IN THE COUNTY COURT OF VICTORIA
AT Melbourne
CRIMINAL DIVISION	Revised
Not Restricted
Suitable for Publication	

CR 18-02140

DIRECTOR OF PUBLIC PROSECUTIONS		
		
v		
		
JOSHUA LOCKENS

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JUDGE:	HER HONOUR JUDGE GAYNOR	
WHERE HELD:	Melbourne	
DATE OF HEARING:		
DATE OF SENTENCE:	6 September 2021	
CASE MAY BE CITED AS:	DPP v Lockens	
MEDIUM NEUTRAL CITATION:	[2021] VCC 1300		

REASONS FOR SENTENCE
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Subject:		
Catchwords: 		
Legislation Cited:	
Cases Cited:		
Sentence:		

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APPEARANCES:
	Counsel	Solicitors	
For the DPP	Ms S. Clancy		
			
For the Accused	Mr J. Portelli		

HER HONOUR:

1	Joshua John Lockens you have pleaded guilty before me to one charge of intentionally causing injury and one charge of robbery.  The facts underlying your offending are as follows. 
2	The offending took place on 6 July 2017, at which time you were 29 years old.  You committed this offending in company with your co-accused Anthony Mimmo who I sentenced on 14 November 2019 to a term of imprisonment of 179 days and then released on a community corrections order.
3	Through friends, you met the victim, Mark Zammit a few times.  Mr Zammit was then 37, he suffered from a rare genetic condition which meant he had limited arm movement and other restrictions, which affected his mobility and his capacity to protect himself.  At about 2 am on 6 July 2017, Mr Zammit when to the Grand Hotel in Mornington to play the pokies.  The previous week 
Mr Mimmo's then girlfriend had seen Mr Zammit had been winning jackpots at the pokies of $5,000 and $1,700 and had told Mr Mimmo about this.  
4	At about 4 am Mr Zammit left the Grand Hotel with about $400 cash on him intending to walk home.  He saw Mr Mimmo and another man Dale Hillard, who had been at the hotel and Mr Mimmo offered him a lift home, but instead of doing this drove him to his home at 2 Linnet Court.  You arrived with your cousin Cody Lockens about 10 minutes later and for about the next 20 minutes or so Mr Zammit chatted amicably with you, 
Mr Mimmo and other people present.  
5	While talking to you and Cody Lockens, Mr Zammit made a comment about your surname being a strong surname and that nobody should mess with the Lockens, after which your cousin punched Mr Zammit to his left cheek.  You asked to see Mr Zammit's mobile phone to check his messages, then threatened Mr Zammit by swearing and holding your fist to his face saying give me the phone, which you then tried to take from Mr Zammit's pocket.  
6	Mr Zammit got off the couch and tried to move towards the front door to leave, but a struggle ensued between you and him, you trying to get Mr Zammit's phone and his wallet from his pockets.  Mr Mimmo joined the struggle and punched Mr Zammit to the head causing him to fall to the floor where he was punched again to the head as he tried to get up.  
7	He begged Mr Mimmo to stop, but Mr Mimmo kept punching him and then held him in a choke hold around his neck, during which Mr Zammit believes he lost consciousness.  Mr Mimmo threw Mr Zammit head first into a wall, leaving a hole, and causing 
Mr Zammit to bleed on his clothing, the floor and the walls.
8	When the assault stopped, Mr Zammit saw you standing with Mr Mimmo who was holding your mobile phone and you were holding the case from his wallet.  He was picked up off the ground and put on a seat with cardboard under it and the two of you told Mr Zammit to log in to his Westpac account where he had deposited some of his pokies win.  When he refused to do this Mr Mimmo threatened Mr Zammit that he would not stop you from hurting him.  
