Director of Public Prosecutions (Cth) v Brookman
[2023] VCC 97
•3 February 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-22-00730
| COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| Adam Mathew BROOKMAN |
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JUDGE: | HIS HONOUR JUDGE MOGLIA | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 3 February 2023 | |
DATE OF SENTENCE: | 3 February 2023 | |
CASE MAY BE CITED AS: | DPP (Cth) v Brookman | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 97 | |
REASONS FOR SENTENCE
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Subject:Criminal Law – Sentence – guilty plea.
Catchwords: Sentencing – breach of control order – deleting internet history relating to pornography – accessing social media and online videos – not related to terrorist activity – utilitarian value of plea - protective factors upon release – guarded rehabilitation prospects – hardship in custody – lower range of objective gravity – general deterrence and denunciation.
Legislation Cited: Crimes Act 1958 (Vic); Sentencing Act 1991 (Vic); Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth); Criminal Code 1995 (Cth).
Cases Cited:Verdins v R (2007) 16 VR 269; Brown (aka Davis) v The Queen [2020] VSCA 60; Worboyes v The Queen [2021] VSCA 169; Chenhall v the Queen [2021] VSCA 175; R v MO (No 1) [2016] NSWDC 144; R v Naizmand [2017] NSWDC 4; R v Namoa (District Court of NSW, Hanley J, 19 November 2022); R v Dakkak (District Court of NSW, Neilson J, 11 April 2022); Lodhi v The Queen (2007) 179 A Crim R 470.
Sentence:Total effective sentence one year and six months; non-parole period of 15 months; 455 days of presentence detention reckoned as period already served; 6AAA: 2 years and four months with non-parole period of 21 months.
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Mr G Barr | CDPP |
| For the Accused | Mr R. de Kretser | Stary Norton Halphen |
HIS HONOUR:
1Adam Brookman, you have pleaded guilty to four charges of breaching a Control Order that was imposed on you in the Federal Court on 6 July 2021. The alleged breaches occurred between 25 July 2021 and 4 November 2021.
2The maximum penalty for each charge is 5 years.
Summary of offending
3By way of background, in 2014 you travelled to Syria and provided support to Chechnyan combatants there. Upon your return to Australia in 2015, you were arrested and charged with performing services in support or promotion of a foreign incursion offence.
4On 14 April 2021, you pleaded guilty to that offence, contrary to section 7(1)(e) of the Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth). You were sentenced to 6 years 8 months with a non-parole period of 5 years. In accordance with that sentence, and somewhat unexpectedly, you were released on 23 June 2021 after due account was taken of emergency management days that had occurred during your remand.
5About 2 weeks after your release on 6 July 2021, the Federal Court of Australia made an interim control order (‘the Order’) against you pursuant to section 104.4 of the Criminal Code 1995. You were served with the order on that day and the conditions were read aloud to you. You were cooperative with the Australian Federal Police and the Federal Court during that application process.
6Under that order, the AFP issued you with a mobile phone and a laptop, which they monitored. In accordance with conditions of the order, over the following weeks you sought relevant approvals to use various software and access various services with that mobile phone and laptop.
7Control 12.5 of the Order prohibited you from deleting any data, including internet history, stored on your permitted mobile phone. Control 15.4 prohibited you from doing the same on your permitted laptop. Between 25 July 2021 and 14 October 2021, you deleted the internet history on your permitted phone on four different occasions and you deleted the internet history on your permitted laptop on one occasion. This included the removal of browser history specifically related to pornographic material on four occasions. Notably, on 30 July 2021, you accessed the control settings on your permitted phone and turned off YouTube History. This forms the basis of Charge one. It is not alleged that you had deleted any material relating to terrorism.
8Control 16.1 of the Order prohibited you from installing or using any social media services, which includes TikTok, Instagram, Twitter, Facebook, and Reddit, without first having obtained written approval. Between 3 August 2021 and 4 November 2021, you used your permitted phone and permitted laptop to access and view TikTok on 16 occasions, Instagram on eight occasions, Twitter on five occasions, Facebook on four occasions and Reddit once. The topics of content you accessed included the conflict in Afghanistan, reverting to Islam, your ex-partner and the legitimate non-profit agency she worked for. This forms the basis of Charge two. It is not alleged that any of your use of social media related to terrorism. It was agreed that if you had have asked for permission to access social media, no reasonable request would have been refused.
