in the bush, injured and chained to a tree, did not come to fruition, was because he was able to fight back against you.
47 The impact on the victim of this offending has been significant. He does not wish his victim impact statement to be read aloud and so I will not refer to it specifically. I have taken into account what he describes as the ongoing and pervasive impact of your offending on him.
48 This behaviour is deserving of denunciation on behalf of the community. Taking matters into your own hands in this way is unacceptable. The sentence I impose must deter others from taking similar action. It must be directed to community protection and must justly punish you. It must also deter you both from committing any similar offence in future.
Objective Gravity
49 In assessing the objective gravity, for the reasons I have just outlined, in my view it is a serious example of the offence of kidnap, though somewhat moderated by the fact that your ultimate plan was thwarted.
Moral Culpability
50 Your moral culpability is high, given the planning and deliberate purpose of your offending which you both then proceeded to carry out.
Maximum Penalties and Category 2 Offence
51 The seriousness of this offending is amply demonstrated by the applicable maximum penalties. In relation to kidnapping, the maximum penalty is 25 years imprisonment. In relation to intentionally causing injury the maximum penalty is 10 years imprisonment.
52 Parliament has also declared the offence of kidnapping to be a Category 2 offence and enacted s.5(2H) of the Sentencing Act 1991. Those matters mean, I must impose a sentence of imprisonment, not in combination with a community correction order, unless special circumstances exist.
53 The special circumstances which were relied on by Ms Wallace in relation to you Mr Judge, are that in October 2019 you made a statement to police elaborating on your interactions with your co-offender Bo Valli and indicated your preparedness to give evidence if his matter goes to committal or trial. Mr Cordy on behalf of the prosecution confirmed that it is the prosecution’s intention to call you to give evidence. That may also relate to Harley Dix if his matter now goes to trial. This is a matter which I have taken into account in your favour.
54 Ms Dix you swore an undertaking this morning, that if called upon, you will give evidence in relation to both Harley Dix and Bo Valli. That is a late offer and as such has not been considered by the prosecution. However, I take that into account also in your favour.
55 Policy considerations confirm that where an offender is prepared to assist the authorities in bringing a co-offender to justice, that offender should receive a discount in sentence. In assessing the discount to be attributed, I am required to assess the value of each of your cooperation. In that regard, it is apparent that Mr Valli has already implicated himself in this offending, so your evidence, Mr Judge, is not of high value. Harley Dix, similarly, made fulsome admissions. So ,in a similar sense, any evidence against him, will not be of high value. That comment relates to both of you.
56 Nonetheless I take it into account your preparedness in relation to both of you to give evidence against those persons. Giving evidence against someone you know and in your case Ms Dix, your nephew, would not be easy and I accept as a general proposition, that may expose you to negative attention in the custodial setting.
Benjamin Judge
57 Mr Judge I will outline your personal circumstances first Mr Judge. You are now
29 years of age. Your parents separated when you were three and a half, but you were unaware of that until several years later. You went to live with you mother and your only brother Steven in Maryborough and your mother
re-partnered with your stepfather. You have a negative view of your stepfather. You describe your mother as affectionate, loving and caring. You look up to your father.
58 Your childhood was overall unremarkable in many ways. You remain supported by both of your parents, who have variously been present throughout these proceedings.
59 You had some academic challenges, repeating grade one and requiring a teacher’s aide through primary school. You changed primary school after grade four due to your parent’s separation and associated conflict.
60 Academically, during secondary school, you struggled with English, including reading and writing, but developed basic skills. You were able to pass your subjects and you enjoyed woodwork and sports.
61 During your schooling, you were heavily involved in karate and football. However, you were barred from your karate club due to your involvement in fights.
62 In secondary school you recall frequent bullying, both verbal and physical. You were involved in a number of fights which you saw as self-defence. Your education was affected by your behavioural issues as you were often sitting in the medical bay or in the principal’s office.