9	You demanded Mr Zammit to tell you his PIN number and when he refused hit him on the shin of one leg and then another, causing Mr Zammit pain.  Mr Mimmo said, they wanted to use a cardless cash facility on his phone and Mr Zammit in fear of what would happen if he refused, put the PIN number into his mobile banking account into his phone.  As a result, Mr Mimmo left, leaving Mr Zammit with you.  
10	Mr Zammit believed he would be hurt if he tried to leave.  Again Mr Zammit gave his PIN to Mr Mimmo who called him on his phone which he gave out of fear, and
Mr Mimmo withdrew two amounts of $500 and then $300 in separate withdrawals, between 6.45 and 7 am.  CCTV footage around the Westpac ATM in Mornington captured Mr Mimmo there.  
11	When he returned home Mr Mimmo told Mr Zammit he had to stay at the house until his injuries healed and gave him a pair of jeans and a singlet to change into and Mr Zammit's clothes were washed and dried.  You left shortly after 7 am leaving Mr Zammit with Mr Mimmo and his girlfriend, Ms Saunders.  
12	Mr Mimmo left the house at 10 am giving back Mr Zammit his wallet which was missing his bankcards, other cards and $400 in cash.  He told him not to leave.  Mr Zammit then showered.  Mr Mimmo rang his girlfriend who was still with Mr Zammit saying he had be back at 1 pm, then Ms Saunders left leaving Mr Zammit alone in the house, but too scared to leave.  Mr Mimmo then returned giving Mr Zammit back his mobile phone and Mr Zammit logged into his Westpac account discovering moneys had been stolen and he cancelled his bank accounts.
13	At about 7 pm Mr Mimmo told Mr Zammit he could have left the house at any time.  
Mr Zammit then returned home, his mother saw injuries and eventually Mr Zammit told his mother about the assault.  She took him to the Mornington police station at which time Mr Zammit told police he had been robbed in the street, because he was scared for his own safety and that of his mother's.
14	On the evening of 8 July, Mr Mimmo drove into Mr Zammit's driveway gave him his Westpac bankcard and told Mr Zammit he would kill him.  On 10 July Mr Zammit purchased a new mobile phone.  He spoke to Mr Mimmo who he later saw at the Grand Hotel,  and at which time he told Mr Mimmo he was the only thing stopping the police coming to his house at which Mr Mimmo laughed.  
15	He denied that he had bashed Mr Zammit and that if he wanted to feel what it was like to be bashed he would show him.  Eventually on 10 July Mr Zammit went to the police station, provided a statement and photographs were taken of his injuries.  Blood was found at Mr Mimmo's home.
16	You were arrested on 3 October 2017 and exercised your right to give no comment answers.  On the 30th you were released at that stage without charge.  On 30 January 2018, you were charged via summons.  A committal hearing took place on 3 September and 18 October 2018.  
17	You eventually offered to plead guilty to the charges on the indictment and did so thereafter.  You were arrested on 7 August 2019 and remanded in custody after you failed to appear for directions hearing.
18	HER HONOUR:  Can I just ask the prosecution, what is the pre-sentence detention now, for Mr Lockens?
19	MS CLANCY:  Two hundred and eighty-seven days?
20	HER HONOUR:  Pardon?
21	MS CLANCY:  From, Your Honour I believe it is 287 days, but if I could confirm that at the conclusion of the sentence.
22	HER HONOUR:  Yes, sure.  Yes.
23	MS CLANCY:  Thank you.
24	HER HONOUR:  I am not sure how it works out to 200, because it was said on 
7 August 2019, he was - Mr Lockens was arrested - - -
25	MS CLANCY:  Yes, Your Honour and released on bail on 25 February 2020, which equals 202 days.
26	HER HONOUR:  Yes, ultimately - - -
27	MS CLANCY:  And then - - -
28	HER HONOUR:  Yes, thank you sorry.
29	MS CLANCY:  Apologies Your Honour.  On 21 September 2020 he was remanded again and then released on bail on 14 December 2020, which is 85 days.
