procedural. Aggregate sentence of 12 months imprisonment with a two-year Community Correction Order to commence on release; conditions include 75 hours community work, alcohol treatment and rehabilitation,...
Key principles
Where an offender presents with a neurocognitive impairment and acute intoxication, a sentencing judge may moderate the role of general deterrence, but only where there is an...
A combined disposition of a term of imprisonment followed by a community correction order (CCO) can be imposed where legislative amendments permit such a combined disposition...
The objective seriousness of aggravated burglary warrants significant emphasis on denunciation, general deterrence and protection of the community, but those factors must be...
Plea discount and credit for time in presentence detention must be assessed and declared; the judge declared 114 days presentence detention and noted s 6AAA Sentencing Act would...
Issues before the court
Whether the court should moderate general deterrence due to the offender's neurocognitive impairment and intoxication at the time of the offending.
Plain English Summary
The offender pleaded guilty to aggravated burglary, criminal damage and threatening to kill after an intoxicated late-night attack on his estranged family's home and garage. The court accepted expert evidence of a mild neurocognitive disorder linked to alcohol-related aggression and moderated the weight of general deterrence accordingly. Balancing aggravating features against mitigation and rehabilitation prospects, the judge imposed 12 months imprisonment (aggregate) with a two-year community correction order to follow, declared 114 days in presentence detention, and noted that a materially heavier sentence would have been imposed absent the early plea (paras 29-34, 40-44, 84).
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Deep Dive
2,050 words · generated 17/06/2026
What happened
On the night of 5-6 November 2016 Michael Kujath, then separated from his wife, attended the property where his ex-partner Sharon Kujath and their children were living. Over a period of about 20 minutes he attempted repeatedly to force entry to the garage and house, yelled threats including “I’m going to kill you” (para 7), forced entry to the garage by manipulating a wire hook (para 10), searched around the premises and attempted to force open a bedroom door where occupants were hiding (para 11), damaged a sliding glass door, its frame and the security door, a metal gate and other property (paras 12, 13). At one stage he cut himself and smeared blood on a glass door and garage door handle (para 14). The occupants feared for their safety (para 16-17). Police arrested him nearby (para 15).
Whether a combined sentence of imprisonment followed by a community correction order (CCO) was available and appropriate in this case.
What is the appropriate sentence for aggravated burglary, criminal damage and making a threat to kill, given the aggravating and mitigating...
Cited legislation
No linked legislation citations have been extracted yet.
He pleaded guilty to aggravated burglary, criminal damage and making a threat to kill (para 1). At sentence the court received victim impact material, a CISP report (Exhibit 1) and a neurocognitive assessment by psychologist Jeremy Parker (Exhibit 2) diagnosing a mild neurocognitive disorder with deficits in attentional and executive function (para 29-31). The offender had significant alcohol dependence and reported very heavy drinking around the time of the offending (para 15, 27-28). He had no relevant prior convictions though other matters were outstanding (para 25). He had been in custody since January 2017 for these matters and had engaged in programs (paras 26, 36).
Her Honour Judge Quin accepted the factual basis and the expert material and imposed an aggregate sentence: 12 months imprisonment with a two-year Community Correction Order (CCO) to commence on release; the CCO contained conditions including 75 hours community work, alcohol treatment and rehabilitation, mental health treatment and offending behaviour programs and supervision (paras 42-43). The judge declared 114 days presentence detention and noted that pursuant to s 6AAA she would have imposed four years with a minimum of two years had there been no guilty plea (para 84).
Why the court decided this way
The decision reflects a conventional sentencing exercise balancing aggravating and mitigating factors against statutory and common law sentencing principles.
Aggravating features emphasised:
The offending occurred late at night and persisted over about 20 minutes (paras 35, 40).
The offender successfully forced entry into the garage and threatened and frightened family members and their friends, causing significant fear (paras 10-12, 16-17).
There was property damage and violent attempts to force entry (paras 12-13).
Mitigating features accepted:
Early guilty plea at the earliest opportunity with consequential savings to the public and victims (para 35).
No relevant prior convictions (para 25).
Positive engagement in custody: Alcoholics Anonymous and completion of courses (para 36).
Demonstrated family support and some prospects for rehabilitation if he remained abstinent (para 37).
