Director of Public Prosecutions v Koeble

[2019] VCC 1330

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-01688

DIRECTOR OF PUBLIC PROSECUTIONS

V

MARK KOEBLE

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JUDGE:	HER HONOUR JUDGE WILMOTH
WHERE HELD:	Melbourne
DATE OF HEARING:	14 August 2019
DATE OF SENTENCE:	22 August 2019
CASE MAY BE CITED AS:	DPP v KOEBLE
MEDIUM NEUTRAL CITATION:	[2019] VCC 1330

REASONS FOR SENTENCE
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Subject:Common law - sentence 

Catchwords:   Pleaded guilty to one charge of aggravated burglary – one charge of common assault – two charges of possession of a drug of dependence – three summary charges of assault – offender  48 years of age –offender and  complainant knew each – drug affect ted - demanded payment for drugs  -  threatened complainant and two males with Stanley knife – punched  complainant  - no prior convictions – long history of cannabis use – by 2017 using cannabis and ice daily – relatively early plea of guilty – counselling sessions have provided insight into anger  and drug abuse -  sound prospects for rehabilitation - one month on remand – general and specific deterrence served by scrutiny and supervision of long CCO.          

Cases Cited:Jiang v R [2009] VSCA 126

Sentence: 3 year Community Correction Order – 250 hours unpaid community work – supervision – programs to reduce reoffending – fines for possession of drugs.    ---

APPEARANCES:	Counsel	Solicitors
For the Office of Public Prosecutions	Ms D. Hogan	OPP
For the Accused	Mr S. Lindner	Ann Valos Criminal Law

HER HONOUR:

1Mark Koeble, you have pleaded guilty to one charge of aggravated burglary, one charge of common assault and two charges of possession of a drug of dependence.  You also pleaded guilty to three summary charges of assault. 

2On 18 November 2017, you went to a suburban house where you carried out the burglary and the assaults.  In August 2017, you had met Complainant 1 through a dating website and it was agreed between you, at your instigation, that you would supply her with the drug ice in exchange for going to her house to have sex with her.

3Meetings on this basis took place about fifteen or twenty times.  Although
she generally supplied her own drugs and there was no arrangement for her, having to pay you for drugs if you supplied them.  However, on one occasion you provided some marijuana and methylamphetamine to her and she told you that she would pay you $270 for it when she got paid.  Not long after this, you stopped seeing each other. 

4On 27 October she texted you and asked you not to contact her again.  You replied that you would collect the money she owed on Saturday, the amount being approximately $290.  You then sent her messages demanding money, using demeaning language and threatening her with the loss of her digits, presumably meaning fingers.  You threatened to slice open a man whom you expected to be at her house.  On Saturday 18 November, at 7.30 pm, you and an unknown man went to her house where she lived with two housemates.  One of their friends was also there.  You walked in the open front door holding a Stanley knife which you had taken from your car.  Apparently a knife otherwise used in the course of your work.

5Complainant 1 was in her bedroom and you entered the room repeatedly demanding your money.  She said 'I don't have it, I don't get paid until next week'.  You grabbed her right hand and squeezed it very tightly.  You reached into your pocket and produced the Stanley knife saying 'Well I'll just cut your finger off' and 'I'll just start taking your stuff'.  Complainant 1 said 'I don't have any money, I'll pay you when I can'.  She told you to get out and you then pushed her onto the bed.  She stood up and you pushed her down again.  She yelled at you to get out and that you would get your money when she got paid.  You continued to demand your money and pushed the knife into the victim's chest.  I digress here to note that presumably, either the blade was retracted or was placed in a flat position as no injury was inflicted.  You grabbed her neck and pushed her aside, then pushed her into a wardrobe and hit her many times.

6This was observed by Complainant 2 one of the residents in the house and you then told him to stay out of it or you would stab him and you showed him the knife.  You walked up close to him and swore at him repeatedly. 
He tried to defuse the situation and told you that you would get your money.  He then went outside and called the police.  You approached
Complainant 1 again and pressed the knife blade into or onto her arm while demanding the money.  You threatened Complainant 3, the other resident, and also Complainant 4 who was visiting by waving the knife around and they left the room in fear of being stabbed.

7When again demanding the money from Complainant 1, you punched her to the jaw and then to the side of her head.  She tried to protect herself by throwing a punch at you and you kicked her leg and attempted to throw her through the glass window of her bedroom, but lost your footing.  In doing so, you grabbed the wardrobe and tipped it over.  You said 'I'll be back tonight to get my money, if not I'm taking your car'.  You then left.  Complainant 1 suffered dizziness and a very sore and swollen finger and leg.  Her jaw and side of her head were sore and it hurt to talk.  Fortunately, no damage was done by the knife and no medical attention was necessary.  You were arrested on 9 November 2017 and you declined to comment in your record of interview.  At your house, police found a small quantity of cannabis and methylamphetamine and a packet of Stanley knife blades.

