Director of Public Prosecutions v King

[2019] VCC 1801

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

AT GEELONG
CRIMINAL JURISDICTION

CR 19-01235

DIRECTOR OF PUBLIC PROSECUTIONS

v

JAMIE KING

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Geelong
DATE OF HEARING:	1 November 2019
DATE OF SENTENCE:	1 November 2019
CASE MAY BE CITED AS:	DPP v King
MEDIUM NEUTRAL CITATION:	[2019] VCC 1801

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. McKenry	Office of Public Prosecution
For the Accused	Ms W. Gibbons	Dribbin & Brown

HIS HONOUR:

1Jamie King, you have pleaded guilty to a charge of recklessly causing injury and a threat to kill, arising from your violence towards your brother and sister-in-law on 18 September 2018.

2You also pleaded guilty to burglary, common law assault and contravention of an intervention order arising from your violence towards your ex-partner on
4 December 2018.

3As you were on bail at the time of your December 2018 offending you have also pleaded guilty to the summary offence of committing an indictable offence while on bail.

4As your counsel made clear, you were in 2018 struggling with housing following intervention orders being taken out.  You had breached those orders and had been imprisoned in February and July 2018.

5So in September 2018 your brother generously allowed you to stay in a hotel room with him and his wife in Coburg.  Around 8.45 pm you accused your brother of informing the police about your behaviour.  Your brother denied this and the two of you argued.  You punched your brother to his face and head a number of times, causing a black eye.  All this woke your sister-in-law who went to where you were fighting, now outside the room.  You had your brother by the throat, he was saying he could not breathe.  Your sister-in-law said she was going to call the police.  You then threatened them saying, 'I'm going to come back and kill you', you then ran off.  You were arrested shortly after and charged, and bailed.  Thus you were on bail when you next offended.

6You had been separated from your partner and your son for some time.  She had secured an intervention order in early January 2018.  That order prevented you from being near where your previous partner and son lived and other restrictions, such as not committing family violence.

7It seems by chance and the cunning you discovered where she lived.  You saw her and her son on a bus by chance and then followed them to where they lived.  This was on 29 November 2018.  On 4 December 2018, you went to her address.  She and her son were not home.  You broke in and waited.  You admit by your plea that you were there or broke in and were there as a trespasser to commit an assault upon her.

8Upon her coming home around 9 pm you confronted the victim.  She was in utter terror as to how you found her address, how you got in and what you would do.  She stayed, it seems, as calm as she could for her son, sending him to his room to be out of the way.  She asked you to leave.  You did not.  You began yelling at her.  Then in an act both very frightening and sadly common in examples of domestic violence, you grabbed the victim by her throat with both hands in a choke type hold.  You pushed her into a wall.  Because of the noise of your attack the child came out of his room and witness your dreadful violence.  The victim managed to get free and you left.  However, you remained nearby, coming back after a short while, banging on the door and demanding to be let in.  All of this was again witnessed by the young son and increased the terror of the victim.  She had installed CCTV cameras so as to give her greater security and what you were doing could be seen by those inside.

9The police were called and you ran.  You sent text messages to the victim as she was talking to the police.  She was fearful you were going to come back once the police had left.

10You were arrested on 25 January 2019 and made no comment when interviewed.

11These are serious examples of domestic violence and they unsurprisingly have left a deep impact on the victim.  She says in her victim impact statement that she suffers from bad anxiety and has been diagnosed with major depression as a consequence of what you did and she is on medication.  She is fearful for her life and that of her son.  She is angry due to being scared all the time.  She should not have to feel this way.  You and you alone are responsible for that.

12Her son is vulnerable, in the sense he has an intellectual disability and autism.  As I will outline is educated in a special school in Geelong.  She has lost a lot of friends due to parents not thinking it is safe and there are difficulties with her family.

13She finds it difficult to work, due to the multiple episodes and her GP has recommended not to work at this time.  She should not be, again, put in that position.

14She does not have a car for fear that she would be found by connection to the car and she is constantly having to take buses and check on them because of what occurred.  She is worried and fearful that she will suffer worse.  She has to deal with her son who just wants a family, but as she notes you have destroyed that.

15Her son drew a victim impact statement picture, which had some violent aspects to it.  He should not have these pictures in his mind.

16The victim's fears are based on these offences and what you have done to her in the past.  As is now more well understood, a corrosive aspect of family violence is its reputation and escalation of the attacks upon the victim.  You have relevant prior convictions which reveal your tendency to ignore court orders and to commit violence on women.

