DPP v Maskell, Jarood [2013] VCC 749

3 Mr Maskell, it was on Sunday 7 August 2011 that you spent the day at a football function. Together at this club function was your girlfriend, Melinda Osborne, Joshua Wellington, your cousin, and a friend Matt Dempsey. Among the throng of those who also attended the football club on this day were Matthew Jones, the victim, Rebecca Jones, who was Matthew Jones sister, and Matthew's girlfriend, Elizabeth Rossignole. Each and all of these people socialised with one another during the event.

4 At about 4.30 pm, Matthew Jones, his sister and girlfriend left the festivities and returned to their home at 8 Prospect Crescent, Kialla Lakes. Your group, together with others, left the function and went to the Peppermill Hotel for a meal. Whilst at this hotel, you, Mr Maskell, told Wellington and Dempsey that you were upset as you had discovered that your girlfriend, Melinda Osborne, had been texting Matthew Jones.

5 At about 9 pm you, Mr Maskell, then left the hotel. Wellington and Dempsey decided to accompany you home, as they were concerned that you were upset and distressed.

6 Instead of going directly home, you drove from the hotel to the home of Matthew Jones. Jones' sister and girlfriend were at this house. It is in fact Rebecca Jones' home. She is the owner, as I understand it.

7 On arrival at the house, you told Wellington and Dempsey to stay in the car. You left the car and approached the front door of the Jones household. Having reached the front door, you then commenced banging loudly on the door. This continued for approximately two minutes, during which time you could be heard saying words to the effect of "Is he here?" Whilst Matthew Jones went toward the kitchen in his house, so as to enable him to ring the police, Jones heard a loud bang, which was the sound of you breaking the locked front door. You then entered the house. The photographic exhibits display the damage to the front door.

8 Having burst into the Jones' home, you said something to Jones' sister how you would fix and pay for the door. You continued into the house so as to confront Matthew Jones. At about this time Mr Wellington and Mr Dempsey left your car and followed you into the Jones household. You, Mr Maskell, asked Matthew Jones if he, Jones, had texted Melinda Osborne. Jones responded that he had. You then grabbed Jones and began pushing his head into a cupboard, then you commenced punching Jones, hitting him frequently to the nose and face. Matthew Jones was not fighting back. He had his arms up to protect himself throughout this onslaught.

9 Rebecca Jones and Elizabeth Rossignole both tried to intervene to stop the assault on Matthew Jones. Rebecca Jones pushed you away and separated you from Matthew. Rebecca Jones then pleaded for Wellington to intervene. Wellington eventually intervened and pushed you out of the house. In doing so, Wellington accidentally pushed Elizabeth Rossignole onto a bench, which resulted in Elizabeth Rossignole bruising her arm. Mr Maskell, you then left and went home together with Wellington and Dempsey. This entire assault took about ten minutes.

10 After the assault, Matthew Jones was suffering obvious bruising, was bleeding profusely from his face, he was later conveyed by ambulance from his home to the Goulburn Valley Base Hospital, where he received emergency treatment. A CT scan revealed that Matthew Jones suffered an orbital floor fracture during the assault. As a result of the fracture, Matthew Jones had difficulty gazing upward with his eyes due to ongoing lingering pain and he also suffered from double vision.

11 On 15 August 2011 Matthew Jones was required to undergo surgery at the Royal Victorian Eye and Ear Hospital and a Medpor implant was inserted to help repair the orbital floor fracture. Post operative checks show that Matthew Jones was recovering well after surgery, although his doctors expected that his double vision could take between six to 12 months to fully restore or resolve. I will mention that again a little later.

12 Recent medical reports confirm that as of 3 July 2012 Matthew Jones still had ongoing nerve damage in his face as a result of the assault.

13 Police officers attended 8 Prospect Crescent, Kialla Lakes on the evening of

7 August 2011 and you, as I said earlier, had left the premises. A series of photographs were taken by the police that evening. Police also attended

8 Prospect Crescent, Kialla Lakes the following day and a further series of photographs were taken. All of those pictures are part of Exhibit B, which have been produced by the prosecutor.

14 Your counsel, Mr Hird, in his plea on your behalf, indicated that on your return home, you sometime later were approached by your partner, Melinda Osborne. You wanted nothing to do with her. You got into your car and drove to Holbrook in New South Wales. Your instructions to Mr Hird was that you were very, very depressed and shocked at what you had done, particularly to Mr Jones. You were also concerned for all of those involved on the periphery. You eventually returned to Shepparton, saw your solicitors and ultimately made a "no comment" record of interview to the investigating police officers. That is, of course, your right. You now fully admit all of the allegations made by the victim.

