Director of Public Prosecutions v King

[2014] VCC 286

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-13-02081

DIRECTOR OF PUBLIC PROSECUTIONS

v

JASON RODNEY KING

---

JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	13 March 2014
CASE MAY BE CITED AS:	DPP v King
MEDIUM NEUTRAL CITATION:	[2014] VCC 286

REASONS FOR SENTENCE
---

Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms T. Patterson
For the Offender	Mr M. Phillips

HER HONOUR:

1Jason Rodney King, you have pleaded guilty to one charge of aggravated burglary and one charge of common assault and you have also pleaded guilty to the summary offence of breach of intervention order, which charge was uplifted to be heard in this court.

2The facts underlying your offending are as follows:

3You were in a relationship with a woman, “S”, between January and April 2013 and when that relationship ended an intervention order was granted, pursuant to the Family Violence Protection Act, ordering that you must not commit family violence against your former partner including emotional abuse and threatening behaviour or intentionally damage her property or threaten to do so. The two of you remained in contact after the relationship ended.

4On the evening of 26 July 2013 S spent a night at a friend's house, and her housemate, A, was at home in the premises they shared in Woodcrest Road in Vermont.  At about 10 pm the victim, A , answered a knock on the door, you saying as he opened it, "Who are you?" and kicked the door open, forcing your way inside.  These actions underlie Charge 1 on the indictment, the charge of aggravated burglary. 

5As you entered, you punched A to the left side of his mouth, splitting his lip, causing it to swell, and A stumbled and fell and was grabbed by you as he stood up.  You then head-butted his forehead again, which caused him to stumble backwards.  These actions underlie Charge 2 on the indictment, common assault. 

6You then approached A again, who was able to push you to the ground before he ran outside and into a neighbour's front yard.  Pictures were knocked off the wall in the struggle and throughout the incident you continually said "Who are you?  Who are you are?"  In the following hours S received a number of threatening text messages from you, including words such as, "How are you and A?"  "Hope cheating on me was worth it."  "I'd move State if I was you." And "I'm gonna kneecap your bf.  You were fucking behind my back."   These actions underlie the summary charge of breaching an intervention order.

7You were arrested on 7 August 2013 and in a record of interview with police made no comment to allegations put to you.

8The maximum penalty for aggravated burglary is 25 years' imprisonment; the maximum penalty for common law assault is five years; and the maximum penalty for breaching an intervention order is two years' imprisonment.

9You were placed in custody following your arrest and spent 42 days in gaol before being released on 17 September 2013. 

10I now turn to your personal circumstances.

11You are 29 years of age, which was the age you were at the time you committed these offences.  You are the eldest of four children and your parents separated when you were 12 or 13 years of age, this was in 1997.

12Since your parents' separation, you have had little or no contact with your father.  Your mother and siblings all reside in Tasmania, are law-abiding and continue to support you.  You grew up and were educated in Tasmania to Year 10.  After leaving school, you did two years of a course in audio design in computing at a college in Launceston, but did not complete this course.  You have worked as a bar attendant, receptionist work, labouring work for National Foods, you have worked at Gunns timber mill and you have recently had casual work with skilled labour doing various labouring jobs including fruit picking and short-term production line work.  You are currently unemployed because you have the full-time care of your son Theo, who is aged four and who is the child of a relationship that you had in Tasmania.

13It would appear that along the way you have developed a fairly serious drug and alcohol problem, and indeed it appears on the night that you committed this offending you were intoxicated.  You had also very recently used the highly addictive and very destructive drug, ice.

14You told Community Corrections Officer, Shannon Timmons, who assessed you for suitability for placement on the Community Corrections Order, essentially that you believed you offended because of your substance abuse, as you had been drinking on a daily basis, using methamphetamines and cannabis on the weekends.  In the report, Ms Timmons

15Ms Timmons stated that you told her that you “initially took the break-up of his relationship well until such time as he became intoxicated, then he became upset and jealous."

16Along the way you have engaged in an amount of offending and have a fairly long, although fairly minor, criminal offending history.  That offending has included two previous breaches of an intervention order, and that related to your relationship with the mother of your child Theo.