Neurocognitive impairment and intoxication:
The judge accepted the expert evidence diagnosing a mild neurocognitive disorder and linking deficits in executive functioning to aggressive behaviour when intoxicated (paras 29-31).
The court applied the Verdins-type principle as explained in O'Neill: general deterrence may be moderated only where there is an evidentiary basis that the impairment materially diminished the offender’s capacity to reason about the wrongfulness of the conduct or makes enforcement of general deterrence repugnant to humanity (para 32). The judge found that the offender’s neurological limitations and intoxication partly explained his conduct and therefore the role of general deterrence was moderated (paras 34, 40-41).
Statutory and procedural constraints on disposition:
Defence sought a sentence enabling a CCO to follow. The court noted legislative amendments requiring the head term to be 12 months or less for a CCO to be attached; the judge therefore imposed a 12 month head sentence to permit a two-year CCO (paras 38, 42).
Quantification:
The judge declared 114 days presentence detention and, recognising the utility of the plea, observed that under s 6AAA a sentence of four years with a minimum of two would have been imposed absent the plea (para 84). That indicates the magnitude of the plea discount and the alternative result if the offender had elected trial.
The net result was a sentence that reflected the seriousness of the offending but tempered by the particular personal and cognitive circumstances of the offender and by his early plea and demonstrated steps towards rehabilitation.
Before and after state of the law
Before this sentencing exercise, established Victorian sentencing principles required courts to balance objective seriousness against personal mitigation including mental impairment or disability. The Verdins principle (and its progeny) requires an evidentiary demonstration that an offender’s mental impairment materially affects culpability before moderating general deterrence. Her Honour expressly applied that threshold, citing O'Neill as authority for the evidentiary standard required (para 32). That demonstrates continuity with existing appellate guidance, a careful, evidence-based approach before reducing the weight of general deterrence.
The practical change in this case stems less from new law and more from the application of existing principles. However the case demonstrates two procedural developments that affect sentencing outcomes in practice:
The statutory amendment to the Sentencing Act affecting CCOs: Her Honour highlighted that post-amendment a CCO can only be imposed to follow a custodial term where the head custodial sentence is 12 months or less (para 38). That fact drove the precise numerical head sentence imposed in order to achieve a combined disposition.
The court's use of a measured evidentiary standard to moderate general deterrence: Judge Quin accepted the link between neurocognitive impairment and alcohol-related aggression as sufficient to moderate general deterrence, while noting that intoxication alone would not suffice (para 32). This emphasises that robust expert evidence is necessary to obtain mitigation based on cognitive impairment.
In short, the judgment applies established sentencing doctrine to particular factual and evidentiary circumstances; it illustrates how post-amendment procedural constraints can influence the numerical structuring of sentences.
Key passages with plain-English translation
Paragraph 32 (quoted legal standard):
Court text: "Clearly there must be an established evidentiary basis for moderating the principles of general deterrence ... There must be a proper and informed consideration of how that impairment might have either materially diminished the capacity of the offender to reason ... or ... make the full application ... repugnant ..."
Plain-English: You cannot simply say someone has an impairment and expect a lighter sentence. There must be solid evidence showing the impairment actually affected their ability to know or control their actions, or that punishing them fully would be inhumane.
Paragraph 34:
Court text: "Your offending needs to be viewed in the context of alcohol assumption on the night ... Your actions ... are partly explicable by your level of functioning and principles of general deterrence should be moderated accordingly."
Plain-English: The judge accepted that because the offender was very drunk and has brain function problems linked to alcohol, those facts partly explain why he behaved as he did; so the usual strict emphasis on deterring others is reduced.
Paragraph 42:
Court text: "In respect of Charge 1 aggravated burglary, you are sentenced to a term of imprisonment of 12 months and ... I will remember you to serve the remainder of two years on a community correction order."
Plain-English: The court sentenced him to 12 months in prison, after which he will be subject to two years of supervised community-based conditions.
Paragraph 84:
Court text: "I declare 114 days presentence detention. Pursuant to s.6AAA ... I would have imposed a sentence of four years with a minimum of two years if you had not pleaded guilty ..."
Plain-English: The judge credited him with 114 days already spent in custody before sentence and confirmed that because he pleaded guilty he received a significant reduction; without the guilty plea the sentence would have been much higher.
