DDP v Brodie

[2021] VCC 957

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-21-00392

DIRECTOR OF PUBLIC PROSECUTIONS

V

Joshua Brodie

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JUDGE:	HIS HONOUR JUDGE CAHILL
WHERE HELD:	Melbourne
DATE OF HEARING:	13 July 2021
DATE OF SENTENCE:	16 July 2021
CASE MAY BE CITED AS:	DDP v Brodie
MEDIUM NEUTRAL CITATION:	[2021] VCC 957

REASONS FOR SENTENCE
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Subject: Attempted aggravated burglary and threats to cause serious injury

Catchwords:              Guilty plea – serious offending – COVID utilitarian value – remorse – PTSD from abusive childhood – Verdins principles

Legislation Cited:      

Cases Cited:R v Verdins [2007] VSCA 102; Worboyes v The Queen [2021] VSCA 169; Williams v The Queen [2018] VSCA 171.

Sentence:                   58 days imprisonment, 58 days of pre-sentence detention reckoned, 2 years and 6 months Community Corrections Order, $500 fine for Summary Offence, Compensation Order to $350.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms E. Maguire	Office of the Director of Public Prosecutions
For the Accused	Mr J Murphy	Gallant Law

HIS HONOUR:

1Joshua Brodie, you have pleaded guilty to:

(a)   one charge of attempted aggravated burglary,

(b)   two charges of making a threat to inflict serious injury, and

(c)   one charge of intentionally damaging property.

2You have also pleaded guilty to a related summary offence of unlicensed driving.

Circumstances of offending

3Your offending occurred on 14 November 2020.

4The circumstances are set out in the summary of prosecution opening upon plea, dated 25 June 2021[1]. They are agreed facts.

[1] Exhibit A.

5You knew Amy Robertson. She has 2 children with your brother, Jimmy.

6For about 12 months, until August 2020, you lived with Ms Robinson, your brother and their children at Melton South.

7In May 2020 you had commenced a relationship with Ranee Shaw. She has 2 children. She and her children moved into the Melton South home with you.

8In August 2020 you all moved into the home of Ms Robinson’s parents at Harkness.

9In early October 2020, as a result of arguments between Ms Shaw and Ms Robertson’s father, Brian, you and Ms Shaw moved out of the Robinson home to another address at Golden Square. You left behind a lot of your belongings including two motorcars.

10Between 11 and 13 November 2020 you exchanged text messages with her about the collection of your things. There was a dispute between Ms Robertson and you about some of them.

11On the morning of 14 November 2020, in an exchange of text messages, she told you she was keeping the disputed items, because you owed her money for them, and would leave the rest of your things, in one of your cars, with the car keys, for you to collect from her home.

12Around 3 pm you arrived at the home with three friends.

13You got into your car, which had some of your things in it, and drove off. You were unlicensed. (related summary offence – unlicensed driving)

14Twenty minutes later you called Ms Robinson and told her you would come back and bash her family and stab her father, Brian, and brother, Colin, in the throat (charge 2 – make threat to inflict serious injury). She locked the front doors and told her father to call police if you attended.

15About ten minutes later you arrived and demanded to be let inside to get your property back. You saw her father, through a glass door panel, and threatened to stab him in the throat (charge 3 – make threat to inflict serious injury). He called police.

16You yelled, “Open the door”, while you kicked, shook and punched the security door to try to force it open. (Charge 1 – attempted aggravated burglary).

17Ms Robinson’s two children were in the front room crying. She opened the wooden door and yelled “fuck off” at you.

18A neighbour came to help. He stood between the front door and you, telling you to calm down. You yelled some more and then went back to Ms Shaw who was waiting in a car for you. You got into the car and she drove off.

19In the fracas, you had dropped your mobile phone. You returned to get it back. It was given to you, and, as you were leaving, you picked up a large rock and threw it through the front passenger window of Colin Robertson’s car (charge 4 – criminal damage).

20On 18 November 2020, with Ms Shaw, you voluntarily attended Bendigo police station.

21She told police she drove you to the Robertson family home to collect your things. She said, while she waited in the car for you, she saw you banging on the front door and throw a rock through Colin Robertson’s car window.

