Director of Public Prosecutions v Khan & Kroon
[2016] VCC 1324
•8 September 2016
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT WANGARATTA
CRIMINAL JURISDICTION
CR 16-01036
CR 16-01037
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SARJELL KHAN BRODEN KROON |
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JUDGE: | HIS HONOUR JUDGE MASON |
WHERE HELD: | Wangaratta |
DATE OF HEARING: | 5 September 2016 |
DATE OF SENTENCE: | 8 September 2016 |
CASE MAY BE CITED AS: | DPP v KHAN & KROON |
MEDIUM NEUTRAL CITATION: | [2016] VCC 1324 |
REASONS FOR SENTENCE
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Subject:Plea – sentencing
Catchwords: Aggravated burglary - intentionally cause injury – criminal damage
Legislation Cited: Sentencing Act 1991
Cases Cited:
Sentence: (Each) 12 months’ imprisonment and 2-year CCO
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APPEARANCES: | Counsel | Solicitors |
| For the Office of Public Prosecutions | Mr D. O'Doherty | Office of Public Prosecutions |
For Accused KHAN | Mr C. Morgan | Wilsons Legal |
For Accused KROON | Mr H. Venice | Papa Hughes Lawyers |
HIS HONOUR:
1Sarjell Khan and Broden Leon Kroon, you have each pleaded guilty to one charge of aggravated burglary and one charge of intentionally cause injury.
2Sarjell Khan, you have also pleaded guilty to two charges of criminal damage.
3Aggravated burglary carries a maximum penalty of 25 years’ imprisonment and intentionally cause injury and criminal damage each carries a maximum penalty of 10 years' imprisonment.
4You, Sarjell Khan, are now 23 years of age, having been born on 29 April 1993, and you were aged 22 at the time of offending. You have a criminal record, about which I will go into more detail shortly.
5You, Broden Kroon, are now 24 years of age, having been born on 2 April 1992, and you were aged 23 at the time of the offending. You also have a criminal record, more extensive than that of Mr Khan, about which I will also go into more detail shortly.
6At the time of the offending, you two were both friends.
7The circumstances of the offending are as follows.
8The victim in this matter, Jake Cowan, is a 24-year-old man who is known to both of you. At the time of the offending he resided in Ethel Street, Benalla.
9You, Mr Khan and a Ms Chelsea Jordan had been in a relationship for the past five years. At the time of the offending Ms Jordan had separated from you and was seeing the victim.
10The association between Ms Jordan and the victim caused you to become angry towards him. On 21 August 2015, you sent a text message to the victim stating:
'U wait till i see you next you junkie fuck im gonna cave ur head in u rat.'
11At approximately 10 pm on Saturday 22 August 2015, you attended the victim's home in Ethel Street, Benalla, where you knocked on the front door and yelled abuse at the victim from outside, yelling:
“Open the door, Come out” and “Come on cunt.”
12You yelled for the victim to come outside. He did not come outside. You punched your fist through two windows of his home causing them to shatter and break. This conduct gives rise to Charge 3 on the indictment, criminal damage.
13At 10.33 pm that night and on 23 and 26 August you and Mr Kroon exchanged text messages concerning the victim.
14At 4.27 pm on Monday 24 August 2015 you, Mr Khan, sent a text message to the victim which read:
'I will catch up with you on the street mark my words.. you keep callin chels tellin her to come over and shit like that is just makeing it worse for ur self i dont talk shit i will get you unless you back off and pull ya head in cunt !!'
15On Wednesday 26 August 2015 in the early hours of the morning you, Mr Khan, discovered that Ms Jordan was at the victim's home. You contacted Mr Kroon via a text message and you agreed to go to the victim's home together to assault him.
16At approximately 2.30 am on Wednesday 26 August 2015, you two conversed via text message as follows
KHAN: “U in town im goin cowans now to smash his facein.”
KROON: “Call u in a sec.”
KHAN: “You got buds ill need a mix after this.”
KHAN: “Hope there there i want blood”
KROON: “Yea sweet”
KHAN: “Hear”
17Prior to attending the Ethel Street address, you each had armed yourselves with a baseball bat-sized piece of wood.