8I shall address the gravity of the offending later in these sentencing remarks, but I note here that a victim impact statement was provided by Complainant 2, who described the fear associated with your aggression, accompanied by the knife and the concern it created by the presence of police who attended, as well as the inconvenience to the residents of the house, caused by the requirement to attend court for the committal hearing, although it did not go ahead. 

9You are a single man aged 48, employed as a contractor.  You were 47 when you committed these offences.  On the night in question you were drug -affected and you were unfit to be interviewed initially.  You were placed in a cell for seven or eight hours before the interview commenced and you were then remanded in custody where you remained for thirty days.

10You pleaded guilty just before a contested committal was due to begin in July 2018.  Since then, the plea has been adjourned on two occasions, hence the delay. 

11Your upbringing was unremarkable until your parents separated when you were 15 years old.  You and your sister remained with your mother and you had no contact with your father for many years.  He was, by your report, a strict disciplinarian.

12You attended a private secondary school until you moved to a technical college and completed Year 10, followed by an apprenticeship as a pastry chef.  You worked in this trade for ten years, including a period of working very long hours at two jobs, commencing at 5 am in a retail bakery and then a second shift in a wholesale bakery.  You then changed to outdoor work establishing your own gardening business, building it from working alone, to having four employees and equipment, but the business declined when it was adversely effected by the global financial crisis.

13In 2013, you commenced concreting work and you have worked ever since as a self-employed contractor on residential building sites when work is available.  You have a number of sporting interests and you are a moderate drinker, a man with no prior convictions, but with a long history of cannabis use and use of methamphetamine for several years.  By late 2017, you were using cannabis and ice daily.  You were assessed recently by Mr David Ball, a psychologist, whose opinion of you seems to be summarised in these words:

'Overall, Mr Koeble impressed me as an individual with the capacity for generally good judgment and to plan and execute positive and self-sustaining behaviour.  He acknowledged that these positive traits rapidly evaporate in the context of substance abuse'. 

14Your work history and your usual social pursuits and the fact that you have no prior convictions are completely at odds with the serious offending you committed in late 2017, and drug abuse seems to be the obvious explanation for the glaring departure from your usual behaviour.  You explained to Mr Ball that you had been sacked from your employment the previous week and that your 'mind wasn't right'. 

15You told Mr Ball that the time you spent in custody forced your abstinence from drugs and you were able to maintain this when released.  You reported that being in custody gave you insight into your substance abuse and you resolved to change your life once released.  You pleaded guilty relatively early, and took part in the Magistrates' Court CISP Program while on bail, which appears to have been a very positive experience.

16According to the CISP report dated 18 December 2018, you developed some insight into your anger and its links with drug abuse and you attended a number of counselling sessions with Dr Kesic, which she considered you used effectively.  Mr Ball could discern no personality or mood disorder, or any other pervasive clinical syndromes.  He considered your management in the community would not present any challenges.  Perhaps evidence of this is that last month you commenced a rehabilitation program run by the Salvation Army, a six week program held four mornings a week and by the date of the plea you had completed eight days of that therapy.  It indicates also that your prospects for rehabilitation are sound and that you are at low risk of reoffending as your counsel submitted was the case.

17Your relatively early plea avoided a trial and importantly meant the victims did not have to give evidence or be cross-examined.  That is a benefit to the justice system and it is also acknowledged as an indication of remorse.  You are entitled to a discount on your sentence for that plea and I take it into account.  Mr Lindner, your counsel, submitted that a Community Correction Order is within range, despite the serious nature of the offending, taking into account the low risk of reoffending identified by Mr Ball, and the other persuasive factors in mitigation.

18He described the offending as being of short duration and that the summary charges are such that they could have been dealt with separately in the Magistrates' Court, where they would likely have attracted an adjourned undertaking by way of disposition.  Mr Lindner referred me to the case of Jiang v R[1], where the offender was of similar age to you and on appeal, was sentenced to a Community Correction Order.

[1] [2009] VSCA 126

19I have paid careful attention to that decision and noted the similarities and dissimilarities.  The applicant had led a blameless and hardworking life as you have and it was held that a prison sentence was manifestly excessive.  The circumstances differed from this case in many ways.  There was no pre-meditation.  The assault took place in a shop rather than a residence and the offender suffered a serious injury himself, which to some extent was extra curial punishment.  He had also spent five months in custody, by the time the appeal was decided.

