Director of Public Prosecutions v Kiezenberg

[2016] VCC 1877

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-00407

DIRECTOR OF PUBLIC PROSECUTIONS

v

NICK KIEZENBERG
CHRISTOPHER RUSSELL

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JUDGE:	HIS HONOUR JUDGE CHETTLE
WHERE HELD:	Melbourne
DATE OF HEARING:	30 November 2016
DATE OF SENTENCE:	2 December 2016
CASE MAY BE CITED AS:	DPP v Kiezenberg
MEDIUM NEUTRAL CITATION:	[2016] VCC 1877

REASONS FOR SENTENCE
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Subject:  Aggravated burglary, intentionally cause injury, attempt to pervert the course of justice
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr M. Pitcher	OPP
For Accused Kiezenberg	Mr A. Lewis	Turnbull Lawyers
For Accused Russell	Mr K. Reynolds	James Dowsley & Associates

HIS HONOUR:

1Christopher Russell, you have pleaded guilty to one charge of aggravated burglary, one charge of intentionally causing injury, and one charge of attempting to pervert the course of justice.  The aggravated burglary to which you pleaded guilty alleges that on 26 July 2015 you entered as a trespasser a building at 29 Queen Street, Frankston, with intent to commit an offence involving an assault, and at the time had with you an offensive weapon, namely a metal bar, and at the time of entering the said building a person was then present and you knew that a person was so present or were reckless as to whether that was the case.

2Nick Kiezenberg, you have pleaded guilty to one charge of aggravated burglary and one charge of intentionally causing injury.  In your case the allegation of aggravated burglary is that on 26 July 2015 you entered as a trespasser a building at 29 Queen Street, Frankston, with intent to commit an offence involving an assault to a person therein, and at the time of entering a person was then present and you knew or were reckless as to that fact.  You can see therefore that you do not have the additional form of aggravation, possession of a weapon, that your co-accused does.

3The facts of the aggravated burglary and intentionally causing injury offences are set out in Exhibit A, the prosecution opening.  I incorporate that document into these reasons for sentence and I sentence you on the basis of the facts set out therein as amended by the learned Crown prosecutor during his opening.

4In so far as the charge of attempting to pervert the course of justice is concerned, you, Russell, the facts of that offending are set out in Exhibit B, the prosecution opening, and again I incorporate that document into these reasons for sentence and sentence you on the basis of the facts set out therein.

5Very briefly stated, on the evening of 26 July 2015 a group of young people were socialising and using drugs at premises at 29 Queen Street, Frankston.  One of the people present at the house was Katherine Kiezenberg.  Katherine’s behaviour upset other people at that address, and she was asked to leave the premises.  After being ejected from the premises she telephoned you, Kiezenberg, and subsequently met up with you and Russell as well.

6One Sheridan Schnurfeil drove both you, Russell, and you, Kiezenberg, to the Queen Street, Frankston address.  The three of you got out of the car and walked to the house.  Without knocking, you entered the premises through the front door and you both approached one of the residents, Travis Burke.  You, Kiezenberg, punched him in the head and wrestled with him.  You, Russell, produced a metal bar from your pants and struck him to the side of the head and to the forehead with that bar.  One or other of you picked up a wooden chair and struck Burke over the head with it before both of you and Schnurfeil left the house, got back in the car, and drove away.

7Police and ambulance were called to the Queen Street address, and Burke sustained injuries as a result of your joint attack upon him.  Exhibit C, the photographs, graphically demonstrate the severity of the injuries he sustained to the head, and his medical condition is set out in Exhibit D, the report tendered upon your plea.  He was initially taken to Frankston Hospital where he was identified as suffering a fractured skull and a scalp laceration.  Ultimately, he was transferred to the Alfred Hospital for treatment.  He was diagnosed as suffering a depressed parietal skull fracture and parietal skull laceration.  He was discharged from hospital the following day.  Fortunately he appears to have made a full recovery and there is no indication of any residual damage as a result of your assaults.

8Both of you were arrested on 27 July 2015 by police.  When interviewed, you, Kiezenberg, told the police that you had been home all weekend; that is, you lied about your involvement in the offending.  You, Russell, in your interview, made partial admissions as to your conduct.  You admitted going to the address and assaulting Burke although you were less than full and frank with the police.