17As to these matters, I note that you were first dealt with for a breach of intervention order and assault with a weapon, involving another woman in a relation where you produced a knife in the presence of children and said that you were going to slit the victim's throat.  These are concerning matters, but they occurred in 2007.  In respect of this victim it was in January 2018, following your first difficulties with the intervention orders that arose in 2016.  There have been complaints about verbal abuse and so on, and breaches of an order.

18But after this matter that was before the Magistrates' Court on 4 January 2018, you were convicted and fined and the intervention order that I spoke about was imposed.  Within barely six weeks you were - I am sorry.  Within barely three weeks, or just over, you had breached this order and committed an offence by breaking into the victim's house while she was out.  When she came back and you were told to leave, you became angry and threatened to slit her throat in the presence of her son.  You received a sentence of imprisonment and a 12 month community corrections order for making a threat to kill and contravening the intervention order.

19Having done the sentence of imprisonment, shortly thereafter, that is on 4 May, you again broke into the property while the victim was out, damaging her door in the process.  You committed a contravention of the family violence order, you contravened the community corrections order that you were on and there was an unlawful assault upon her.  This saw further imprisonment imposed on
6 July 2018.

20Then, on 25 January 2019, not a prior matter but subsequent, you again were dealt with, with one month imprisonment imposed for your persistent breach of the intervention order, arising from following her once you saw her on the bus and engaging in verbal disputes with her.  But as to the gravity of your offending involving the attack on your ex-partner, I must refer to a number of appellant decisions that guide sentencing judges as to the growing appreciate of the seriousness of domestic violence.

21Most recently the Court of Appeal, that is in August of this year, in Degni v The Queen, when dealing with an appeal from the sentence imposed by a County Court judge for an attempted aggravated burglary and other weapons offences, the sentence judge imposed a sentence of three years and seven months, with a minimum term of two years for someone who was attempting to break into a house while armed.  The court said an aggravating offending of this offending is that it was committed in circumstances of family violence.  It was rightly conceded by the applicant's counsel in the written case that the great emphasise placed on family violence context by the sentencing judge was not misplaced.

22There is now far greater recognition of the devastating effects of family violence on victims, including, and importantly for this case, the effects which are not confined to physical injury.  As the sentencing judge recognised the family violence context here is exemplified by the fact that the applicant's conduct was motivated by a sense of entitlement.  This sort of behaviour reflects on his moral culpability and is, 'Expressive of the very worst of male attitudes towards women'.  That final sentence or phrase that I have just quoted arises from the decision that I will turn to shortly.

23Going back just over a decade ago in New South Wales, in R v Hammid, at paragraph 77, the court there said,

'An adequate account of domestic violence should recognise that it typically involves the exercise of power and control over the victim, is commonly recurrent and may escalate over time and may affect a number of people beyond the primary target and that it contributes to the subordination of women'.

24In 2007, in the Court of Appeal in Victoria, Dodds-Streeton J observed violence and in particular violence by men against women as a means of controlling a current relationship or in relationships which have ended is a prevalent and even critical social evil.

25In 2014, the Court of Appeal spoke in like terms in Pascenis v The Queen where the court said,

'Historically, perpetrators of family violence were rarely prosecuted.  Even when offenders were convicted of such offences they often received lenient sentences.  Fortunately, the criminal law now gives greater recognition to the devastating effects of family violence.  It has been recognised that women who are killed by their husbands, boyfriends or de facto partners have frequently been assaulted by them many times previously.  This makes both specific and general deterrence very important factors in sentencing men who assault their partner'.

26The High Court expressed similar sentiments and Munda v Western Australia.  That is a case in Western Australia [2013] where approval was given to significant weight being attached to specific and general deterrence, denunciation and protection of the community.

27The High Court again took that approach in the important sentencing decision of R v Killech [2016].  That case involved a single incident of very serious violence against a previous partner.  The case involved an analysis of the role of current sentencing practices in the sentencing task of judges in Victoria.  The court in dealing with that said the following,

'The requirement of currency recognises that sentencing practices for a particular offence or type of offence may change overtime, reflecting changes in community attitudes to some forms of offending.  For example, current sentencing practices with respect to sexual offenders may be seen to depart from past practices by reason, inter alia of changes in understanding of the long term harm done to victims.  So too the current sentencing practices for offences involving domestic violence depart from past sentencing practices for this category of offences because of changes in societal attitudes to domestic violence'.

28Finally, in a comprehensive analysis of the topic undertaken by the Court of Appeal in Victoria in 2017 in Kalala v The Queen [2017] VSCA 223. The court there said the prosecuting counsel submitted on the plea that the particular sentencing considerations relating to family violence were enlivened so that general deterrence, denunciation and just punishment should be given even greater primacy. The Chief Justice, who was the sentencing judge, emphasised the importance of general deterrence and denunciation in her sentencing remarks.

