Director of Public Prosecutions v Roberts

[2017] VCC 1252

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

AT BENDIGO
CRIMINAL JURISDICTION

CR 16-02023

DIRECTOR OF PUBLIC PROSECUTIONS

v

JASON ROBERTS

---

JUDGE:	HER HONOUR JUDGE PATRICK
WHERE HELD:	Bendigo
DATE OF HEARING:
DATE OF SENTENCE:	31 August 2017
CASE MAY BE CITED AS:	DPP v Roberts
MEDIUM NEUTRAL CITATION:	[2017] VCC 1252

REASONS FOR SENTENCE
---

Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P. Doyle
For the Accused	Mr Johnston

HER HONOUR:

1Jason Lee Roberts, you have pleaded guilty to two charges of aggravated burglary, Charges 1 and 3, one charge of common assault, Charge 2 and one charge of causing injury intentionally, Charge 4.

2The maximum penalty for aggravated burglary is 25 years' imprisonment.  The maximum penalty for common assault is five years' imprisonment.  The maximum penalty for causing injury intentionally is ten years' imprisonment.

3The prosecution applied for an order for the disposal of certain items.  The making of that order was not opposed.

4The circumstances of your offending are set out in detail in the Summary of Prosecution Opening For Plea which was tendered as Exhibit A.

5In brief, the circumstances were as follows.  On the night of 7 February 2016, you were asleep in a female friend's car.  At about 11.30 am on 8 February 2016, a person living on the street where you were parked heard his front door open.  That person, Mr Ronald Wheeler, lived two doors down from your female friend.  Mr Wheeler was in his kitchen at the time and stepped out to check who was at the front door.  He saw you standing ten feet inside the front door of his house.  He asked you to leave.  You were aggressive towards Mr Wheler and told Mr Wheeler that you wanted his money.

6Mr Wheeler said that he could smell alcohol on your breath.  You walked into the kitchen and Mr Wheeler made you a corn beef sandwich thinking that that might encourage you to go away.  You picked up a black handled bread knife off the kitchen table and held it close to your arm.  Mr Wheeler asked you to put the knife down and leave his house.  You did not respond.  Mr Wheeler was frightened and ran out the back door.  You, no longer holding the bread knife, followed Mr Wheeler out the back but tripped and fell over.  Mr Wheeler went around to the front of his house.  You went back into the house and out through the front door.  Mr Wheeler again asked you to leave.  You asked Mr Wheeler for a phone to call police and then came towards Mr Wheeler trying to grab him.  Mr Wheeler blocked you and shielded himself.  You picked up a piece of concrete which was lying on the front porch.  You held it above your head and swung it at Mr Wheeler who knocked it out of your hand.

7You tried to grab Mr Wheeler again but Mr Wheeler pushed you away causing you to fall into a garden bed.  You then grabbed a porcelain fruit bowl from the front porch and used that again to threaten Mr Wheeler.  The both of you ended up in a scuffle in the front yard.  Your friend then arrived and removed you from the premises.

8As you walked down with your friend towards where she was living, an argument ensued between the two of you.  Your friend called out to her neighbour, Mr Ryan Andrews, before running to his front door knocking on it.  You followed your friend into Mr Andrews' front garden.  As you went into the property, you ripped a fence picket off the front gate.

9Mr Andrews heard your friend's yell and grabbed his phone and went to the front door.  He said he would call the police.  Your friend told Mr Andrews to keep the door closed but Mr Andrews held the door open so that she could come in and dial 000 on his telephone.  You then started swinging the picket at Mr Andrews saying words to the effect of, "You wanna have a go?".

10You forced open the screen door and entered the house swinging the fence picket at Mr Andrews.  You hit Mr Andrews in the head with the fence picket a couple of times.  There was a struggle.  You kicked and hit Mr Andrews a few times to the side of his body, then got on top of him and held a Wii console sensor bar as if you were going to stab Mr Andrews with it.  Mr Andrews grabbed the sensor bar but you took hold of the fence picket again and hit Mr Andrews in the head a few more times.  During the scuffle you used your thumb in an attempt to gouge Mr Andrews' left eye and tried to bite his forehead. Mr Andrews managed to get the fence picket from you and hit you on the head a few times with the fence picket.

11Whilst the scuffle was going on inside, your friend used Mr Andrews' phone to call the police.  Police attended and arrested you at the scene.

