Director of Public Prosecutions v Juresko
[2023] VCC 371
•8 March 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 22-01588
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BRANDON JURESKO |
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JUDGE: | HIS HONOUR JUDGE LYON |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 8 November 2022 |
DATE OF SENTENCE: | 8 March 2023 |
CASE MAY BE CITED AS: | DPP v Juresko |
MEDIUM NEUTRAL CITATION: | [2023] VCC 371 |
REASONS FOR SENTENCE
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Subject: Criminal Law
Catchwords:
Legislation Cited: Sentencing Act 1991 (Vic) ss 6AAA, 80
Cases Cited:
Sentence:Nine months Community Corrections Order; Four years licence disqualification
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms J. Warren | Office of Public Prosecutions |
For the Accused | Ms M. McDonald | Adrian Paull Criminal Lawyers |
HIS HONOUR:
1Brandon Juresko, you have pleaded guilty to the following charges which carry the following maximum penalties:
| Charge No. | Offence | Maximum Penalty | Additional |
| 1 | Affray pursuant to s 195H Crimes Act | 5 years imprisonment | |
| Related summary charge 1 | Failure to stop and render assistance pursuant to s.61(4) of the Road Safety Act 1986 | For a first offence 80 penalty units or 8 months’ imprisonment | |
| Related summary charge 3 | Unlicensed driving pursuant to s.18(1) of the Road Safety Act 1986 | 60 penalty units or 6 months’ imprisonment | |
| Related summary charge 4 | Enter intersection against red traffic light pursuant to r.59 of the Road Safety Road Rules 2017 | 10 penalty units |
2You have admitted your prior criminal history.
Circumstances of Offending
3The Crown tendered the summary of prosecution opening as Exhibit A. A summary of your offending is as follows:
4On 20 December 2020, CCTV footage shows that Jeremy Robertson was riding his bike past the address where you lived. Jeremy Robertson got into a verbal argument with you, as you stood in your front yard with three other friends including Benjamin Norsworthy. The fight developed and you punched Jeremy Robertson to the head and then started to shape up to him.
5Jeremy Robertson then called his brother Nathan Robertson (who is the
co-accused to the affray) to come and help.6Nathan Robertson drove his Nissan Patrol approximately 300 metres to outside your house. It was then that the affray commenced. Mr Robertson:
(a)Got out of his car and walked over to the blue Commodore where you were sitting in the front seat and Mr Norsworthy was a passenger in the back seat. Mr Robertson opened the car door and punched you several times to the head. It is alleged that you bit his finger;
(b)Mr Robertson smashed the front passenger window;
(c)The blue Commodore which you were driving drove off and ran over Jeremy Robertson’s bike, which became lodged under the car;
(d)Mr Robertson returned to his car and followed your Commodore down Osborne Avenue and left into Victoria Street;
(e)CCTV footage shows the front passenger side of the patrol making contact with the rear driver’s door of the Commodore over a distance of approximately 55 metres. The damage to the door was depicted in photographs tendered on the plea;
(f)Witnesses gave evidence that Mr Robertson also rammed the rear of the Commodore on at least a couple of occasions. The CCTV footage does not support this. Nor is there any damage to the rear of the Commodore, which was protected by a towbar which also shows no evidence of damage. There are no photos of any damage to the front of the patrol which would support this either. I am not sufficiently satisfied that such conduct occurred or ought to form part of the affray;
(g)Mr Robertson stopped his car on Victoria Street to allow his brother to get out of the car and retrieve his hat, which had apparently blown off as he lent out the passenger window. I will then quote from the Crown opening:
while the Nissan Patrol was stationary, the Commodore was approximately 90 metres further east on Victoria Street. CCTV footage shows the deceased step out of the rear passenger door of the Commodore whilst it was travelling in motion at about 40 km/h. He immediately fell and struck the back of his head on the road causing an injury that proved fatal six days later in the Alfred Hospital.
7You, Mr Juresko, drove off, taking the car to your mother’s place in West Geelong where you hid the Commodore in a garage.
8Nathan Robertson and his brother attended to Mr Norsworthy until the police and ambulance came and Mr Nathan Robertson was arrested at the scene.
9You participated in a record of interview. You told police that Nathan Robertson produced a gun and hit you on the head with it, that he rammed your car several times from behind, that he then rammed you and tried to push you into a power pole and a parked car, and that he fired two shots at you whilst you were being pursued by his Patrol. Frankly, Mr Juresko, there is no evidence to support any of these statements.