18At approximately 4 am, the two of you attended Ethel Street and entered the victim's home without permission. It is unclear how you gained entry into the home: the front door was locked, however the back door had been left unlocked when the victim and Ms Jordan went to sleep.
19On entering the home you each had in your possession the pieces of wood. This conduct gave rise to Charge 1 of aggravated burglary.
20You both entered the victim's bedroom where he was sleeping with Ms Jordan.
21You, Mr Khan, commenced yelling and punching the victim. You hit the victim four to five times in the head.
22You, Mr Kroon, hit the victim at least two to three times with the piece of wood to his legs.
23This conduct gives rise to Charge 2, intentionally cause injury.
24Whilst hitting the victim you, Mr Khan, yelled at the victim, "I told you to stay away from Chelsea".
25You continued to hit the victim around his head, arms and legs as he attempted to defend himself.
26Ms Jordan was yelling at you to stop.
27You used the “baseball bat” piece of wood to smash the large screen television which was located in the bedroom and to knock items from the chest of drawers. This conduct gave rise to Charge 4 of criminal damage on the indictment.
28After a short time, you demanded that the victim get out of bed. However, he could not move due to the injuries to his leg caused by the blows he received from you and Mr Kroon hitting him with the wood, but eventually you all walked to the kitchen.
29You, Mr Khan, told Ms Jordan to get her belongings and to leave the house, which she did to ensure that you both left the victim's home.
30As you were leaving the home, the victim was threatened by one of you that if he called the police, you would return to assault him again.
31You both left the Ethel Street home, and the victim went to a neighbour's house where an ambulance and police were notified of what had occurred.
32The victim attended at his general practitioner Dr Brownstein at approximately 11.30 am on 26 August 2015. The doctor recorded the injuries on the victim as a result of the assault by the two of you earlier that morning as follows:
· Tenderness and swelling L peroneal compartment
· Tender swelling over mid tibia.. pre tibia haemotoma
· Unable to dorsiflex foot
· Overlying linear abrasion to skin mid section lower leg;
· Abrasion and contusion lateral L thigh
· Contusion medial aspect R eye
33At approximately 6.40 am on 26 August 2015 you, Mr Khan, were arrested at your home in Nicholson Street, Benalla. Ms Jordan was located with you. You were interviewed at the Benalla Police Station, where you participated in a record of interview and made admissions as to your intention to beat up and bash the victim and how you and Mr Kroon went about the task.
34As to the criminal damage, you admitted both the 22 August 2015 breaking of the window and the damaging of the television on 26 August.
35At about 12.35 pm on 26 August 2015 you, Mr Kroon, were also arrested. You were interviewed at the Benalla Police Station. You were found to have four foils containing cannabis in your possession. You were interviewed and made a "no comment" interview during the course of that record of interview.
36You both entered a plea of guilty to the charges on the indictment at the committal hearing on 15 June 2016 at the Wangaratta Magistrates' Court.
37I now turn to your respective personal circumstances.
38As to you Mr Khan, as I noted earlier, you are aged 23 years now and you were 22 at the time of the offending.
39You have a criminal history which commenced when you were 15 years old with the first of six appearances at the Benalla Children's Court. On that occasion you were placed on 12 months' probation for alcohol and vehicle offences and for handling stolen goods. You appeared in that court every few months thereafter, on five more occasions, mainly for driving, drink-driving and under-age alcohol offences, but also for burglary, various thefts and possession of a controlled weapon.
40You were given further periods of probation with conditions and at one stage, a good behaviour bond. After a two-year period in which you did not see the inside of a court, at the age of 19 you appeared in the Sunshine Magistrates' Court in October 2012 on various driving offences for which you received a 12-month good behaviour bond, without conviction.
41I note that you have not been previously charged with any offences involving violence, you have not reoffended for a period of two and a half years since your 2012 conviction when you were, at law, a child aged 17 and you have not before been sentenced to any community correction orders.
