Director of Public Prosecutions v Parker

[2020] VCC 361

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

AT GEELONG
CRIMINAL JURISDICTION

CR 19-01152

DIRECTOR OF PUBLIC PROSECUTIONS

v

JAKE PARKER

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Geelong
DATE OF HEARING:	27 March 2020
DATE OF SENTENCE:	27 March 2020
CASE MAY BE CITED AS:	DPP v Parker
MEDIUM NEUTRAL CITATION:	[2020] VCC 361

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr Brown	Office of Public Prosecutions
For the Accused	Mr Morgan	Peter Baker Law

HIS HONOUR: 

1Jake Parker, you and the victim were in a relationship for eight years.  You have three children.  I will return back to the importance of your children in a moment.  You engaged in family violence that resulted in the victim obtaining what she was entitled to believe was the protection of an intervention order.  This occurred through 2018.  You did not abide by this court order and breaches were dealt with by the Magistrates' Court in September 2018 and later in December 2018.  

2In September 2018 your crimes were of threats to kill and contravention of the intervention order that saw a magistrate impose a community corrections order for nine months and included in that order that you would undertake a men's behaviour change program.  Within a very short time you again comprehensively breached that intervention order.  You were remanded in custody and ultimately dealt with by the Magistrates' Court on
20 December 2018. 

3You were sentenced to 58 days' imprisonment, being the time that you had served on remand for the crimes of persistent contravention of the intervention order and intentionally damaging property.  I have read the summarises provided to the magistrates in both instances.  Your crimes that were before the Magistrates' Court on 20 December 2018 breached the community corrections order and for that the magistrate extended the community corrections order to 12 months, increased the unpaid work and you were again to do the men's behaviour program.

4As is necessary for both times the community corrections orders were imposed, you had to consent to the orders including consenting to doing the men's program.  That is undertake a program to endeavour to get you to understand the great harm your violent conduct caused.  But, again, it made, it seems absolutely no difference to you.  The second sentence that gave you a chance to do the right thing was again speedily reached.  You got out of prison on
20 December 2018.

5On Boxing Day, that is 26 December 2018, just before 11 pm.  You went to the premises of the victim.  She was with a male friend who I will refer to as the male victim.  You were lurking around the bungalow before going to the front door.  You were armed with a baseball bat.  You went through the door causing the female victim to fall to the ground.  You went straight to the bed where the male victim was lying, completely defenceless.  You immediately attacked him, swinging the baseball bat.  You hit him on the hip area and his arms.  He tried to defend himself.

6The female victim tried to get you to stop.  The male victim took the opportunity to get out of bed and arm himself to defend himself and the female victim.  You then left.  After you left and in the early hours of 27 December 2018, you again breached the intervention order by sending the victim text messages.  I note that they were not particularly threatening text messages.  You were arrested the next day and denied the offending.  You were remanded and have remained in custody since 28 December 2018, that is to this point 455 days.

7You pleaded guilty after six months at a committal mention in the Magistrates' Court in June 2018.  In all the circumstances, it is accepted this was an early indication of a plea of guilty.  Your plea of guilty which was confirmed today on arraignment is to the crime of aggravated burglary, intentionally cause injury, breach of an intervention order to cause fear and apprehension and the summary offence of breaching the intervention order by the text messages that you sent after the aggravated burglary.

8The Court of Appeal in the DPP v Meyer gave guidance to sentencing judges in relation to aggravated burglary committed by men on the homes of ex-partners who have formed new intimate relationships.  The facts of the
DPP v Meyer and your case have very significant similarities.  In Meyer, the Court of Appeal said that offences of this kind are very serious.  As the judgment in Meyer commenced, highlighting the problem of violence by men like you in the following way and I quote from paragraph 3 of the judgment:

'For the fourth time in six months, the court here is concerned with sentencing for an offence of aggravated burglary committed by a male offender against his former domestic partner.  In each case the offender entered the former partner's premises intending to do violence and in each case violence was meted out.  In three of the four instances, the victim's new partner was also attacked'.

9That decision was handed down on 4 December 2014.  At key point made in Meyer was that the principles stated by the Court of Appeal in Hogarth, that sentences for aggravated burglaries did not currently reflect the 25 year maximum and there needed to be an increase.  Those principles were applicable to offences such as these involving a male ex-partner breaking in and attacking the female victim and her new male friend.  The Court of Appeal in Meyer allowed the Director of Public Prosecutions appeal in the sentence of three years, six months with a minimum of 18 months for the aggravated burglary, false imprisonment, intentionally cause injury and possession of an unregistered firearm was increased to five years and six months with a minimum non-parole period of three months.