15 Mr Maskell, you are now aged 26, having been born in Shepparton on

16 Prior to your parents' separation, you lived on what is now your father's farm at Yalca, near Nathalia. Once your parents separated, you then moved to Katunga. You attended Katunga Primary School before then moving to Congupna Primary School and then after Primary School you attended Notre Dame College in Shepparton to VCE.

17 Since leaving school you have been very industrious. You have had numerous forms of employment. You first obtained work as an apprentice arborist, before then becoming a forklift driver at Patricks. You were then offered a position truck driving with Patricks. Your next move was to a company called Australian Inland Rural Retailer. You then, shortly later, became a salesman with Agricultural Link Machinery, where you rose to the position of sales manager.

18 Your counsel, Mr Hird, in his plea, said, and I quote - this is what Mr Hird said: "This position suited him because he was very keen to get back into working in the rural industry, and it has always been the case that he wanted to go back to farming with his father, who he was reconciled with when he was about 20." When working at Patricks, the hours, being 5 am to 2 pm, that enabled you to help your father on the farm whenever possible.

19 Whilst working at Agricultural Link you were approached by Keenans Manufacturing which co-manufactures farm machinery, involving cattle, both beef and dairy herds. You were appointed sales manager for Victoria and New South Wales and South Australia. This company was taken over in turn by Norwood Agriculture. You are apparently National Sales Manager for Norwood.

20 From a young age you involved yourself in sporting pursuits, tennis, cricket and football. Of recent time your main interest and involvement is with football. You have played in various under age teams, premiership team in 2008 with Nathalia before becoming involved with the Shepparton Football Club. You have played football for the representative leagues of Picola and the Goulburn Valley.

21 Prior to work commitments overrunning your available time, you have also had posts with and involved yourself with the Country Fire Authority. You maintain an interest in the Country Fire Authority, but time limits prevent you from having any further activity at this time.

22 A number of witnesses have been called to attest as to your good character. Travis Wayman, a gentleman who coached Katandra Football Club first met you 12 years ago when you played junior football with that club. Mr Wayman has continued his contact with you as he is now involved with Shepparton Football Club. Among other things Wayman says when this offending took place, in terms of time, he "had never seen Jarrod like it." That is what he said. He then said, "I just think he's grown and matured."

23 You apparently visited Mr Wayman about the week after the offending. Wayman says you were very remorseful. Mr Wayman further explains that you were shattered, that you were very close to tears, that when he looked at Jarrod "and you see the size of him", this is what he is saying about you, "you wouldn't expect that," that is for you break down in tears. Mr Wayman agrees with the observation of another witness that you are "gentle giant" and says his own two young children adore you. Mr Wayman has not ever seen you aggressive and he socialised with you when you consumed alcohol in his presence and he has never seen any indication of this sort of behaviour.

24 Your aunt, Susan Wellington, being your mother's sister, gives evidence to this court. In particular she gave evidence of the effect of the emotional difficulties that occur when a family relationship breaks down and how you coped. I refer to the psychologist, Dr Meaghan's report. Mrs Wellington confirms those observations.

25 Dr Meaghan reports at length about the breakdown of your mother and father's marriage where violence occurred, and then again when your mother and stepfather's marriage unravelled, again violence erupted. Your mother apparently because of what occurred, became somewhat paranoid with the issues of infidelity displayed by both of her husbands and the nature and the importance of being loyal and having trust within a family became a big issue with this lady.

26 Dr Meaghan opines, after discussing that, and I do not want to go into the fine detail, there is no need:**

"It is my opinion that although beliefs about his partner's fidelity and Mr Maskell's traumatic history with issues of fidelity and family unity, appeared to be a significant emotional precipitant to this incident. The overwhelming and substantial factor that contributed to his behaviour on the night of the incident was severely affected by intoxicating consumption of alcohol. Although Mr Maskell states he has not been a provocateur of aggressive behaviour in the past, the significant amounts of alcohol consumed on the night in question, coupled with perceived threats to his relationship and history of physical and emotional threat borne from events of relationship discord in his past, formed a volatile cocktail which led to his uncharacteristic violent behaviour."

**27 Thereafter Mrs Wellington spoke of those issues. I do not intend to say any more about it, other than this. Mrs Wellington observes: "I have never seen, his family has never been violent. I have never seen any violence whatsoever with him. He has never done anything like that before in his life." Mrs Wellington also said: "He is a gentle giant. He's just so just gentle and it is just extremely out of character what has happened in this incident."