30	HER HONOUR:  yes.
31	MS CLANCY:  Therefore the two totals equate to 287 days of pre-sentence detention.
32	HER HONOUR:  Thank you.
33	As I have said you were arrested on 7 August 2019 after failing to appear at a directions hearing, you were ultimately released on 25 February 2020.  You again failed to appear and were re-arrested at another hearing and re-arrested on 21 September 2020, then released on 14 December 2020.
34	I am going to now refer to the victim impact statement.  It is quite clear Mr Zammit was an extremely vulnerable victim and what was made worse and this was clear in his victim impact statement, was he was treated by you and Mr Mimmo in that contemptuous and violent way.  
35	You were people he had regarded as friends.  In his victim impact statement Mr Zammit said, he had previously been an optimistic and trusting guy with a comical demeanour who never let life get him down, but since the assault he lost all his confidence, his enjoyment of life, he suffered flashbacks of the assault and had difficulties some days getting out of bed.  
36	He had pain, which could not be identified other than phantom pain.  He had frequent headaches, often suffered depression, anxiety and post-traumatic stress disorder which he said, 'Is what I struggled with the most.'  He lost his trust in people, became jumpy at loud noise, suffers panic attacks, nightmares, trouble with sleep.  He said his depression had affected his relationship with friends and family.  He locked himself away in solitary for days and weeks at the time.  
37	Mr Zammit said in his victim impact statement that he was slowly getting better, but the whole court process had set him back.  And this victim impact statement was written two years after the offending.  He said, 
'Before the assault I was on top of the world with my YouTube channel, with my career taking off.  I was making things work after five years of doing YouTube and it was paying off.  I was releasing videos weekly, going to events and conventions, being invited as media, and gaining fans.  Doing comedy was exactly what I loved and getting paid for it was like living a dream.  But now I feel I'm in a nightmare since the assault over two years ago.  I haven't been able to do my comedy and have not released one video since the week before Anthony, a man who I trusted even calling him my best mate, did what he did.  I do forgive, but I'll never forget.'
38	He actually spoke very kindly of Mr Mimmo, he said, he hoped that Anthony “had had help and support and my only wish is that he learns that life is beautiful, I forgive you Anthony and hope you have learned something from all of this”.  I should add that 
Mr Mimmo has suffered greatly since being released on the community corrections order and it would appear that Mr Zammit is a man with a great deal of insight and he clearly understood that Mr Mimmo had mental health problems and they continue to bedevil Mr Mimmo to this day.  
39	I should also add there was a victim impact statement from Mr Zammit's mother who spoke about her own distress at seeing the attack on her son and he dealing with the long-term aftermath of this attack upon him.
40	I now turn to your personal circumstances.  You are now 37 years of age.  You had an extremely difficult childhood.  Your parents separated before you were born.  Your mother re-partnered but she and your stepfather separated when you were about three.  You had little contact with your father but had a very difficult time with your mother who had drug and alcohol problems and who was diagnosed with schizophrenia.  
41	From about the age of 7-16 you spent a considerable period of time in foster care.  You left school when you were 15, you mostly worked in stone masonry, however drug problems overtook you very quickly.  You started using alcohol which was a big problem for you from about the age of 13.  You also started using cannabis.  You ceased use of alcohol only to replace it with methamphetamine and it is quite clear that at the time of this offending and for some years prior you had been addicted to methamphetamine.
42	You told Psychologist Jeffrey Cummins whose report was tendered on the plea, that you were smoking methamphetamine on a daily basis and had been so doing for some time for years before this offending and you were affected by ice at the time.  Ultimately, as is unfortunately so often the case, your time in gaol appeared to have been of some advantage to you.  You had also undergone a number of psychotic episodes as a result of ice use.  
43	It was quite clear also that you had been suffering from psychological problems for some years.  You mad a suicide attempt by standing in front of traffic when you were 14 years of age.  You have been hospitalised in psychiatric wards on a number of occasions.  