10In doing so, the sentence for aggravated burglary was increased from three years to four but the Court of Appeal indicated that but for the way the prosecution conducted the plea, the Court of Appeal would have imposed a substantially higher sentence on that charge.  One of the decisions referred to by the Court of Appeal was that of Filez, a case no often referred to in domestic violence cases.  The Court of Appeal in Meyer quote from Filez at paragraph 42 of the judgment in Meyer.  It said the following:

'It is a shameful truth that family violence is the leading cause of illness, disability and death among Victorian woman between the ages of 15 and 44.  It is also sadly true that there are a great number of women who live in real and justified fear of the men who are or were their intimate partners'.

11The court in Meyer went on, paragraph 45:

'We would endorse the remarks in Filez about the particular seriousness of offending involving former domestic partners.  Violence of this kind is alarmingly widespread and extremely harmful.  The statistics about the incidents of woman being killed or serious injured by vengeful former partners are truly shocking.  Although the cases under consideration do not fall into the worst category, they are symptomatic of what can fairly be described as an epidemic of domestic violence.  General deterrence is accordingly a sentencing principle of great importance in cases such as these.  Those who might in a mood of anger of frustration of bitterness contemplate this kind of violent entry into the home of a former spouse or partner must realise that if they do so, they will almost certainly spend a long time in prison'.

12In Meyer, the Court of Appeal went on to outside some but not an exhaustive list of factors that are relevant to the assessment of the seriousness of aggravated burglaries in these context.  What was set out was the offender's intent and her in this case it is a serious intent, that is to assault.  Secondly, whether a weapon was carried.  Here it was a baseball bat no less.  It is a very significant weapon that can cause very serious injuries.  Fortuitously the injuries here were not serious.  Whether the person was in company, that is not the case here.  The time of the break in.  Here it was late at night when the occupants were in bed but there are other instances of surprise attacks in the dead of night.

13What the offender knew or believed about who was inside.  You knew or expect the new male friends was inside and you wanted to assault and hurt and frighten him and your ex-partner.  Finally, whether you were someone the victim was particularly frightened of.  Plainly that was so.  She had intervention orders in place.  You were about a week or so out of gaol which was because of the violence in the recent past to her.  Your counsel submitted that the offence was not prolonged, that the injuries were not permanent or long lasting.  Those points are taken into account in mitigation in assessing the seriousness of the offence.

14However, the crime was explosive and very violent and once the male victim had armed himself you took off.  It was fortuitous as I have said that the use of the baseball bat only caused the injury sustained and not more.  While your behaviour was ill-conceived, it was not spontaneous or completely unplanned.  It was on any assessment a serious example of these violent, frightening crimes.  These crimes frighten the victims but they also cause great concern to all in our community.

15The Court of Appeal has before and since Meyer spoken firmly of the scourge of domestic violence.  So too is the High Court in The Queen v Kilic and Munda v The State of Western Australia.  The Court of Appeal in Persanas set out that lenient sentences for violent crimes such as this or domestic violence can no longer be the case.  Important guidance was given by the Court of Appeal in the case of Kelala.  I do not intend to read all that was said in that case but reference was made of course to Filez.

16In more recent times the notorious case of Ristevski.  Again, the Court of Appeal emphasised the scourge of domestic violence.  In the last few weeks, that is in February 2020, again the Court of Appeal has spoken about the seriousness of domestic violence in Brown.  In Lim v The Queen which was delivered on
16 August 2019, also a man who had multiple breaches of intervention orders against the same ex partner.  The Court of Appeal endorsed the sentencing remarks that I made as follows, although they pointed out an error that I had made which I will not make here.  What the Court of Appeal said at paragraph 13 in Lim in quoting my sentencing remarks is the following:

'As I have been required to say too often in circumstances such as these when passing sentences.  Men like you have to understand that women are entitled to leave relationships and form new ones.  They are entitled to do so safely without cowardly men like you attacking me in their own homes.  The community is heartily sick of violent men like you committing significant violence against women in the sort of circumstances that occurred here'.

17In your case the facts on the evening make this a very serious example of the crime of aggravated burglary.  As to your moral culpability it is very high in the circumstances where you had been given the sentences imposed by the magistrate to try and help you.  You were barely a week out of prison and on a community corrections order when you committed these crimes.  I cannot give weight or much to the express justification that your ex-partner had made a poor choice and taken up with a man who supplied her with drugs.  There is no evidence to support any of this but in any event there is no basis to give weight to such a justification.