9Sheridan Schnurfeil stood trial before me and a jury, and was acquitted at my direction earlier this year.

10After you, Russell, were arrested and charged in relation to these matters, you were remanded in custody awaiting committal hearing.  On 13 January 2016 you were a prisoner at the Metropolitan Remand Centre, and between that date and 1 February 2016 you made a number of phone calls to your mother, spoke to your brother, and directed that attempts should be made to ensure that witnesses against you did not appear at the committal proceedings.  You asked your brother to obtain the addresses of the witnesses and instructed him to make sure that they did not "rock up to court".  You directed that offers be made to pay the witnesses with either cash or drugs to have them stay away from the court.  Your mother and brother attempted apparently to placate you and no approach was in fact made to any of the relevant witnesses; however, your offending relates to your attempt to have your mother and brother arrange for witnesses to be convinced not to make an appearance at court.  Full details of the conversations you had in this regard are set out in Exhibit B.

Prior criminal history – Russell

11Both of you have admitted prior criminal histories.  You, Russell, have a substantial criminal history.

12On 23 August 2007 you were released on a youth supervision order by the Frankston Children's Court for offences of burglary, theft from a shop, intentionally damaging property, theft, unlawful assault, and unlawfully entering premises.

13On 30 January 2009 you were before the Dandenong Magistrates' Court on charges of breaching intervention order, stating false name and address, resisting police, criminal damage, failing to answer bail, theft of a motor vehicle, and possession of cannabis.  You were released on a suspended one-month term of imprisonment and a community correction order.  The suspended term of imprisonment was restored on 22 April 2009 and you were ordered to serve the one-month imprisonment.

14On 19 June 2009 you were again before the Dandenong Magistrates' Court on charges of recklessly causing injury and making a threat to kill.  You were also convicted of failing to answer bail, theft, robbery, and cannabis charges.  You were sentenced to an effective term of eight months' detention in a youth training centre with 44 days reckoned as being served by way of pre-sentence detention.  I was informed that you were subsequently transferred from youth training centre to adult gaol.

15On 7 May 2010 you were sentenced by the Melbourne County Court to an effective term of imprisonment of four years and six months, with a non-parole period of two years and three months, for offences of attempted armed robbery, attempted robbery, and four charges of intentionally causing injury.  The sentencing reasons of Judge Hampel are Exhibit F upon your plea.  You were released on parole on that sentence in March 2013; however, breached your parole in October, apparently owing the Parole Board some 15 months.  I was informed that you were released from prison on that sentence on 26 March 2015, approximately four months before the offending for which I am to sentence you.

Prior criminal history – Kiezenberg

16Turning to your prior history, Kiezenberg.  You too have relevant prior convictions.

17On 24 August 2006 you were before the Dromana Magistrates' Court on traffic charges and one charge of theft.

18More significantly on 17 July 2007 you were before this court on charges of aggravated burglary with an offensive weapon, criminal damage, and intentionally causing injury.  You were sentenced to a community-based order for two years for that offending.  The sentencing reasons of His Honour Judge Howie are Exhibit K5 upon your plea.  That offending involved you and three others being armed with weapons, breaking into a house in the early hours of the morning and assaulting a person inside the house with those weapons whilst causing extensive damage to the property.  You claimed to be acting out of a misguided sense of loyalty in making that attack.

19Insofar as your aggravated burglary and intentionally causing injury offences are concerned, both of you, there was no victim impact statement tendered in this court.

Personal circumstances – Russell

20Turning to the personal circumstances of each of you, and commencing firstly with you, Russell.  Your counsel filed an outline of submissions, Exhibit R1, upon your plea.  You are now 27 years of age, being born on 20 July 1989.  You have been on remand since this offending.

21You endured what your counsel described appropriately as an appalling upbringing.  You were disowned as a child by your biological father and subsequently brutalised by your stepfather.  You were ejected from your home when you were 13 years of age and thereafter, with the involvement of the Department of Human Services, being fostered, and on occasions living on the streets or couch-surfing with friends.  You have little education and a poor criminal history, to which I have referred.  Full details of your disjointed childhood can be found in paragraphs 29 and following of the sentencing reasons of Her Honour Judge Hampel.  I have had regard to all matters set out in that document, and the details need not be repeated in these reasons for sentence.