22You told police you had sent Ms Robinson messages asking for your things back. You said you needed your tools for work. You said when you collected your things half of them were missing. You admitted you had yelled at her both over the phone and when you arrived at her home. You admitted you yelled that if you didn’t get all your things back, you were “coming in” to get them.

23You admitted your behaviour was “wrong” and “poor”. You said, “But at the end of the day, they shouldn’t have kept my stuff”.

24You denied you kicked the front door or smashed Colin Robertson’s car window. You denied making threats to stab anyone.

25You knew you were an unlicensed driver and denied you had collected your car; you said a friend had driven it for you.

26You were remanded in custody.

27On 15 January 2021 you were admitted to bail.

28On 24 February 2021, at a mention hearing, you pleaded guilty to the charges before the Court.

29By your guilty plea you admit:

(a)   you attempted to enter the Robertson home as a trespasser with intent to assault one of the persons inside (charge 1),

(b)   you made to threats to inflict serious injury, firstly, against members of the Robertson family, and, secondly, against Brian Robertson, at least being reckless as to whether or not they would fear your threats would be carried out (charges 2 and 3),

(c)   you intentionally and without lawful excuse damaged Colin Robertson’s motorcar (charge 4),

(d)   you drove your car away from the Robertson home when you were not licensed to drive.

Victim impact statements

30I have read the victim impact statements of Amy Robertson, [2] her father, Brian Robertson[3] and her mother, Karen Robertson.[4]

[2] Exhibit B.      

[3] Exhibit C.

[4] Exhibit D.

31Your offending has affected all of them badly, making them anxious and hypervigilant. Amy Robertson wrote, in addition, her two young children, who witnessed your crimes, have needed help from a child psychologist to deal with their fears you will return.

Criminal record

32You have admitted a criminal record.

33You have summary convictions for property and dishonesty offences in South Australia, New South Wales and Victoria, between March 2012 and June 2019.

34Of particular relevance:

(a)   On 25 May 2017 and 12 June 2019 you were convicted of offences of contravening a family violence intervention order. In the first instance you were convicted and fined $1000; and, in the second, you were sentenced to 3 days imprisonment.

(b)   On 9 August 2016 you were sentenced to a 12 month community correction order for dishonesty offences. On 25 May 2017 you were convicted of contravention of the CCO and re-sentenced to 6 months imprisonment; and

(c)   on 12 June 2019 you were sentenced to 60 days imprisonment for dishonesty offences.

35You also have 5 prior convictions, in 3 states, for unlicensed driving.

Personal circumstances

36You were born in December 1991.

37Your personal circumstances are set out in the psychological report of Lisa Jackson.[5]

[5] Exhibit 2.      

38You are an aboriginal man who grew up in Adelaide. You are the fifth of nine children. Your father had alcohol and drug problems. You were witness to, and victim of, his violence which included burns and use of weapons. When you were nine years old, with your siblings, you were placed in care for two weeks. When you returned to your parents the violence resumed. When you were thirteen years old your parents separated. You then were forced to see your father on weekend visits. When you turned sixteen years old you refused to have any further contact with your father and you have not seen him since.

39When you were eighteen, your mother entered into a relationship with another man. He was also violent and broke your nose on an occasion. After your mother found out he was having a sexual relationship with one of your sisters she left him.

40When you were twenty years old you left home and moved to Victoria with a girlfriend. With her, you have a son, Ryder, who is five years old. She was violent and you separated four years ago.

41Since, your mental health has deteriorated significantly and you have had problems with homelessness and substance abuse. You met Ms Shaw, in 2019. In August 2020, with her, you had a daughter who died soon after her birth.

42Ms Shaw supported you in court for your plea hearing.

43In Adelaide, you attended local schools where you were bullied “because (you) couldn’t read or write, (you) wore old clothes, and (your) father was aboriginal”. You struggled with literacy and numeracy and left school in year ten.

44When you left school, you worked as a labourer for a bricklaying company for seven years. In 2019 you were imprisoned. When you were released you got work with a heating and cooling firm but, when a police check revealed your criminal history, you were sacked.

45You spent nearly two months in remand custody, after your arrest, until you were released on the CISP bail program.