63 In his report, Psychologist, Simon Candlish, opined that you showed a sense of hostility towards your peers and that your involvement was also a result of problematic attitudes and issues with anger. In a previous report from 2019, it was similarly opined that you displayed anti-social traits from grade three. You say you have always felt inexplicable anger.
64 You once attended school with a pocket knife and police were contacted. You were often truant towards the end of Year 10. You had started to drink alcohol and use drugs, as well as associate with negatively influencing peers. You received a total of 18-19 suspensions. You left school at the end of Year 10. The reports conflict about whether you successfully completed that year or were expelled.
65 After school, you completed a 12 month' adult learning course and a Hospitality Certificate II. You moved from Maryborough to Bendigo, where your father lived, and you were unemployed for 12 months before your father found you a job at a furniture removal company. You were not strong enough physically to move furniture however and were eventually let go.
66 Your younger brother helped you obtain job in a café, where he was your supervisor. You remained employed there for two and a half years. However, due to an incident where your cousins destroyed property belonging to your boss, and to your verbal altercations in the workplace, you were fired from that job.
67 You have had significant periods of unemployment and have been unemployed more than you have worked. You and your brother Steven had started a handyman business and were working together at the time of this offending.
68 You commenced cannabis and alcohol use from the age of 16 years, smoking it daily from age 17. Though you deny its negative effects, you acknowledge some paranoia and talking to yourself.
69 Mr Judge, you have used other drugs on several occasions as a late teen. Your drinking at times got out of control. However, and to your credit, you had ceased drug and alcohol use for many years prior to this offending.
70 In that context of your formative years you report long term depression and low mood throughout your teens. You were first medicated on anti-depressants at age 17 and you have attempted to take your own life on several occasions. To that end, you have a history of fragile mental health.
71 I was also told of the murder of your paternal aunt and repeated trials to bring that offender to conviction. That was a further stressor for you and your family.
72 You say the year prior to this offending was miserable. You lost your job, accommodation and a fiancé. Mr Candlish says you were experiencing symptoms of a Persistent Depressive Disorder at the time of your offending, and that this contributed to some nihilistic thinking and a willingness to behave in an ultimately self-destructive manner. Although he says your depression was not a causal factor in your offending, he does say your anger and agitation reflect a manifestation of your depressive symptoms.
Extra Curial Punishment
73 The impact of this offending has been significant for you and has compounded your mental health. I have received material including from Consultant Psychiatrist, Dr. Ajit Emmanual who saw you in June 2019. Your plea was adjourned so that Psychological assessment could be conducted, and a report provided to the Court for the purpose of understanding your mental state. To that end, I received the report from Mr Candlish and also a report from Clinical Neuropsychologist, Dr Sara Fratti.
74 It was argued that the death of your only brother is a significant factor which I should take into account in the sentencing synthesis. That factor is of course complicated by the fact that you and he were committing serious offending which ultimately lead to his death.
75 However, the case law establishes that this is a matter which I should take into account. Those principles are enunciated By His Honour Vincent JA in R v Teh [2003] VSCA 169 as follows;
'There are a number of respects in which the fact that a perpetrator of an offence personally experiences distress, injury, or loss as a consequence of its commission can assume relevance in the determination of an appropriate sentence. Generally, it will take its place as one of the matters to be taken into account in the development of an appropriate synthesis. It may assume significance in the assessment of the just punishment required, the weight to be given to expressions of remorse or to general and specific deterrence in the circumstances of the particular matter."
76 Those principles were referred to in the matter of Director of Public Prosecutions v Oatley, Seth (a pseudonym) [2014] VCC 1995 by His Honour then CJ Rozenes, when he sentenced an offender for offending which led to the death of his child, and permanent removal of another child by DHHS.
77 They were also referred to by His Honour Croucher J in R v Armstrong [2014] VSC 256 where His Honour was dealing with an offender who had incited his son to violence during which his son was shot and killed. His Honour referred to the accused’s suffering as itself, an extra curial punishment, which the offender would experience for the rest of his life. In turn, that experience reduced the weight to be accorded to specific deterrence and just punishment, as well as reducing the risk of recidivism and increasing the chance of reform.
