Director of Public Prosecutions v Kupke

[2024] VCC 960

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

AT MELBOURNE

CRIMINAL JURISDICTION

CR-23-02161

DIRECTOR OF PUBLIC PROSECUTIONS

v

ZACHARY KUPKE

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JUDGE:	HER HONOUR JUDGE GWYNN
WHERE HELD:	Melbourne
DATE OF HEARING:	23 April 2024, 18 June 2024
DATE OF SENTENCE:	25 June 2024
CASE MAY BE CITED AS:	DPP v Kupke
MEDIUM NEUTRAL CITATION:	[2024] VCC 960

REASONS FOR SENTENCE
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Subject:Criminal Law

Catchwords:          Attempted armed robbery, armed robbery, assault with weapon

Legislation Cited:         Sentencing Act 1991 (Vic)

Cases Cited:

Sentence:  Community Correction Order for a period of two years

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms O. Richwol	Office of Public Prosecutions
For the Accused	Ms N. Simpson	Sarah Pratt & Associates
(For Plea)
Mr R. Jakobson
(For Sentence)

HER HONOUR:

1Zachary Kupke, you have pleaded guilty on indictment to one charge of attempted armed robbery and one charge of armed robbery.

2You have also entered a guilty plea to a related summary offence, that being Summary Charge 6, unlawful assault with a weapon.

3In sentencing you for these crimes, I must have regard to the maximum penalties for the offences you have committed.  The maximum penalties are as follows:

(a)   attempted armed robbery, 20 years' imprisonment;

(b)   armed robbery, 25 years' imprisonment; and

(c)   assault with weapon, two years' imprisonment.

4These maximum penalties reflect how seriously Parliament regards each of these offences.

5The circumstances of your offending are set out in a document entitled 'Summary of Prosecution Opening for Sentence Indication Hearing' dated 16 April 2024.  This is an agreed document and represents your acceptance of the elements of the offences to which you have pleaded guilty, as well as the factual basis on which I am to sentence.

The offending

6I will not repeat the entire summary, as it is a matter of record, but in brief terms the offending that gives rise to these charges occurred in Frankston during the late afternoon of 2 June 2023, at which time you were 22 years of age. Your co‑accused, Neville Riley,[1] was 17 years of age.

[1] A pseudonym.

7The victims in this matter are Charlie Munster,[2] who was 15, Kody Boseman,[3] who was 14, and Lee Maguire,[4] also 14 years of age. The victims were not known to you.

[2] A pseudonym.

[3] A pseudonym.

[4] A pseudonym.

8On 2 June 2023 at approximately 4.45 pm, the three victims were socialising after school on the roof-top car park of the Bayside Shopping Centre in Frankston.  At 4.52 pm, CCTV shows Mr Riley riding a motorised scooter and you on foot running up the car park ramp beside him.

9You and Mr Riley rushed up to the victims and asked if they were in possession of any money or vapes.

10Your co-offender approached Mr Boseman and began patting him down and checking his pockets, at which point you produced a pair of scissors.  You put the point of the scissors to the chest of Mr Boseman and held it there for approximately five seconds and again asked the group if they had any money or vapes. These facts form the basis for Charge 1, attempted armed robbery.

11You then moved towards Mr Munster and placed the scissors at him and held the scissors near his forehead. 

12Mr Maguire yelled at you both to leave them alone and Mr Riley said, 'we are not going to hurt you'. The production of the scissors in the presence of Mr Maguire forms the basis for the summary charge, assault with a weapon.

13Mr Riley began searching Mr Munster’s pockets, forcibly removing his hands from his pockets before searching them.  Mr Riley located an Apple AirPods case and said, 'Give the AirPods or I'll drill ya', and removed the case from Mr Munster's possession. These facts form the basis for Charge 2, armed robbery.

14You then both left the victims, returning in the direction of the car park ramp before your co-offender turned around and again approached Mr Munster. He removed the Apple AirPod earpiece from the victim's right ear and continued on his scooter back down the car park ramp with you.

15The victims alerted shopping centre security, who located you and Mr Riley and ushered you from the centre.  The victims reported the matter to police.

16Your co-offender was identified by Mr Dale Bennett, the supervisor of Bayside Shopping Centre Security, and approached on 5 June 2023 requesting the return of the items taken during the incident.  Mr Riley later returned to the shopping centre and handed Mr Bennett a set of Apple AirPods. Mr Bennett provided the AirPods to police and they were returned to Charlie Munster.