44	Ultimately, when you were placed in custody you suffered a psychotic episode, you were held at the MAP, you were placed on olanzapine, which is an anti-psychotic medication.  You did well in gaol ultimately working in a bakery for five days a week.  And you benefited from the psychiatric medication on which you were placed and the regime you were under.
45	On your release, you did well for a while.  You have a history of involvement with a number of organisations in the Mornington area.  In particular, you have been engaging with the Frankston and Mornington Drug and Alcohol Service that is FAMDAS.  In 2013, you went there originally on a corrections order but did not engage well.  You returned again in 2018 and then 2019 at which time you engaged on a much better and more coherent basis. 
46	You had gone cold turkey on ice when you were aged about 27, but relapsed again in the aftermath of the collapse of a relationship.  You were also caring for your mother.  You initially went to Mornington when you were released from custody in order to live with your mother.  She however, had another psychotic episode and simply left the premises and you have recognised that although you have a close bond with her, she is simply not a reliable person that you can turn to or indeed reside with.
47	There has been quite a history since being placed on what was essentially a deferred sentence over a long period of time after you first appeared before me on 
25 February 2020.  It was not without its hiccups, you failed to appear on 
7 September 2020 and a warrant was issued.  You were remanded on that warrant, again - that is on 21 September 2020.  
48	There was a mention on 1 October 2020 and you were again released, this time on a further deferral of sentence and you were bailed to New South Wales where you went to live with your father.  That went well for a while but ultimately, it was clear, according to the materials I have received, that your father and family did not really understand the depth of your difficulties and you returned to Melbourne on February 2021.
49	You have been well supported in that time.  You, to your credit, have managed to stay out of any criminal trouble since 2017.  This is a very considerable effort on your part, looking at your prior criminal history which is extensive.  That criminal history began in 2002, you have been dealt with on numerous occasions for theft, criminal damage, theft of motor vehicle, driving offences, this goes on through your years in the Children's Court.  
50	You have been dealt with for recklessly causing injury, assaults, intentionally damaging property, affray, unlawful assault, you have breached a number of community corrections order by way of further offending.  You have been placed as I have said on a number of charges involving violence.  You have also been dealt with for drug offending, including possession of methylamphetamine.  
51	You last appeared before a court in May 2018 for criminal damage.  You have struggled with, not just drug addiction, but also psychiatric problems associated with your drug use.  
52	It appears however now, that you are drug-free.  Your current situation is that you are supported by Open Door Housing.  You are under the cover of a GP, however you are not current medication, but you were brought off your previous medication under the care of appropriate psychological and psychiatric assistance.  So that was done in a medically responsible way.
53	You have also undertaken a fair amount of drug rehabilitation.  You completed a seven day detox program at Nova House in Bendigo and you have remained drug-free since then.  You completed 17 counselling sessions with a psychologist for drug use.  You have maintained an ongoing engagement with Daniel Davies who is a senior social worker at FAMDAS and he referred you to a Local GP clinic and assisted you in your dealings with Launch Housing.  
54	Your housing in Melbourne is semi-permanent.  You are currently living in an apartment in the CBD, as I have said you have been referred to Open Door Housing which is a crisis accommodation service run by the Salvation Army.
55	You have understood the need to avoid peers who are drug users.  Indeed, you expressed to Mr Cummins in his psychological report, anger that you had got involved in the offending that has brought you before this court, and to the County Court, it would seem, for the first time.  You were under the influence of ice at the time, you have not a great deal of memory of the offending.  
56	However, you have made it clear through your counsel that you are extremely remorseful for your offending towards Mr Zammit, that it caused you distress when you saw him in court, because you were unable to apologise to him and this is something that you wish to do. 
57	 In all the circumstances, you have actually done well, both in terms of your drug use and the fact that you have not reoffended over a protracted period of time.  I was therefore prepared to have you assessed for placement on a community corrections order and you have been assessed and found suitable.