What fact patterns trigger this precedent
This sentencing exercise is most directly applicable where:
The offender has been charged with violent property offences (especially aggravated burglary) involving threats to occupants and damage to property (paras 6-14).
There is expert evidence of a neurocognitive impairment or mental disorder that plausibly connects to the offending, particularly where executive dysfunction is linked to aggressive behaviour when intoxicated (paras 29-31).
The offender was acutely intoxicated at the time of the offending, and the expert material links intoxication and cognitive deficits to the aggressive conduct (paras 15, 27-34).
The offender enters an early guilty plea and demonstrates engagement in rehabilitation programs while in custody (paras 35-37).
The defence seeks a combined disposition of imprisonment followed by a CCO and the legislative context requires the head term to be 12 months or less to permit such an order (paras 38-42).
Where those features are present, a sentencing judge may properly moderate the weight accorded to general deterrence provided the evidentiary threshold is met, and may structure the sentence numerically to permit post-custodial community supervision if the statutory scheme requires a short head term.
How later courts have treated it
This judgment itself records and applies appellate authority (O'Neill, Bowden, Verdins) rather than stating novel appellate propositions. The transcript does not include any subsequent appellate treatment of DPP v Kujath. From the text we cannot assert how later courts have treated Kujath; the judgment is a sentencing decision at County Court level and may or may not be the subject of appellate consideration. Therefore, based solely on the content of this decision, there is no data in the judgment about subsequent treatment by later courts.
Practitioners should therefore treat Kujath as an instructive example of application of Verdins-type mitigation in a sentencing context where neurocognitive impairment and intoxication coincide, and as a guide to how a sentencing judge may exercise discretion under the post-amendment Sentencing Act to structure a head sentence to enable a CCO to follow. But whether higher courts have adopted, clarified, or distinguished this particular application would require separate research of appellate databases beyond this judgment.
Still-open questions
Causal weight of combined impairment and voluntary intoxication:
The judgment accepts a causal connection between neurocognitive impairment and alcohol-related aggression sufficient to moderate general deterrence (para 34). The outer limits of that approach remain open: to what extent will voluntary consumption of alcohol limit mitigation available for an underlying cognitive impairment? The judge emphasised the evidentiary link; appellate delineation of how to allocate causal weight between voluntary intoxication and underlying impairment remains a live issue.
Quantification of plea discount relative to s 6AAA:
The judge expressly quantified what she would have done under s 6AAA absent a plea (para 84). How appellate courts will treat comparative quantifications in sentencing remarks, and whether such explicit metrics become routine or problematic, is an open practical question.
The precise evidentiary threshold in cases of milder cognitive impairment:
The psychologist reported a NUCOG score substantially below average and opined that the offender's capacity was "impoverished" (para 30). It remains to be clarified how courts should treat less clear-cut neuropsychological profiles where deficits are present but linkages to the particular offending conduct are more attenuated.
Interaction with legislative limits on CCOs:
This judgment shows a head-sentence numerical selection to fit within a statutory window for CCOs (paras 38, 42). There may be cases where fitting the statutory template produces a sentence some consider too lenient for the marked objective seriousness of an offence. Appellate scrutiny of the use of this device may be required to set boundaries.
Broader policy concerns about mitigating intoxication-linked cognitive deficits:
The public policy tension remains between acknowledging genuine cognitive impairment connected to substance dependence and avoiding unwarranted erosion of general deterrence for intoxication-fuelled violent offending. How courts should navigate that policy space in differing factual matrices is unsettled and likely to continue to generate litigation and appellate guidance.
Concluding note: DPP v Kujath is a careful sentencing exercise that applies existing appellate guidance to particular neurocognitive and substance-related evidence. It is useful as a worked example for practitioners addressing mitigation based on cognitive impairment in the context of alcohol-related violent property offending, and for structuring sentences to achieve combined custodial/community supervision outcomes within the constraints of revised statutory rules (paras 29-34, 38-43, 84).
Catchwords
Legislation Cited:
Judgment (1 paragraphs)
[1]
Michael Kujath, you have pleaded guilty to aggravated burglary, criminal damage and making a threat to kill.
The maximum penalty for aggravated burglary is 25 years' imprisonment and for each of the other offences is 10 years.
After the plea was completed the learned prosecutor provided the court with an email dated 18 May 2017 and I note the submissions contained therein.
