DPP v Stares [2024] VCC 322 (20 March 2024)

Last Updated: 25 March 2024

IN THE COUNTY COURT OF VICTORIA

Revised Not Restricted Suitable for Publication

AT BALLARAT
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS
v
JAYMZ STARES

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Ballarat
DATE OF HEARING:	5 December 2023
DATE OF SENTENCE:	20 March 2024
CASE MAY BE CITED AS:	DPP v Stares
MEDIUM NEUTRAL CITATION:	[2024] VCC 322

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr T. White	Office of Public Prosecutions
For the Accused	Mr J. Moore	Emma Turnbull Lawyers

HIS HONOUR:

1. Yesterday I sentenced Jaymz Brian Stares on one charge of aggravated burglary, and one charge of damaging property to a Community Corrections Order. That order was with conviction and it was for two years, and it has the conditions of supervision and obedience to a justice plan. There was also an uplifted summary matter of assault, for which I convicted and discharged him.
2. He is 32 years of age. He pleaded guilty at an early reasonable opportunity. He must also of course get the utilitarian benefit of that plea of guilty, both in these times of Worboyes and also as he has avoided the difficulties for the victims of having to give evidence and the like, those matters have to be taken obviously into account.
3. His prior convictions are limited, though of some significance, and I am quite amazed at the age of 32 with his background and his problems, his criminal history is not significantly longer.
4. In normal situations the offending would be regarded as serious, in accordance with the application of general and specific deterrence, as well as denunciation and appropriate punishment. For reasons I will outline in brief, moral culpability, general and specific deterrence here are very much mitigated by the intellectual capacity of Mr Stares.
5. There has now been a delay of some two and a half years since the offending occurred, and in fact as I understand it, he has been sentenced for other matters since. It is important to note that those other matters were matters that were committed prior to this offending, and accordingly it has now been almost three years without any sort of offending at all. That gives me added confidence in his capacity to rehabilitate.
6. The situation is that the offending on the face of it is serious indeed, and obviously has caused ongoing stress to certainly one of the victims. On
   6 August 2021, Mr Stares is shown on CCTV footage with unidentified males and also his partner attending the unit complex in which they believed a man called Scott Young was residing.
7. His partner spoke with a resident of that unit and he said he did not know where 'Scott was'. The accused and the others then walked up the driveway. Soon after that a victim, Samuel Darge, left his unit and the accused attempted to stop him and pushed him, asking him effectively, 'Where is Scotty?' He said he did not know and he was pushed in the chest, which is the charge of unlawful assault.
8. The accused continued to use force and Mr Darge said he was sorry that he did not know who Scotty was. The accused then went up towards the units, realised that Mr Darge was just a neighbour and everyone walked away.
9. At about 5.40pm, Mr Ky Von Burg drove out his garage at Peel Street North, Black Hill, to go to work at Coles supermarket.
10. The accused approached his car and said, 'Did you point a fucking shotgun in my face yesterday?' Mr Von Burg replied, 'I don't know what you're talking about'. The accused said, 'I know it was fucking you'. Mr Von Burg closed his garage door and the accused kept accusing him of pointing a shotgun at him and asking him questions about hair and facial tattoos, and there was then some discussion where eventually the accused and others stood back and apologised to Mr Von Burg, and then started to walk back down the street.
11. Mr Von Burg returned to his vehicle and told his girlfriend, Jessica Van Nus, to lock the house up as he drove away and she told him that they had come back and they were banging on the window. She was in the living room and she started locking the unit. She heard someone way, 'He's in there', as she was closing the curtains to the bedroom window.
12. Your group were calling for her to come out and banging on the windows to the spare room in the front door of the unit. There was then banging on the front door. She hid in the bathroom because she was fearful of people entering the yard. She then went into the hallway and ultimately it turned out that the accused had broken the door and entered the unit. That gives rise to Charge 1 of aggravated burglary.
13. He kicked the door a number of times to force entry, which is the criminal damage charge. He had a green broom handle with him. Where he got that from I do not know. He came into the unit and walked through the kitchen area, saw Ms Van Nus in the hallway and said, 'Oh, shit, I thought you were Scotty'.
14. The accused then proceeded to get on his hands and knees, apologising to her. Somehow the police had been called. He dropped the broom handle and left. That is the state of the offending. In the normal course of events, as I said, it is serious offending. That aggravated burglary carries 25 years. He is in a very different situation as it will become clear from the materials.