22It is clear that you were diagnosed with ADHD when you were in primary school, and since the age of seven have been prescribed dexamphetamine and later Ritalin.  Since a young age you have displayed disruptive, rebellious and poor impulse control behaviour.  You have used illicit drugs and I was informed by your counsel that you had been using methamphetamine and sleeping little at the time you committed the offences for which I am to sentence you.

23Shortly after your release from custody from your last sentence, you were involved in a motorcar accident on 4 April of last year.  Exhibit R2 sets out the injuries you sustained and the photograph demonstrates the facial injuries you received in that collision.  I was informed that as a result you became depressed, and again started abusing methylamphetamine.  In addition, on 28 May of last year your grandmother died of a heart attack at the age of 66 years.  You apparently were very close to her, and as a result your ice use escalated.

24Your counsel informed me that you now maintain that you wish to live a drug-free existence in the future.  It is to be hoped for your sake and the community's that that sentiment is genuine, but I note that similar representations were made to Her Honour Judge Hampel when she sentenced you in 2010.

25Your prior history paints a grim picture for your future prospects.  You have only been out of custody for approximately a year since your 19th birthday.

26Your counsel submitted there is a real risk of you becoming institutionalised and I accept that that is so; however, as your counsel properly conceded, this court has no choice but to impose a substantial period of imprisonment for your offending.

27I take into account in your favour your pleas of guilty.  I accept that they were significant pleas of guilty.  Although they were not entered until after the committal proceedings, your pleas have substantial utilitarian benefit.  You are entitled to a reduction to the sentence I would otherwise impose to reflect those pleas and I will return to the effect of that reduction in due course.

28I also take into account the fact that you made some admissions, albeit limited, to the police when interviewed.  As I said before, it could not be maintained that you were full and frank in your interview, however, you did admit assaulting the victim and your presence at the premises.

29Your counsel referred me to the decision of DPP v Bowden [2016] VSCA 283, and he listed which in his submission are the criteria listed by the court in Bowden that determine the seriousness of an aggravated burglary offence. The court set out at paragraph 23 of its judgment a list of considerations relevant to the assessment of an appropriate sentence for such an offence.

30Your intent at the time of your entry into the premises was to commit an assault.  You did not have to force your way into the premises but entered by way of an open door.  You were carrying a concealed weapon, and you were in company of others.  The aggravated burglary took place in the middle of the night and you knew that there were people in the house.  You had no personal grievance with any of the occupants.  It is my view that your offending can be seen as a particularly serious instance of the offence of aggravated burglary.

31I accept that there was not extensive planning or premeditation to your offending and you did not attempt to disguise yourself.  Insofar as the intentionally causing injury charge is concerned, you deliberately struck your victim to the head with an iron bar, causing substantial damage, which as I said fortunately for you appears to have totally resolved.

32Your counsel submitted that the offence of attempting to pervert the course of justice to which you pleaded guilty falls at the lower end of such offending.  I do not accept that submission.  Although those you urged to approach the witnesses did not take action as a result of your incitement, you repeatedly attempted to have the witnesses interfered with.  Attempting to pervert the course of justice comes in many forms, and in my view an attempt to suborn witnesses in the way you wished cannot be described as minor offending.  I regard your offence as a lower mid-level example of the offence of attempting to pervert the course of justice.

33Your counsel correctly submitted that the principles of totality have substantial relevance in sentencing you.

Personal circumstances – Kiezenberg

34Turning to you, Kiezenberg, you are now 32 years of age, being born on 6 August 1984.  Your counsel filed an outline of written submissions, Exhibit K1, on your plea.  That document contains what is described as a snapshot of your personal circumstances, and the report tendered of Dr Adam Deacon, Exhibit K2 on your plea, sets out in some detail your personal history at p.2 of that report.

35You too suffered from a dysfunctional and disrupted childhood.  You were raised by your grandmother until the age of six and then by your mother before being returned at the age of twelve to your grandmother's care.  You were diagnosed with ADHD as a child and prescribed Ritalin.  You attended various primary schools, and completed Year 10 at Langwarrin Secondary College.