78 You have indeed suffered the loss of your brother and the enormous guilt of having involved him in these events which were in no way related to him.
79 After his death you recommenced substance abuse, including for the first time, trying methamphetamine, and returned to excessive drinking. You attempted suicide by hanging yourself from a tree. You were prescribed anti-depressants and I am told that in custody your dose of anti-depressants has been increased. You have been told that you have symptoms of Post-Traumatic Stress Disorder. I have no difficulty accepting that diagnosis.
80 Fortunately your close relationship with your mother, allowed you to reveal your problem drug use to her, and with her support you were again able to arrest that addiction, save from some cannabis use and occasional alcohol consumption. You say you have had recurrent suicidal thoughts however your mother and your 12 year old half-brother who has autism and who you have supported, are protective factors. I understand you have promised your mother she will not lose another son.
81 In my view, the tragic consequence of your brother’s death, though brought about by your and his offending, is extra curial punishment. You suffer now and will continue to feel not just the guilt and responsibility for his loss, but the reality of the absence of your only sibling. It is clear you were close. To my mind it is difficult to imagine a greater specific deterrence than the death of your brother in these circumstances. That is, those serious and tragic consequences should deter you from ever involving yourself in violent behaviour again.
82 In my view, although there are clearly anger issues for you to resolve, I accept this additional punishment moderates to an extent the need for specific deterrence and just punishment.
Prospects of Rehabilitation
83 With regard to your prospects of rehabilitation, those matters should also motivate you to reform yourself. Your parents are no doubt suffering alongside you. During your imprisonment they are without their two sons. That fact should also be motivating for you and a protective factor. Both parents are willing and able to give you accommodation on your release.
84 I take into account in assessing your prospects for rehabilitation, the fact that you are a person without any prior convictions, and that during the two and a half years on bail you complied with strict bail conditions and did not reoffend in any way.
85 Dr Fratti also opines that you have a number of cognitive strengths, and the capacity to engage in meaningful vocational and recreational pursuits. Engagement in work and leisure activities should positively increase your prospects. I find your prospects of rehabilitation to be good.
Plea of Guilty
86 I also take into account your early plea of guilty. That is a matter which entitles you to a significant discount in sentencing. It has the benefit of saving the community the time and expense of running a jury trial which likely had some 40 witnesses.
87 It is difficult to equate your plea with an expression of remorse. You have not shown victim empathy and you seem still engaged in blaming the victim.
88 However, I accept the comments of Dr. Fratti that you have expressed genuine shame, regret and remorse for your actions and have spent a great deal of time thinking about these events and your offending.
Time in Custody
89 I take into account that you have entered prison for the first time when I remanded you in October. You have entered that environment in the context of the Covid-19 pandemic. You underwent 17 days in quarantine and have had no contact visits, including no video conferences with your family. That is unacceptable in my view. Particularly in light of the fact you have been recently assessed by a psychiatric nurse, in custody, as suffering symptoms of PTSD and have now been seen by a general practitioner. Your anti-depressants have been increased. Given Corrections are therefore on notice about your mental health statement, I would hope arrangements can be made for improved contact with your family.
90 In the custodial setting for the first time and with the history I have outlined, I have no difficulty accepting that imprisonment is going to cause you greater hardship than a prisoner without those factors. I accept that with longstanding depression, the past history of suicide attempts, and likely PTSD diagnosis, limbs 5 and 6 of Verdins apply. I note specifically the comments of Mr Candlish to the effect that your history is likely to contribute to a greater burden of imprisonment and that if your depression is not managed it could deteriorate further.
91 I note the expert recommendations of Mr Candlish and Dr Fratti that you require psychological treatment with respect to your history and the tragic consequences of these events. I also note the obvious need for anger management programs and help with drug and alcohol addiction.