46Your CISP case manager[6] stated:

(a)   you found stable accommodation with a friend at Golden Square,

(b)   you regularly reported for supervision,

(c)   you sought help from a GP[7] who has referred you to a psychiatrist for specialist mental health treatment,

(d)   you have accepted well-being support from a BDAC social worker[8] who described your participation as “very constant and effective”, and

(e)   you are enrolled in a “healthy spirits” program which is run by the BDAC family safety project officer.[9]

[6] Exhibit 4       

[7] Exhibit 8.

[8] Exhibit 7.      

[9] Exhibit 6.      

47You have also participated in weekly sessions of drug and alcohol counselling. Your counsellor wrote you have maintained regular, voluntary contact and, throughout, have reported you have not used drugs.[10] Your goal is to remain abstinent. You told your counsellor you understand effective management of your mental health issues is the key to long-term abstinence.

[10] Exhibit 5.

48The forensic psychologist, Ms Jackson was of the opinion you meet the criteria of a generalised anxiety disorder, a persistent depressive disorder and post-traumatic stress disorder as a result of your abusive childhood. On testing, your symptoms were extremely severe.

49In a supplementary report[11] Ms Jackson wrote, at the time you offended, relationship, housing and family difficulties had exacerbated your mental health problems. Additionally, you had stopped taking your antidepressant medication and were smoking cannabis heavily.

[11] Exhibit 3.     

50In her opinion:

“Within the context of this history, Mr Brodie’s rationality, his ability to think through the consequences of his actions and make calm and appropriate choices was limited by his mental health problems, the absence of any medication support and his cannabis dependency.”

51A forensic psychiatrist, Dr Fiona Best, assessed you on 9 July 2021.[12]

[12] Exhibit 9.

52She noted you have been diagnosed with depression, anxiety and personality difficulties and are currently treated with antidepressant and antipsychotic medication as a patient of the aboriginal health service.

53You told her, in 2019, and again, in 2021, you attempted suicide in prison.

54In her opinion, you suffer post-traumatic stress and substance abuse disorders. She wrote:

“Given there is a relationship between poor mental health and substance abuse; (drug) treatment is likely to reduce the risk of relapse and prevent worsening mental health.”

55Also, in her opinion, “… impaired mental functioning as a consequence of (your) mental illness and reported withdrawal symptoms from stimulants and cannabis… and having missed (your) psychotropic medication, are likely to have impacted on (your) judgement and ability to make calm and rational decisions such that (your) judgement was likely to have been impaired at the time of (your) offending.”

Defence submissions

56Mr Murphy[13], who appeared on your behalf, relied on the following factors in mitigation of penalty:

[13] Exhibit 1.

(a)   your early guilty plea for its utilitarian value and evidence of remorse,

(b)   your remorse additionally demonstrated by,

(i)handing yourself into police; and

(ii)acknowledging to police your behaviour was wrong.

(c)   your deprived background,

(d)   your mental illness which engages Verdins[14] principles:

(i)to reduce your moral culpability,

(ii)to bear on the kind of sentence I should impose,

(iii)to moderate general deterrence,

(iv)to moderate specific deterrence,

(v)such that prison will weigh more heavily on you than a person in normal health,

(vi)such that there is a serious risk imprisonment will have a significant adverse effect on your mental health, and

[14] R v Verdins [2007] VSCA 102.

(e)   your very good prospects of rehabilitation,

57He submitted a combination sentence incorporating a prison term equivalent to the time you have served is the appropriate disposition.

58He referred me to a number of aggravated burglary sentences of this court where CCOs and composite sentences were imposed.

Prosecution submissions

59Ms Maguire[15], who appeared for the director of Public Prosecutions, submitted your offending, which involved threats of violence and violent attempt to enter the Robertson property, was serious.

[15] Exhibit E.

60She submitted your criminal record, which includes breaches of other court orders, but no violent offending, and your history of substance abuse, are relevant to protection of the community, and your rehabilitation.

61She accepted your guilty plea was made at the earliest opportunity and has significant utilitarian value.

62She also accepted you are remorseful.

63She accepted the impact of your exposure to family violence and drug and alcohol abuse from a very young age is relevant to moderate your moral culpability and, on the opinions of Ms Jackson and Dr Best, which were not challenged, a finding, all Verdins principles are applicable to you, is open.