10You then told police that Mr Norsworthy stated to you that he thought the Robertsons were trying to kill you all and he jumped out of the car without warning. You stated that you pulled over but the Robertsons ran up to Mr Norsworthy and you thought they were going to kidnap him. You stated that the Robertsons again followed you in their car; they followed you to your mother’s place and threatened you. In this respect, I must conclude that you lied to the police about a further pursuit by the Robertsons. It is apparent from the evidence that they remained with Mr Norsworthy until the police arrived at which point Mr Nathan Robertson at least was arrested.
11You have not spent any time in custody for this offending.
Objective Gravity and Moral Culpability
12I turn now to a consideration of the objective gravity of your offending and an assessment of your moral culpability.
13The offence of affray is constituted by using unlawful violence in circumstances where your conduct would have caused a person of reasonable firmness to be terrified, and that you intended to use violence or were reckless as to whether your conduct involved the use of violence.
14In order to ensure that the plea of guilty was properly made and that I was satisfied that the elements of the offence were made out, I asked the prosecution and defence to make submissions immediately before arraignment. On the basis of the submissions made by both parties, I am satisfied that the plea of guilty was properly made on the following basis.
15The affray is constituted by your ongoing fighting with Jeremy Robertson and your pursuit of him in Osborn Avenue up to the time his brother Nathan came to his aid. Nathan Robertson joined as a participant. Your participation continued up to the time you bit Nathan Robertson’s finger. Your participation was completed when you told Samantha Shepherd to drive off from Robertson.
16After that time, you fled in the Commodore. You took over driving from Samantha Shepherd. It was then that the summary offences were committed.
17The seriousness of the offence of failing to render assistance to Mr Norsworthy must take into account the following mitigating factors:
(a)The Crown puts its case on the basis that you believed he was injured but not grievously so, or dead;
(b)It is apparent that the offence was committed when you were fleeing from Mr Robertson’s continued assault; and
(c)It is reasonable to take into account your intellectual disability, your cognitive impairment, your previous acquired brain injuries and conclude that your judgment and reasoning was reduced compared to the general population, and that your decision to drive on appears to have been dominated by your fear of the situation which you perceived to be unfolding.
18I emphasise that I am satisfied (in accordance with both the submissions of the Crown and the defence) that you are not to be sentenced for causing Mr Norsworthy’s death. There is simply insufficient evidence to explain why Mr Norsworthy opened the car door and stepped out whilst it was travelling at about 40 kilometres an hour. You told the police that Mr Norsworthy stated 'these cunts are going to kill us, I can’t do this, I’m gonna jump out of the car'. Unfortunately, your narration of the sequence of events to the police has proved otherwise entirely unreliable. Even if these words were not said, I do not hold you responsible for his actions or his death.
19I received the victim impact statement of Mr Norsworthy’s partner Lisa Vella, his mother Julie Norsworthy and his father Martin Grambeau. I acknowledge the tremendous grief and enormous sense of loss each family member feels at the loss of their partner and son. The family participated in the proceedings, as they did at Mr Robertson’s plea hearing. I am sure that, this plea hearing has revived the feelings of anguish and pain that they have felt and revived those difficult memories. It is hoped they can all find some peace with time once these proceedings are concluded.
20Your other driving offending was committed against the background of your long and extensive criminal driving history. Even these matters must be mitigated to some extent by your perception that you were fleeing from Mr Robertson.
21On the face of it, your offending overall must be met by principles of deterrence and denunciation. After considering the matter closely and receiving the submissions of both counsel, I am satisfied however that the objective principles of sentencing do not require the imposition of a sentence of imprisonment for these offences.
22I turn now to consider your personal circumstances.
Personal Circumstances
23You are 29 years old, you were born in October 1994.
24You were born and raised in Geelong by your mother and your maternal grandmother.
25You have never met your father. You report that not having a father figure in your life was difficult. You have two paternal younger twin half-siblings who live in foster care.
26Your mother was a heavy drug user and was involved in at least one violent relationship. You report that your mother did the best she could to raise you and you remain saddened by her recent passing.
27As a child you were diagnosed with a severe language disorder, dyslexia and attention deficit disorder. You have also had diagnoses of intellectual disability and borderline personality disorder.
28You attended several schools and report that you were severely bullied by other students. You transitioned to Nelson Park special school in Year 9 and completed up to Year 11 VCAL which was an achievement in the face of your learning difficulties.
29At 19 you started but did not complete a bricklaying apprenticeship. You then worked as a fencer for two years and have since had on and off again employment as a concreter over the past six years.
30In 2021, you were involved in a serious motorcycle accident. You report being previously involved in a car accident at age 12 and a motorcycle accident at age 13.