17It seems that apparently the six weeks that you spent in prison was your first experience of gaol and it had quite an effect upon you.  You told Ms Timmons that you regarded it as a wake-up call, you did not enjoy the experience and, on your release, determined to do something about your drug and alcohol problems, you being aware at this stage, or having the insight by this stage to conclude that the trouble you found yourself in and the place you found yourself in were due to your abuse of illicit substances and alcohol. 

18You were released on bail with a condition that you attend the CISP program, and I received a report from Francis Coghlan, a senior forensic alcohol and drug clinician with the Eastern Drug and Alcohol Services, about your progress on the program.  It was an extremely positive report.  You gave a very full and frank account of your use of alcohol, which began when you were about 13, your use of cannabis, which began when you were 16, your use of amphetamines from about the age of 19, stating that at its peak your habit involved you snorting that drug, about a gram of it, on a daily basis.  You also reported use of ecstasy from about 21 years, in a social context, and the use of ice for about 12 months prior to this offending.  You told Mr Coghlan as soon as you tried ice you liked it - which is one of the problems with ice; everyone who seems to try it likes it straightaway - and you used it on a daily basis until early August 2013, ceasing use of it just before being placed in custody.  You also reported opportunistic use of cocaine since the age of about 26.  You said you had also used hallucinogens, although that was not a problem, and that you had, over the past several years, occasionally obtained benzodiazepines both legally and illicitly and that you had abused them.  You said that since your release from custody, you had used alcohol approximately one of the 28 days before being assessed by Mr Coghlan.

19You moved to Melbourne in about 2011, and explained that the breakdown of your relationship with S had been traumatic as it involved unfaithfulness on the part of your former partner. 

20Of some importance in your history is the fact that in February this year your former partner left Tasmania with your son and told you she could no longer care for him due to her own drug problems and that she feared that if you did not take over the care of him he would be placed in care himself.  This has been an important motivating factor for you.  You are the sole carer for your son, and it is a role that you take, I am satisfied, extremely seriously, and indeed has been a motivation for you to continue the very good progress that you made on the CISP program.

21Mr Coghlan, in his report, described a very positive engagement in the program and, most impressively, once the program finished, you attended on him for ongoing psychological counselling in order to further address your drug dependence and the underlying psychosocial issues or the issues that always underlie abuse of illicit substances.  You have continued to attend upon him and, most importantly, there has been no further re-offending. 

22So, importantly, the court has before it material which indicates that since you engaged in this offending, you have taken very positive steps to address the underlying problems that led to your offending in the first place.  You have also taken on a sole parenting role, which you are fulfilling responsibly and which acts as a continuing motivation for you to go on with the changes that you had put in place in your life well before, I am satisfied, Theo came into your care.

23It is my view in all the circumstances that a non-custodial disposition is appropriate in this case.  That is, I do not have to send you to gaol.  

24Aggravated burglary is a serious charge involving, as it does, really the violation of other people's homes by way of violent entry.  I note from the victim impact statement compiled by A, you have left him with a number of ongoing difficulties, and I will just refer to those now.

25In his victim impact statement A states that he was worried to be in the house by himself, he continues to worry answering the door and being outside his house at night.  He has had CCTV installed to check if someone is there.  He suffered a loosened tooth from the incident, which he cannot afford to have fixed, and that he had to repair damage to his rental house.

26No doubt, when you burst in that night full of anger of alcohol and drugs you were giving no thought at all to the ongoing harm that you were likely to cause your victim, but the situation is that to this day A still feels less safe than he did before.  You have left him with ongoing issues which are entirely common to victims of this type of offending, and these are matters that you should think about and should take into account.

27You yourself are in a somewhat vulnerable position, living alone, as you do with Theo.  You can only imagine how appalling your feelings about your safety would be if someone acted the way that you did on this evening.  I am satisfied, however, that you are remorseful for your offending, as indicated by your plea of guilty.  As I have said, you have taken very positive steps to rehabilitate yourself and, unsurprisingly, in the circumstances, you have been found an appropriate candidate for placement on a Community Corrections Order, a disposition which I note is not objected to as inappropriate by the prosecution.  I therefore propose to place you on a Community Corrections Order. 

