Director of Public Prosecutions v Klement

[2019] VCC 251

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL JURISDICTION

Revised

Not Restricted

 Suitable for Publication

GENERAL LIST

CR 17-00181

Indictment No. F14114704

DIRECTOR OF PUBLIC PROSECUTIONS

v

RUSSELL KLEMENT

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JUDGE:	HIS HONOUR JUDGE HIGHAM
WHERE HELD:	Melbourne
DATE OF HEARING:	5 March 2019
DATE OF SENTENCE:	6 March 2019
CASE MAY BE CITED AS:	DPP v Klement
MEDIUM NEUTRAL CITATION:	[2019] VCC 251

REASONS FOR SENTENCE

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Subject:  CRIMINAL LAW      

Catchwords:             Sentence – contravene community correction order – re-sentence

Legislation Cited:     Sentencing Act 1991 (Vic)

Sentence:                 Total effective sentence of 21 months’ imprisonment and a non-parole

period of 9 months.

Section 6AAA declaration: 3 years and 3 months’ imprisonment and a

non-parole period of 2 years and 3 months.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P Atkinson	Solicitor for the Office of Public Prosecutions
For the Accused	Ms H Bate	Pica Criminal Lawyers

HIS HONOUR:

1This is a further hearing of the contravention proceedings brought against
Mr Russell Klement and transferred to this Court on 26 October 2018. 

2The proceedings were brought in light of Mr Klement's prolonged failure to comply with various conditions of a Community Corrections Order (CCO). I find the contravention proven and intend to make no penalty on the contravention, but do intend, under s 83AS(1)(c) of the Sentencing Act 1991 in addition to cancelling the Order, to re-sentence Mr Klement for the original offence, which was an offence of aggravated burglary. 

3In December 2015, you were living in an assisted living complex with your girlfriend Ms Glenda Poulter. Also living in that same complex were your victims, Rachel Bramwich and Grace McInstray.

4On 15 December 2015 at some point in the late afternoon, you opened the door of your victims’ apartment, attempted to turn the door handle of the bedroom (behind which both of your victims were hiding), and you said that you were going to kill them, repeating this threat on more than three occasions.  You pushed against the door, saying, "I'm coming to get you", and that, "I'm going to kill you", and you were observed holding a kitchen knife with a black handle and a silver blade in your right hand.  You had taken that kitchen knife from the kitchen of your victims’ apartment.  Ms Bramwich called a neighbour for assistance.

5You then left the apartment and returned back to your own apartment, having dropped the kitchen knife on the floor.  When police attended, you were arrested and, as part of the police investigation, your DNA was found on the knife that you had left at the scene.

6What led to your offending was your deluded belief that your victims had been breaking into your apartment on a regular basis and stealing your belongings. You stated that your actions were intended to scare the victims and to make them stop stealing your things, as they had been doing this for the past three years. 

7You said you had used the knife to scare your victims and that it was your intention to scare rather than harm them, and, further, you did not think that they would believe that you would actually cause them any harm.

8You pleaded guilty to this matter at the earliest opportunity and I give you full credit for that.

9At the adjourned plea hearing, I was provided with a report by Dr Andrew Carroll, which was dated 19 September 2017 (Exhibit 2RK). That report assisted me in arriving at an appropriate sentence, identifying all the matters that I had to balance in the exercise of my sentencing discretion. 

10You have a forensic history going back to 2011. That history is best understood in the context of your medical history.  Over the years, there has been intervention by DHHS, the Office of the Public Advocate and, most importantly, Inner West Area Mental Health Service.  The latter service disengaged with you early in 2017, but your key clinician case manager at that time, Mr Jason Webb, was and remained an advocate for you. 

11Dr Carroll's report, now 18 months old, diagnosed you with autism spectrum disorder, accompanied by an intellectual and language impairment and, in his opinion, you met the criteria for an intellectual disability.  He diagnosed you as suffering from schizophrenia, manifested by ongoing delusions, hallucinations and disorder of thought possession. 

12Significantly, Dr Carroll stated that:

"It is likely that his schizophrenia has never come fully under control and that he has functioned in the community with some degree of ongoing delusional thinking of various kinds for many years."

