Director of Public Prosecutions v Turnbull

[2020] VCC 2083

IN THE COUNTY COURT OF VICTORIA

 Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

Koori Court Division

CR 20-00902

DIRECTOR OF PUBLIC PROSECUTIONS

v

JOSHUA TURNBULL

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JUDGE:	HER HONOUR JUDGE LAWSON
WHERE HELD:	Melbourne
DATE OF HEARING:	14 September 2020
DATE OF SENTENCE:	18 November 2020
CASE MAY BE CITED AS:	DPP v Turnbull
MEDIUM NEUTRAL CITATION:	[2020] VCC 2083

REASONS FOR SENTENCE

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Catchwords: Criminal law – sentencing – aggravated burglary – intentionally cause injury – intentionally destroy property – relatively youthful offender – mitigating features – plea of guilty entered at early stage – participation in sentencing conversation – relevant prior criminal history – sentence of imprisonment imposed.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr. J. O’Toole (Plea) Ms C. Duckett  (Sentence)	Abby Hogan, Solicitor for Public Prosecutions
Ms E. Piper
For the Accused	In person and Ms A Addamo (solicitor advocate)	Leanne Warren Solicitors

HER HONOUR:

1Joshua Turnbull, you have pleaded guilty before me to one charge of aggravated burglary, one charge of intentionally cause injury and one charge of criminal damage and those offences arose out of an incident that happened on Friday 28, February 2020.

2The offending is serious and that is, in part, recognised by the maximum penalties prescribed by Parliament and for aggravated burglary that is
25 years' imprisonment and for the other two charges of intentionally cause injury and criminal damage that is ten years' imprisonment.

3You have also admitted your prior criminal history and there are multiple court appearance recorded in the Northern Territory commencing when you were aged 13.  You have appeared before the Darwin Youth Court as well as the Darwin Local Court and Darwin Supreme Court.

4That history shows that you have a troubling history of violence against a person and I will refer to that in detail shortly. 

5When you were aged 17 you were involved in a serious car accident that resulted in the death of one of the passengers who was the brother of your former partner and following that accident you were left with life-threatening injuries.

6The most recent report that has been provided to the court from
Ms Leanne Kennedy, neuropsychologist, dated 9 November 2020 confirms that your injury was a very severe head injury but the results of her assessment indicate that you have recovered well from that head injury.

7Arising out of the incident involving the serious car accident you were charged with aggravated unlawful use of a motor vehicle and aggravated robbery and separately, a charge of fail to comply with a youth court order.

8On 4 November 2016 at Darwin Supreme Court you were convicted and sentenced for the substantive offences to a total effective sentence of
18 months' imprisonment that was wholly suspended with a two year operational period effective from 4 November 2016.

9The order was subject to special conditions including probation with supervision, assessments and treatment as directed by the probation officer, employment conditions and an obligation to inform your probation officer of any change of address within two specified days and a prohibition on leaving the Northern Territory except with the permission of a probation officer.

10For the separate charge of failure to comply with a youth court order you were convicted and sentenced to four months' imprisonment that was wholly suspended for six months from 4 November 2016. 

11Subsequently you left the Northern Territory without requisite permission and on 4 December 2019 you were dealt with by the Darwin Supreme Court in respect to the breach of the conditions of your suspended sentences that were imposed on 4 November 2016.

12The original sentencing order was no longer in force, therefore the judge was required to assume that you had just been found guilty of the original offences.  You were re-sentenced to a period of 18 months' imprisonment which sentence was suspended after serving five months and an operational period of 13 months was specified from the date of your release.  The sentence was backdated to 24 July 2019 so that you were released from custody just before Christmas 2019.

13The current offending occurred during the operational period of the partially suspended sentence that was imposed on 4 December 2016 and this reflects poorly upon your rehabilitation prospects to an extent.

14Your past court appearances do show a very disturbing and concerning pattern of serious offending involving offences of violence against a person.  Your current offending is another example of this concerning pattern.  That is not an aggravating feature and you are not to be punished twice for your past offending, but the pattern is a concerning one that cannot be ignored.

15Your offending history is closely linked to chronic substance abuse which is in large part related to your history of complex trauma and that gives context to your past offending.  Details of your past complex history of trauma will be discussed later.

16In relation to the circumstances of the offending for which you are currently before the court I shall proceed to sentence you on the basis of the summary of the prosecution opening that is dated 4 September 2020.

17You were aged 21 at the time of offending and you are now 22.  The victim, Brodie Bennett, who at the time of the offending was aged 19, resided at 129 Arthur Street, Sale. 

