Director of Public Prosecutions v Kujath

[2017] VCC 764

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-00125

DIRECTOR OF PUBLIC PROSECUTIONS

v

MICHAEL KUJATH

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JUDGE:	HER HONOUR JUDGE QUIN
WHERE HELD:	Melbourne
DATE OF HEARING:	18 May 2017
DATE OF SENTENCE:	23 May 2017
CASE MAY BE CITED AS:	DPP v Kujath
MEDIUM NEUTRAL CITATION:	[2017] VCC 764

REASONS FOR SENTENCE
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Subject:  Aggravated burglary, criminal damage, make threat to kill.
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms D. Karamicov	OPP
For the Accused	Ms E. Strugnell	VLA

191621  Pages 1 - 13

 

 

HER HONOUR: 

1Michael Kujath, you have pleaded guilty to aggravated burglary, criminal damage and making a threat to kill. 

2The maximum penalty for aggravated burglary is 25 years' imprisonment and for each of the other offences is 10 years.

3After the plea was completed the learned prosecutor provided the court with an email dated 18 May 2017 and I note the submissions contained therein.

4The circumstances of your offending are fully set out in Exhibit A, summary of prosecution opening.  In summary you had been in a relationship or married to Sharon Kujath for most of your adult life.  You have three children together, Jennifer aged 20, Christopher aged 16 and Charlotte who is 7 years old.  You have been separated from your wife for a number of years. 

5At the time of this offending Ms Kujath lived with the children and Jennifer's boyfriend Aaron Cooper.  Jennifer and Mr Cooper had recently moved into the garage at this house, having left your home after a dispute with you.  I was informed that they moved out as a consequence of an incident with you and that you were aware that they had made an application for an intervention order against you. 

6During the night on Sunday 6 November 2016, Sharon Kujath and her two younger children were at home in bed.  Jennifer and Mr Cooper were in the garage where they were effectively residing playing video games with a friend, Karol Leggatt. 

7At about 11.30 pm Mr Cooper heard a flicking sound coming from the side of the garage.  They went outside to check and found you attempting to force open the door.  You yelled to him, "I'm going to kill you.  Where are you, come out".  That's the circumstances of Charge 3, making a threat to kill.

8Jennifer phoned her mother to warn her you were on the property.  Sharon Kujath looked outside the glass door of the house and Christopher, your son called out to you to try to get you away from the garage.  You ran towards the house and approached Christopher who was in the driveway, dropped to your knees and said "kill me".  Christopher then went back inside. 

9You then went back to the sliding glass door of the house and began kicking and punching it.  Sharon Kujath was video recording you with her phone.  You appeared heavily intoxicated and were verbally abusing her. 

10You went back to the garage and banged on the door, continuing to yell abuse.  You walked between the house and garage, eventually succeeding in forcing entry into the garage by manipulating a wire hook.  In fear Jennifer, Mr Cooper and Mr Leggatt hid in the bedroom in the garage.  That is the conduct constituting Charge 1 the aggravated burglary.

11You searched around the house and were heard to yell out, "whose keys are these?" You attempted to force the door of the bedroom where they were hiding but were unsuccessful.

12You again returned to the house and continued to yell abuse.  Sharon Kujath begged you to leave but you continued to punch and kick at the glass sliding door, causing damage to the door, its frame and the security door.  You fell over and then began to head butt the door.  You also damaged a metal gate in the rear yard.

13Charge 2 criminal damage relates to all of the property damage that you did both at the house and the garage.  You went back to the garage and kicked and bashed the internal door of the bedroom where Jennifer, Mr Cooper and Mr Leggatt were still hiding. 

14Unsuccessful again, you returned to the house a further time yelling and screaming abuse.  At one stage you cut yourself and smeared blood on the glass sliding door and on the door handle of the garage.  You were at the property for a total of about 20 minutes. 

15Police were called and you were located in the driveway of a property close by.  You were arrested.  The following day you were interviewed by police.  You told police that prior to going to the house you had consumed a full 750 mil bottle of scotch and had several beers.  You said you were extremely intoxicated and didn't have a clear memory of the incident.  You denied committing the offences. 

16I received victim impact statements from Sharon Kujath and each of the children, Aaron Cooper and Caragh Leggatt, some of which were read in the court by the prosecutor (Exhibits B, C, D, E and F.)  I take this material into account. 

17It is apparent that your actions have caused them to fear for their safety and security in their own home.  They are more vigilant and cautious around the home and are less motivated to leave and socialise.  Some of them have suffered anxiety attacks and nightmares.  They feel paranoid around others and thus isolated.  Their work or education and social lives have been affected and your offending has had significant impact on them.

