Director of Public Prosecutions v Vankerkoerle
[2019] VCC 2149
•13 December 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE | Revised Not Restricted Suitable for Publication |
CR-19-00024
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JOEL VANKERKOERLE |
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| JUDGE: | His Honour Judge Johns |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 13 December 2019 |
| DATE OF SENTENCE: | 13 December 2019 |
| CASE MAY BE CITED AS: | DPP v VANKERKOERLE |
| MEDIUM NEUTRAL CITATION: | [2019] VCC 2149 |
REASONS FOR SENTENCE
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Catchwords: CRIMINAL LAW – Sentencing – Attempted theft – Threat to inflict serious injury – Unlawful assault – Delay - Subsequent offending - Totality – Immediate term of imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr D. Gray | Office of Public Prosecutions |
| For the Accused | Mr W. Barker | Criminal Lawyers Geelong |
HIS HONOUR:
1Joel Vankerkoerle, you have pleaded guilty to one charge of attempted theft, which carries a maximum penalty of five years imprisonment, one charge of threat to inflict serious injury, which carries a maximum penalty of five years imprisonment and the relevant summary charge of unlawful assault, which carries a maximum penalty of three months imprisonment.
Circumstances of offending
2The offences occurred on 24 July 2016, which is almost three and a half years ago. For more than two years of that period, you have been in custody serving sentence. The facts of the matter are set out in the prosecution opening, which is Exhibit A on the plea and forms part of these reasons for sentence.
3In very brief terms, you took the opportunity to inspect a vehicle that was parked at the house of the victims in the matter, with a view to stealing some property from within the vehicle. You were observed by the owner. He accosted you. You wrestled with him. You produced a box cutter and threatened him, accompanied by threatening words: 'I'm going to cut you. Want to fucking die, dead cunt, fucking cut you.' That is the substance of the threat to inflict serious injury charge. Beyond the wrestle, you accosted the initial victim at his home and he and his wife had to effectively barricade themselves in the home. Their two children were terrified. It is a serious incident that arose out of what might otherwise be described as a street offence of dishonesty.
4Up to that point in time, you had a criminal history which is appropriately described as limited, particularly in the context of your subsequent history. For the most part, that limited history comprised of Children's Court matters. The most recent at the time of this offending being your conviction in the Geelong Magistrates' Court on 22 July 2014 for theft, for which you received a with conviction fine of $100.
5Subsequent to this offending, your criminal offending escalated no doubt commensurate with your long-standing drug and alcohol problem taking a stronger grip upon you and your psychological issues, which I am told includes Attention Deficit Hyperactivity Disorder (ADHD); post-traumatic stress disorder arising from you witnessing the death by stabbing of a friend of yours, the details of which are expressed in the report of Carla Lechner, which is Exhibit 2 on the plea; anxiety and the poly-substance abuse issues that have been a problem for you from your early developmental years.
6Somewhere related to that mix of issues is what is loosely described as an anger management problem, a problem which I accept you have some insight into now and for which you intend to continue to address, and you are taking steps toward rehabilitating, particularly in relation to drug use and also anger management. The origins of your anger management issues may lie somewhere in your disrupted childhood, the absence of a suitable male role model throughout your childhood years and indeed, a procession of perhaps unsuitable role models.
7Your psychological makeup and in particular, I am harking back to what has been referred to as ADHD and a gravitation towards drug use in your teenage years, may also be factors which have contributed to anger management and a difficulty with authority figures. It is often the case, that it is impossible to unravel those various aspects of the development of your personality and the challenges you face in managing your impulses and emotions.
8In November 2016, you faced the Geelong Magistrates' Court in relation to a number of matters that included drug offences and dishonesty offences, which no doubt went hand in hand, to some degree, in the way that is ordinarily understood in these courts. In November 2016, again in the Geelong Magistrates' Court, you were dealt with in relation to a number of offences, which also involve dishonesty, drugs and also the contravention of a Family Violence Intervention Order. I am told that, since September 2017, you have been in custody serving sentence on the 2017 matters and more recently, the sentence imposed by Judge Mullaly on 15 May 2018, a copy of which was provided to me.
Personal Circumstances
9The personal circumstances are set out in detail in the excellent outline of plea submissions that is Exhibit 1 on the plea. I will not go into detail in relation to those personal circumstances. They are also set out in Exhibit 2, which is the report of Carla Lechner and they are set out in brief terms at paragraphs 11 to 20 in the sentence of Judge Mullaly.
10As I have observed, your childhood was a disrupted one, disrupted in the sense that you moved around regularly with your mother. That may have been due to a number of reasons to do with tenancy and relationship issues, that is, your mother's relationship and financial issues. It is also clear that you had difficulty settling at school and sometimes moved schools, whether or not you and your mother had actually shifted location. You began using cannabis at a young age and then from about the age of 15, began using methamphetamine. The destructive effects of those drugs, particularly methamphetamine, are well known.
