IN THE SUPREME COURT OF VICTORIA	Not Restricted	
AT MELBOURNE
Criminal Division
S ECR 2019  0169

THE DIRECTOR OF PUBLIC PROSECUTIONS		
		
v  		
		
JK		

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JUDGE:	HOLLINGWORTH J	
WHERE HELD:	Melbourne 	
DATE OF HEARING:	2 October 2020	
DATE OF SENTENCE:	9 November 2020	
CASE MAY BE CITED AS:	DPP v JK (Sentence)	
MEDIUM NEUTRAL CITATION:	[2020] VSC 510	

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CRIMINAL LAW – Sentence – Home invasion – Recklessly causing serious injury – Early plea to current charges – Offender aged 17 at the time of offending – Good prospects of rehabilitation – Sentenced to a youth justice centre order for 3 years.

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APPEARANCES:
	Counsel	Solicitors	
For the DPP	Mr G Hayward with 
Ms R Champion	Ms A Hogan, Solicitor for Public Prosecutions	
			
For JK	Mr J Williams with
Ms J Munster	Victoria Legal Aid	

HER HONOUR:

1	You have pleaded guilty to home invasion and recklessly causing serious injury to John Bourke.   
2	The offending occurred in the early hours of 15 July 2018, when you entered the Maryborough home of John Bourke, together with your friend and co-accused, JF.  You both attacked Mr Bourke, who ultimately died from injuries inflicted by JF.  At the time of the offending, you were 17 and JF was 15 years old.  Neither of you knew Mr Bourke.
3	On the night of Saturday 14 July 2018, you and JF both attended a party that was thrown by one of your friends, at a house that was a few doors away from Mr Bourke’s house.  The party started at about 7.30 pm.  You and JF drank alcohol throughout the party.  The precise amount you had both drunk is unknown, but you admitted to police that you had drunk about nine stubbies.
4	In early 2018, one of JF’s close female friends told him that she had been sexually assaulted by her father, who lived on the same street as Mr Bourke.  On the night of the party, JF was getting increasingly worked up about the sexual assault allegations, and at some stage decided to go and confront the person whom he understood to be his friend’s father.  You agreed to go along with him.  Tragically for Mr Bourke, the two of you went to the wrong house.
5	At some stage late on Saturday evening, or in the early hours of Sunday morning, you and JF left the party and walked the short distance down the road to Mr Bourke’s house.  JF went to the back door and tried, unsuccessfully, to kick it in.  JF then went to the front of the house, and kicked in the front door.
6	Mr Bourke came to the front door, using crutches to help him stand up.  JF proceeded to assault Mr Bourke.  You then punched Mr Bourke once in the head.  Mr Bourke fell to the floor, his body lying within the front entrance.  You entered the house.  (Charge 1: Home invasion)
7	You punched Mr Bourke again to the head, while he was on the ground.  
8	You also stomped several times on Mr Bourke’s leg, fracturing his femur. (Charge 2: Recklessly causing serious injury)
9	JF continued to kick and punch Mr Bourke, stomping on and kicking his head, until he was dead or seriously injured.  You tried to stop JF from continuing to assault Mr Bourke.   Mr Bourke was killed by the multiple craniofacial injuries which JF inflicted after you tried to stop the assault.  The prosecution accepts that the fatal head injuries were inflicted by JF, and that you were not complicit in causing those injuries or killing Mr Bourke.
10	You and JF left Mr Bourke’s house and returned to the party, where you both spoke with several of the party-goers.  You mentioned that you and JF had gone up the road and been in a fight or bashed someone.  You said that you had bashed the guy because he was a paedophile, and had done something to someone you knew. 
11	The next day, when you were being driven up the same street, you were overheard saying to JF “We got the wrong house”.
12	One of Mr Bourke’s neighbours discovered his dead body later on the Sunday morning, when he went to investigate why the front doors were open and the porch light was still on.  
13	Around 8.30 pm on the Sunday night, police attended at your family home and spoke with your mother, who gave them permission to search the house and seize some items of your clothing.  When you arrived home, you co-operated with the police and told them what you had been wearing the previous night.