29The court went on after examining various statistics that had been gathered in respect to family incident related offences.  It said,

'The trial courts of this state [that is the County Court and the Supreme Court] are imposing sentences for family violence offences with increasing frequency.  This court has repeatedly emphasised the need to condemn family violence in line with community expectations'.

30In Phillers v The Queen the Court acknowledged,

'The shameful truth that family violence is the leading cause of illness, disability and death among Victorian women aged between 15 and 44'.

31The court went on,

'Sentencing law has long recognised the prevalence of violence by men against women in or after domestic relationships and the importance of general deterrence in such circumstances'.

32This offending in December 2018 is serious criminal conduct.  Displayed, as I have said, 'The very worst aspects of male attitudes to women', to quote from Kalala.

33The victim was entitled to feel save in her house, a place kept secret from you because of her fears and your previous conduct of breaking into her house on two earlier occasions.  She had installed security measures, he was protected by a court ordered intervention order, which you had broken and had been sentenced to terms of imprisonment for.  You were well on notice that the court order prohibited you from doing precisely what you did.  The violence you perpetrated by choking the victim was truly frightening.

34As your counsel acknowledged, choking of a woman by an ex-partner is all too common and has elements that increase the terror, the fear of death and it is an exercise of power.  It is a form of assault that displays many of the worse aspects of domestic violence.  It should not be underestimated as a serious crime, because there are no visual or long lasting injuries.  It is an insidious and serious form of the crime of common law assault.

35It was made worse, of course, that it was done, all done, in the house where the child was and witnessed by him.  Exposure to domestic violence in childhood often leaves deep and enduring psychological scars.

36All these matters, that your child was there and the victim was telling you to go, these did not deter you.  You knew what you were doing was wrong but you put your own cowardly sense of entitlement before all else.

37As has been made clear in the appellant decisions that I have referred to just now I must give prominence to denunciation of your violence against a vulnerable victim in her home, in the presence of a vulnerable child.  I must give prominence to deterrence to you and also generally.

38Also protection of the community from you also looms as an important sentencing consideration.  Indeed, this would be the case in any event but it is mandated to become the principle or the primary sentencing purpose by reason of the serious provisions of the Sentencing Act, which I will refer to shortly.

39As to your personal circumstances.  You are now 44, soon to turn 45.  You moved from New Zealand at around the age of six.  You and your family moved a lot due to your father's work.  After leaving school around age 15 you settled into regular employment as a welder.  You established your own business as a subcontractor on construction sites and the like.  You also worked as a contractor, you had no gained any formal qualification as a welder and this may have held up your prospects for work in recent times.  You work history, nonetheless, is to your credit and gives some chance upon your release that you will reform.

40You have two older children from an earlier relationship.  You and the victim were together for about 12 years.  Your son, as I have mentioned, has special needs, being intellectually disabled and autistic.  His schooling is at a special education facility in Geelong.  This adds to the victim's stress and fear and burden.

41Your overall prior criminal history started in 1992 when you were just within the adult court jurisdiction.  But you settled thereafter without offending until the first of your family violence offences in 2008 against another domestic partner that I have referred to.  Thereafter you have driving offences that saw you before the court in 2009, 2010, 2011, 2012, including breaches of community corrections order that were imposed for these driving offences.  These crimes evidence your real problem with alcohol abuse over the years.  You have also taken up the use of methylamphetamine in recent times.

42Thereafter, that is after these offences last till 2012.  There was no offending until these family violence offences in January 2018, February 2018 and
July 2018; all directed at the present victim.  Thus, your prospects of rehabilitation are said by your counsel to be equivocal.  I consider your prospects to be guarded at best.

43It was said that you have developed insight into your offending while on remand, now for 251 days.  You have taken full responsibility for your crimes.  These are important developments.

44Since you have been on remand you have applied yourself, doing vocational courses and have made enquiries about offence specific programs, men's behaviour change programs.  This is important progress.  You have occupied yourself with work within the prison industries and all these are to your credit.

45As to the sentencing purposes, I have concentrated on the family violence matters as in my view they are the more concerning.  Your attack on your brother, also involving choking and the dreadful threat to him, all in the context of those victims helping you with temporary accommodation was dreadful conduct.  It was a dreadful way to deal with your brother and your sister-in-law.  You must be deterred from resorting to violence and threats.  Such conduct must be denounced.

46In the end, the only sentencing option is one of imprisonment.  Your counsel rightly conceded as much in her concise, well-constructed written and oral plea.

47The sentencing purposes of denunciation and deterrence and protection of the community are prominent.  As to the later, that is, as I have said, to be the primary sentencing purpose given you are, by reason of your previous conviction and imprisonment for threat to kill, a serious violent offender and I will enter such a declaration in the records in due course.