17Mr Riley was arrested and interviewed on 12 June 2023, making full admissions. He denied being in possession of scissors or knowing of you being in possession of the scissors.

18On 22 June 2023, you were arrested by police. You made no comment to the allegations during your record of interview, as is your right.

Offence gravity and victim impact

19Your victims have not made victim impact statements, but this does not equate with them being unaffected by your crimes.

20Each was a teenager when you and Mr Riley tried to take money from Kody Boseman and took the Apple AirPods from Charlie Munster.  Lee Maguire was the victim of an assault.

21Whilst I accept that your offending was relatively unsophisticated and probably unplanned, you and Mr Riley used each other and a weapon as the united force. This was cowardly. I have little doubt that your victims found the whole event frightening.

22In addition, I am told that you were subject to a Community Correction Order at the time of this offending, which would represent an aggravating feature to your offending.

Plea of guilty

23The Sentencing Act obliges me to take into account the stage at which you entered your guilty plea.

24Whilst not at the earliest stage, yours was entered on 23 April 2024 after an application for a sentence indication was withdrawn.

25There is clear value in saving witnesses of the need to give evidence, particularly the victims, and utilitarian value in saving the community the expense of continued contested proceedings. 

26Your decision to plead guilty has utilitarian value in providing certainty and finality to all parties.

27On the materials before me, you lack some insight into how your actions affect others, but you do take responsibility for your offending.

28These factors will be taken into account in your favour.

Personal circumstances

29Turning now to your personal circumstances, which have been helpfully outlined in defence submissions and the report of neuropsychologist, Jane Lofthouse, dated 19 May 2021 and her further report dated 16 April 2024. I have had regard to all material tendered on your behalf.

30You were born in Melbourne and are currently 21 years old, which means the age I attributed to you earlier at the time of the offending was incorrect.

31You lived in the family home in Karingal, consisting of your mother, father, older sister and two younger brothers, until you were 13 years of age.  You describe your mother regularly abusing alcohol and your father mostly 'sitting on the couch on his phone' during this time.

32Your teenage years were characterised by instability and trauma.

33At 13, your parents separated and you were placed in various foster homes before later being placed in residential care due to your father being arrested for the sexual abuse of your sister. Your father was subsequently incarcerated.

34You report continued exposure to violence, criminal offending and drug and alcohol use throughout your time in residential care.

35In residential care, you were seriously assaulted on two occasions when aged approximately 15 or 16 and again when approximately 17 years old.  Both incidents resulted in an extended period of unconsciousness and significant time in hospital, with the earlier assault having placed you in a coma.

36At 18 years of age, you transitioned to independent housing and were subsequently evicted due to your behaviour. Following this, you then spent periods of time homeless or couch surfing.

37In terms of your mental health, you report a diagnosis of Attention Deficit Hyperactivity Disorder, Autism Spectrum Disorder and epilepsy from a young age.  You indicated to Ms Lofthouse that you have also since been diagnosed with Post‑Traumatic Stress Disorder following the two assaults suffered as a teenager.  Ms Lofthouse confirms that you continue to experience symptoms of these diagnoses and in addition opines that you have a mild intellectual disability.

38An NDIS report tendered indicates you have also been diagnosed with Oppositional Defiant Disorder and an acquired brain injury, the latter as a result of the two assaults. There is also a reported diagnosis of schizophrenia, but this has not been a theme in the materials before me.

39You report drinking alcohol until intoxicated on a daily basis since you were 13.  At this age you also commenced smoking cannabis, progressively increasing usage up to 48 grams per week.  You report commencing ecstasy use approximately once per week from the age of 15.

40In terms of your education, you moved primary schools at least twice due to behavioural issues.  In Grade 7, you attended the Southern Autism School but were expelled due to behavioural issues. Your mother home-schooled you until you were 13 and from there it is unclear whether your education was continued.

41I accept that your early resort to substance abuse is reflective of a traumatic background.  Your background is also such as to impact on and reduce your moral culpability for your offending and recourse to violence. This carries with it the obvious concern as to how best to protect the community.

42To your credit, at 17 you completed a Tools for the Trade program through Headspace and successfully obtained a white card, a first aid certificate and a handling of food certificate.

43Your employment history is also somewhat unclear. You originally reported to Ms Lofthouse you had not been in employment since leaving school, however later reported you worked in concreting for four years following school. Your NDIS report indicates that at one point you worked as a panel beater before stepping away to focus on your recovery, but it is unclear for how long and when this employment took place. You indicated to Ms Lofthouse you may be commencing work in landscaping in the future and have reported a particular interest in carpentry.