92 Although I reached a view that the seriousness of this offending warrants a term of immediate imprisonment, I have taken those matters regarding your mental health, your willingness to assist the authorities, and the extra curial punishment and its relationship to specific deterrence, into account in determining the length both of the head sentence, but more pertinent, the length of the non-parole period.
Jara Dix
93 Turning to you, Ms Dix. You turned 22 years of age in October. You were born and raised in Bendigo. Your parents both have children from previous relationships. You are their only shared child and describe yourself as 'Daddy’s little girl'. You lived with your parents, though were part of that somewhat complicated extended family matrix.
94 You have Aboriginal heritage through your mother and while you have shown some interest in your cultural background, for example, at TAFE, essentially you had not investigated your Aboriginal heritage at the time of these offending or at the plea.
95 I received several reports which outline your history in detail. On the last date of your plea hearing the matter was adjourned due to my concerns about the adequacy of the material exploring your mental health state. I have since received a report from Dr Keng Chuan Soh, Psychiatry Registrar, co-authored by Dr Anthony Cidoni, Forensic Psychiatrist. I had already received a report from Dr Lester Walton and a bundle of medical materials which relate to past psychiatric hospital admissions.
96 You had a difficult time at school due to repetitive and serious bullying, including name calling and several physical assaults. Those occurred over your formative years between the ages of 12 to 17. You also suffered anxiety when made to speak in front of a crowd, often shaking and crying. The bullying events led to frequent changes of school. At one stage you left home after fighting with your father and DHHS placed you with your brother. You moved home after six months.
97 You completed Year 10, but due to a serious bullying incident where you were pushed down stairs in Year 11, you decided to leave school.
98 Your schooling left you with chronic low mood. You would spend all day in tears in your room at times. You had feelings of worthlessness and hopelessness, believing you were stupid. Your confidence was low and you had eating and body image issues. In between the years 12 to 18 you began cutting yourself. You also attempted suicide on several occasions. You say you felt empty and fearful of abandonment, and often angry for no reason.
99 You obtained employment at Subway for a short period and then worked as a model, though online bullying about your appearance by former school mates led to you cease that work.
100 You enjoyed a close relationship with your father. He was unwell for a lengthy period before he died in September 2015 from a heart attack at the age of 62. You were only 16 years old and had a very difficult experience of attending the hospital after he passed away. You have flashbacks to those events. His loss was significant for you and you are yet to fully come to terms with it.
101 Over the years, you have enjoyed a reasonable relationship with your mother, but your mother has now entered a new relationship and there has been some conflict between you and her partner. She has been in court and remains a support for you.
102 You have been the victim of a number of sexual assaults and rape between the ages of 12 and 17. Those matters are outlined in the Forensicare report and I have taken those into account. You were sexually assaulted by a male friend who you viewed as a brother only a week prior to this offending. That matter has been reported to the police subsequent to the offending. You attempted suicide by hanging yourself in the shed soon after, however aborted your plans when interrupted by a friend’s arrival.
103 You have had two admissions to the Austin Hospital Child and Adolescent Mental Health service. Those were in 2015 in relation to suicidal ideation. The discharge summary refers to the history of self-harm and sexual abuse. You were experiencing some psychotic phenomena such as hearing a voice and seeing shadows.
104 Although recommended for outpatient follow up, that did not occur. You say any counsellors have been unhelpful to you.
Mental Impairment
105 Dr Soh diagnoses you with Post Traumatic Stress Disorder, Social Anxiety Disorder and Persistent Depressive Disorder. He says those are conditions which have persisted over many years for most of your life. In addition, you have emotionally unstable personality traits, which are strongly suggestive of Borderline Personality Disorder, though not formally diagnosed. Further, you may have Attention Deficit Hyperactivity Disorder of the inattention subtype and a neurodevelopmental disorder in the form of dyslexia, though again undiagnosed. You also suffer complicated grief regarding your father’s death.