13Dr Carroll was also of the opinion that your delusional beliefs contributed to your offending. 

14Dr Carroll stated that your mental state functioning had improved whilst in custody, as compared with you being in the community, due to the more assertive treatment of your schizophrenia with high doses of medication and also, and most importantly, your enforced absence from your cannabis use. 

15Mr Klement, I have no doubt that your continued cannabis use has contributed to your failure to comply with the conditions of the CCO I imposed on 7 February 2018. 

16I am now faced with the task of re-sentencing you.  The offending to which you have pleaded guilty was serious offending.  For you to go into the home of your neighbours, intending to assault them, to frighten them, is a violation of their home.  Everyone should be able to feel safe in their home. That is why the courts view such an offence as very serious indeed.

17I accept that you have been dealt a very bad deck of cards. I accept that you have challenges which make negotiating and navigating the ordinary instances of daily life very difficult for you.  I accept that for you, staying at home, possibly under a blanket, and smoking cannabis is preferable to engaging with the world. 

18Unfortunately, that attitude has meant that Corrections have now breached you for your non-compliance with the Order.

19I have to resentence you for the original offending. In sentencing you for that original offending, I am directed by s 83AS(2) of the Sentencing Act to have regard to the extent to which that you have complied with the Order. I do not find that your non-compliance has resulted from you thinking, "Well, I am going to deliberately and wilfully put a forensic two fingers up to the Court." 

20I accept that the problem lay in your incapacity to comply with the Order. This enables me to be more lenient than I might otherwise have been.

21On the charge of aggravated burglary, I am going to re-sentence you to a term of imprisonment of 21 months.  Now, I am going to fix a non-parole period of 9 months. 

22Pursuant to s 18(4) of the Sentencing Act, I declare that you have served 210 days of the sentence that I have declared.  That means that you have approximately two months to serve before you become eligible for parole.  In terms of parole, that is not a matter for the Court, but rather for the Adult Parole Board. 

23Had you not pleaded guilty, you would have been sentenced to a term of imprisonment of three years and three months, and to a non-parole period of two years and three months.[1] 

[1]Sentencing Act 1991 (Vic), s 6AAA.

24Now there is a depot medication that Mr Klement needs to receive this Friday.

25MS BATE:  Your Honour, Officer Todd was in Court yesterday and he was aware of that. I have a letter here from Jacob Neil, who is Mr Klement’s current mental health clinician from Hotham Street Community Team Northern Area, indicating the diagnosis as well as the medication that he is currently on and the dosage. It also indicates it was last given, that being the depot injection, on 22 February 2019 and that he is next due on 8 March 2019. It also indicates the contact details and who each member of this treatment team is.  So I am grateful to my learned instructor who sorted that out.

26HIS HONOUR:  Well, I would expect nothing less from Ms Coath.

27MS BATE:  She has been very diligent in ensuring that we have that.

28HIS HONOUR:  Nothing less.  Mr Klement is fortunate, you are fortunate and, indeed, so am I.

29MS BATE:  Yes.

30HIS HONOUR:  I will have a copy of that, it will be scanned and Mr Todd, will you accept a hard copy of the document as well?

31PRISON OFFICER:  Yes, Your Honour.

32HIS HONOUR:  All right, we will make a copy for Mr Todd. Mr Todd?

33PRISON OFFICER:  Yes.

34HIS HONOUR:  Obviously placement is not a matter for you but I would assume, if there is a place available, that Mr Klement will be placed in the subacute ward at Ravenhall?

35PRISON OFFICER:  Yes, in the long-term, Your Honour. Just for the Court's information, previously Mr Klement had been in the acute assessment unit of the Melbourne Assessment Prison and that is where I imagine he will be given a bed, if available.

36HIS HONOUR:  All right, well that gives me some confidence.  I understand that he had spent some time, prior to my original sentence and placing him on a CCO, in the subacute ward at Ravenhall, but I know that he will be looked after and that is my concern. 

37Mr Klement, I am going to ask you to go with Prison Officer Todd and I am confident that he will be able to look after you. 

38OFFENDER:  Yes, Your Honour.

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