44As referenced, tendered on your behalf is a report authored by Ms Jane Lofthouse, Clinical Neurologist, dated 10 April 2024. 

45Ms Lofthouse had previously assessed you in May of 2021. Testing at that time confirmed that you presented with a mild intellectual disability. I have had recourse to the report which she made at that time.

46In 2024, Ms Lofthouse assessed your full-scale IQ at 71, placing you in the bottom 3 per cent of a similar age group. You do not appear to have suffered any further intellectual decline since her previous assessment. You continue to demonstrate significant and global intellectual impairment coupled with your social history such that a diagnosis of mild intellectual disability remains.

47Your literacy skills were below average and you have a reading age equivalent to a seven-year-old. This is partially linked to instability in your childhood such that you were unable to fully benefit from your education.

48You have a history of behavioural deregulation marked by your involvement in fights and assaults, early drug and alcohol use and impulsive behaviour. This, Ms Lofthouse opines, are characteristics noted in the presence of executive dysfunction.

49In addition, you presented with a high degree of psychological distress. You have post-traumatic stress disorder likely to have been present at the time of your offending.

50Ms Lofthouse does not appear to take issue with earlier diagnoses of Attention Deficit Hyperactive Disorder and Autism Spectrum Disorder, which also would have been present at the time of your offending and, of course, will continue to impact on you into the future. These conditions effect your problem-solving skills and place you at risk of aggressive and impulsive behaviour.

51In addition to your intellectual impairment, you have had two traumatic brain injuries and chronic drug and alcohol use from an early age.

52I accept Ms Lofthouse's opinion that your intellectual deficits would have been present at the time of your offending and that they will continue into the future.  These conditions do reduce your moral culpability for your offending. There is, in my view, a causal link to your offending on the unchallenged expert report of Ms Lofthouse.

53I also accept the other factors she raised were also present, such as your Post‑Traumatic Stress Disorder.  I note the Crown do not allege that you were drug or alcohol affected at the time of your offending.

Criminal history

54Your prior criminal history does form part of your personal circumstances.

55You have a limited yet relevant criminal history dating from 2019 with five previous court appearances.

56You first appeared before the Melbourne Children's Court on 10 April 2019 for charges of unlawful assault, make threat to kill, threat to inflict serious injury, commit indictable offence whilst on bail, resist police officer, assault by kicking, intentionally damage property and assault protective services officer. You received a bond in the amount of $100, requiring you to be of good behaviour for a period of eight months. No conviction was recorded.

57On 24 September 2019, you appeared before the Frankston Children's Court for charges of make threat to kill, unlawful assault, threat to inflict serious injury and persistently contravene a family violence order. You were released without conviction on a good behaviour bond in the amount of $5, with special conditions regarding engagement with family services and child protection workers.

58On 10 June 2021, you appeared before the Frankston Magistrates' Court for charges of affray, commit indictable offence whilst on bail, theft from a shop, threaten serious injury and possess controlled weapon without excuse.  You were sentenced to a period of imprisonment of one year and two months with a non‑parole period of six months and 178 days were reckoned as having already been served.

59You appeared before the Frankston Magistrates' Court on 12 April 2022 for a single charge of contravene a conduct condition of bail.  You were convicted and discharged.

60On 24 November 2022, you again appeared before the Frankston Magistrates' Court for charges of intentionally destroy property, enter private place without excuse, unlawful assault, contravene family violence intervention order, persistently contravene a family violence intervention order and commit indictable offence whilst on bail. You were convicted and sentenced to an 18-month Community Correction Order, including a Justice Plan for the duration of the order.

61Whilst you are not to be punished for your criminal history a second time, it is relevant to assess the weight to be given in sentencing to principles of denunciation, specific deterrence, just punishment and protection of the community.  It is also a mechanism with which to assess your moral culpability and prospects for rehabilitation. 

Prospects of rehabilitation

62In terms of those prospects, you have served 179 or 180 days in custody as a direct consequence of your offending.  You do find the prison environment stressful and I accept Ms Lofthouse's opinion that your presentation is such that you find prison more difficult than those without your range of conditions. 

63You have not been charged with any further offences since your release on bail on 18 December 2023.

64Your cognitive and mental health issues mean that you are someone who does need assistance to live a better life and reduce your risk of reoffending. You are still relatively young, which is another factor I take into account.