18You are currently aged 42.  Your mother had two sons from a previous relationship who were significantly older than you, so you were effectively raised as an only child.  You grew up in the Dandenong area where your father was a computer engineer.  He operated a business with your mother. 

19In approximately 1991 your family moved to Echuca for the purposes of that business.  Your father was tragically killed in a boating accident in Merimbula New South Wales in 1992.  You were present when this happened and the circumstances were such that you felt responsible or you could have acted to avoid the accident.  You have carried significant guilt from this traumatic experience. 

20Your mother remarried, however her third husband is now deceased, having suffered from cancer.  Your mother remains supportive of you, regularly visiting you in custody and was present in court.  You attended school until midway through Year 10.  You ultimately completed a motor mechanics apprenticeship but had difficulties finding relevant employment.  You have been employed in various positions and had relatively consistent employment until about 2013/2014 when your marriage broke down.  You have not worked since that time. 

21In or around 2006 Sharon Kujath, then your wife was diagnosed with a serious medical condition that necessitated you caring for her and the children.  You were required to give up your employment for an extended period and this placed significant financial strain on the family.  The stress of the situation led to a gradual increase in your alcohol consumption, a factor I will refer to later in these reasons. 

22You are a member of the Mormon faith.  You were a member of the Dandenong Narre Warren chapter and regularly attend a chapel and were actively involved and assisted with community programs.  However your involvement in the church ceased in the context of your marriage breakdown.

23You are currently in a relationship with Catherine Mohorin, who also supported you by attending court.  You have a child together, though he is currently in the care of the Department with you both having significant issues with alcohol. 

24Prior to going into custody you resided at a home that you own in Birchip.  Ms Mohorin remains living there.  I note the police applied for an intervention order on her behalf after an incident between you, which has resulted you in being charged. 

25You have no relevant prior convictions.  I understand that there are currently some outstanding matters relating to different occasions.  One involves offending against Mr Cooper and your daughter Jennifer in September 2016, and two other occasions of offending against Ms Mohorin in the family violence context in January this year and April 2016.  You also have other driving and/or alcohol related offences outstanding.  I was informed that all of these matters are to be heard in a consolidated plea in the Magistrates' Court once you have been sentenced by this court.

26This is your first time in custody.  You have been there since 12 January 2017.  I was provided with a CISP report dated 1 May 2017, Exhibit 1.  This report was positive recognising that you needed assistance in areas of mental health and alcohol abuse.  I was informed one of the reasons bail was refused was that this court had no jurisdiction to impose CISP conditions.

27You have significant issues with alcohol.  You commenced drinking at the age of nine.  Your alcohol consumption substantially increased after the tragic passing of your father.  You have had periods where you have been able to control your alcohol use, particularly in times of stability in your life, though your consumption of alcohol has increased during periods of emotional trauma and personal conflict, most recently with your marriage breakdown.

28In 2015 you were hospitalised in the context of alcohol use for approximately one week.  You were diagnosed with Hepatitis at this point.  Around the time of this offending you reported drinking up to two bottles of scotch a day.  You have not had a drink since being in custody.  You have thus had an extended period without alcohol and I was informed that you regularly attend Alcoholics Anonymous meetings at Fulham. 

29Your neurocognitive functioning was assessed by psychologist Jeremy Parker on 23rd February 2017, report Exhibit 2.  Mr Parker's concluded that you meet the diagnostic criteria for a mild neurocognitive disorder.  It is reported that your total score on the NUCOG test was 76.5 out of 100 compared to an average for your age of 99.6 out of 100.

30Mr Parker is of the view that your score is more than two standard deviations below average for your age, suggesting deficits in attentional and executive function, specifically in your ability to reason in response of stress, learning and memory.  Mr Parker specifically linked these cognitive deficits to your offending.  He noted, "Mr Kujath's capacity to reason and understand the gravity of his behaviour at the time of the offending was impoverished.  Research suggests that executive cognitive functioning is an underlying aetiological mechanism for the relation between acute alcohol consumption and aggressive behaviour" (see para.37).   

31Your counsel submitted that all elements in Verdins were enlivened as a consequence of your neuropsychological functioning.  It was submitted that your level of functioning had a causal connection to both your culpability for this offending but was also such as to make your time in custody more onerous.  The prosecution conceded this latter submission and I accept that your time in custody will be more onerous, given your level of functioning as compared to other individuals.  I take that into account.