18Previously you had been in an intimate relationship with Kelsey Ashton and you were engaged to her. Kelsey resided at that address in Sale and she and the victim were housemates. 

19You had separated from Ms Ashton when you returned to the Northern Territory to deal with the breach of the suspended sentence.  Whilst you were in prison in the Northern Territory she re-partnered and you were angry about her actions.  That forms part of the context to this offending.

20On Friday, 28 February 2020, before the assault, you had been drinking in company with a friend, Jay Walker, and some of his friends.  You had drunk to excess and you had also been using illegal drugs.

21Just prior to midnight Mr Walker observed you to be very angry and he was unable to calm you down.  He was walking to his sister's house which coincidentally was located next door to the victim's home.  When you both arrived at his sister's house he went in to look for his sister and you went next door and banged on the door multiple times. It was at about 12.40 am and the victim, Bennett, was asleep inside.  He woke to the sound of you yelling and repeatedly banging on the front door.  He took some time to answer his door and then you proceeded to break the front lounge room window causing damage, and that is Charge 3, criminal damage.

22He then opened his door and asked you, 'What the hell is going on?'  The victim immediately recognised you and you walked into his house and punched him to the head.  That constitutes Charge 1, aggravated burglary.

23After punching him you asked him where Ms Ashton and her new partner were.  He told you that they were not present at the house and then you proceeded to punch him again multiple times to the head and face.  He retreated into a kitchen area where you continued to punch him to the face and head area.  He repeatedly told you he did not know where Ms Ashton was and at one point you punched him causing him to fall and then you kicked his body several times.

24You said, 'I told you this would happen before I went to gaol', and then said that you would stab him, before kicking him again to the head. You then left the residence.  The victim called 000 and police attended. 

25You were not immediately apprehended but you did present yourself on 3 March 2020 to Sale police station where you were arrested and a formal interview was conducted. You made no comment.  You were then charged and remanded in custody.

26Bennett was taken to Sale Hospital Emergency Department and the following injuries were noted, namely multiple grazes, multiple lacerations to the top of the forehead, multiple lacerations to the right side of the face near the cheek and multiple lacerations to the right hand side of the lip area.

27Those lacerations were required to be repaired with stitches and antibiotic ointment.  The laceration to the victim's right cheek required multiple stitches and that is Charge 2, intentionally cause injury.

28Your offending has had a profound effect upon Bennett and I have looked at the photographs that depict the injury and I have also had regard to the contents of his victim impact statement declared on 2 September 2020.

29Bennett has suffered symptoms of PTSD including flashbacks, anxiety, fear of reprisal, rumination and social isolation.  He is also suffering embarrassment as a result of the physical scars on his face that constitute a daily reminder to him of those events that evening and he has required regular counselling.

30Overall I have assessed the objective gravity of the offences of intentionally cause injury and aggravated burglary to be at the upper level of the low range of seriousness for these types of offending.

31Your offending was of a relatively short duration and did not involve the use of a weapon and the entry was not forced.  You were alone and knew the victim was inside when you entered.  His physical injuries are at the lower end of the scale of seriousness in respect to injuries.

32Your aggressive and unprovoked attack is deserving of condemnation. 
Mr Bennett was unwittingly a victim of your aggressive behaviour for no reason other than he happened to live at the premises where your former fiancé resided and your behaviour towards him was disgraceful.

33Principles of denunciation, general deterrence and community protection are very important sentencing considerations and on behalf of the community I condemn your actions. 

34You were charged on 3 March 2020 and remanded following a filing hearing and then the matter resolved early and you pleaded guilty at committal mention on 21 August 2020 and the matter proceeded by way of straight hand up brief.

35The Crown accepts you pleaded guilty at the earliest opportunity.  I have had regard to the fact that you participated in Koori Court sentencing conversation.  You voluntarily consented to have your matter proceed in the Koori Court division and your sentencing conversation was held with Uncle Lloyd Hood.  You were open and frank with him and when he challenged you about your offending behaviour you acknowledged what you did was not appropriate.

36He emphasised that it was bad for you and there is no excuse for you to walk into another person's home in the early hours of the morning uninvited and then assault them. He emphasised you should never lose sight of what you did to that victim and you should know that he has suffered as a consequence of your actions and that that is a very shameful thing.