65You remain in contact with your mother and your two younger brothers, who reside in the family home. You do not have contact with your sister unless she is also visiting the family home.  You speak to your father on the phone whilst he remains in prison. You remain in close contact with you maternal grandparents.

66You have a four-year-old son named Mason, born to a previous partner. Mason currently resides in foster care and you have been attempting to secure visits and have contact with him. I accept that your relationship with Mason is a positive motivator for you.

67You have been in a relationship with your current partner Emmerson for about two years.

68You hope to obtain secure accommodation but have spent a long time on a waiting list so far.  You have NDIS funding for disability housing.  I accept that it is important to your continued recovery and to reduce your future risk that such accommodation be located.

69You currently receive significant support from ermha365 as a part of your NDIS package. A support worker attends your home to assist you about six days a week.

70A letter authored by Toni Heaton, Team Leader, Mental Health Disability Complex Services from ermha365, dated 19 April 2024, confirms that you are an active client with the National Disability Insurance Scheme receiving specialist mental health service supports six days per week with a one-on-one support worker. A program is outlined in that letter and you are described as showing consistency and persistency in your determination to attend your recovery needs.

71A letter from Youth Support and Advocacy Service (YSAS) dated 22 April 2024 confirms that you were referred to their service in January of 2024 by your ermha support workers to help with your alcohol and drug use. You have attended fortnightly appointments and have been described as open and honest and as an active participant.  While this part of your rehabilitation can be accurately described as a work in progress, you are open to receiving ongoing support.

72In my assessment, your overall prospects of rehabilitation can be described as favourable. This is somewhat contingent on you continuing to work with services that provide you with much needed assistance and hopefully, in time, abstinence from drugs and alcohol.

Sentencing

73The charge of armed robbery, as it was committed in company, is a Category 2 offence under the Sentencing Act 1991 and therefore, pursuant to s5(2H), I am required to impose sentence under Division 2 of Part 3 of that Act, involving a period of imprisonment or detention which cannot be in combination with a Community Corrections Order unless a relevant exception applies.

74In your case, it is the agreed position that the exception available under 5(2H)(c)(i) is enlivened from materials tendered on your behalf and that a combination sentence is open.

75I accept that you have proven on the balance of probabilities that, at the time of the commission of the offence of armed robbery, you had impaired mental functioning that is causally linked to the commission of the offence and substantially and materially reduces your culpability.

76I have had you assessed as to your suitability for a Community Correction Order with a Justice Plan attached.

77In response to that request, I have received a Statement of Intellectual Disability, Disability Overview Report, Justice Plan and Assessment Outcome Report.  I have also received a report from the Mental Health Advice and Response Service.

78The bottom line is you are assessed as suitable for a Community Correction Order.

79The reports overall are very positive in terms of your compliance with a Community Correction Order in the Magistrates Court, your work with Disability Justice and YSAS, the NDIS and your psychologist Josh Miles.  You have more work to do on reducing your use of marijuana and alcohol and I sincerely hope that stable housing can be located.

80I am just going to turn to each of you, Ms Richwol and Mr Jakobson, sorry, I should have announced this at the start, to check whether there are any matters that you need to bring to my attention?

81COUNSEL:  No, Your Honour.

82HER HONOUR:  No, all right.

83The basic purposes for which a court may impose a sentence are punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community.  In sentencing you, I must have regard to a range of matters such as the seriousness of the offending, your culpability for it, your personal circumstances and those of any victim.

84I am also required to balance the interest of the community in denouncing criminal conduct with the interest of the community in seeking to ensure, as far as is possible, that offenders are rehabilitated and reintegrated into society.

85I have taken into account the sentencing guidelines referred to in s5 of the Sentencing Act where relevant to your case. I have taken into account current sentencing practices for the offences to which you have pleaded guilty and the principles of totality and proportionality.  

86I do propose to impose an aggregate sentence, as I am satisfied that these offences are also founded on the same facts or form or are part of a series of offences of the same or a similar character. Indeed, they all occurred within a very short space of time.  In imposing this sentence, I take into account the fact that you did spend 180 days in custody as a direct result of your offending.

87On the charges of attempted armed robbery, armed robbery and assault with a weapon, you are convicted and placed on a Community Correction Order for a period of two years.  During that time, you are to:

(a)   be supervised by Corrections Victoria;

(b)   have treatment and referral for drug usage;

(c)   have treatment and referral for alcohol usage;

(d)   have treatment and referral for your mental health; and

(e)   to abide by a Justice Plan.