32However the prosecution disputed that there was a connection between your level of functioning and your actions in committing these offences, principally because of your level of intoxication at the time when you committed these offences. As noted in O'Neill, [2015] VSCA 325 at 59 Clearly there must be an established evidentiary basis for moderating the principles of general deterrence in a particular case. For that to occur, it is not sufficient the offender suffer from a particular mental impairment. There must be a proper and informed consideration of how that impairment might have either materially diminished the capacity of the offender to reason appropriately at the time of the offence concerning the wrongfulness of his or her offending or of how the offender's condition might make the full application of the principles of general deterrence repugnant to the underlying sense of humanity which guides proper sentencing."

33I note Mr Parker's also of the view you suffer from a depressive disorder.  This possibility was specifically raised in both his report and the CISP assessment report.

34Your offending needs to be viewed in the context of alcohol assumption on the night.  Clearly this was related to your aggressive behaviour.  You have significant neurological limitations, most likely because of your alcoholic condition or history.  Your actions on this night in consuming excessive amounts of alcohol then engaging in aggressive behaviour are partly explicable by your level of functioning and principles of general deterrence should be moderated accordingly.

35I take into account your plea of guilty.  It was at the earliest opportunity.  There is utilitarian value in the plea as none of the witnesses were required to give evidence and you've saved the community the costs associated with running a trial.  Your plea is also indicative of your acceptance of responsibility for your actions and shows a willingness to facilitate the course of justice.  There were some aggravating features of your offending.  Your offending occurred in the middle of the night.  You persevered in your attempts to enter either the house or the garage ultimately succeeding in getting into the garage.  Your presence at the property was for a period of about 20 minutes.  Your family was scared as a consequence of your presence around their house. 

36You have used your time in custody productively, participating in Alcoholics Anonymous and completing certificates in seven different courses offered by the Kangan Institute.  These courses including access to vocational pathways, cleaning operations, Certificates i and ii, business and horticulture culture certificates i and ii. 

37Your counsel submitted that given your prior history, particularly none relating to domestic violence, abstinence from alcohol in custody, involvement in programs, your family support and your stated motivations to address your alcohol and other issues on release, that your prospects were good.  The prosecutor submitted that your rehabilitation prospects were more guarded given the seriousness of these and our outstanding matters both occurring in the domestic violence context.  Clearly your rehabilitation is dependent on you successfully addressing your alcohol dependence and other issues.  I assess your prospects as fair to good, assuming you remain committed to abstaining from alcohol. 

38Your counsel conceded that a term of imprisonment was warranted but that the sentence should allow for you undertaking a community correction order at the completion of the term of imprisonment imposed. This course, it was submitted, was appropriate given your plea, good rehabilitation prospects and moderation of general deterrence, given your level of functioning. With the most recent amendments to the Sentencing Act which came into effect in March this year, I can only adopt this course if I'm of the view that a sentence of 12 months or less of imprisonment with a community correction order at its completion is an appropriate sentence.

39I had you assessed as to your suitability for a community correction order and received a favourable report. The prosecution submitted that the only appropriate disposition was a term of imprisonment and that a combined disposition was outside the range of sentencing options available to me. Reliance was placed on Bowden [2016] VSCA 283 and the authorities referred to therein. I have considered those cases particularly Bowden and current sentencing practices for aggravated burglary (see paras.19‑32 and 41‑49). I note there are some features of this offending that do not exist in relation to other instances of aggravated burglary, including there was no disguise for weapon and this offending did not happen whilst you were in company of others.

40The maximum penalty for aggravated burglary is 25 years and reflects the grave seriousness with which this offence is regarded.  You remained on the property and entered the garage with violent intent threatening Mr Cooper, yelling abuse and breaking or damaging doors and the gate to gain access.  No explanation was provided for your conduct and both counsel conceded it appeared random, particularly given your lack of violent history.  You were heavily intoxicated.  Your family members and their friends were clearly fearful of your continued presence.  General deterrence suitably moderated, just punishment, denunciation of your conduct and protection of the community have a role to play in sentencing you. 

41Specific deterrence has a role to play, though that is more limited as I accept your rehabilitation prospects are good to fair.  It is necessary to strike a balance between the matters in your favour, including your plea, positive steps taken towards your rehabilitation with the other matters listed above and the gravity and the seriousness of this particular instance of your offending.

42If you could please stand up.  In respect of Charge 1 aggravated burglary, you are sentenced to a term of imprisonment of 12 months and at the end of that 12 month period I will remember you to serve the remainder of two years on a community correction order.  The conditions that I will impose in respect of the community correction order are those as are set out in the report that I have received from Corrections.  I will go through those at the end of the sentence.  This is to be an aggregate sentence in respect of each charge, so that is from Charge 1 aggravated burglary, Charge 2 criminal damage and Charge 3 threat to kill.  I impose an aggregate sentence of 12 months with a community correction order of two years to be served at the end of that time.