14	You were arrested and taken to the Maryborough Police Station for interview.  You gave a detailed account to the police, which included full admissions to the conduct for which you are going to be sentenced.
15	In March of this year, you and JF were both tried for the murder of Mr Bourke.  The jury found JF guilty.  You were found not guilty of murder.  The jurors were discharged, after they were unable to come to a verdict against you on the alternative charge of manslaughter.  The prosecution dropped the charge of manslaughter in August of this year, after you agreed to plead guilty to the current charges.  It follows that you are not being sentenced for any involvement in the death of Mr Bourke, only for the home invasion and the injuries you caused to Mr Bourke’s leg.
16	I turn to consider the relative seriousness of your particular offending.  
17	It is not disputed that the home invasion is a serious example of that offence, for a number of reasons.  The invasion took place in the middle of the night.  The front door was kicked down by your co-accused in an aggressive and forceful manner.  Your intent at the point of entry was to commit an assault in company, pursuant to a vigilante-style attack, on a stranger whom you believed was a paedophile.  
18	It is also not disputed that the recklessly causing serious injury is a moderately serious example of that offence, involving stomping on Mr Bourke’s leg and fracturing the femur.  The precise number of times that you stomped on Mr Bourke’s legs is unknown, but it was somewhere between two and four times.
19	Mr Bourke was born with a severe case of Osteogenesis Imperfecta (commonly referred to as brittle bone disease), which left him prone to broken bones.  The disease meant that a bump, a fall or a knock, which an average person would survive unscathed, would cause him fractures.  At the time of his death, he only had one operative hip, and needed crutches to help him stand up.  You and JF were not aware of Mr Bourke’s medical condition.  The prosecution accepts that although you foresaw the probability of a serious injury being inflicted, you may well not have foreseen that Mr Bourke’s femur could be fractured so easily due to his disease. 
20	It is clear that JF was the instigator of the offending.  He was the one with the grievance against his friend’s father.  He enlisted you to assist him in a vigilante attack against the person he believed to be a paedophile.  You readily joined in at the start of the offending.  However, you withdrew from the attack part way through, and tried to persuade JF to stop what he was doing.  You did not go any further into the house than the area immediately behind the front door.
21	Although your moral culpability is significantly less than JF’s, it must have been obvious to you (even in your intoxicated state) that you were attacking a slightly-built, disabled man, who was only 133 centimetres tall.  It must also have been obvious that he was utterly defenceless against an attack by two physically fit teenagers.  The two of you kept going, even as he called out for you to stop the assault.  The behaviour of both of you was cowardly and disgusting.
22	The amount of alcohol you had both consumed at the party may explain why you went to the wrong house, and attacked a completely innocent and defenceless man, but it in no way excuses it.
23	Before I consider your personal circumstances, I want to say something about the effect your actions have had on others.  Very moving victim impact statements were filed by members of Mr Bourke’s family, which addressed the effect that both JF’s and your actions have had on them.  It is clear that John Bourke was a much loved person, who inspired many with his courage and stoicism.  
24	Mr Bourke was 45 years old when he died.  Over the course of his lifetime, he had suffered around 400 fractures.  During his school years, Mr Bourke spent a total of about four years in hospital.  He started using a crutch when he was in his mid-teens, and progressed to using two crutches.  Eventually, he could not stand upright without crutches.  In 2012, Mr Bourke was involved in a major car accident, and spent about 14 months recovering in hospital.  In the last four years of his life, he used an electric mobility scooter to get around outside his house.  
25	Even though he endured a life of great pain, John Bourke rarely complained, and always looked on the bright side of life.  His ready smile and quick wit, and his kind, loving, genuine, humble nature, made him greatly loved by his family and friends.  