42After living in the Benalla region in your early life, you moved to Melbourne after leaving school. In 2012 you moved back from Melbourne to Benalla with your girlfriend Chelsea Jordan and you both lived with your respective parents. Both your mother and step-father are supportive of you. You were able to obtain full-time work with a timber mill, and you have maintained that employment until your arrest on these matters.
43After a time, the relationship with Chelsea frayed as she mixed with another group. You became concerned about her contact with that group because of their use of the drug “ice”.
44As to you Mr Kroon, you are aged 24 years now, you were 23 at the time of the offending and you have quite an extensive criminal record for one so young.
45Your criminal history dates from the age of 17 when you appeared twice in the Benalla Children's Court on charges of burglary, theft and receiving stolen goods - on each occasion being put on a good behaviour bond without conviction.
46Since turning 18 you have had seven appearances in various Magistrates' Courts over a period of less than five years, with your longest time out of the courts being a nearly three-year period between 2011 and 2014.
47Since then, in July 2014 you were given a 12-month community correction order for violence offences, and in April 2015 you were given a three-month community correction order for various driving offences. Each of these community correction orders expired in July 2015, and the offending for which you appear today was committed in August 2015.
48In 2014 you were placed in remand custody for matters which were later withdrawn. You spent a total of 104 days in custody. This period can be taken into account to some extent in a broad way in considering your ultimate sentence on the current charges.
49You experienced an unstable and dysfunctional childhood. You were raised by your mother, never knowing your biological father. Your mother had a series of partners, was physically abused and struggled with a substance use disorder. She worked for a period as a prostitute. You and your sisters were regularly evicted from homes and you lived for a time in a brothel.
50The eviction from multiple homes resulted in you attending a variety of primary schools. You completed primary school and part of first year secondary school in Tasmania, then years 7 to 10 in New South Wales and Victoria. You ceased study midway through Year 10 due to your issues with developing drug use. You have had periods of unemployment over the years after some years of experience at McDonalds and later as a factory hand.
51You left home at around 15 and were essentially homeless for the next two years. Since then you have lived back in the Benalla region, for most of that period with your mother.
52You have a longstanding history of substance use spanning a period of over ten years. This includes cannabis use over the past 13 years. In more recent times you have used “crack” and cocaine, sometimes on a daily basis.
53A psychological report from Mr Matthew Staios was tendered on your plea. In Mr Staios' opinion you meet criteria for a diagnosis of cannabis use disorder and a possibility, as yet not clearly diagnosed, of borderline and dependent personality traits. It is likely that the relationship between your psychological functioning and history of offending has arisen in the context of early childhood maladjustment, dysfunctional role models and a lack of appropriate parental supervision during crucial psychosocial development periods.
54The development of your use of illicit drugs is likely to have been a coping mechanism. From a clinical view, incarceration has the potential to negatively impact on your ability to rehabilitate and reintegrate into society in the long run.
55You were initially in remand custody following your arrest on 26 August 2015 until being granted bail on 14 January 2016: a period of 142 days.
56Since the grant of bail you have relocated with your present partner Rhiannon and her mother to Tootgarook on the Mornington Peninsula. All of you wanted to make the break from Benalla. Rhiannon's mother, Mrs Devitt, gave evidence and has described you as calmer and loving and just wanting to change.
57The offending in which each of you engaged is very serious. The maximum penalty of 25 years’ imprisonment reflects how seriously Parliament views the crime of aggravated burglary. Home invasion is a terrifying experience and the victim impact statement tendered in this case reflects that. Mr Cowan has suffered physically, and the emotional effect of such an experience can be profound. The crime undermines the sense of security people are entitled to feel in their homes and the incidence of home invasions must be discouraged by the courts. It would only be in a rare case that such conduct would not result in a significant sentence of imprisonment.
58In this case your total culpability, that is of each of you, included assaulting the victim with the intention to cause injury, in company and armed with a weapon. This was a particularly brutal series of acts that terrorised and injured the victim and caused subsequent anxiety. It was a planned operation. Matters of deterrence, both general and specific, denunciation and protection of the community are significant sentencing factors.