28 The character witness called by Mr Hird, on your behalf, was Mr Keith Harvey. Mr Harvey gives you a glowing reference in terms of your work capacity and your dedication to customers in the company and also to co-workers. I have no doubt you are an outstanding employee. As to the tragic events of this night Mr Harvey said: "We went to the smoko room and had a cup of coffee and that's when he told us about it. He was almost in tears telling us about it." Harvey said that you said, "I've done something very silly, stupid and he was very, very upset and very remorseful about what had happened." When Mr Hird questioned Harvey as to your display of violence, or any sort of untoward behaviour, Harvey's response, and it is on the transcript, "Didn't think he could be." That was his answer.

29 Mr Hird has produced three further references, all are at one in setting out that you are a trustworthy and loyal person with strong family values and exceptional work ethic. Those referees being Paul Haggart from Visy, Jim Duncan from Keenans and Tim Wilks from Norwood. A further demonstration of your concern for the public and citizens of the community is your documented history of working with all of those involved in the Goulburn Valley Football League for the support of running an anti violence program by introduction of the Step Back and Think program. You have not sought to resile from your disgraceful behaviour in admitting to all within that football league endeavouring to set up this program. When communicating with Ms Rowe, who apparently is the administrator of Step Back and Think, among other things you did say to her, "I've been searching the net to take on a program that will target issues to this effect, because I have recently been in an incident myself, in an alcohol fuelled incident, only I was the one in the wrong."

30 Mr Maskell, there has been victim impact statements filed by members of the Jones family, seven in all. I include Elizabeth Rossignole as a member of the family for the purposes of talking about the Jones family. I have never seen victim impact statements such as these. Indeed, there is more material contained therein than in the police brief. There is no doubt that all persons have been significantly affected by this violent invasion on their daughter's home where Matthew Jones then was. Rebecca Jones and Elizabeth Rossignole witnessed the alleged assaults upon Matthew. Matthew suffered serious injury to the nose and eye socket. As at the last report Mr Jones is still burdened with vision impairment. Both Rebecca Jones and Elizabeth Rossignole were terrified by your behaviour. The entire Jones family, mother, father, another sister, together with the victim and Rebecca and Elizabeth are burdened with post traumatic stress disorder. The sanctity and wellbeing of the Jones family has been compromised by your criminal behaviour.

31 I commented on the extensive content of the victim impact statements. Much of the information is not within the legislative provisions of the victim impact statement legislation. However there is significant and quite extensive information that is admissible and I have read and re-read that information. I pause for a moment. The victim impact statements look more like a claim for civil action than any victim impact statement I have ever seen.

32 Mr Maskell, you have no prior convictions, as I understand it. This is your first and only contact with the criminal justice system.

33 Your plea of guilty is an indication of your remorse. Your counsel, Mr Hird, again on you behalf expresses your remorse to this court. Each of Mrs Wellington, Wayman and Harvey indicate your level of remorse, that was clearly apparent to them. I accept that you are genuinely remorseful. Dr Meaghan, in his report, dated 20 May 2013 says and I quote from his report again:**

"Mr Maskell presents as verbally remorseful for his past behaviour and has displayed a willingness to accept personal responsibility for his behaviour."

**34 Mr Maskell, you have an excellent work ethic. You present glowing references as to your employment. I mentioned these matters earlier.

35 Your prospect for rehabilitation has to be excellent. You are apparently still involved with the Step Back and Think program and Dr Meaghan says and I again quote him:**

"It is my opinion that Maskell presents as genuine and transparent in his stated goal to improve his quality of life and that that be functioning by learning from the ill effects of his behaviour. This includes acknowledgment of not only the negative effects on himself and those close to him, but also the victims of his assault and his family."

**36 You have also engaged with Relationships Australia and attended numerous counselling sessions. Ms Cecilia Norris indicates that you were very respectful and co-operative, that you engaged and participated during the counselling sessions.

37 Mr Moore, the prosecutor, at Shepparton, said at the plea hearing when commenting about this offending. Transcript p.8, line 3:**

"It remains, Your Honour, that this was a most terrifying incident which is vividly described both in the statements of the victims in their victim impact statements, which has caused significant ongoing problems with the principal victim and it was a home invasion completely uncalled for and attended with significant violence for no good reason at all, apart from some weird notion that the accused had in his brain that the victim had been sending text messages to his girlfriend. So possessed of that mistaken belief he took it upon himself to raid the house and mete out his own brand of justice. So, Your Honour, it is a nasty example of the crime of aggravated burglary."