58	I therefore propose to deal with you by way of a combination, being a term of imprisonment combined with a community corrections order.  I regard you role in the offending as lesser to Mr Mimmo.  Although you have a considerable period of time available for placement on a community corrections order in combination with a term of imprisonment, I am going to sentence you to a term of 100 days' imprisonment, which term I declare has already been served by way of a pre-sentence detention.  
59	I placed Mr Mimmo on a community corrections order for a period of 3 years, I am going to place you on a community corrections order for a period of 20 months.  Now I need to explain to you the terms of a community corrections order, because I can only place you on it with your permission Mr Lockens.  Do you consent to be placed on the order?
60	OFFENDER:  Yes.
61	HER HONOUR:  All right, thank you.  All right, the conditions of the order are that you must report to the community corrections office within two working days of the making this order, that is by Wednesday of this week.  Whilst on the order you must not commit any offence punishable by imprisonment.  You must report to and receive visits from the community corrections office.  
62	You may not leave Victoria whilst you are on the order without the permission of the community corrections office.  You must obey all lawful directions of the community corrections office.  You must report any change of address or employment to the community corrections office within 48 hours of the making of this change.  You must obey all lawful directions of the community corrections office and not - must not attend upon the community corrections office under the influence of drugs or alcohol.
63	I am going to order that you receive treatment - assessment and treatment for drug use.  Now I know that you have not used drugs for some time, and if that is the case you will not - there will simply be an assessment and you will not be required to undertake further treatment.  But just because you feel that you have beaten drugs, does not mean that you do not have to turn up for assessment.  
64	I want to make sure, and so that is part of the conditions.  You are also to receive mental health assistance.  Now, I note that there was an assessment from MHARS that you do not require mental health treatment, I do not know that I agree with that.  You have already received some treatment for this, but I think that a psychologist would be of assistance to you, all right.  
65	OFFENDER:  Okay.
66	HER HONOUR:  You are not out of the woods yet Mr Lockens, you have done very well but you know, you are still back in Melbourne, you are still in lockdown, things are not easy, you have got a history of psychiatric difficulties, I think that would be of assistance to you and so I am going to require you to undertake that.  I am also going to require you to undertake 100 hours of unpaid community work.  
67	And I am going to order judicial monitoring, which means you will come back in front of me at regular intervals and I will get a report from Corrections about how you are going, all right?  So, we will make that first one - judicial monitoring in four months' time.  And we will get a date.  I will do 7 December.
68	I just want to make sure you are off to a good start Mr Lockens.  Can I ask you 
Mr Lockens, can you just stand up please Sir.  At one stage I noticed you said to your barrister, look it is all too hard and I just want a gaol sentence, you are not feeling like that anymore?
69	OFFENDER:  Sort of yeah, yeah.
70	HER HONOUR:  You do and why do you?
71	OFFENDER:  Because I just can't handle being out here anymore.
72	HER HONOUR:  Pardon?
73	OFFENDER:  I can't handle being out here in anymore.
74	HER HONOUR:  You can't handle being here anymore?
75	OFFENDER:  No, I don't want to be out in this world - - -
76	HER HONOUR:  Yes, all right.  All right, well look you don't have to come in for your judicial monitoring, for starters.  You can just be beamed in from corrections.  I think you have done really, really well.  I do not know what gaol would do for you, except make things harder for you when you got out wouldn't it?
77	OFFENDER:  I don't think so.
78	HER HONOUR:  Yes, I think so, all right.  Mr Lockens, just understand you know, you kept going on the deferral, you did really well, you have not offended again and you know I do not think you would get the impression that just because you are in front of me I am going to lock you up.  All right?  I want you to succeed on this order.  I do not want you trouping into court.  I understand that you have got a continuing struggle with your mood, is that right?  Are you on even anti-depressants at the moment?