43I will require you to do 75 hours community work at the time of your release.  There will be an alcohol treatment and be rehabilitation condition, a mental health treatment as recommended by Corrections and offending behaviour programs as recommended by Corrections.  There will also be an order regarding supervision.  On my calculations your release date will be 5 November, is that correct?  12 months from the 6th.

44MS STRUGNELL:  Your Honour just to clarify, Your Honour, are you imposing a 12 months sentence as of today or deducting? 

45HER HONOUR:  No, no this will be PSD.

46MS STRUGNELL:  Certainly, Your Honour.  It would be 6th November then.

47HER HONOUR:  Didn't he go into custody on 6 November? 

48MS STRUGNELL:  On this matter he went into custody on the 12th, sorry apologies 30 January.

49HER HONOUR:  The 30th January? 

50MS STRUGNELL:  Yes.  That's the date that he went into custody on this matter, the date of the committal case conference and there was one night prior to that served by way of PSD on the night of his arrest.

51HER HONOUR:  But he has been in custody since November, is that correct? 

52MS STRUGNELL:  No.  He's been in custody since 12 January this year and he was remanded in relation to the matters before the Magistrates' Court.  So in relation to this specific offence ‑ ‑ ‑ 

53HER HONOUR:  Oh okay.  Why have I got in my head 6 November?  I don't know.

54MS STRUGNELL:  That's the date of the incident, Your Honour.

55MS KARAMICOV:  He was arrested on 6th November, Your Honour.

56HER HONOUR:  Oh right and released.

57MS KARAMICOV:  And released.

58HER HONOUR:  Yes.

59MS KARAMICOV:  He spent one night overnight in custody.

60HER HONOUR:  Yes.

61MS KARAMICOV:  When he was picked up.

62HER HONOUR:  Yes.

63MS KARAMICOV:  So he entered on the 5th ‑ the offending occurred on 5th November.

64HER HONOUR:  Yes.

65MS KARAMICOV:  On the 6th spent that night.  Then he was bailed and he was remanded on other matters in January but in relation to this matter he entered his plea on 30th January and was not bailed as in trial bail was not entered on 30 January.

66HER HONOUR:  Okay.  All right so what is the PSD? 

67MS KARAMICOV:  The PSD is 114 days.

68MS STRUGNELL:  And that's agreed, Your Honour.

69HER HONOUR:  Okay.

70MS KARAMICOV:  So that includes that's from 30 January.

71HER HONOUR:  Yes.

72MS KARAMICOV:  And it includes that additional one night that he spent in November.

73HER HONOUR:  All right.  So then the 12 months would be until 29 January, would it? 

74MS STRUGNELL:  To the, yes, that would be correct, Your Honour.

75HER HONOUR:  Yes 29th January would be when the CCO would commence.

76MS STRUGNELL:  That would be correct.

77HIS HONOUR:  Okay.  16th January was those other matters, was it? 

78MS STRUGNELL:  It was the 12th, Your Honour.

79HER HONOUR:  Or whatever it is.

80MS STRUGNELL:  Yes.

81HER HONOUR:  I've got that date incorrect in the course of my reasons when I've said this is the first time in custody.  That should be corrected to 12th January, was it? 

82MS STRUGNELL:  The 12th January was when he was first remanded.

83HER HONOUR:  Okay, I'm sorry Mr Kujath, I've just got the dates a bit confused.  So what it effectively means is that on your release date after 12 months in relation to this matter, you'll be placed on a community correction order for a period of two years with those conditions. 

84I declare 114 days pre‑sentence detention. Pursuant to s.6AAA of the Sentencing Act I would have imposed a sentence of four years with a minimum of two years if you had not pleaded guilty in relation to this matter.

85Are there other orders? 

86MS KARAMICOV:  No, Your Honour, no thank you.

87HER HONOUR:  Okay I will just have my associate now print out that order.  Mr Kujath you can sit down.  What is going to happen now is my associate's going to prepare the order and I will be required to sign it.  You should be aware though, Mr Kujath that is, if you breach that order, that is when your released and you commit other offences, you will come back before me and I will have to resentence you and I would not have many options left.  All right.  Thank you. 

88COUNSEL:  If Your Honour pleases. 

89HER HONOUR:  It won't take a moment, I don't think. 

90MS STRUGNELL:  If I may be excused, Your Honour.

91HER HONOUR:  Yes, sure, thank you.

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