12Mr Andrews was taken to hospital and was treated for his injuries as a result of the assault committed on him.  He received a 5 cm laceration to his head which required nine stiches and multiple cuts to his left forearm approximately 2 x 5 millimetres in size.

13You were taken to the police station but were too intoxicated to be interviewed.  During an interview the following morning you denied the offending.

14A contested committal was held on 15 November 2016.  On 3 February 2017, prior to the final directions hearing, you made an offer to plead to the charges on the indictment.

15Victim impact statements were tendered from Mr Andrews, Exhibit E and
Mr Wheeler, Exhibit F.

16In his victim impact statement, Mr Andrews describes his fear on the occasion.  He says he thought he was going to die.  He says he does not feel safe in his house anymore and still has recollections of the events of that occasion.

17Mr Wheeler says that he is now cautious about answering the front door.  He says he is especially cautious as he lives by himself.

18In sentencing you I have taken into account your personal circumstances.  Your personal circumstances were outlined by your counsel and are also covered in two reports which were tendered.  A psychiatric report from Dr Leon Turnbull was tendered as Exhibit 3.  A neuropsychological report from Mr Martin Jackson was tendered as Exhibit 2.

19You are now 43 years old.  You had a disrupted and somewhat dysfunctional upbringing.  Your parents were itinerant workers moving around rural Australia doing seasonal farm work.  Because your parents moved from town to town, your education was disrupted and you think that you achieved an educational level of about Year 7 or 8.  Your father was a violent alcoholic who was violent towards you, your siblings and your mother.  At one stage your mother placed you in the care of another adult who sexually abused you and one of your siblings.

20You started using drugs and alcohol while you were still a young teenager and developed a heroin addiction.

21You have had two children, one of whom sadly passed away in 2002.  In 2000 and 2001, your brother, sister and father all died.

22It appears from the matters in the reports that despite numerous periods of offending you have also been able to engage in employment at various times and have been employed as a fruit picker and on fishing trawlers.

23You have admitted a significant prior criminal history.  Your criminal court appearances commenced in 1993.  You have had numerous court appearances since and sentences including sentences of imprisonment.  Your offending has included offences involving violence and robbery, including armed robbery.  You have previous convictions for burglary but no previous convictions for aggravated burglary.

24In sentencing submissions, your counsel accepted that these offences were serious and serious examples of those offences.  He submitted that the offences were not sophisticated but were unplanned and in the context of intoxication.  It appears from the materials that you had been drinking alcohol for some days prior to these events and had also been taking methylamphetamine for some period of time.

25Your counsel submitted that your background out be taken into account in mitigation of sentence.  Your counsel also relied on circumstances which have placed you in custody including the necessity for an operation on your hip, which meant that you were in a wheelchair for a period of time.  Your counsel advised that another operation was due for the other hip.

26You have also been in protective custody for at least the past five and a half months.  It is not entirely clear why you have been in protective custody but that may be related to threatening behaviour from other prisoners.

27Your counsel also relied in mitigation on the contents of the neuropsychological report and the psychiatric report.  In particular your counsel relied on a diagnosis which was described as by Mr Jackson as being "highly likely" of an acquired brain injury.

28Your counsel submitted that your plea of guilty had utilitarian value although it was not made at the earliest stage and ought be accepted as an expression of remorse, particularly given what you had told Mr Turnbull.

29Your counsel submitted that the principle of totality would mean that whilst there might be some degree of cumulation between sentences, that there ought to be a high degree of concurrency, particularly between the sentences on Charges 3 and 4.

30Your counsel also submitted that it should be taken into account that the offending occurred over a relatively short period of time.

31The prosecutor in sentencing submissions, submitted that any application of Verdins principles ought to be limited, especially in view of the fact that your conduct appeared to be in the context of intoxication and your ongoing alcohol abuse.

32The prosecutor also submitted that your situation with the acquired brain injury would relate to your prospects for rehabilitation and community protection.

33Mr Roberts, there is no doubt that your offending was serious.  The maximum penalty of 25 years' imprisonment is an indication of the seriousness with which Parliament on the part of the community takes the offence of aggravated burglary.  People are entitled to feel safe in their homes.  People are entitled to not have people coming in either to steal from them or to engage in some form of violent or threatening behaviour armed with a fence picket.