59The basic purposes for which a court may impose a sentence are punishment, deterrence, both specific (that is specific to deter you) and general (in order to deter other persons who might be similarly minded), rehabilitation, denunciation and the protection of the community.
60In sentencing, I must have regard to a range of matters such as the seriousness of the offence, your culpability for it, your personal circumstances and those of the victim. I am required to balance the interests of the community in denouncing criminal conduct, with the interests of the community in seeking to ensure that, as far as possible, offenders are rehabilitated and reintegrated into society. Moderation needs to be applied in a variety of ways according to the mitigating aspects I have accepted in each of your individual cases.
61Parity of sentences between offenders is also important. As was discussed in submissions, a number of factors tend to balance the distinctions between you. Whilst you, Mr Khan, appear to have been the primary offender in the assault, face two further charges and issued threats prior to the incident, you have a less serious history of previous offending, none of which involves any offence of violence, and you have not re-offended since 2012.
62The distinction between your ages is inconsequential and whilst you Mr Kroon have had the opportunity in the past for rehabilitation through the imposition of a community correction order, which Mr Khan has not, you re-offended in this serious way only weeks after completing two community correction orders. You also have prior convictions for unlawful assault and assault with a weapon, and have appeared in the Magistrates' Court around seven times since turning 18.
63Other distinctions as to you, Mr Kroon, are that you have, through no fault of your own, experienced an unfortunate and damaging childhood and adolescence which has affected your emotional development adversely and likely resulted in your substance abuse problems, you have spent 104 days in prison in the past for alleged offences which were never ultimately prosecuted, and you have used the time you have had whilst on bail constructively in voluntarily engaging in a rehabilitative program over the past seven months.
64As to matters of cumulation and concurrency, I accept that the entry into the victim's home and the subsequent assault, and in your case Mr Khan, the charge of criminal damage to the TV set, are so closely related that it can be reasonably said of them that they arise out of the one transaction and call for concurrency. The charge of damage to the window reflected an earlier occasion.
65I accept that the physical injuries actually suffered by the victim fall within the lower range; however, this has to be balanced by the emotional impact of a terrifying violent experience.
66In mitigation, in your case Mr Khan I accept the matters submitted by your counsel, including:
· your plea of guilty and the stage that it was entered, both for its utilitarian value as well as remorse,
· your cooperation with the police investigation and open acceptance of what you had done,
· your youthful age,
· your lack of any prior history of violent offending,
· the period of stability, including full employment, prior to this offending, and
· the support you have from your family.
67In mitigation in your case, Mr Kroon, I accept the matters submitted by your counsel, including:
· your plea of guilty and the stage that it was entered, again both for its utilitarian value as well as remorse,
· your youthful age,
· your early destabilising childhood and adolescent experiences which denied you the opportunity of having appropriate emotional nurturing and guidance,
· your longstanding history of drug use, which is likely the result of your early dysfunctional life,
· your recent stabilisation and attempts at rehabilitation since your release on bail, and
· a proportion of the lost time you spent in prison in 2014.
68In each of your cases I first conclude that in light of the objective gravity of the offending and all the circumstances personal to each of you, the purpose or purposes for which the sentence is to be imposed cannot be achieved without a sentence of imprisonment and one which involves further time in confined custody.
69In light of the mitigating circumstances relevant to each of you however, I accept that it is both in your and the community's best interests that your rehabilitation be encouraged and assisted by the opportunity to serve a significant part of your sentences by way of a community correction order. You each have been assessed as suitable for such an order.
70Mr Khan, could you please now stand.
71On Charge 1 of aggravated burglary, you are convicted and sentenced to 11 months’ imprisonment.
72On Charge 2 of intentionally causing injury, you are convicted and sentenced to 6 months’ imprisonment.
73On Charge 3 of criminal damage, you are convicted and sentenced to 3 months’ imprisonment.
74On Charge 4 of criminal damage, you are convicted and sentenced to 3 months’ imprisonment.
75Charge 1 is the base sentence.
76I direct that one month for the sentence imposed on Charge 3 be served cumulatively on the sentence imposed on Charge 1. The sentences are otherwise concurrent.
77The total effective sentence of imprisonment is 12 months’ imprisonment.