106 Dr Soh opines that there is a contributory link between your PTSD from cumulative past traumatic experiences, as well as the sexual assault prior to this offending, which would have impacted you and clouded your judgment. He says this is likely to have played a 'significant role in her hatching the plan to punish the victim’. I note in part, that is based on your report to Dr Soh, that you believed the victim had sexually assaulted your niece. There is no support for that in the depositional material. However, you have given evidence this morning. On the balance of probabilities, I accept, that some comment or comments were made to you by Harley Dix about sexualised behaviour by the victim and that that resonated with you. I therefore take it into account.
107 I accept also that pressure was brought to bear on you by Harley Dix to become involved in retribution or revenge against Mr Brown. That is amply borne out by the text messages where he makes repeated entreaties to you. Despite your original and sensible comment that it was a matter for Starr and not to get involved in other people’s relationships, you eventually relent to that pressure. I accept this was something along the lines of misguided loyalty within your family setting and I take that into account in the context I have just described.
108 I also accept the opinion of Dr Soh that your complicated past history and documented mental impairment has contributed to your offending. To that end, I accept the submissions of Mr Sullivan that the principles of Verdins apply. Specifically, your moral culpability is moderated to an extent. I also take those matters into account in moderating my consideration of general deterrence, while acknowledging that can only be to a degree, given the seriousness of the offending.
Extra Curial Punishment
109 You too, have also been affected by the death of Steven Judge during this offending. You were living in his family home at the time of these events. You say he died in your arms. His death has further impacted your mental health and has compounded your experience of grief.
110 I refer to and repeat the principles regarding that loss and extra curial punishment as a relevant consideration in sentencing you. That tragic consequence should have its own deterrent effect on you involving yourself in any future violence. To that end it decreases to some extent, the need for specific deterrence. As with your co-offender it should also lead to you being additionally motivated to fully rehabilitate yourself.
111 As with your co-offender Mr Judge, your grief and focus on the death of
Steven Judge, has left little room for you to demonstrate any remorse for
Mr Brown. It is most unfortunate that you continue to blame him and make excuses for your offending, even as recently as during the Forensicare assessment. I cannot therefore conclude that your plea reflects any real remorse or insight into the effects on the victim of this offending.
Plea of Guilty
112 I do however, take into account your plea of guilty at an early stage and apply the same principles as I outlined in relation to Mr Judge. You receive the benefit of that plea in my sentence.
Time in Custody
113 I also repeat my comments regarding your first time entering custody and the fact that that is during the COVID-19 pandemic. You too, have been required to isolate when remanded in October.
114 Prior to your remand you were involved in an intimate relationship with a
27 year old man and gave give birth to a son on 18 August 2020. Your son joined you in custody on 18 November and you were again were required to quarantine for a period.
115 I note you are a person without prior or subsequent criminal offending. That is significant. This therefore is your first experience of custody and is so during the pandemic.
116 I accept that given your mental health history, you are someone who is fragile in the prison setting. Although your Counsel disavowed reliance on Verdins limb 5, I still view it as having a role to play and I take it into account. I say that despite your good progress in this early part of your imprisonment.
Prospects of Rehabilitation
117 The report of Dr. Soh and submissions by Mr Sullivan outline your experience in custody to date. You have been taking anti-depressants and a medication used for PTSD symptoms. They have helped your mood to stabilise and you are committed to continuing medication for the time being. You have not experienced suicidal ideation.
118 You have managed to engage positively in activities in custody including engaging in drawing and painting and going to the gym. You have found some positive peers. You have worked in the kitchen and also in industries. This has spurred you to consider construction work in the future. You are undertaking a building course and are ambitious about qualifying for your White Card.
119 You have also engaged with the Wadamba Prison to Work project provided by the Wan-Yaari Aboriginal Consultancy Services in partnership with Corrections Victoria. It is a program which involves tailored support of an Aboriginal engagement worker and Wadamba staff.
120 The program provides a supported pathway to employment for Aboriginal men and women aged 18 to 25 who are on remand and includes access to employment services, career guidance and cultural support for participants in custody as well as post release support.