20In his case, the assault erupted from spontaneous anger.  In your case, it appears to have been largely, if not entirely, fuelled by the use of the drug ice. 
Mr Jiang was assessed, as you have been, as being at low risk of offending.  However, he had a number of risk factors relevant to the risk of violent offending, whereas your risk is limited to drug use, and the steps you have taken towards your rehabilitation in that regard are impressive and persuasive as to their probable effectiveness.

21The appeal court in Jiang considered that the circumstances of the aggravated burglary there were '…far removed from the unfortunately typical cases of aggravated burglary, usually confronting this court'[2].  The circumstances of your case were not at all unusual, where an offender demands the payment of an alleged debt with threats and goes to the debtor's home to demand it.  That distinction is relevant to an assessment of the importance of general deterrence in your case and I take it into account.

[2] [ibid] at [33]

22Arguably, the primary focus of the appeal decision was on the appropriateness of a prison sentence for such an offender as Jiang and the Appeal Court considered that a prison sentence was not needed to satisfy general deterrence and denunciation by the court. I have concluded that the same applies in this case.  I also take into account the principle of parsimony that a court must not impose a sentence that is more severe than that required to achieve the relevant sentencing purposes.

23While general deterrence and denunciation are of great importance, they are served in this case by the scrutiny and supervision of a long Community Correction Order, with extended work hours and attendance at programs.  The need for specific deterrence is considerably reduced by the insight you have gained and the steps you have taken towards your rehabilitation.  The month you spent in prison is also relevant to that aspect.  You have been assessed as suitable for a Community Correction Order, but I note that the writer of the report dated 15 August, described your risk of reoffending as high without any explanation for that assessment.  On the other hand, Mr Ball did provide his reasons for the assessment he made and I have relied on that for the purposes of this sentence.

24Taking into account all these matters, I have concluded that a Community Correction Order, even for these serious charges and serious circumstances is appropriate. 

25Would you stand now please Mr Koeble.

26The order will commence today and it will last for three years.  It applies to Charges 1 and 2 on the indictment and to the three summary charges of assault and convictions will be recorded.  You will be under supervision and you must perform 250 hours of unpaid community work.  You must take part in any programs to which you might be directed, in order to reduce the risk of reoffending.

27One such program is likely to be a Men's Behaviour Change Program.  As you are already taking part in programs to address drug abuse and have done so in the recent past, there is no need for that to be part of this order.  The same applies to any mental health program, you are looking after that yourself.  Whatever time you do spend taking part in any program maybe credited against the hours of unpaid community work.  You must attend the Corrections Office in Dandenong at 46-50 Walker Street at 2 pm on 23 August, which is tomorrow. 

28For Charges 3 and 4, the possession of drugs of dependence, you are fined $500 for each charge. 

29If you had pleaded not guilty to these charges, I would have sentenced you to nine months imprisonment with a three year Community Correction Order and fines of $750 for each of the drug possession charges. 

30The prosecution seeks an order for the disposal of items and that is unopposed and I make that order. 

31An order for a forensic sample of saliva to be obtained is also sought and you consent to that through your counsel.  I make that order and must advise you that the police do have the power to use reasonable force to obtain the sample, but I trust that will not be necessary.

32Now the order is ready for signature.  Mr Lindner you might want to have a look at that and accompany my associate to the dock, and then I will check that there are no other matters. 

33MR LINDNER:  Thank you, Your Honour.  Could I just ask, Your Honour about the s.6AAA.

34HER HONOUR:  I will repeat that for you Mr Lindner.

35MR LINDNER:  Thank you.

36HER HONOUR:  Nine months imprisonment with a three year CCO and fines of $750 for each of the drug possession charges.  Anything further Ms Hogan?

37MS HOGAN:  No, Your Honour.

38HER HONOUR:  Mr Lindner?

39MR LINDNER:  Your Honour, could I just approach my client in terms of a stay or payment of fines?

40HER HONOUR:  Yes certainly. Well, there is an automatic stay of a month, as you know.

41MR LINDNER:  Yes.

42HER HONOUR:  If Mr Koeble needs longer, he can see the registry downstairs.  I am not completely au fait with the new system. The registry probably does not handle those matters anymore, no, but ‑ ‑ ‑

43MR LINDNER:  Yes, perhaps we will deal with it that way.

44HER HONOUR:  All right.  If you want to approach him and ask for a longer stay, I can make a stay straight away.

45MR LINDNER:  Could I just approach?

46HER HONOUR:  Yes.

47MR LINDNER:  Thank you.  Would Your Honour allow a stay of two months to pay?

48HER HONOUR:  Certainly.

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