36You were sexually assaulted at the age of fifteen, and that left you with feelings of confusion.  You were traumatised and somewhat confused as to your own sexuality.  You obtained employment as a labourer doing fencing work, concreting, and furniture removal.  At the age of 21 you suffered your first psychotic episode, and eighteen months later a second episode at the age of 24.  You have been in receipt of a disability support pension since that time.  You have been diagnosed with schizophrenia, although it seems clear that your use of cannabis, amphetamines and methamphetamine has contributed to your psychiatric illness.

37Exhibit K4, the report of Dr Glenn O'Leary, confirms that he has been treating you since 2012.  He confirmed your diagnosis of schizophrenia and polysubstance abuse.  You are currently medicated on Seroquel and have fortnightly injections of risperidone.

38Over the past few years you have been able to work from time to time as a concreter with family friend Allen Murphy.  Mr Murphy gave evidence upon your plea and said that he had known you for fifteen years.  He described the work you have done with him over the years and said that he will give you a job when you are released from custody.  Mr Murphy said:

"He's a good kid underneath.  He has trouble with mental health issues and my kids love him."

39You enjoy the support of others and there were numerous people in court supporting you at your plea.

40Your counsel relied upon your psychiatric illness as mitigation of your offending.  She correctly submitted that limbs 5 and 6 of the considerations set out in R v Verdins (2007) 16 VR 269 have application to you. Your illness will make your time in custody more onerous for you than it would for someone without schizophrenia. In addition, your time in custody may adversely affect your mental health. I have reduced the sentence I am about to impose to reflect these factors.

41The circumstances of your prior offending for aggravated burglary are set out in Exhibit K5, the sentencing remarks of His Honour Judge Howie.  As I said earlier, you, in company with other men, entered a private home at 2 o'clock in the morning in May 2006.  You assaulted a neighbour who came to assist and whilst in the house, damaged it extensively.  You acted out of some form of false loyalty to someone you believed had been assaulted.

42Judge Howie described your conduct on that occasion as "remarkably stupid", and found you to be less morally culpable for your conduct than your co-offenders.  You were at that stage 22 years old, and had only shortly before been diagnosed with acute psychiatric symptoms and been hospitalised.  You claimed at that time to have ceased drug use and to have alcohol consumption under control.  His Honour found that imprisonment would have a significant adverse effect on your mental health, and imposed a community-based order for two years.  You successfully completed that community-based order.

43It is clear that you should have learnt your lesson from that court appearance.  You were not deterred from similar conduct in this case.  I accept, however, that there is a significant difference between your culpability and that of your co-offender.  Your offence of aggravated burglary does not involve you carrying a weapon or being aware that your co-accused carried a weapon.  Your involvement in punching your victim was disgraceful, but you did not strike him with the iron bar.  Your prior criminal history, although clearly relevant, is not as extensive and or as concerning as that of Russell.

44Your prospects for rehabilitation, in my view, are substantially better than those of your co-offender.  Indeed, they can be described as good.  A reference tendered on your behalf, Exhibit K6, from Bernadette Murphy, describes you as honest and caring and someone who would bend over backwards to help anyone in need.  She refers to your troubled childhood history, and asserts that she has spoken to you on numerous occasions about your offending and that you are remorseful and ashamed of your conduct.  She says that you have taken charge of your life and turned it into something positive.  I take the contents of that reference into account in sentencing you.

45You had only spent 17 days in custody prior to being bailed.  You were bailed on the Court Integrated Services Program, and a report from that program is Exhibit K3 on your plea.  You successfully completed drug and alcohol counselling, and focused on programs to prevent reoffending, to maintain drug abstinence, to minimise harm, and other supportive programs.  You are said to have engaged well with treatment, and demonstrated motivation and commitment to successfully completing the program.  You have made positive changes to your lifestyle, and are said to present as resilient and insightful into your progress.  The report gives this court comfort as to your future prospects for rehabilitation.

46I also take into account in your favour your pleas of guilty.  Again, although those pleas were not entered at an early stage, being negotiated post-committal, I accept that your pleas demonstrate remorse for your conduct and have utilitarian value.  You too have spared the community the time and expense of a criminal trial, and you are entitled to a reduction to the sentence I would otherwise impose for your offending.  I will again return to the effect of that subsequently.