11You are now 25, you were 21 at the time of offending. You are still a relatively young man. One aspect that has emerged from the materials that have been tendered on your behalf and from the sentence of Judge Mullaly is that, you have demonstrated, at particular times, a willingness and ability to work. This is despite what was no doubt, at times, a chaotic childhood and then teenage years, including periods of living on the streets as a teenager, a period where you engaged, for the first time, with your natural father at the age of 14, a reunion that, as so often happens in those circumstances, provided no real benefit to you. You worked at the fast food outlet KFC at 16, in a Wodonga abattoir, which is difficult work, at age 20, bricklaying and landscaping at 21, and also have been involved in bathroom and floor tiling. You indicated to Ms Lechner that you prided yourself on being a good worker.
12I consider that, whilst it is not a lengthy work history, your positive attitude toward the prospect of work is an important matter to consider. You have the capacity to be a good worker. It seems that there are only two things standing in the way of you becoming a productive member of the community and rehabilitating successfully. First, to deal with your drug issues. Second, to deal with what I find to be your difficulty with anger management, particularly when dealing with people in authority, which may have manifested itself in the past as contributing to workplace conflict and perhaps causing you to leave employment that you are otherwise capable of engaging in.
13Clearly, it is not so easy to deal with all of those issues, because there is underlying problems associated with them and the first step is having insight and understanding into those underlying issues, much of which would be found in your disrupted childhood, absent of appropriate male role models and guidance.
14No doubt, the two plus years that you have spent in custody have caused you to reflect and have growing insight into those issues, which I accept. As things currently stand, you have a willingness and intention to endeavour to deal with those issues and the associated drug and anger management issues. Intentions are one thing. Being able to carry them out, of course, is another difficult thing, but one would expect that you will have a period on parole to support you and your endeavours, once released into the community.
15Your pleas of guilty to these matters are to be considered as an early one, as was conceded by the prosecutor. There is also a significant matter of mitigation, in your case, in relation to the issue of delay. The offending occurred on 24 July 2016 and whilst this is not a case where the period of delay between the commission of the offence and the sentence has seen marked rehabilitation, in your case, what it has seen is a lengthy period served in prison. That fact alone leads me to consider that your circumstances are very different from what they were at the time of the commission of this offence. You have had a lengthy period of imprisonment in order to give effect to the rehabilitative aspects of incarceration.
16The other matter of course is that, when you committed these offences, you were a 21-year-old man with a limited criminal history. The two matters going together, not necessarily being matters that would lead to a period of imprisonment, had the matters been dealt with in the Magistrates' Court at that time. There are obvious reasons why that was not so and the real effect of all of that is that I am to apply the principle of totality, having regard to when this offence was committed, the other offences that had been dealt with in the meantime and the sentences past.
17I find that you have some prospects of rehabilitation and as I have already stated. They are linked fairly closely to, not just a willingness and intention to deal with your drug and anger management issues, but also the ability to do so. As I have noted, this is not an easy task, given the underlying problems and issues that have perhaps led to drug abuse and anger management issues.
18As Judge Mullaly noted, your rehabilitation is up to you. It is often observed in this court that a person such as yourself, who have had difficult backgrounds, have not had the advantages of many others in society, and have gravitated towards illicit substance abuse and an antisocial lifestyle. There is some understanding as to how that has all come about. It provides an explanation, at times, for aspects of the offending, as was relied upon by your counsel.
19In the end, however, those sorts of issues are not going to provide much solace for you, because, as you are aware, you are in custody, serving sentence and if you want to avoid finding yourself in your current circumstances, well into the future, you must draw upon your own resources, avail yourself of whatever supports are available to you, dig deep and try and mount those hurdles that have been placed in your life. These are hurdles that of course many others do not have, but they are for you to clear, if you are to avoid further incarceration as the years pass.
20I have had to take into account general deterrence and denunciation in relation to the offences that are before me. I am guided by the maximum penalties that are available. I take into account, of course, your plea of guilty and all the other matters that I have summarised. In particular, your current circumstances and the length of time you have been in custody.
21Considering all of those matters, I have determined that the appropriate sentence is an aggregate sentence and I intend to impose an aggregate sentence for the three offences, because they all arise out of the one instance of offending. They are a series of offences that are obviously linked.
Sentence
22I sentence you as follows, Mr Vankerkoerle.
For the offences of attempted theft, threat to inflict serious injury and the summary offence of unlawful assault, you are sentenced to an aggregate sentence of 13 months imprisonment.
That sentence is to be served wholly concurrently with the sentence you are now undergoing.
Had you pleaded not guilty, I would have sentenced you to an aggregate sentence of two years imprisonment and set a new non-parole period in relation to the sentence that you are currently undergoing. Are there any other orders sought?
23MR GRAY: No Your Honour.
24HIS HONOUR: No, all right. Do you understand the sentence?
25OFFENDER: Yes.
26HIS HONOUR: So the effect is 13 months from today, concurrent. Now, out of an abundance of caution, to be completely clear, that is a sentence that is - I have not set a new non-parole period, because the Act refers to - have I got the Sentencing Act here? The Act refers to passing a sentence for which a non-parole period is to be imposed. Well, I have not. If I were to impose a new non-parole period, it would be two years and ten months and eight days, or thereabouts, which would - dating from 15 May, or 71 days PSD, which would mean you would be eligible for parole 13 months from today. I simply state that to make my intention abundantly clear.
27MR BARKER: Thank you Your Honour.
28MR GRAY: As the court pleases.
29HIS HONOUR: Thank you.
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