18Your moral culpability remains high as in effect you violently took the law into your own hands and sought to meet out summary justice.  The courts cannot tolerate let alone give weight to your reasoning that you were by perpetrating a violent attack on your ex-partner in her own home.  Somehow this was to the benefit of your children or family.  I must give weight to protection of the community from you, especially the victim and any intimate male partner she may have.  In this case, protection is achieved by incapacitation.  I must give considerable weight to deterrence to you in all the circumstances of your prior offending leading up to this offence and to others who may be minded to act violently in this way.

19Here I refer again to the words that were spoken by the Court of Appeal in the DPP v Meyer.  Your rehabilitation is an important matter but because of the seriousness of the offence and your prior like convictions, your rehabilitation must yield to some extent to those other sentencing considerations.  Your personal circumstances are outlined comprehensively by your counsel in written submissions in documents and by the medicolegal psychological report provided by the experienced psychologist, Mr Ball.

20You are now 26, 25 at the time.  Thus you and the victim had been in a relationship since you were both teenagers.  You had three children when you were very young.  They remain young.  They are now in the care of the victim's parents.  They mean a lot to you.  Your primary concern or intent is to rehabilitate yourself so as to be the sort of parent they deserve.  I heard this morning that the victim's parents are supportive of you and have seen significant changes in you since you have been incarcerated.  They bring the children when they can to see you, although that is a matter that is now uncertain due to the COVID-19 virus.

21They make an opportunity for you to talk to the children on the phone and this is of great comfort to you and no doubt to them.  These are stressful times.  I have heard the matters raised as to the litigational proceedings in the Children's Court.  It is hoped that you will be able to be involved with your children if you do rehabilitate yourself into the future.  It is of comfort that the parents of the victim are able to provide.  Your own upbringing was dysfunctional.  Your mother was addicted to drugs and alcohol.

22In your childhood you suffered neglect and abuse.  You went to your biological father at age 13 and things were better there.  However, you were on your own and couch surfing from about 15.  You entered the relationship with your partner, the victim and have remained with her since but not in entirely good circumstances.  Your time at school was not productive and you left early.  You have had little solid work since.  You took to using ice around 20 and it saw your mood stability and behaviour deteriorate and decline. 

23You said in your own words to Mr Ball, just bear with me, that drugs had caused you very significant problems in relationships, mood swings and the like.  You have a concerning criminal history from your childhood years and into the years of the offences that I have outlined that were heard in the Magistrates' Court.  The other offences are mostly for driving and drug offences, which saw you placed on a number of community corrections orders which were routinely breached.  The victim was a drug user.  You said you became aware of this once you were out of prison.  The children are now in the care of her parents.

24You have expressed remorse to Mr Ball and in a letter that you wrote to the court for this plea.  I accept those expressions of remorse.  That said, the experienced expert, Mr Ball, is of the opinion that you have, to a degree, some limitations on your insight and are displaying a rising antisocial personality disorder features.  He wrote this:

'Mr Parker tends to have a distorted self-image and suffers from low frustration tolerance.  He is preoccupied with mistrustful thoughts and is easily provoked.  He picks up minute cues and distorts them to confirm his skewed worldview.  As a result he engages in aggressive and violent behaviours as a mechanism to ventilate his emotions.  He tends to ignore personal obligations, transgresses established social codes and ignores the safety of others regardless of the consequences.  He discharges his inattention directly in hazardous ways without much remorse and harbours a deep need to dominate and control interpersonal relationships'. 

25It is hoped Mr Parker that you are able to come through what you are currently undergoing and reverse those matters that I have just outlined.  Mr Ball in his diagnosis sets out that you satisfy the criteria in DSM-5 for antisocial personality disorder with a history of conduct disorder in adolescence.  You traumatic childhood, criminogenic upbringing, poorly controlled anger and toxic intimate relationships underpin your offending, however, you present with no impairment to your capacity for moral reasoning or culpability.  He concludes as to your rehabilitation and management in the community that you are likely to present with a number of challenges in terms of your safe management in the community.