37He emphasised that it is important for you to address your underlying offending behaviours, namely your heavy drinking and use of drugs and he urged you to seek help for your problems as well as your anger issues. He urged you to think about the future and to work towards a life without further offending otherwise there was an inevitability that you would keep returning back to gaol.

38He noted that your Aboriginal culture was very important to you and he suggested that you seek the counsel of your own elders and listen to what they say and he urged you to become a better role model for your children for the future.

39Overall, I consider that you have genuinely participated in the sentencing conversation that was very challenging for you.  You were confronted and shamed for your behaviour.  You responded appropriately and I consider that your participation does reflect genuine remorse for the offending and also shows you are developing insight into the reasons for and the serious effects of your offending.

40You indicated to Uncle Lloyd Hood a willingness to reflect on your behaviour and to seek assistance to address your underlying offending behaviour and I have taken all those factors into account in your favour in mitigation of penalty.

41I have had regard to your personal history and circumstances. You were born in Darwin and raised in the Northern Territory and you identify as Aboriginal through your mother's people.  Her people are from the Marranunggu Mulluk-Mulluk which is in the Daly Rive region of the Northern Territory and the Djaru which is in the southern Kimberley region of Western Australia.

42Your father is of English descent. 

43You have strong ties to the Aboriginal community in the Daly River region as well as the southern Kimberley region of Western Australia.  You have a younger sister, Nikita, who is aged 13 and she lives in Darwin.

44Your parent's relationship was described as tumultuous.  They separated when you were only two and they have had an on again off again relationship over the years.  However, they finally separated in 2017.

45Your past history is referred to in comprehensive detail in the sentencing remarks of His Honour Justice Barr from the Darwin Supreme Court.  Those remarks are dated 4 November 2016.  I do not propose to set out in comprehensive detail what he records suffice to say you have had a very unstable and disrupted childhood, moving between parents following their separation.

46When you were aged 14 the Department of Children and Families NT intervened and their report confirmed that you had been neglected and subjected to emotional abuse and neglect in your mother's care.  Your mother is schizophrenic and has a history of alcoholism as well as gambling and she has not been able to properly care for you and your younger sister over the years. I accept that you have been subjected to physical and emotional abuse over the years, particularly during your formative years.

47Your father worked hard and long hours at a pig farm and when you were with him you were often left to your own devices and had to fend for yourself. 

48You no longer have a relationship with your mother; however, you do maintain some contact with your father.

49In the past you had an intimate relationship with Karlee Richards and there are three children born of that relationship, namely two girls and one boy.  You commenced that relationship when you were not quite 15.  Over the years the relationship has been problematic and you are estranged from both Carly and the children.

50In terms of education you were enrolled at Malak Re-engagement Centre in 2014 and you studied Year 9 and Year 10 level subjects as well as undertaking a school based apprenticeship.  In 2014 you registered in the area of civil construction for a school based apprenticeship and that was completed through your employment with the Acron Group.

51You have a good work history and have demonstrated a strong work ethic.  You have worked in the construction area for many years. In 2018 you completed a Certificate III in Ace Training Course Victoria.  Most recently you worked for BSA Constructions, Sale, building bridges from April 2018 until your remand on 3 March 2020.

52As noted earlier you did suffer significant life-threatening injuries as a result of the tragic motor vehicle accident in 2015 and that led to you suffering multiple physical injuries as well as a very severe head injury.  Fortunately, you seem to have made a very good recovery from that head injury but you remain vulnerable to further head injury.

53In 2017 you moved to Adelaide with your then partner, Karlee, and your three children.  However, when the relationship broke down after four months she returned to live in Darwin and taking the children with her.  At that time you moved to Briagolong in East Gippsland, Victoria, ostensibly to leave behind your negative peer group and to make a fresh start in life.

54In 2018 you commenced the relationship with Kelsey Ashton and you moved together to live in Sale where you rented a house together.  You became engaged, however the relationship broke down in the context as I have earlier described when you returned to Darwin and you were incarcerated in respect to the breach of the suspended sentence.

55Following your release from custody in the Northern Territory in December 2019 you returned to Victoria and the offending occurred shortly thereafter on 28 February 2020.  You were remanded at a time that was just prior to the declaration of a state of emergency in respect to the COVID-19 pandemic.

56Initially you were able to undertake courses and you utilised your time well.  You worked in the kitchen undertaking some duties at Fulham Prison. The COVID-19 situation has meant that you are unable to participate fully in all the programs that are offered as there has been a suspension of programs due to the COVID-19 pandemic.

57You enjoy relatively good health.  You are prescribe Avanza, an anti-depressant, and you are on some medication for high cholesterol. 