The circumstances of your offending are fully set out in Exhibit A, summary of prosecution opening. In summary you had been in a relationship or married to Sharon Kujath for most of your adult life. You have three children together, Jennifer aged 20, Christopher aged 16 and Charlotte who is 7 years old. You have been separated from your wife for a number of years.
At the time of this offending Ms Kujath lived with the children and Jennifer's boyfriend Aaron Cooper. Jennifer and Mr Cooper had recently moved into the garage at this house, having left your home after a dispute with you. I was informed that they moved out as a consequence of an incident with you and that you were aware that they had made an application for an intervention order against you.
During the night on Sunday 6 November 2016, Sharon Kujath and her two younger children were at home in bed. Jennifer and Mr Cooper were in the garage where they were effectively residing playing video games with a friend, Karol Leggatt.
At about 11.30 pm Mr Cooper heard a flicking sound coming from the side of the garage. They went outside to check and found you attempting to force open the door. You yelled to him, "I'm going to kill you. Where are you, come out". That's the circumstances of Charge 3, making a threat to kill.
Jennifer phoned her mother to warn her you were on the property. Sharon Kujath looked outside the glass door of the house and Christopher, your son called out to you to try to get you away from the garage. You ran towards the house and approached Christopher who was in the driveway, dropped to your knees and said "kill me". Christopher then went back inside.
You then went back to the sliding glass door of the house and began kicking and punching it. Sharon Kujath was video recording you with her phone. You appeared heavily intoxicated and were verbally abusing her.
You went back to the garage and banged on the door, continuing to yell abuse. You walked between the house and garage, eventually succeeding in forcing entry into the garage by manipulating a wire hook. In fear Jennifer, Mr Cooper and Mr Leggatt hid in the bedroom in the garage. That is the conduct constituting Charge 1 the aggravated burglary.
You searched around the house and were heard to yell out, "whose keys are these?" You attempted to force the door of the bedroom where they were hiding but were unsuccessful.
You again returned to the house and continued to yell abuse. Sharon Kujath begged you to leave but you continued to punch and kick at the glass sliding door, causing damage to the door, its frame and the security door. You fell over and then began to head butt the door. You also damaged a metal gate in the rear yard.
Charge 2 criminal damage relates to all of the property damage that you did both at the house and the garage. You went back to the garage and kicked and bashed the internal door of the bedroom where Jennifer, Mr Cooper and Mr Leggatt were still hiding.
Unsuccessful again, you returned to the house a further time yelling and screaming abuse. At one stage you cut yourself and smeared blood on the glass sliding door and on the door handle of the garage. You were at the property for a total of about 20 minutes.
Police were called and you were located in the driveway of a property close by. You were arrested. The following day you were interviewed by police. You told police that prior to going to the house you had consumed a full 750 mil bottle of scotch and had several beers. You said you were extremely intoxicated and didn't have a clear memory of the incident. You denied committing the offences.
I received victim impact statements from Sharon Kujath and each of the children, Aaron Cooper and Caragh Leggatt, some of which were read in the court by the prosecutor (Exhibits B, C, D, E and F.) I take this material into account.
It is apparent that your actions have caused them to fear for their safety and security in their own home. They are more vigilant and cautious around the home and are less motivated to leave and socialise. Some of them have suffered anxiety attacks and nightmares. They feel paranoid around others and thus isolated. Their work or education and social lives have been affected and your offending has had significant impact on them.
You are currently aged 42. Your mother had two sons from a previous relationship who were significantly older than you, so you were effectively raised as an only child. You grew up in the Dandenong area where your father was a computer engineer. He operated a business with your mother.
In approximately 1991 your family moved to Echuca for the purposes of that business. Your father was tragically killed in a boating accident in Merimbula New South Wales in 1992. You were present when this happened and the circumstances were such that you felt responsible or you could have acted to avoid the accident. You have carried significant guilt from this traumatic experience.
Your mother remarried, however her third husband is now deceased, having suffered from cancer. Your mother remains supportive of you, regularly visiting you in custody and was present in court. You attended school until midway through Year 10. You ultimately completed a motor mechanics apprenticeship but had difficulties finding relevant employment. You have been employed in various positions and had relatively consistent employment until about 2013/2014 when your marriage broke down. You have not worked since that time.