79	OFFENDER:  No.
80	HER HONOUR:  No.  Do not hesitate to go on them, if you find your mood is in trouble okay?  You have got a good GP haven't you?
81	OFFENDER:  Ah, yes.
82	HER HONOUR:  Yes.  Have a chat with Mr Portelli after this is over.  Really recommend you get yourself on some, you know, if you are scared about this order, and you just think I just want it over I just want to go to gaol, then I can get out and I have got nothing hanging over me.  No matter where you are and no matter what happens you are going to have mental health problems hanging over you, okay?
83	OFFENDER:  Yeah.
84	HER HONOUR:  Anti-depressants are a really good start for that.
85	OFFENDER:  Yeah.
86	HER HONOUR:  Are you having mood dips?
87	OFFENDER:  Um, yeah I am - - -
88	HER HONOUR:  Okay, have a chat to Mr Portelli about that.  
89	OFFENDER:  Okay.
90	HER HONOUR:  You are on the order that is all there is, okay?  I do not want you in gaol, I think you have done really well and I hope this - I am giving you this order, (a), because I must, but (b), because I want to see you succeed and to keep going in the way you have.  You have got a future.  You have done really well.  You can do this.  That order is there to support you.  
91	I only want the - I am not putting you on drug treatment or mental health treatment as a punishment, I am doing it because I want it as a support, for you, okay?  That is why it is there.  This order is designed to help you, as much as to punish.  And the real punishment time is the gaol that I have said you have already served.  Okay, so that is done, okay?  
92	So, this is about having supports in place and you are good at using supports.  The Bridge Program knows you have been there, FAMDAS know you, you are really good at reaching out for help, I am just setting up people for you to reach out for help to.  Okay?  
93	The only reason I am doing judicial monitoring is to make sure things are going okay and if there are snarls or things are not working out or you need something, we can tweak the order, that is what it is all about, okay?  It is meant to be a structure of support for you, that is all it is.  
94	I mean, look, that is not quite fair, you know, things go wrong, yes you will come back, yes I will not be happy those sorts of things, but primarily the main reason I am putting you on this order is because you have done really well, you deserve some recognition for it and I want to see you keep going.  I mean, not easy to go up and live at Cobden and you know, things did not work out terribly the way you thought they would.  
95	And then it was not great at your uncle's and grandma's because there is not much room for you, now that is not fun.  And you came back to Melbourne and sorted yourself.  You have got a really good skill at sourcing supports.  You know, you have got a lot of stuff going for you, I want to see you stay out of trouble.  
96	And have a life that you can enjoy.  And that is not easy but I am confident that you have got the personal skills to do that.  So please do not think I am sitting here like a spider, waiting for you to make a mistake and put you in gaol, that is the last thing I want to do.  And I gave you this opportunity, and I deferred the sentencing because it seemed to me you deserved a go, you have had a rough time and you have survived.  
97	And it is five years since you have offended, that is a really top effort.  Okay?  So please bear in mind this is not about being dragged back to court and sent to gaol and black horrible things happening to you.  This is meant to be - I will stay out of it as much as I can.  If you are doing well on this order, you will not see me again for another six months I will make it longer.  
98	And maybe it is just you know, I cannot help meddling.  I just like to keep a tab to make sure things are going right, because you know what it is like with Corrections, sometimes it does not work out.  Maybe you are having trouble with a worker, something like that, I just like keeping an eye on it.  All right?  Okay, so we will get you to sign the order thank you.  Have you been on anti-depressants before?
99	OFFENDER:  Yes.
100	HER HONOUR:  Yes, have they helped you?
101	OFFENDER:  Yeah they did help me.
102	HER HONOUR:  Yes.  So, look really if that is - if you are having trouble with mood, and look and it is a matter for you, but that will help you, as you know it will.  And you deserve to have some mental comfort if you can get some don't you?  All right?  Thank you very much.  I thank counsel very much for their assistance.  We will stand down until 2.15.  Thank you.
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