31You have to the time of the plea only recently recommenced full-time work. You also receive a disability support pension and you are supported by the NDIS and TAC.
32You report alcohol and illicit substance abuse and have described yourself as having had a significant addiction to methamphetamines in the past.
33You have a very long history of committing criminal offences and in particular driving offences. You have been given several opportunities by way of court orders. Ms McDonald, who appeared on your behalf, told me that you had contravened community corrections orders on six occasions. Ms Warren, who prosecuted the matter submitted there were in fact seven occasions – taking into account a matter on your road traffic history. As far as I could calculate, you have been placed on four previous community corrections orders, and you have breached all them and some of them on more than one occasion.
34You have never, as I have said, been sentenced to a term of imprisonment.
35You have had one serious relationship of three years which ended in 2022. You have no children but in that relationship your partner experienced two miscarriages.
36You have a long and significant neuropsychological history. Much of your history is comprehensively reported in the psychological report of Gina Cidoni dated 27 October 2022.
37Ms Cidoni reports the following. Against the background of your unstable family upbringing, childhood and school experience you have been diagnosed or assessed:
(a)Dr Chris Cooper paediatrician reported you have a severe language disorder and full-scale IQ of 58;
(b)Lindsay Vowels neuropsychologist reported in 2013 that you suffered from undiagnosed attention deficit disorder; you had a full-scale IQ of 61; you had sustained an ABI, you have an intellectual disability and you suffer from Dysexecutive Syndrome;
(c)Tara Roy of Barwon health noted provisional diagnoses of borderline personality disorder, acquired brain injuries (resulting from multiple risk events) and attention deficit disorder;
(d)Laura Scott neuropsychologist administered testing and noted amongst other things your dyslexia;
(e)Brendan McLaren, neuropsychologist, whom you see on a weekly basis reported in October 2022 that you have a very severe brain injury and that you have difficulty understanding the purpose behind the assessments. The assessments can make you anxious and paranoid and reluctant to participate;
(f)After your last motor vehicle accident in October 2021, you were diagnosed with post-traumatic stress disorder, suicidal ideation and your ABI was noted by the NDIS assessment;
(g)Your neuropsychological conditions are complicated by previous periods of alcoholism and ice addiction; and
(h)As a consequence of your conditions, you suffer from mood fluctuations, sleep difficulties, concentration and memory difficulties and you have severe speech difficulties.
38After her own assessment, Ms Cidoni concluded that you suffer from PTSD, major depressive disorder, and generalised anxiety disorder and substance use disorder (in remission); all of which occur in the setting of significant cognitive limitations.
39I received further letters from your rehabilitation physician, Dr Chris Chan, and from psychiatric registrar Dr George Xidias in relation to their treatment of your ABI. This was complemented by the letter from your NDIS case manager, Ryan Barr.
40As I said, you are supported by the NDIS and you have been working as a concreter. You went back to work in about September 2022, after a long gap caused by your accident. The letter from your employer was very positive and encouraging.
41I received evidence from Melissa Harris, an intensive complex needs coordinator who has over 28 years’ experience. She has worked as your case manager since April 2022. It seems that your working relationship with Ms Harris has proved something of a turnaround in your recent life.
42Ms Harris gave evidence of her comprehensive coordination of your physical and mental health services, your TAC funding services and NDIS services. Specifically, Ms Harris coordinates TAC and NDIS funding and the provision of a GP, a neuro occupational therapist, an NDIS support worker, the provision of affordable housing and exercise physiologist and your then at least weekly visits to Brendan McLaren, neuropsychologist. In addition to providing these coordination services, Ms Harris takes you to appointments, and has coordinated with your legal team. Perhaps even more importantly, Ms Harris undertakes significant risk management work with you and has implemented a 'traffic light' mood gauge which signals to her when she needs to avert you from potential trouble. Ms Harris considers your commitment and engagement with her has been excellent. Fortunately, because of your TAC funding, her service relationship with you is open-ended.
43Mr Juresko, I am just going to pause there and say the debt that you owe Ms Harris and the debt this court owes Ms Harris just cannot be repaid by mere words. She has been an absolute marvel and it was inspiring to hear the services she has promoted to you.
44What flows from all of this is that you are now being provided with wide-ranging and complementary services; aptly described by your counsel as a wraparound service. Whilst it is too early to call it a change, it is certainly an impressive start to some change in your behaviour.