34You put Mr Wheeler into a considerable state of fear.  It is also evident that
Mr Andrews was very frightened by the situation which occurred.  In addition to being frightened, he suffered significant injuries.  All of this offending appears to have occurred while you were highly intoxicated.  I note that you told Dr Turnbull that all of your charges over the years have been associated with alcohol or substances.

35There are a number of matters that I have taken into account in mitigation of sentence.  I have taken into account your plea of guilty.  You are entitled to a discount for that plea.  It was not made at the earliest opportunity.  Victims were required  to give evidence at a contested committal.  Nevertheless there is considerable utilitarian value in your plea of guilty in the saving of the trauma and expense and inconvenience of a trial.

36I consider that you have limited remorse.  I accept that you are regretful about what happened.  I note that you told Dr Turnbull that you were a different person when not intoxicated.  I accept that in a sober state of mind you would consider this behaviour to be the wrong way to behave.  I have taken your plea of guilty into account as an expression of remorse but limited only in the sense of true and genuine remorse for the victims.

37I have taken your very disadvantaged background into account in mitigation.  It appears to me that your upbringing made it extremely difficult for you together with the tragic matters to do with your family.  Your early addiction to heroin and your subsequent chronic history of serious sexual, alcohol and heroin abuse, together with your uptake of methamphetamine have left you with a very distressing and dysfunctional past.  I have taken those matters into account in some mitigation of sentence.  I consider that those matters mean that your moral culpability is somewhat less than a person without those sorts of difficulties in your background.

38I have also accepted that you have an acquired brain injury for the purpose of sentencing you given Mr Jackson's opinion.  I have taken that into account in some mitigation of sentence.  In application of Verdins principles, I consider that your cognitive difficulties ought be taken into account in some moderation of sentence on the basis that your moral culpability is somewhat less and on the basis that you are somewhat less appropriate vehicle for general deterrence.

39I consider that your acquired brain injury will make imprisonment more difficult for you.  I have also taken into account that imprisonment is more difficult for you because you are in protection and because of your physical difficulties.

40I note that you told Dr Turnbull that you wish to engage in alcohol rehabilitation and that you would like to engage in some form of residential rehabilitation as I understand it.  It is clear from what you told Mr Jackson and Dr Turnbull as well as the comments made by His Honour Judge Allen when he sentenced you on
24 August 2010 that you have expressed a wish to rehabilitate yourself.

41It appears that you are capable of hard work.  It appears that when you are sober you have a different attitude towards violence and matters such as that.  As Judge Allen said, it was to your credit that on a number of occasions you have attempted to engage in treatment and rehabilitation.  It is nothing short of tragic that you have been unable to achieve longstanding rehabilitation and that you have ended up in the situation that you now face.  Given your longstanding history and difficulties with alcohol and drugs together with your acquired brain injury, I can only describe your prospects of rehabilitation as being very guarded.  That does not mean they are not non-existent.

42I am of the view that you require a tailored program of rehabilitation.  Whether that will ever be able to be achieved in custody or out of custody is not for me, I cannot say.  I consider that there is material in the reports which would enable such a rehabilitation program to be developed but whether there would be resources available is something I do not know.  I would encourage you to pursue whatever avenues you can for rehabilitation whilst you are in custody.

43I have taken into account the principles of totality and proportionality in determining the degree of concurrency and cumulation.  I have also taken into account that the offending occurred over a relatively short period of time.

44On Charge 1 of aggravated burglary, you are convicted and sentenced to a term of imprisonment of two years and six months;

45On Charge 2 of common assault, you are convicted and sentenced to a term of imprisonment of nine months;

46On Charge 3 of aggravated burglary, you are convicted and sentence to a term of imprisonment of three years and three months;

47On Charge 4 of causing injury intentionally, you are convicted and sentenced to a term of imprisonment of one year and six months.

48The sentence on Charge 3 is the base sentence.  Six months of the sentence on Charge 1, three months of the sentence on Charge 2 and nine months of the sentence on Charge 4 are to be served cumulatively on each other and on the sentence on Charge 3.

49The total effective sentence is four years and nine months' imprisonment.  I fix three years and six months as the period you are required to serve before being eligible for release on parole.

50But for your plea of guilty I would have sentenced you to a term of imprisonment of six years.

51I declare that you have served 570 days of this sentence by way of pre-sentence detention to be deducted administratively.  I have made the orders for disposal that have been sought.

‑ ‑ ‑