64She submitted, considering your history of criminal convictions, non-compliance with court orders and substance abuse, I should be guarded about your prospects of rehabilitation.

65Finally, she submitted a CCO in combination with a term of imprisonment is within sentencing range.

Consideration

66Your crimes involved threats to cause violence and an attempt to violently enter the Robertson family home.

67Mr and Mrs Robertson had previously taken you into their home when your partner and you were homeless.

68Everyone is entitled to feel safe in their own home. You took that away from them and left them with lasting feelings of anxiety and insecurity.

69I accept your offending was impulsive rather than premeditated.

70Nonetheless it was serious and general deterrence and denunciation are important sentencing considerations.

71Your prior convictions are predominantly for property offences. This is your first violent offending.

72You have a history of breaching court orders, namely, a CCO and to family violence intervention orders.

73Your criminal record is relevant to the need for specific deterrence.

74There are a number of mitigating factors in your favour.

75Firstly, your guilty plea, made at the earliest opportunity has high utilitarian value, especially during the public-health pandemic, because it alleviates the current strain on the justice system.[16]

[16] Worboyes v The Queen  [2021] VSCA 169, [35] and [39]

76Secondly, entering your guilty plea, as well as handing yourself into police and acknowledging your wrongdoing, demonstrate you are remorseful.

77Thirdly, you have a history of mental illness, including post-traumatic stress disorder, attributable to your traumatic upbringing. I accept the opinions of Dr Best and Ms Jackson, at the time you offended, your mental illness impaired your ability to think clearly and make rational decisions.

78As a consequence, I accept Verdins principles are engaged to reduce your moral culpability and to moderate general and specific deterrence.

79I also accept their opinions, because of you mental illness, prison will be harder for you than a prisoner in normal health and there is a serious risk imprisonment will have a significant adverse effect on your mental health.

80I also accept your mental disorders bear on the kind of sentence I should impose upon you.

81Your prospects of rehabilitation are very much dependent on your determination to remain drug free and manage your mental disorders. Your insight into the connection between substance abuse and your mental health and your impressive progress on supervised bail are encouraging signs you are on the way to reformation.

82Attempted aggravated burglary, is the maximum penalty of 20 years imprisonment demonstrates, is a very serious offence.

83Current sentencing practices show a term of imprisonment, without a community correction order, does not always follow.

84A CCO can enable the punitive and rehabilitative objectives of sentencing to be served at the same time, even in cases of very serious offending.[17]

[17] Williams v The Queen [2018] VSCA 171, [47].

85I have had you assessed for our community correction order and you have been found suitable.

86Overall, I am satisfied a composite sentence of imprisonment and a CCO can achieve all sentencing objectives in your case.

87I am also satisfied those objectives can be achieved without re-incarcerating you now.

88Because your crimes arose out of a single episode of offending I will impose an aggregate sentence which reflects your total criminality.

89Mr Brodie, by the sentence I impose I must denounce your conduct, punish you, and deter you and others, from committing crimes of the same or similar kind. I must also look to your rehabilitation.

90Considering the circumstances of your offending, your personal circumstances and antecedents, and endeavouring to produce a sentence which reflects and promotes the purposes of sentencing in a manner appropriate to you, on the charges of;

(a)   attempted aggravated burglary,

(b)   threat to inflict serious injury (2 counts), and

(c)   criminal damage,

you are convicted and sentenced to 58 days imprisonment in combination with a CCO.

91The CCO will commence today.

92The duration of the order is 2 years and 6 months.

93In addition to the core conditions, I impose the following special conditions:

(a)   drug treatment and rehabilitation,

(b)   alcohol treatment and rehabilitation,

(c)   mental health treatment and rehabilitation,

(d)   programs to reduce risk of reoffending,

(e)   supervision, and

(f)    judicial monitoring.

94The first episode of judicial monitoring will occur on 20 October 2021 at 9:30 AM.

95I declare you have already served your 58 day prison term by way of presentence detention.

96While there is some artificiality in the process, I declare, but for your guilty plea, I would have sentenced you to 15 months imprisonment.

97For the offence of unlicensed driving you are convicted and fined $500.

98With your consent I make an order you pay Brian Robertson $350 compensation.