28I note that you expressed some concerns about being able to undertake community work because of your care of your son, who is not yet at school or kindergarten.  A suggestion was made by the assessing officer that if I do give you unpaid community work hours to complete, that I delay this until Theo is appropriately placed in kindergarten or school so you have got time to undertake this work.  My main concern is that you continue to attend to your drug and alcohol problems.  It does not seem to me, in the circumstances, that imposing an unpaid work component would be of particular assistance to anyone.  It would be difficult for you to perform and therefore I do not propose to order that you undertake any unpaid community work.

29I can only place you on a Community Corrections Order with your consent, Mr King, and I need to outline to you what the conditions are of such an order.  They are, firstly, that you must report to your local Community Corrections office, the details of which will be given to you, within two working days of the making of this order, that is, by Monday; secondly, whilst on the order, you must not commit any offences either inside or outside Victoria; you must attend upon and receive visits from the Community Corrections Officer; you may not leave Victoria without the permission of the Community Corrections Officer; and you must obey all lawful directions of the Community Corrections Office. 

30I intend to impose the special condition that you are assessed and receive treatment for alcohol and drug use and that you are assessed and receive treatment for psychological issues or mental health issues.  Are you prepared to enter the order?

31OFFENDER:  Yes, Your Honour. 

32HER HONOUR:  Very well, that is the way I propose to deal with this. 

33So in relation to each of the charges, you are placed on a Community Corrections Order for a period of 12 months.  I will order that I receive a written report from the Office of Corrections every six months.  All right.  We will just prepare for that material.

34MR PHILLIPS:  If Your Honour pleases.

35HER HONOUR:  I should also add that I received written references from your sister and her partner; is that right?

36OFFICER:  No, Your Honour, it was my friend Sarah and also my sister's friend Sarah

37HER HONOUR:  All right.  I received a written reference from your sister Sarah and a friend, Sarah Kaye, both of whom spoke very positively about the way in which you have attended to your drug and alcohol problems and of the care that you are extending to your son Theo and the very positive father figure you have become since he came into your care in February. 

38Pursuant to s.6AAA, I declare that had you not pleaded guilty - would I have had the power, Madam Prosecutor, to impose a suspended sentence in this matter?

39MR PHILLIPS:  No.

40HER HONOUR:  I don't think so.  Not for - - -

41MS PATTERSON:  Not for aggravated burglary, no, Your Honour.

42MR PHILLIPS:  No.

43HER HONOUR:  Had you not pleaded guilty, I would have sentenced you to a term of imprisonment of six months, that being an aggregate term.  I cannot do that either.  I would have sentenced you to a total effective sentence of six months' imprisonment.  All right.  I will just get you to sign that, thank you, Mr King.

44MS PATTERSON:  Your Honour, there is also an application for a forensic sample.

45HER HONOUR:  Yes, that is right.  Do you have anything to say about that, Mr Phillips?

46MR PHILLIPS:  I think I indicated on the last occasion it's not opposed.

47HER HONOUR:  All right.  I have ordered that you supply a forensic sample, which will be a saliva sample, and that you have to attend upon the Ringwood Police Station within the next 28 days to supply that.  All right?  It will just be taking a swab from your mouth.  I need to also tell you that if you resist in giving that sample, police may use reasonable force to obtain it. 

48I think that's - - -

49MS PATTERSON:  Your Honour, could I just clarify whether the CCO relates to the summary charge as well?

50HER HONOUR:  Yes, it does.

51MS PATTERSON:  Yes, thank you, Your Honour.

52HER HONOUR:  It does.  It is his third - - -

53MS PATTERSON:  Thank you.

54HER HONOUR:  ‑ ‑ ‑ outing for that one, so I think it is appropriate in the circumstances.  There are the forensic orders.  I will just give that back.  Yes, thank you.  You can have, Mr Phillips, the reports and I will just file those two references.  Yes, thank you.

- - -