15. I have before me a victim impact statement, which obviously I have read and take into account, from Ms Van Nus. As she points out, the psychological problems, both at the time and ongoing that such offending causes, and indeed they are serious, and particularly for a person who already had social anxiety, caused her distress over an extended period of time. They have to be taken into account and are taken into account in this sentencing process.
16. Normally in these circumstances there were would be a gaol sentence of some proportions, but here it is a very different matter indeed. The accused man did 61 days on remand before that time was used for pre-sentence detention on other matters, which as I pointed out during the course of the plea it should not. He has done 61 days in relation to this, so it is not a period of time I would be now able to declare.
17. A significant amount of material was tendered on his behalf, including some references, CISP bail reports, which spoke well of his attendances, the report of a neuropsychologist, a psychologist's report back from 2009, as well as the assessment by the Corrections people here, and the justice plan people as well, which were provided to me some little time ago. We proceeded to sentence yesterday on the basis that I had read those materials.
18. The circumstances of his background can be put in fairly brutal terms. He is, as I have said, 32 years of age. He has convinced himself he is of Aboriginal descent. He is not. He believes both his father and mother are Aboriginal. They both say they are not. It has become clear that that is delusional and he just simply cannot be talked out of it.
19. He has three half-siblings, he has a partner. He went to Ballarat High School until Year 8. He did a young adult education course. He tried to do general maths and English. He seems on the material to be innumerate and illiterate.
20. Whilst he was on CISP bail the local Aboriginal people, Dardi Munwurro, have been looking after him and assisting him, even though it has turned out that he is not Koori, they have obviously given him a hand. Over the last few years he has been able to get work at the Red Lion Bistro, a chicken abattoir, and in a factory making flat bread. He says he would like to train as a barista to obtain employment.
21. It is not unusual that he has been a long term user of cannabis and methylamphetamine, and he is in receipt of a disability support pension for an intellectual disability. I accept on the material before me that he has not used drugs now since his apprehension for this offending, and that is some two and a half years ago, and the fact that he has not been arrested or even dealt with since tends to support that.
22. Back in 2009, when he was aged 17, he recognised at that point that he was illiterate and unable to tell the time and had memory problems. Testing was then done which said that he had a full scale IQ of 74, and that there was a presence of an intellectual disability. He has had from that time on extreme anxiety. He has been prescribed anxiety medication over the years, but this offending occurred in early August of 2021.
23. In December of 2021 it was seen for the first time properly, Mr Stares was psychometrically assessed by a clinical neuropsychologist, and an extensive assessment of his personal deficits and needs has been provided to me, which is exhibited in this matter.
24. In that report she said that Mr Stares has a full scale IQ of 67, and a neuropsychological profile characterised by severe difficulties with all aspects of cognition, including intellectual memory, executive functioning, as well as literacy. His performance generally falls in the extremely low to very low range.
25. He has obtained a certificate of intellectual disability from the appropriate people, so that has satisfied me. He also has an acquired brain injury as the result of drug abuse. He has never had a psychiatric illness, nor has he ever been admitted to hospital for psychiatric or involuntary admission.
26. The matters that arise from that are that 67 is a very low IQ, really low IQ indeed. It is sad to say that when reading the material, having been brought up in the country it perhaps struck me more than anything that Mr Stares in fact failed bubs, which I did not think was possible, but he has managed to, and that has been the story of his life.
27. I accept he has abstained from more drug use over the last few years and he is done the CISP bail successfully, he has been engaged with an employment agency who have been endeavouring to help him with employment. He was working in a pizza shop and he still works there on a Friday and Saturday as I understand it.
28. He has now got accommodation. At the time of this offending and for quite a long period of time he was homeless. He now has proper accommodation looking after him and giving him meals. Mrs Buchanan, who runs that establishment, says he is a good tenant, pays his rent regularly and is effectively, 'A good kid, who has turned himself around'.
29. He talks of the younger people in those premises who calm him down when there is conflict. So he has been doing really well considering his problems. I am also well aware of the decision of the Court of Appeal in Talia, where delay may stand a a powerful mitigatory feature. It is a colloquialism, but certainly in Mr Stares' case the proof of the pudding seems to have been in the eating, he has done well now for a few years, and it is to be hoped that can continue.
30. So far as his cognitive functioning is concerned, Ms Lechner, psychologist said:

'It is likely Mr Stares' limited cognitive skills were a contributing factor to his offending in that he likely did not evaluate the information that he received in relation those allegedly responsible for the robbery at his home, did not think through the consequences of his actions and did not considered alternative solutions to the problems.’

31. That would be fairly common sense to anybody else, but unfortunately not to Mr Stares. That report goes on to say that his mental health would be likely to be negatively impacted in the event that he serve a further term of immediate imprisonment and points out he is psychologically vulnerable, with parlous mental health and impaired cognitive functioning, and would be easily stood over.
32. Because of his intellectual inabilities and lack of skill in both social communication he would not be able to follow what was going on in the gaol. I think he would be clearly constantly under threat of violence because of his inability to read situations properly, and that would make gaol much harder for him than for a person who did not have his difficulties.
33. When this came on I was concerned that there was no certificate of disability and that has now been obtained. It is clear that he has got the support of NDIS, and as he said to me the other day, he needs help with that, and I have got no doubt that Corrections will be able to do that. He is essentially able to basically cope independently. He does have his partner who endeavours to look after him.
34. For the first time in his life there has been initial treatment or orders in place. In the neuropsychological report by Dr Duncombe, it was reported that
    Mr Stares had learning difficulties right from bubs, as I just said, and never received any specialist support or any sort of specialist intervention.
35. Any jobs he has tried to do he could not complete due to difficulties with literacy and numeracy. The National Disability Insurance Scheme indicates that he will require supported disability justice, which they will do, and they will endeavour to get explore his eligibility through a request application, which obviously he would have no hope of doing himself. In these circumstances I would be very, very hopeful that assistance will be provided, and my experience over the last few years is that assistance with NDIS is often far greater value to a person in his situation, than trying to comply with Corrections.
36. I do not think I need to go any further with all this. It is clear that both limbs of Muldrock apply, Muldrock in particular, and all the limbs of Verdins. It is also a situation here that when he was little there was apparently extensive family violence between his mother and father. There is a final intervention order in place with his mother. That is currently in operation for another month or so.
37. So there are quite disturbing things going on in the background which I have deliberately not tried to buy into. It is pretty clear also that there is aspects of Bugmy, not the principal aspect of Bugmy, but aspects of Bugmy which would have applicability here.
38. Unfortunately Mr Stares appears to have very few, if any, friends and he is obviously quite easily stood over. In any event, he has been with his partner now for six years and she was in court to support him. They both appear to be doing pretty well. Neither appeared drug affected to me and I am satisfied that he was not.
39. I am well aware of community concerns about this type of offending. It is on the face of it very serious, and normally, as I have already indicated, a gaol sentence of some proportion is imposed, but the cards that this man has been handed to play is a dreadful one and so far he has been able to do okay.
40. His prospects of rehabilitation have probably never been better than they are at the moment. The risk of his reoffending is always going to be fragile, but so far so good, if I can put it that way. If he has difficulties with the order, Corrections can contact the court before they do anything dramatic with him.
41. It is clear from the assessment report that he has maintained being Aboriginal and there is no need for me to go down that path. In any event, taking all those matters into account, that is the sentence I imposed yesterday and these are my reasons for doing so.
42. 6AAA – non custodial disposition.
43. MR WHITE: If the court pleases.
44. HIS HONOUR: I understand, Mr Mr Moore, that he has been here since 9.30 yesterday. He went down the bottom and they could not find him out the back of the court.
45. MR MOORE: That is right, and I went down there myself and I could not find him. He was there, Your Honour.
46. HIS HONOUR: Thanks, gents, sine die.

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