In or around 2006 Sharon Kujath, then your wife was diagnosed with a serious medical condition that necessitated you caring for her and the children. You were required to give up your employment for an extended period and this placed significant financial strain on the family. The stress of the situation led to a gradual increase in your alcohol consumption, a factor I will refer to later in these reasons.
You are a member of the Mormon faith. You were a member of the Dandenong Narre Warren chapter and regularly attend a chapel and were actively involved and assisted with community programs. However your involvement in the church ceased in the context of your marriage breakdown.
You are currently in a relationship with Catherine Mohorin, who also supported you by attending court. You have a child together, though he is currently in the care of the Department with you both having significant issues with alcohol.
Prior to going into custody you resided at a home that you own in Birchip. Ms Mohorin remains living there. I note the police applied for an intervention order on her behalf after an incident between you, which has resulted you in being charged.
You have no relevant prior convictions. I understand that there are currently some outstanding matters relating to different occasions. One involves offending against Mr Cooper and your daughter Jennifer in September 2016, and two other occasions of offending against Ms Mohorin in the family violence context in January this year and April 2016. You also have other driving and/or alcohol related offences outstanding. I was informed that all of these matters are to be heard in a consolidated plea in the Magistrates' Court once you have been sentenced by this court.
This is your first time in custody. You have been there since 12 January 2017. I was provided with a CISP report dated 1 May 2017, Exhibit 1. This report was positive recognising that you needed assistance in areas of mental health and alcohol abuse. I was informed one of the reasons bail was refused was that this court had no jurisdiction to impose CISP conditions.
You have significant issues with alcohol. You commenced drinking at the age of nine. Your alcohol consumption substantially increased after the tragic passing of your father. You have had periods where you have been able to control your alcohol use, particularly in times of stability in your life, though your consumption of alcohol has increased during periods of emotional trauma and personal conflict, most recently with your marriage breakdown.
In 2015 you were hospitalised in the context of alcohol use for approximately one week. You were diagnosed with Hepatitis at this point. Around the time of this offending you reported drinking up to two bottles of scotch a day. You have not had a drink since being in custody. You have thus had an extended period without alcohol and I was informed that you regularly attend Alcoholics Anonymous meetings at Fulham.
Your neurocognitive functioning was assessed by psychologist Jeremy Parker on 23rd February 2017, report Exhibit 2. Mr Parker's concluded that you meet the diagnostic criteria for a mild neurocognitive disorder. It is reported that your total score on the NUCOG test was 76.5 out of 100 compared to an average for your age of 99.6 out of 100.
Mr Parker is of the view that your score is more than two standard deviations below average for your age, suggesting deficits in attentional and executive function, specifically in your ability to reason in response of stress, learning and memory. Mr Parker specifically linked these cognitive deficits to your offending. He noted, "Mr Kujath's capacity to reason and understand the gravity of his behaviour at the time of the offending was impoverished. Research suggests that executive cognitive functioning is an underlying aetiological mechanism for the relation between acute alcohol consumption and aggressive behaviour" (see para.37).
Your counsel submitted that all elements in Verdins were enlivened as a consequence of your neuropsychological functioning. It was submitted that your level of functioning had a causal connection to both your culpability for this offending but was also such as to make your time in custody more onerous. The prosecution conceded this latter submission and I accept that your time in custody will be more onerous, given your level of functioning as compared to other individuals. I take that into account.
However the prosecution disputed that there was a connection between your level of functioning and your actions in committing these offences, principally because of your level of intoxication at the time when you committed these offences. As noted in O'Neill, [2015] VSCA 325 at 59 Clearly there must be an established evidentiary basis for moderating the principles of general deterrence in a particular case. For that to occur, it is not sufficient the offender suffer from a particular mental impairment. There must be a proper and informed consideration of how that impairment might have either materially diminished the capacity of the offender to reason appropriately at the time of the offence concerning the wrongfulness of his or her offending or of how the offender's condition might make the full application of the principles of general deterrence repugnant to the underlying sense of humanity which guides proper sentencing."
I note Mr Parker's also of the view you suffer from a depressive disorder. This possibility was specifically raised in both his report and the CISP assessment report.