78That sentence starts today.
79Pursuant to s.18(4) of the Sentencing Act 1991, I declare that the period of 148 days, not including today, be reckoned as time already served under the sentence and I direct that the fact of this declaration and its details be noted in the records of the court.
80On Charges 1, 2, 3 and 4, you are also ordered, with conviction, to serve a community correction order for a period of two years.
81Pursuant to s.6AAA of the Sentencing Act 1991, but for your plea of guilty the total effective sentence that would have been imposed is 4 years’ imprisonment with a minimum period of 3 years to be served before eligibility for parole.
82As to the community correction order, the order commences immediately upon your release from prison and ends two years from that date. The Corrections Centre you will attend is the Wangaratta Community Correctional Service at 119-121 Murphy Street, Wangaratta and you must attend there within two clear working days after the completion of your imprisonment term.
83All the mandatory terms of the community correction order apply and the additional conditions I impose are that:
· you be under the supervision of a Community Corrections officer,
· you perform 200 hours of unpaid community work as directed by the Regional Manager,
· you undergo assessment and treatment (including testing) for drug abuse or dependency as directed by the Regional Manager,
· you undergo assessment and treatment (including testing) for alcohol abuse or dependency as directed by the Regional Manager.
· you undergo mental health assessment treatment and including, but not limited to, mental health, psychological, neuropsychological and psychiatric, in a hospital or residential facility if necessary, as directed by the Regional Manager, and
· you undergo programs or courses aimed at addressing factors relating to your offending as directed by the Regional Manager.
84Now I believe from the pre-sentence report that you have already had the mandatory terms of the community correction order explained to you. However, so that it is quite clear that you understand these it is appropriate that I briefly summarise them here. The mandatory terms are that:
· you must not commit another offence for which you could be imprisoned during the time that the order is in force,
· you must comply with the requirements of Regulation 17 of the Sentencing Regulations 2011, which essentially set out your obligations as to your attendance at the Community Corrections Centre, such things as not attending drug- or alcohol-affected,
· you must report to and receive visits from the Community Corrections officer,
· you must report to the Community Corrections Centre, that is the Wangaratta Centre, within two clear working days of the order starting, and as I have already indicated, the order commences immediately upon your release from prison,
· you must notify a Community Corrections officer of any change of address or employment within two clear working days after the change,
· you must not leave Victoria without first getting permission to do so from a Community Corrections officer, and
· you must obey all lawful instructions from and directions of Community Corrections officers - such directions may be given orally or in writing.
85Do you understand and agree to those conditions, Mr Khan?
86ACCUSED KHAN: Yes.
87HIS HONOUR: Thank you. If you are ill or if there are exceptional circumstances the order may be suspended for a period of time, and if your circumstances materially alter you may apply for a variation or cancellation of the order. In either case you must notify the Wangaratta Community Corrections Centre and I recommend that you obtain legal advice if any of these things happen.
88However I must warn you – and you must keep this firmly in mind - that if you breach any condition of this order, you will be brought back to court and that will be back before me. One of the options open to me is to cancel the community correction order and re-sentence you on the original charges and I may also deal with you for the breach, which is an offence itself, by sending you to prison for up to three months.
89Mr Khan, do you understand the consequences of breaching your community correction order?
90ACCUSED KHAN: Yes.
91HIS HONOUR: All right, well I will ask you to sign the community correction order shortly.
92At the plea hearing, the Crown sought a forfeiture order to which you consented and I have made that order today.
93Are there any other matters, counsel, with respect to Mr Khan?
94MR MORGAN: No, Your Honour.
95MR O'DOHERTY: No, Your Honour.
96HIS HONOUR: You may be seated.
97Mr Kroon, could you please now stand.
98On Charge 1 of aggravated burglary, you are convicted and sentenced to 12 months’ imprisonment.
99On Charge 2 of intentionally causing injury, you are convicted and sentenced to 6 months’ imprisonment.
100The sentences are concurrent.
101The total effective sentence is 12 months imprisonment and that sentence starts today.