Sentencing Submissions
45Ms McDonald who appeared on your behalf submitted that the following factors should operate to mitigate your sentence:
(a)There is the question of parity with your co-defendant, Nathan Robertson;
(b)You have exhibited remorse through admissions made and your early plea;
(c)You have some prospects for rehabilitation now that you are well assisted with current NDIS supports that were previously unavailable to you;
(d)The principle of parsimony – you have never been sentenced to a term of imprisonment;
(e)Your cognitive limitations and neuropsychological condition must be given full weight in mitigating the sentencing consideration; and
(f)You suffer from grief over the loss of your friend. This has proved to have both a punitive and deterrent effect.
46Ultimately, Ms McDonald submitted in this case a community corrections order would be appropriate.
47Ms Warren submitted that, after considering the evidence of Ms Harris and comprehensive support network provided to you, that a community corrections order assessment was open in all of the circumstances.
Analysis
48In my view, a proper assessment of the objective gravity of your offending and in particular, your moral culpability for the offending warrants the imposition of a non-custodial sentence in this case; notwithstanding the long criminal history and the number of contraventions you have racked up, and the numerous chances given to you on community corrections orders.
49Ordinarily, a large number of contraventions such as you have accrued would deter a judge from considering having you assessed for a further CCO. Further, there comes a point when even the Corrections Office will consider a person unsuitable to undertake a CCO.
50In your case however I ordered your assessment for a CCO on the basis that there has been something of a turnaround in your behaviour and, it appears your outlook, since Ms Harris started coordinating the wraparound services has also turned around.
51You were assessed on 8 November 2022 as suitable for a further CCO. The risk assessment considered that you pose a high risk of reoffending. The assessing officer suggested, and your counsel submitted, that it was desirable to link your CCO to a justice plan to ensure that the full panoply of services are made available to you and are tailored to meet your intellectual and cognitive needs.
52I received a disability overview report, a statement of intellectual disability and the accompanying justice plan required under s80 of the Sentencing Act.
53I therefore propose to place you on a CCO for a period of nine months. There is a series of general conditions which attach to every CCO and you must stick to. Mr Juresko, I am going to read the general conditions to you now. They are that you must not commit another offence for which you could be imprisoned during the time of the order. Do you understand that?
54OFFENDER: I do understand that.
55HIS HONOUR: All right. You must comply with any obligation or requirement made of you by the Office of Corrections during the term of the order. Do you understand that?
56OFFENDER: Yes, I do.
57HIS HONOUR: All right. You must report to and receive visits from the Office of Corrections staff. Do you understand that?
58OFFENDER: Yes, I do.
59HIS HONOUR: Thank you. You must report to the Community Corrections Office within two clear working days of the order starting. Do you understand that you have got to report to them?
60OFFENDER: Yes.
61HIS HONOUR: All right. You must let a community corrections officer know within two clear working days if you change your address or you change your job, all right?
62OFFENDER: Yes.
63HIS HONOUR: And you must not leave Victoria without first getting the permission of the Office of Corrections. Do you understand that?
64OFFENDER: Yes, I do understand that.
65HIS HONOUR: And then you must obey all lawful instructions that they give you. Do you understand that?
66OFFENDER: Yes, I do.
67HIS HONOUR: All right. Now, in addition to those, I am going to impose a number of special conditions. Now, the special conditions that I want to impose are that you be under the supervision of a community corrections officer for nine months, all right?
68OFFENDER: Yep.
69HIS HONOUR: The second is you have got to undergo any mental health assessment and treatment that would include psychological, neuropsychological, psychiatric treatment as directed by the Regional Manager but that has already been taken care of through - - -
70OFFENDER: Yep.
71HIS HONOUR: That is to help link to your disability overview. And then the next one, Mr Juresko, is you must participate in programs or courses that address factors relating to your offending, so offender reduction programs. They might get you to do a driving course or something like that.
72OFFENDER: Yeah.
73HIS HONOUR: You understand that.
74And I would like you to undertake an anger management course. Do you understand?
75OFFENDER: Yeah.
76HIS HONOUR: And then of course you must participate in the services that are specified in the justice plan for nine months and your disability overview report will be available to the Corrections Office assessment so that that is available.
77Do you understand all of the general and special conditions, Mr Juresko?
78OFFENDER: Yes, I do.
79HIS HONOUR: All right. Now, I have got to tell you two things, all right? The first thing is that you can breach the order by committing further offences that are punishable by imprisonment. You know that already.
80OFFENDER: Yeah.
81HIS HONOUR: And the second is you can breach the order by non-compliance with the order, all right?
82OFFENDER: Yeah.