121 The program targets early intervention, directing young Aboriginal people away from offending and into meaningful employment. It also provides appropriate cultural support for the transition and reintegration of Aboriginal prisoners back into the community through mentoring and strengthening of cultural identity and responsibility.
122 You have shown good commitment, attending program sessions regularly. You are described as engaged and contributing in a positive and respectful manner. The Wadamba team will continue to support you to secure meaningful employment on your release.
123 That progress in custody is extremely positive. You have been smart to recognise the help available to you, and the opportunities available to enhance your employment skills, your hobbies and your future. You have the motivation of your own future and the future of your son. You have ongoing support of your mother. In my view your prospects of rehabilitation are very positive.
Parity
124 I am mindful of the issues of parity when dealing with co-offenders. Parity is an aspect of equal justice. There should be no unjustifiable difference in sentences imposed upon similar offenders for similar offending.
125 The key words are, 'unjustifiable difference.' That is because parity takes into account, considerations of the offending and your roles in that offending but must also take into account your personal circumstances which include your personal circumstances at the time and since. In that sense, equal justice may result in different outcomes.
126 Ultimately, I have concluded that there should be no difference in your sentences. That is so because you were both involved in the premeditation of this offending though Ms Dix more so. You were both present and involved in the violence, though Mr Judge, you actually inflicted the injuries.
127 You both have difficult histories and mental health issues which I have outlined. In relation to Ms Dix they enliven limbs 1 and 3 of Verdins. You both have ongoing mental health issues, which in the case of Ms Dix enliven limb 5 of Verdins.
128 Mr Judge suffers the particular extra curial punishment of the loss of his brother. His current state of mental health, enlivens limbs 5 and 6 of Verdins.
129 Neither of you have prior or subsequent criminal offending.
130 Ms Dix is a young offender, 20 at the time and now 22. She now has a young baby.
131 Neither of you have shown remorse for the victim of these events. However, you both pleaded guilty early and have indicated a willingness to give evidence if called upon in relation to your co-offenders.
132 Synthesising, all of those matters, I cannot see a reason to impose a disparate sentence on either of you.
Cumulation
133 I intend to cumulate a portion of the sentence for intentionally causing injury, giving that it is distinct offending and was a sustained attack which resulted in a multitude of injuries for the victim.
Non-Parole Period
134 I do see in relation to both of you, there is merit in the submissions made by
Ms Wallace and Mr Sullivan, to the effect that I should impose a shorter than normal non-parole period given the matters I have outlined. I accept those submissions.
Current Sentencing Practices
135 Finally, I have given consideration to other cases. Some have similarities, but more often differences, in that kidnaps are often committed in context of drugs debts and with additional violence by persons with prior criminal histories, or in context of relationship breakdown. I am required to take into account current sentencing practices and to impose a just sentence and that is what I have endeavoured to do.
Sentence
136 The sentence that I propose to impose in relation to each of you is the same.
137 Ms Dix, on Charge 1 of kidnap, you are convicted and sentenced to two years and six months imprisonment. Ms Dix, on Charge 2 of intentionally cause injury, you are convicted and sentenced to two years imprisonment.
138 Mr Judge, on Charge 1 of kidnap, you are convicted and sentenced to two years and six months imprisonment. Mr Judge, on Charge of intentionally cause injury, you are convicted and sentenced to two years imprisonment.
139 In relation to both of you, I direct that 10 months of Charge 2 is to be served cumulatively on Charge 1.
140 That is a total effective sentence of three years and four months imprisonment.
141 I direct, that you are each to serve a minimum period of 22 months imprisonment, prior to becoming eligible for parole.
142 I declare that you have already served 55 days imprisonment and that this period should be reckoned as having been served under this sentence.
143 But for your pleas of guilty, the sentence I would have imposed, would have been one of six years imprisonment with a non-parole period of four years and three months imprisonment.
HER HONOUR: Thank you counsel for your assistance in what was a complicated matter. Thanks very much. And I'll stand down.
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