26	Mr Bourke was passionate about Holden cars, the Richmond football club, and Freemasonry.  During the 2000s, he held the position of Master at a number of Freemason lodges, and many senior Masons were among the 300 people at his funeral.
27	Mr Bourke was very close to his family, and they are devastated by what happened to him that night.  Many of them feel guilty that they were not there to protect him.  They are haunted by the image of two fit young men attacking a small, helpless man, who was pleading with them to stop.
28	Mr Bourke’s family feel that you and JF are both responsible for his senseless and tragic death.  Understandably, it is difficult for them to separate in their minds the different actions of you and JF, and their legal consequences.  But it is necessary for me to make that distinction, as you are not being sentenced for causing (directly or indirectly) Mr Bourke’s death.
29	I turn to consider your personal circumstances. 
30	You were born in late November 2000, the third of three children in a loving and supportive extended family.  Your parents are responsible, hardworking members of the local community, where you have lived all your life. 
31	You struggled with schooling, finding it difficult to concentrate or to behave appropriately, even with the assistance of a teacher’s aide.  After being expelled from school during year 7, you were home-schooled by one of your grandparents for a couple of years.  You briefly attempted year 9 at school, before attending TAFE for two years.  Before your arrest, you had started studying for your Victorian Certificate of Applied Learning (‘VCAL’).   
32	You were referred to various health professionals in connection with your behavioural problems, but it was not until you were 16 that you were finally diagnosed with Attention Deficit Hyperactivity Disorder, for which you were prescribed Ritalin.  
33	Although you have always struggled academically, you excelled at sport, especially football and cricket.  You and your family members are all heavily involved with local sporting clubs.  
34	When you were 13, you broke one of your legs whilst playing football.  That injury required multiple operations, including the insertion of a metal rod; it also further interrupted your schooling.
35	Shortly after your 17th birthday, you were a passenger in a car that was involved in a serious accident.  You fractured your pelvis, and were unable to walk for some time.  You used a walking frame for about 6 weeks.  This event had a significant impact on your engagement in education, your social interactions, and your mental health.  You had only just returned to playing football a few weeks before this offending.
36	You have used alcohol and smoked cannabis since your early teens.  You have had difficulty managing your alcohol consumption from time to time.  Although you attended a two week detoxification program, you subsequently started drinking again.  You are going to have to seriously address your substance abuse problems, if you want to avoid future offending.
37	A large number of positive character references were provided by members of your local community, as well as family members.  They describe this offending as being completely out of character.  They believe that you genuinely regret your behaviour that night.  
38	As mentioned earlier, you were initially tried for, and acquitted of, murder.  The prosecution dropped the alternative charge of manslaughter in August of this year, after you agreed to plead guilty to the current charges.  In those circumstances, I treat this as an early plea.  
39	I accept that having had a murder charge hanging over your head between July 2018 and March 2020 would have been burdensome, particularly for someone so young; that is also relevant in sentencing you.
40	You are entitled to a discount on the sentence to be imposed on you in recognition of your guilty plea and its utilitarian value.  Your plea has facilitated the course of justice.  The community has, by your plea, been spared the time and cost of a further trial.  There is an additional benefit to the justice system in people pleading guilty during the current coronavirus pandemic, as that will help reduce the backlog of cases awaiting trial due to the suspension of jury trials.  Because of your plea, witnesses and Mr Bourke’s family and friends have been spared what would, undoubtedly, have been a very traumatic re-trial for everyone concerned.