83HIS HONOUR: Because of some of the difficulties you have, you are at a higher risk than many people of breaching the order but it seems to me that it is - my personal observation is that it is worth you giving it a go but if you breach the order by either non-compliance or committing further criminal offences, you will come back before me for resentence. Do you understand that?
84OFFENDER: Yes, I do understand that.
85HIS HONOUR: All right. You may be at risk of prison or another sentence if you come back before me for breaching the order.
86If you understand all of those matters, are you willing to undertake the CCO, Mr Juresko?
87OFFENDER: Yes, I am.
88HIS HONOUR: Thank you.
Orders
89Then the order will be that on all of the charges be on all of the charges before me, that is the affray, the fail to stop and offer assistance, the unlicenced driving and the enter intersection, which are all offences for which you can be placed on the CCO, you will be placed on a CCO with conviction for a period of nine months and the special conditions that I read to you, that you have to go for assessment, participate in offender reduction programs, anger management, supervision and submit to the terms of a justice plan. The order will be made in those terms.
90Now, Ms Warren, did I have to make a disqualification or - - -
91MS WARREN: Yes.
92HIS HONOUR: - - - whether (indistinct) there was a conviction?
93MS WARREN: Yes, that is right, Your Honour. So, Your Honour is required to cancel any licences and disqualify for a period of four years and that is because somebody was either seriously injured or killed as a result of the accident.
94HIS HONOUR: All right. So, Mr Juresko, the other thing is I have to make an order that you cannot be licenced to drive for a period of four years, all right?
95OFFENDER: Yep.
96HIS HONOUR: You have got to attend at the Geelong Community Corrections Services Office at Mount Street. I am not sure whether it is to be done by you going in there or whether it is to be done by phone. I will see if I can find that out for you.
97OFFENDER: Thank you.
98HIS HONOUR: I just have not had a message back. All right.
99OFFENDER: I have a question.
100HIS HONOUR: Yes.
101OFFENDER: Where do I get a copy of the CCO order?
102HIS HONOUR: All right. Now, the orders will be sent to your lawyer - - -
103OFFENDER: Yep.
104HIS HONOUR: - - - and they send a copy to you - - -
105OFFENDER: Okay. Thank you.
106HIS HONOUR: So that will be sent in just a few moments to your lawyers and it will be sent to the Corrections Centre as well.
107Now, I just want to find out - all right, we are just going to find out whether you have got to go in, in person or whether it can be done by phone.
108What I am going to do, just stay on the line for a moment please, Mr Juresko, - - -
109OFFENDER: Yep.
110HIS HONOUR: - - - but I am just going to stand down so my screen will go blank and I will lose audio but we are just going to make some enquires and I will come back online.
111OFFENDER: Okay. Thank you.
112HIS HONOUR: And we (indistinct) this hearing up in a few minutes.
(Short adjournment.)
113HIS HONOUR: I assume you can all see and hear me. We have not had a response from the Office of Corrections so as it is, Mr Juresko, the order will be that you are required to attend at the Geelong Correctional Services Office.
114OFFENDER: Yep.
115HIS HONOUR: In Little Malop Street. Now, I am sure you know where that is because you must have - - -
116OFFENDER: Yeah.
117HIS HONOUR: Yes. All right. So you have got to report within the next two working days so before the end of Friday.
118OFFENDER: Yep. I can do that.
119MS HARRIS: Your Honour, can I just ask? Sorry.
120HIS HONOUR: Yes.
121MS HARRIS: Would that be the same Corrections officer as he has now?
122HIS HONOUR: Yes. I imagine so, Ms Harris. What they usually do as a practical measure, they will link the order up so that he is under the same supervision as - - -
123MS HARRIS: Yep. We'll get down there today.
124HIS HONOUR: That would be terrific if you could. Thank you.
125MS HARRIS: Yep, done.
126OFFENDER: Thank you.
127HIS HONOUR: Now, if that is everything.
1286AAA that all things being equal, but for the plea of guilty, I would have imposed an aggregate fine of $5,000.
129MS WARREN: As Your Honour pleases.
130HIS HONOUR: All right. Ms Warren, anything else from your perspective? I do not think there are ancillary orders, were there?
131MS WARREN: No, none sought, Your Honour, so that is all from our end. Thank you.
132HIS HONOUR: All right. Thank you. Ms McDonald?
133MS McDONALD: No, nothing further, Your Honour.
134HIS HONOUR: Very well. Thank you for your attendance and for your assistance in this matter and to Mr Norsworthy's family, I wish you all the best going forward into the future and I want to thank Mr Adomako for joining the link and for the provision of the justice plan.
135All right. We will adjourn now.
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