102In your case, pursuant to s.18(4) of the Sentencing Act 1991 I declare that the period of 145 days, not including today, be reckoned as time already served under the sentence and I direct that the fact of this declaration and its details be noted in the records of the court.
103On Charges 1 and 2, you are also ordered, with conviction, to serve a community correction order for a period of two years.
104Pursuant to s.6AAA of the Sentencing Act, but for your plea of guilty the total effective sentence that would have been imposed in your case also is 4 years’ imprisonment with a minimum period of 3 years to be served before eligibility for parole.
105As to the community correction order, the same conditions apply as I have just read to Mr Khan. The order commences immediately upon your release from prison and ends two years from that date. In your case, the Corrections Centre you will attend is the Rosebud Community Correctional Service at 2/843-849 Point Nepean Road, Rosebud and you must attend there within two clear working days after the completion of your imprisonment term.
106Again, so it is clear, I am going to articulate again the mandatory terms of the community correction order and the additional conditions.
107The additional conditions I impose are that:
· you be under the supervision of a Community Corrections officer,
· you perform 200 hours of unpaid community work as directed by the Regional Manager,
· you undergo assessment and treatment (including testing) for drug abuse or dependency as directed by the Regional Manager,
· you undergo assessment and treatment (including testing) for alcohol abuse or dependency as directed by the Regional Manager.
· you undergo mental health assessment treatment and including, but not limited to, mental health, psychological, neuropsychological and psychiatric, in a hospital or residential facility if necessary, as directed by the Regional Manager, and
· you undergo programs or courses aimed at addressing factors relating to your offending as directed by the Regional Manager.
108The mandatory terms are that:
· you must not commit another offence for which you could be imprisoned during the time that the order is in force,
· you must comply with the requirements of Regulation 17 of the Sentencing Regulations 2011, again I repeat, which essentially set out your obligations as to your attendance at the Community Corrections Centre, such things as not attending drug- or alcohol-affected,
· you must report to and receive visits from the Community Corrections officer,
· you must report to the Community Corrections Centre, and that will be the Rosebud Centre, within two clear working days of the order starting, and as I have already indicated, the order commences immediately upon your release from prison,
· you must notify a Community Corrections officer of any change of address or employment within two clear working days after the change,
· you must not leave Victoria without first getting permission to do so from a Community Corrections officer, and
· you must obey all lawful instructions from and directions of Community Corrections officers - such directions may be given orally or in writing.
109Do you understand and agree to those conditions Mr Kroon?
110ACCUSED KROON: Yes.
111HIS HONOUR: Again, if you are ill or if there are exceptional circumstances that order may be suspended for a period of time, and if your circumstances materially alter you may apply for a variation or cancellation of the order. In either case, you must notify the Rosebud Community Corrections Centre and I recommend that you obtain legal advice if any of these things happen.
112And again in your case, I must warn you that if you breach any condition of the order you will be brought back before me, and one of the options open to me is to cancel the community correction order and re-sentence you on the original charges, and I may also deal with you for the breach by sending you to prison for up to three months. So Mr Kroon, do you understand the consequences of breaching your community correction order?
113ACCUSED KROON: Yes.
114HIS HONOUR: At the plea hearing, the Crown sought an order to which you consented for the taking of a forensic sample and I have made that order today for the reasons noted on the order, namely, the seriousness of the circumstances of the offending warrants the making of the order, your prior convictions warrant the making of the order, the order is by consent and the granting of the order is in the public interest.
115I must inform you that if at the time of the request you do not consent to the taking of a mouth scraping under the supervision of an authorised member of the police force, then the sample to be taken will be a blood sample and police may use reasonable force to enable that forensic procedure to be undertaken. Do you understand that?
116ACCUSED KROON: Yes.
117HIS HONOUR: The Crown also sought forfeiture and disposal orders which you do not oppose, and I have made those orders today. Are there any other matters with respect to Mr Kroon, Mr Venice?
118MR VENICE: No, Your Honour.
119HIS HONOUR: Thank you. The community correction orders may be passed to counsel for their clients to sign, then I will countersign. All right, thank you. Court is adjourned until 11 am.
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