48But I do not overlook your rehabilitation.  What is available to me to facilitate your reform is to allow for supervised release on parole.  Whether and when you are released on parole is for others, not me.

49The serious offender provisions of the Sentencing Act mean I must order cumulation unless I otherwise order. I cannot ignore Parliament's intent, as it is set out in the Serious Offender Provisions, s.6E, of the Sentencing Act. I must, as the Court of Appeal has said, sentence you differently as you are different from other offenders, in that you are a serious violent offender. However, the principle of totality is not wholly abandoned. I will order some concurrency or that is otherwise full cumulation, so as the overall sentence is not an outlier sentence.

50Your plea of guilty is important and means your sentence is less than it otherwise would be.  It is acknowledgement by you of responsibility and of your growing insight.  However, deterrence to you, given your crimes, that is recent crimes in 2018 and the gaol terms that followed; deterrence to you is particularly important.  Also the message must be understood by men that women are entitled to leave unhappy relationships and do so safely and with the full protection of the law.  The message has to be sent with crystal clarity that if you assault women, break intervention order, break into the woman's house, you will be sent to gaol for a lengthy period of time.

51The protection of the community purpose, that is protection of the community from you, must be practically achieved by incapacitation of you by imprisonment and then hopefully conditional supervised release.  Can you please stand,
Mr King.  Just Mr King, yes.

52For committing the crime of recklessly causing injury, you are sentenced to eight months' imprisonment; for committing the crime of threat to kill, you are sentenced to 12 months' imprisonment; for committing the crime of burglary, you are sentenced to two years and six months' imprisonment; for committing the crime of common law assault you are sentenced to 14 months' imprisonment; for committing the crime of contravention of a family violence order, you are sentenced to four months imprisonment and for the summary offence of committing an indictable offence while on bail you are sentenced to one month imprisonment.

53I order that two months of the recklessly cause injury, four months of the threat to kill and nine months of the common law assault be cumulative upon the sentence of burglary, Charge 3, of two years and six months.  That gives a total effective sentence of three years and nine months and I order that you serve two years and four months before being eligible for parole.

54Had you pleaded not guilty to these offences and been found guilty of them I would have sentenced you to five years with a minimum term of three years and four months.

55The other orders that are sought:  I declare that you are a serious violent offender for the offences, Charges 2, 3, 4 and 5.  Is that how it should be declared, Mr McKenry, they are serious violent offenders so they ‑ ‑ ‑

56MR McKENRY:  That's correct, Your Honour.

57HIS HONOUR:  Right.  So if that is in error it has not made any difference to the imposition of the sentence.  You are a serious violent offender by reason of gaol terms being imposed upon you for now two crimes of threat to kill.

58Are there other orders sought?

59MR McKENRY:  There are (indistinct words.)

60HIS HONOUR:  I am sorry.  I declare - well, you have been in custody for 251 days, this figure having been reckoned I now declare that the 251 days is part of the sentence I have just imposed.  I ensure that declaration is entered into the records of the court so the prison authorities are left in no doubt that you have already served 251 days of the sentence I have just imposed.

61Is there anything else required?

62MR McKENRY:  No, Your Honour.

63HIS HONOUR:  Is the mathematics correct?

64MR McKENRY:  Can I confirm the ‑ ‑ ‑

65HIS HONOUR:  Yes.

66MR McKENRY:  ‑ ‑ ‑ sentence on Charge 2, please?

67HIS HONOUR:  Twelve months with ‑ ‑ ‑

68MR McKENRY:  Four concurrent.

69HIS HONOUR:  ‑ ‑ ‑ four months cumulative.

70MR McKENRY:  Four cumulative.

71HIS HONOUR:  Yes.

72MR McKENRY:  Thank you, Your Honour.  Yes, mathematics is correct.

73HIS HONOUR:  Thank you.  Is there any other orders required?

74MR McKENRY:  There are no ancillary orders sought.

75HIS HONOUR:  Thank you.  Mr King, you now will be taken downstairs and commence the sentence that I have just imposed, thank you.

76MS GIBBONS:  As Your Honour pleases.

77MR McKENRY:  Pleases.

78HIS HONOUR:  I thank counsel for the very considerable assistance, Ms Gibbons.

79MS GIBBONS:  Thank you, sir.

80HIS HONOUR:  I'll just stand down and we'll just discover where we're up to with Mr Williams' corrections order.

81MS GIBBONS:  If I may be excused, thanks, sir.

82HIS HONOUR:  Yes, thank you.

83MS GIBBONS:  Thank you.

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