47I take into account your troubled childhood background, the remorse to which I have referred, and your prospects for rehabilitation.  I obviously give effect to the principles set out in Verdins as I stated before.

48Your counsel submitted that it would be appropriate for the court to impose a term of imprisonment and a community corrections order for your offending.  For reasons that I will come to, I am unable to accept that submission.  The offence of aggravated burglary and your involvement in the infliction of injury are too serious, in my view, to justify such a disposition.  The Court of Appeal in the much-cited decision of Boulton gave this court guidance as to when a community corrections order should be imposed, either alone or in combination with a term of imprisonment.  Your offending is too serious for such a disposition.  The Court of Appeal has made it clear in cases such as Hogarth v R [2012] VSCA 302, DPP v Meyers (2014) 44 VR 486, and Bowden, to which I have referred, that confrontational aggravated burglary is a particularly nasty form of criminal conduct.  The maximum penalty for the offence is 25 years' imprisonment, and that indicates the seriousness with which Parliament regards the offence.  At paragraphs 41 and following of Bowden, the Court of Appeal looked at various sentences imposed for similar offending and concluded at paragraph 74 that the respondent in that case should be sentenced to a term of imprisonment of four years on a charge of aggravated burglary.  But for constraints of principles of parity, a sentence of six years and six months would have been imposed.  The offending in Bowden was not dissimilar in my view to your offending, and Bowden had also entered pleas of guilty.  I have had full regard to the factors set out in paragraph 23 of Bowden in determining the seriousness of your offence.  Significantly, as I say, you have relevant prior convictions for like offending.

49In sentencing both of you, I must have regard to a range of different factors.  I must give effect to principles of both general deterrence and specific deterrence.  I must deter others from behaving like you did and I must deter both of you from repeating such behaviour.  I must express the community's denunciation of your conduct and I should promote, if possible, your rehabilitation.  I take into account the effect your crimes have had on your victim and I must have regard to current sentencing practices as determined and described by the Court of Appeal for the kind of offence you have committed.  I must try to balance your personal circumstances with the circumstances of your offending.

50Clearly, principles of general deterrence and specific deterrence and denunciation are the primary sentencing considerations in this case.  I give full effect to the mitigatory factors to which I have referred for both of you, but the Court of Appeal has made it clear that substantial periods of imprisonment must be imposed for the offence of aggravated burglary.

51Will you both stand up please.

Sentences

52On all charges you will both be convicted.

53You, Kiezenberg, on the charge of aggravated burglary, are sentenced to be imprisoned for four years and six months.

54On the charge of intentionally causing injury you are sentenced to be imprisoned for two years.

55I order that one year of the sentence imposed on Charge 2 be served cumulatively upon the sentence imposed on Charge 1, an effective term of imprisonment of five years and six months.

56I order that you serve three years and three months of that sentence before being eligible for parole.

57I declare that 19 days of the sentence I have just imposed has already been served by way of pre-sentence detention, not including today.

58So far as you, Russell, are concerned, on Charge 1, aggravated burglary, you are sentenced to be imprisoned for six years.

59On Charge 2, intentionally causing injury, you are sentenced to be imprisoned for two years.

60In relation to the charge of attempting to pervert the course of justice on the second presentment, you are sentenced to be imprisoned for two years.

61I order that one year of the sentence imposed on Charge 2 and one year of the sentence imposed for the offence of attempting to pervert the course of justice be served cumulatively upon the sentence imposed on Charge 1.  That is an effective term of imprisonment of eight years.

62I order that you serve five years and nine months of that sentence before being eligible for parole.

63I declare that 594 days, not including today, of the sentence I have just imposed has already been served by way of pre-sentence detention.

64I indicate pursuant to s.6AAA of the Sentencing Act that but for your pleas of guilty you, Kiezenberg, would have been sentenced to an effective term of imprisonment of six and a half years with a non-parole period of four years, and you, Russell, to an effective term of imprisonment of nine years and six months, with a non-parole period of seven years.

65I have already made the disposal orders sought by the prosecution.

66Would you remove the prisoners please.

67COUNSEL:  Your Honour pleases.

68HIS HONOUR:  I will stand down.

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