26While it is clear that you need help with your drug problems you do say that from May 2018 you have stopped.  The negative drug assay test from the prison would indicate that you are not involved in that in the prison.  It is important that you remain drug free.  More important is what you do, what you can do to deal with your personality problems.  You have done as many courses in prison as you could have and that is very much to your credit.  Prison is much harder now because of the COVID-19.  The Court of Appeal has recognised this in a decision of Brown, in the decision of Brown aka Davis or the other way when it said the following.  Just bear with me while I locate that quote.  It said the following just the other day:

'With regard to the COVID-19 pandemic and the submissions put forward on behalf of the applicant in that regard, we readily acknowledge this is a matter that is certain to come before this court again in the immediate future.  In the absence of any adequate material concerning the impact of the virus upon the Correction's system as the matter stands, and given that the situation is one that is rapidly evolving, we are hesitant to express the general statement of principle regarding how this court and others should deal with this crisis as regards to its effect upon relevant sentencing principles.  We do accept, however, that the situation is causing additional stress and concern for prisoners and their families, as it is for every member of the community'. 

27The extent to which that may be taken into account, if at all, will be a matter to be resolved on the particular facts of any individual case.  I take into account in a mitigatory way the pressures on you in prison in the sense that of an increased anxiety that you would have about your family in the present circumstances.  I take into account the end of visits for the foreseeable future.  I note that telephone communication on your account continues but that is a matter that no doubt will be dynamic.

28Your plea of guilty and its timing is important.  It means your sentence will be less than otherwise.  Your counsel set out all the reasons why your plea of guilty is of value and I agree with those submissions and have ensured that they have operated to lower your sentence.  These offences were all linked and I have decided that an aggregate sentence is appropriate.  I make plain the obvious, which is that the aggravated burglary is the most serious of all the offences.  It has a maximum term of 25 years, so I must acknowledge this legislative guidepost of the 25 year maximum in my sentence.  I must also have regard to s.5(3) which mandates that I impose the least punitive sentence that I can consistent with justice.

29Considering this crime and you as the offender, in my view, the only just and appropriate sentence is one of imprisonment and imprisonment for a period that is in excess of what would allow a community corrections order to be imposed in addition to imprisonment.  Your counsel urged a community corrections order either to start immediately or within a period of less than 12 months.  He pointed out that that would mean that a sentence could reach a two-month period of time.  The prosecution argued that only a sentence of imprisonment with a head and non-parole period was appropriate and within the range of proper sentencing discretion.  It was said by the prosecution this morning that a longer period on parole could be imposed given the prospects of rehabilitation that have been spoken of this morning.

30In my view, you and the community would benefit from parole but if and when you are released on parole is for others, not me.  The non-parole period is the minimum that justice requires.  The sentence is one that is guided by the firm words of the Court of Appeal in Meyer and the other subsequent cases in this regard.  For committing the crime of aggravated burglary, intentionally cause injury and breach of the intervention order to cause harm and fear that were all on the indictment, together with the summary offence of breach of the intervention order which I would not have added anything into the scheme of things and I have ensured that Charge 3 is not being doubly counted.  The key points here are the aggravated burglary and the intentionally cause injury.

31Taking into account all matters I impose a sentence of five years and three months and order that you serve a non-parole period of two years and six months.  I take into account that you have served 455 days.  This figure having been reckoned, we will ensure it is entered into the records of the court and I declare so that the prison authorities are left in no doubt that the 455 days that you have served is part of the sentence that I have just imposed.  Has you pleaded not guilty to these matters and been found guilty of them, I would have imposed a sentence of seven years with a minimum term of four years and nine months.  Is there anything else required?

32MR BROWN:  No, Your Honour.

33HIS HONOUR:  Thank you very much.  Mr Morgan, is there anything else required?

34MR MORGAN:  No, thank you, Your Honour.

35HIS HONOUR:  Thank you.  Mr Parker, Mr Morgan will do his best to be in touch with you as soon as we can.  We have to end this link.  Can I thank you for the dignity that you have shown in difficult circumstances.  These are not easy matters.  I do not expect thanks from you but I indicate to you that the system is stretched at the moment, thank you.

36OFFENDER:  No worries.

37HIS HONOUR:  Just end the link.  Mr Morgan, thank you very much for your assistance in dealing with it in the way that you have.  We will send documents through in the usual way from an associate in Melbourne to the prison and to all the parties. 

38MR MORGAN:  Thank you, Your Honour.

39HIS HONOUR:  Is there anything else?  I will just end the telephone call if there is nothing else.

40MR MORGAN:  Thank you, Your Honour.

41HIS HONOUR:  Thank you.  

42(At this stage the court proceeded with another matter.)

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