Your offending needs to be viewed in the context of alcohol assumption on the night. Clearly this was related to your aggressive behaviour. You have significant neurological limitations, most likely because of your alcoholic condition or history. Your actions on this night in consuming excessive amounts of alcohol then engaging in aggressive behaviour are partly explicable by your level of functioning and principles of general deterrence should be moderated accordingly.
I take into account your plea of guilty. It was at the earliest opportunity. There is utilitarian value in the plea as none of the witnesses were required to give evidence and you've saved the community the costs associated with running a trial. Your plea is also indicative of your acceptance of responsibility for your actions and shows a willingness to facilitate the course of justice. There were some aggravating features of your offending. Your offending occurred in the middle of the night. You persevered in your attempts to enter either the house or the garage ultimately succeeding in getting into the garage. Your presence at the property was for a period of about 20 minutes. Your family was scared as a consequence of your presence around their house.
You have used your time in custody productively, participating in Alcoholics Anonymous and completing certificates in seven different courses offered by the Kangan Institute. These courses including access to vocational pathways, cleaning operations, Certificates i and ii, business and horticulture culture certificates i and ii.
Your counsel submitted that given your prior history, particularly none relating to domestic violence, abstinence from alcohol in custody, involvement in programs, your family support and your stated motivations to address your alcohol and other issues on release, that your prospects were good. The prosecutor submitted that your rehabilitation prospects were more guarded given the seriousness of these and our outstanding matters both occurring in the domestic violence context. Clearly your rehabilitation is dependent on you successfully addressing your alcohol dependence and other issues. I assess your prospects as fair to good, assuming you remain committed to abstaining from alcohol.
Your counsel conceded that a term of imprisonment was warranted but that the sentence should allow for you undertaking a community correction order at the completion of the term of imprisonment imposed. This course, it was submitted, was appropriate given your plea, good rehabilitation prospects and moderation of general deterrence, given your level of functioning. With the most recent amendments to the Sentencing Act which came into effect in March this year, I can only adopt this course if I'm of the view that a sentence of 12 months or less of imprisonment with a community correction order at its completion is an appropriate sentence.
I had you assessed as to your suitability for a community correction order and received a favourable report. The prosecution submitted that the only appropriate disposition was a term of imprisonment and that a combined disposition was outside the range of sentencing options available to me. Reliance was placed on Bowden [2016] VSCA 283 and the authorities referred to therein. I have considered those cases particularly Bowden and current sentencing practices for aggravated burglary (see paras.1932 and 4149). I note there are some features of this offending that do not exist in relation to other instances of aggravated burglary, including there was no disguise for weapon and this offending did not happen whilst you were in company of others.
The maximum penalty for aggravated burglary is 25 years and reflects the grave seriousness with which this offence is regarded. You remained on the property and entered the garage with violent intent threatening Mr Cooper, yelling abuse and breaking or damaging doors and the gate to gain access. No explanation was provided for your conduct and both counsel conceded it appeared random, particularly given your lack of violent history. You were heavily intoxicated. Your family members and their friends were clearly fearful of your continued presence. General deterrence suitably moderated, just punishment, denunciation of your conduct and protection of the community have a role to play in sentencing you.
Specific deterrence has a role to play, though that is more limited as I accept your rehabilitation prospects are good to fair. It is necessary to strike a balance between the matters in your favour, including your plea, positive steps taken towards your rehabilitation with the other matters listed above and the gravity and the seriousness of this particular instance of your offending.
If you could please stand up. In respect of Charge 1 aggravated burglary, you are sentenced to a term of imprisonment of 12 months and at the end of that 12 month period I will remember you to serve the remainder of two years on a community correction order. The conditions that I will impose in respect of the community correction order are those as are set out in the report that I have received from Corrections. I will go through those at the end of the sentence. This is to be an aggregate sentence in respect of each charge, so that is from Charge 1 aggravated burglary, Charge 2 criminal damage and Charge 3 threat to kill. I impose an aggregate sentence of 12 months with a community correction order of two years to be served at the end of that time.
I will require you to do 75 hours community work at the time of your release. There will be an alcohol treatment and be rehabilitation condition, a mental health treatment as recommended by Corrections and offending behaviour programs as recommended by Corrections. There will also be an order regarding supervision. On my calculations your release date will be 5 November, is that correct? 12 months from the 6th.