58I have taken into account this is your first time in adult custody in Victoria and you have been housed predominantly at the Fulham Correctional Centre which is located near Sale.

59The centre was subject to a 24-hour lockdown following the report of a positive case of COVID-19 of a prison officer on 21 July 2020 and that ceased on 26 July 2020.  That meant that there were even more severe restrictions placed on prison movement as well as the ability to undertake personal calls and I have taken into account that fact, as well as I have taken into account it is accepted the pandemic is causing additional stress and concern for all prisoners and their families, as it is for everyone in the community.

60I accept that in your case you have been subjected to more restrictive regimes associated with the pandemic as well as you have had your ability to undertake further programs disrupted and in addition, because you are so isolated from family and friends who live predominantly in the Northern Territory the fact that there has been no personal visits has been a factor that has impacted upon you personally and that is likely to continue on into the indefinite future.

61I have had regard to the other mitigating factors that have been highlighted by Ms Adamo.  You entered a plea of guilty at the earliest stage and your plea is one of significant utility, particularly during the time of a pandemic.  You have spared the state the expense and inconvenience of a trial but importantly Bennett, the victim, has been spared from giving evidence and being further traumatised. You have facilitated justice and your sentence will be discounted accordingly.  I accept that the plea is indicative of the willingness on your behalf to accept responsibility and also demonstrates genuine remorse. 

62I have applied the principles of Bugmy[1] where the High Court recognises that the effects of profound deprivation do not diminish over time and repeated offending and is right to speak of giving full weight to an offender's deprived background in every sentencing decision. I have reduced your moral culpability and given full weight to your deprived background in formulating the appropriate sentence.

[1]Bugmy v The Queen [2013] HCA 37 [40], [43]-[44].

63You understand the nature and consequences of your actions and that is confirmed in Ms Kennedy's recent report.  You do have the requisite ability to reason and comprehend what you did was wrong and you can take responsibility for your actions and that is reflected in part by the manner in which you have participated in the Koori Court hearing.

64You are a person who has experienced significant trauma and disadvantage throughout your formative years that have marked you and I accept that those circumstances have been profound and have not diminished over time and repeated offending.

65You are relatively youthful and rehabilitation is still an important factor in formulating the appropriate sentence, however given the seriousness of the charges this means the more mitigating effect of your youth is diminished to a degree.

66Given your expressed commitment to addressing your underlying offending behaviours as well as obtaining complex counselling for your trauma history and your strong work ethic that you have demonstrated in the past through your previous good work history in the construction industry and your ability to obtain and retain work, I do consider that your prospects for rehabilitation are reasonable.

67In all the circumstances I consider that a just sentence requires the imposition of a sentence to be served and I will be imposing a term of imprisonment and fixing a non-parole period.  The non-parole period reflects - the length of it reflects your rehabilitation prospects.

68The formal court orders are as follows.  In relation to Charge 1, the aggravated burglary, you will be convicted and sentenced to 18 months' imprisonment.  Charge 2, intentionally cause injury, convicted and sentenced to 12 months' imprisonment and Charge 3, intentionally damage property, convicted and sentenced to seven days' imprisonment.

69I make the following order for cumulation.  I order that six months of the sentence imposed on Charge 2 be cumulative upon the sentence imposed on Charge 1.  That makes a total effective sentence of two years' imprisonment and I fix a non-parole period of nine months.

70I declare that you have served 260 days pre-sentence detention and I direct that that be entered into the records of the court and I make a declaration pursuant to s.6AAA of the Sentencing Act that but for your plea of guilty I would have imposed a term of three years to serve two years non-parole period.

71I make an order in respect to compensation and I note the order was not opposed.  I order that you pay Brodie Bennett compensation in the sum of $643.  I believe that covers all the ancillary orders and I have covered everything.

72MS PIPER:  Yes, Your Honour.

73HER HONOUR:  So is that clear for you, Ms Addamo?

74MS ADDAMO:  Yes, Your Honour.

75HER HONOUR:  Good.  Did you want to spend some time with Joshua once we formally terminate the proceedings just to chat with him about the order?

76MS PIPER:  I would be grateful for a couple of minutes, Your Honour.

77HER HONOUR:  What I will do is I will ask that everyone who is currently on the line except for Ms Addamo and Joshua to remain, but otherwise if everybody could now disconnect?  That will enable that discussion to take place.  My staff and I will leave the courtroom and once you are finished we will disconnect.  Thank you, everybody.

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