88I will also in the early stages impose a requirement that you return before me regularly for judicial monitoring so I can check your compliance with the orders that I have made and ensure that appropriate interventions that I have ordered are taking place. I would sincerely hope that the current agencies with whom you are working with and responding so well to would remain involved and form part of your Correction Order.

89In addition to the conditions I have imposed, there are standard conditions. The first and foremost of those is that you must not commit any other offences punishable by imprisonment during the two-year period of the order I have made.  You must also report within two working days to the nearest Community Corrections office. You are also required to advise your Corrections office of any change of address of where you are living or working and need to do so within two clear working days. It is a term of all Community Correction Orders that you submit to visits as directed and you must obey all of the instructions and directions of a Corrections officer.  You cannot leave the State of Victoria without their permission either.

90In my view, this Order presents you with a chance to change your life in a positive fashion should you choose to take up that opportunity and the supports that should be made available. The Order can breach if you do not comply with it in terms of the conditions or reoffend, as I have outlined, whilst it is in place. If you do, you will have to reappear before me for breaching the Order and I may have to resentence you on the original charges as well as for a separate charge of contravening the Order.

91Section 6AAA of the Sentencing Act requires me to state the sentence I would have imposed had you not pleaded guilty to the charges. This is somewhat artificial, given the weight that has attached to the expert evidence. However, if not for your pleas of guilty, you would have received 18 months' imprisonment with a minimum of 12 months before being eligible for parole.

92The date for judicial monitoring is 16 September 2024 and I can only place Mr Kupke on this correction order if he is willing to sign documents to that effect.  What I might do, Mr Jakobson, is stand down temporarily so that you can take him through the document, if you are happy to do that.

93MR JAKOBSON:  No issue, Your Honour, yes.

94HER HONOUR:  All right.

95MR JAKOBSON:  I explained the process beforehand, but I'm happy to take him through the document itself.

96HER HONOUR:  I'd be very grateful.  Thank you.

97MR JAKOBSON:  No issue, Your Honour.

98HER HONOUR:  I'll stand down temporarily.

(Short adjournment.)

99HER HONOUR:  Thank you.  All signed, as I understand it.

100MR JAKOBSON:  That is correct.  I've explained all the conditions and it's fairly consistent with the one my client was on, the current order that he's currently on as well.

101HER HONOUR:  That's good.  Thank you.  So, sorry - - -

102MS RICHWOL:  Could I just clarify, Your Honour.

103HER HONOUR:  Yes.

104MS RICHWOL:  Your Honour's sentence was - - -

105HER HONOUR:  A two-year CCO.

106MS RICHWOL:  - - - a two-year CCO, so there was no imprisonment imposed.

107HER HONOUR:  Correct.

108MS RICHWOL:  Correct.  Just clarifying.  Thank you, Your Honour.

109HER HONOUR:  But in reaching that determination I took into account that Mr Kupke did spend 180 days in custody.

110MS RICHWOL:  Yes, Your Honour.

111HER HONOUR:  All right, yes.

112MS RICHWOL:  Thank you, Your Honour.

113HER HONOUR: So, Mr Kupke, you'll come back on 16 September for judicial monitoring.  If you want to, you'll be able to do that from the Office of Corrections, because otherwise it's a long way to come for you from Pakenham.  So closer to 16 September, I'm sure your Corrections officer will speak to you about that, but you can appear sitting next to them remotely. I'll see you on the TV rather than coming in. But if you want to come in, you're welcome.

114OFFENDER: Yeah.

115HER HONOUR: They write a report for me, telling me how you're going, all right?  So, when I see you on 16 September I want to read really good things. 

116OFFENDER:  Yeah.  Yeah, Your Honour.

117HER HONOUR:  All right? 

118OFFENDER:  Yes, Your Honour.

119HER HONOUR: So I look forward to that.

120OFFENDER:  I look forward to seeing you.

121HER HONOUR:  Thank you. Ms Richwol, thank you very much for your assistance during this. It's been gratefully received.

122MS RICHWOL:  Thank you. Thank you, Your Honour.

123HER HONOUR:  And thank you for stepping into the breach today, Mr Jakobson.

124MR JAKOBSON:  As Your Honour pleases, thank you.

125HER HONOUR:  All right. Otherwise, I'll close the court till 9.30 if there's nothing further.  No, all right.  Thank you.

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