MS STRUGNELL: Your Honour just to clarify, Your Honour, are you imposing a 12 months sentence as of today or deducting?
HER HONOUR: No, no this will be PSD.
MS STRUGNELL: Certainly, Your Honour. It would be 6th November then.
HER HONOUR: Didn't he go into custody on 6 November?
MS STRUGNELL: On this matter he went into custody on the 12th, sorry apologies 30 January.
HER HONOUR: The 30th January?
MS STRUGNELL: Yes. That's the date that he went into custody on this matter, the date of the committal case conference and there was one night prior to that served by way of PSD on the night of his arrest.
HER HONOUR: But he has been in custody since November, is that correct?
MS STRUGNELL: No. He's been in custody since 12 January this year and he was remanded in relation to the matters before the Magistrates' Court. So in relation to this specific offence
HER HONOUR: Oh okay. Why have I got in my head 6 November? I don't know.
MS STRUGNELL: That's the date of the incident, Your Honour.
MS KARAMICOV: He was arrested on 6th November, Your Honour.
HER HONOUR: Oh right and released.
MS KARAMICOV: And released.
HER HONOUR: Yes.
MS KARAMICOV: He spent one night overnight in custody.
HER HONOUR: Yes.
MS KARAMICOV: When he was picked up.
HER HONOUR: Yes.
MS KARAMICOV: So he entered on the 5th the offending occurred on 5th November.
HER HONOUR: Yes.
MS KARAMICOV: On the 6th spent that night. Then he was bailed and he was remanded on other matters in January but in relation to this matter he entered his plea on 30th January and was not bailed as in trial bail was not entered on 30 January.
HER HONOUR: Okay. All right so what is the PSD?
MS KARAMICOV: The PSD is 114 days.
MS STRUGNELL: And that's agreed, Your Honour.
HER HONOUR: Okay.
MS KARAMICOV: So that includes that's from 30 January.
HER HONOUR: Yes.
MS KARAMICOV: And it includes that additional one night that he spent in November.
HER HONOUR: All right. So then the 12 months would be until 29 January, would it?
MS STRUGNELL: To the, yes, that would be correct, Your Honour.
HER HONOUR: Yes 29th January would be when the CCO would commence.
MS STRUGNELL: That would be correct.
HIS HONOUR: Okay. 16th January was those other matters, was it?
MS STRUGNELL: It was the 12th, Your Honour.
HER HONOUR: Or whatever it is.
MS STRUGNELL: Yes.
HER HONOUR: I've got that date incorrect in the course of my reasons when I've said this is the first time in custody. That should be corrected to 12th January, was it?
MS STRUGNELL: The 12th January was when he was first remanded.
HER HONOUR: Okay, I'm sorry Mr Kujath, I've just got the dates a bit confused. So what it effectively means is that on your release date after 12 months in relation to this matter, you'll be placed on a community correction order for a period of two years with those conditions.
I declare 114 days presentence detention. Pursuant to s.6AAA of the Sentencing Act I would have imposed a sentence of four years with a minimum of two years if you had not pleaded guilty in relation to this matter.
Are there other orders?
MS KARAMICOV: No, Your Honour, no thank you.
HER HONOUR: Okay I will just have my associate now print out that order. Mr Kujath you can sit down. What is going to happen now is my associate's going to prepare the order and I will be required to sign it. You should be aware though, Mr Kujath that is, if you breach that order, that is when your released and you commit other offences, you will come back before me and I will have to resentence you and I would not have many options left. All right. Thank you.
COUNSEL: If Your Honour pleases.
HER HONOUR: It won't take a moment, I don't think.
MS STRUGNELL: If I may be excused, Your Honour.
HER HONOUR: Yes, sure, thank you.
Parties
Applicant/Plaintiff:
DPP
Respondent/Defendant:
Kujath [2017] VCC 764
AI Analysis
Outcomeprocedural
Disposition:
Aggregate sentence of 12 months imprisonment with a two-year Community Correction Order to commence on release; conditions include 75 hours community work, alcohol treatment and rehabilitation, mental health treatment and offending behaviour programs, supervision; 114 days presentence detention declared; judge noted that pursuant to s 6AAA Sentencing Act she would have imposed 4 years with a 2 year minimum had the offender not pleaded guilty (paras 42-44, 84).