**38 I will come back to that in a moment. I endorse those comments, Mr Moore has got it right.

39 In relation to the Court of Appeal in Victoria where many, many cases unfortunately of aggravated burglary and home invasion now appear, in the case of DPP v. Elhhajje [2009] VSCA, the court said and I quote briefly. They were dealing with an appeal in that case of course. They said:**

"Senior counsel for the Director drew attention to what was said by the then Attorney-General when in April 1997 she introduced amending legislation to the effect of which was to increase the maximum penalty for aggravated burglary from 20 to 25 years' imprisonment. The Minister said, 'The prevalence of burglary and home invasion style offences had caused great disquiet in the community. These crimes undermine the sense of security that people feel in their homes and workplaces. The government wishes to send a message to offenders that these crimes will not be tolerated under the bill where a burglary is committed on premises when someone is inside and the offender knows or is reckless about the presence of a person on the premises. The offender will be guilty of aggravated burglary, aggravated burglary will carry a new maximum term of 25 years' imprisonment. The higher penalty recognises that burglary offences are particularly heinous for the safety and liberty of individuals that are threatened. This statement reinforces that the fixing of such a high maximum would itself convey the community views that offending of this kind is extremely serious and expects the courts to impose sentences accordingly. The victim impact statements demonstrate just how frightening offending of this kind is to ordinary members of the community."

40 Then in the Court of Appeal in 2012, two or three years later after Elhhajje, Hogarth's case, Hogarth v. R [2012] VSCA 302:

"It cannot have been parliament's intention. with a few isolated exceptions, sentencing for the full range of such offences would be bounded by an upper limit of six or at most seven years' imprisonment. As the court said in DPP v. CPD the discretion which a sentencing judge has in dealing with a particular offender is a vital part of the administration of criminal justice, but sentencing judges may not disregard the will of parliament as expressed in the fixing of the maximum penalty. While the maximum penalty is reserved for the worst example of an offence likely to be encountered in practice, it is to be expected that there would be a spread of cases across the statistical range."

"In circumstances where a maximum penalty is fixed by statute and accordingly the relatively seriousness with which the prescribed behaviour may be viewed by the courts has been determined by the legislature. The sentence which is imposed in any given case must bear some relationship to the seriousness with which the class of offences is to be viewed generally and to the relatively seriousness of the act or conduct engaged in by the offender with the context and the kinds of behaviour encompassed by that class."

**42 Mr Maskell, I assure you that I have taken into account all that has been said by Mr Hird on your behalf, all that has been said by the witnesses called to give evidence, the references and the reports from Dr Meaghan and Cecilia Norris. I take into account your plea of guilty. I further take into account your prospects of rehabilitation.

43 I feel I must say this, because it is the first time I have ever heard it said by a prosecutor ever. Mr Moore, as you well know, was, to put I suppose simply, in accord with the submissions being made by Mr Hird in terms of sentencing. In arriving at the appropriate sentence I am very conscious of the concessions that were made by Mr Moore, the prosecutor, in the Shepparton court last December. Mr Jones, the prosecutor in this court, he acts on instructions and he has made a comment here in this court that modifies somewhat the concession made by the prosecutor in December of last year. The case circumstances has caused much concern and turmoil because of that conflict and because of what the Courts of Appeal are saying.

44 I have to comply with s.5 of the Sentencing Act which sets out all sorts of principles that one must take into account in sentencing any individual, not just you, any individual. I am not going to regurgitate s.5, but the sentence must be just, it must take into account the community interests, it must take into account the possibility and probability of rehabilitation, it must take into account specific deterrence and general deterrence. Taking all those things into account:

45 On Count 1, the count of aggravated burglary, you will be convicted and sentenced to three months' imprisonment.

46 On Count 2, you will be convicted and released on a community corrections order. That order will last for a period of three years. I have adjusted that time to accommodate the legislation that has made it possible for the community corrections sentence to run in the same time frame as what the maximum sentence might be.

47 Pursuant to s.48C the accused is to serve 200 hours of unpaid community work.

48 Pursuant to s.48D(3)(b) he is to seek treatment and rehabilitation for alcohol.

49 Pursuant to s.464ZF, there is to be a forensic sample supplied. I just simply say reasonable force can be taken if necessary for that sample to be given. I am sure that will not be needed, but I must tell you that.

50 Pursuant to s.6AAA the matter that I found very difficult in this matter, but I would have sentenced you I believe, because you are crystal ball gazing when you are doing this, but if it had been a plea of not guilty I would have sentenced you to at least four years I believe with a non-parole period of two and a half years.

51 (Community corrections order signed and acknowledged.)

53 Thank you. We will adjourn temporarily and I will come back for the next matter.**