41	In addition to any remorse which is implicit in your guilty plea, I accept from all the reports from family members, friends, and youth justice workers, that you are genuinely remorseful for what happened to John Bourke, and for your role in the events of that night.  Furthermore, you were cooperative with investigators, and made substantial admissions against your interest, from your first contact with police.
42	On 2 April 2020, I released you on bail, pending your retrial for manslaughter.  Initially, you complied with your bail conditions, and took some positive steps towards rehabilitation.  However, by late June, you were missing some of your TAFE classes, and using illegal drugs and alcohol, in breach of your conditions of bail.  You were affected by drugs when you were arrested after being a passenger in a car involved in a high speed police chase.  Your bail was revoked by consent in late July. 
43	You have no prior convictions.  On 5 July 2018, you appeared before the Children’s Court in relation to two minor property charges arising out of your use of a stolen credit card at a petrol station.  The offences were found proven, but you were released without conviction on a three month good behaviour bond.  
44	You are facing pending charges for offences alleged to have been committed in March 2019 (whilst you were in the Malmsbury Youth Justice Centre), and in July 2020 (for breaching your bail conditions).
45	You are proposing to move away from Maryborough when you are released from custody; that seems like a very sensible way of getting away from your negative peer group, and making a new start.  
46	Whilst in custody, you have successfully completed various courses and programs to address your problems with substance abuse and behaviour.  You have also completed your intermediate VCAL certificate.  You have been an active member of the youth leadership council whilst at Malmsbury YJC.  Your teachers there describe you as being self-motivated and disciplined, and a pleasure to teach. 
47	Your remorse, your limited history of offending, your strong family and community supports, and the way in which you have approached your studies in detention, all indicate that your prospects of rehabilitation are reasonably good.  However, they are necessarily dependent on your avoiding excessive alcohol consumption, illegal drugs, and the negative peer associations, which have led you into trouble in the past.
48	Current sentencing practices for these offences, particularly the offence of home invasion, involve significant terms of imprisonment being imposed on adult offenders.  However, you are not being sentenced as an adult offender.  Because you were 17 at the time of this offending, you are to be sentenced as a child offender.   
49	Very different sentencing principles apply to children, and very different sentences are imposed on children, in recognition of the fact that they are less mature, less able to form moral judgments or control their impulses, and less aware of the consequences of their actions.    The Court of Appeal has acknowledged that these considerations can and do lead to dispositions which would be regarded as entirely inappropriate in the case of older individuals. 
50	Section 362 of the Children, Youth and Families Act 2005 requires the court to have regard, as far as practicable, to a number of matters when sentencing a child.  Those matters include: the need to strengthen and preserve the relationship between the child and the child’s family; the desirability of allowing the child to live at home; the desirability of allowing the education, training or employment of the child to continue without interruption or disturbance; the need to minimise the stigma to the child resulting from a court determination; the suitability of the sentence to the child; if appropriate, the need to ensure that the child is aware that they must bear a responsibility for their unlawful actions; and the need to protect the community from the violent or other wrongful acts of the child in certain cases, of which this is one.   These factors are primarily directed towards promoting the rehabilitation of the child offender, for their benefit and the benefit of the community.
51	It is important to note that general deterrence and denunciation have no role to play in sentencing children.
52	The prosecution accepts that a sentence of detention in a youth justice centre would be appropriate in your case.  The maximum term of detention which can be imposed under a youth justice centre order is 4 years. 
53	Having received a positive pre-sentence report from the Department of Justice and Community Safety, and having regard to the matters set out in s 32(2) of the Sentencing Act 1991, I am satisfied that you have reasonably good prospects of rehabilitation, and that it is appropriate to make a youth justice centre order.
54	Your counsel suggested that you should receive a sentence which equated to the time you have already served.  I do not agree, given the seriousness of this offending, and how quickly you reverted to abusing alcohol, taking drugs and making poor choices, when you were released on bail earlier this year.  Your rehabilitation will be promoted by a further period of supervision by Youth Justice.  
55	Although I acknowledge that conditions at the Malmsbury YJC have been more onerous than usual during the pandemic, you were only in those conditions for a matter of weeks before I granted bail, and then for around three months since your bail was revoked.     
56	Having regard to the matters I have just discussed:
(a)	For Charge 1, the offence of home invasion, I sentence you to detention of 2 years and 6 months in a youth justice centre;
(b)	For Charge 2, the offence of recklessly causing serious injury, I sentence you to detention of 1 year in a youth justice centre.
57	Although the two offences occurred within a relatively short period of time, they involve different criminality.  I propose to order that 6 months of the sentence for Charge 2 be served cumulatively on the sentence for Charge 1.  That makes a total effective sentence of 3 years 6 months detention in a youth justice centre.
58	I declare that, but for your plea of guilty, I would have sentenced you to a total of 4 years’ detention in a youth justice centre.  
59	Further, I declare that the period to be reckoned as already served under this sentence is 736 days, not including today's date.  I direct that there be noted in the records of the court the fact that such declaration was made and its details.