9Control 7 of the Order prohibited you from intentionally accessing electronic media relating to, among other things, firearms or knives, including animated such weapons in online games or videos. Between 4 August 2021 and 26 October 2021, you used your permitted phone and permitted laptop to access and view electronic media portraying firearms and ammunitions on five occasions and animated media portraying an execution once. The content you accessed included a news video depicting soldiers loading and operating firearms as well as YouTube video clips of virtual reality and First Person Shooter (FPS) games. Notably, on 14 October 2021, you accessed animated pornographic comics on your permitted phone which contained execution, extreme violence, sexual violence, and rape. This forms the basis of Charge three. It is not alleged that the media you accessed was terrorism-related.
10Control 12.1(f) of the Order prohibits you from setting a password for your permitted phone unless you provide the password to the AFP. On or before 9 September 2021 you had started to use a simple 4-digit passcode on your permitted phone. On 5 November 2021, when required by the AFP to provide your phone, you did so and told them the passcode for it. The fact that you had not provided it earlier forms the basis of Charge four. I note that control 12 does not set a timeframe within which the password was meant to have been provided.
Procedural history
11You were remanded in custody upon your arrest on 5 November 2021. You participated in a recorded interview where you provided ‘no comment’ to questions asked in relation to the allegations.
12You did not contest your committal on the charges, but in this Court on 14 November 2022, your counsel conducted limited preparatory cross-examination of the informant about relevant matters.
13On 22 November 2022, eight days after that s 198B hearing you offered to plead guilty to the current charges. I accept that your plea was entered at the earliest reasonable stage in the proceeding.
14Your plea is of significance, as it demonstrates your willingness to facilitate the course of justice, and you deserve a significant discount on your sentence for its utilitarian value. That value is greater than usual, as held by the Court of Appeal, in circumstances of the COVID-19 pandemic and should attract ‘a more pronounced amelioration of sentence than at another time’ due to the severe strain placed on court resources.[1]
[1] Worboyes v The Queen [2021] VSCA 169, [35]-[39]; Chenhall v the Queen [2021] VSCA 175
15I also acknowledge the hardship you have experienced as a result of being on remand during the pandemic. I accept that access to personal visits has been restricted due to COVID-19 lockdowns, making your time in custody more burdensome than it should have been. Likewise, many rehabilitative programs and treatment services that would have been delivered in person have been unavailable or delivered remotely. I will reduce your sentence because of this.[2]
[2] Brown (aka Davis) v The Queen [2020] VSCA 60, [48].
Personal circumstances
16You are currently 46 years old. You were 45 at the time of offending. Since July 2015, you have spent only four months in the community. You were living with your mother during the offending period.
17You are a qualified nurse and paramedic. You have a good work history. Your counsel submitted that you possess the skills and intellect to become once again, a contributing member of society. I agree.
18When you were released in June 2021, it was at the height of COVID-19 lockdowns. I accept that due to the notoriety of your offending, the strict conditions of the Control Order, COVID restrictions and limited employment opportunities, you struggled with the transition back into the community.
19You were, however, engaging with the Board of Imams. Upon your future release, they will again assist you with accommodation and other supports. You hope to obtain work in the construction industry, and you have spoken to people in the community about your plan. You remain in contact with your parents, who have supported you during your time in custody and will continue to do so upon your release.
Sentencing issues
20Control orders are governed by Division 104 of the Criminal Code. Although an offence contrary to s 104.27 attracts a maximum penalty at the lower end of the range of penalties for terrorism-related offences in Part 5.3, it is still an objectively serious offence because control orders are only made when a court considers that they are reasonably necessary to maintain public safety from terrorist acts.
21I accept that an important function of Division 104 is to deter the emergence of circumstances that might make the carrying out of a terrorist act more likely. As the District Court of New South Wales said in a similar matter, “The legislation is intended to bite long before a person’s conduct manifests in violence.”[3] I adopt those comments.
[3] R v Naizmand [2017] NSWDC 4 at [50] (Scotting DCJ)
22Having said that, both the prosecutor and your counsel agreed that your offending was lower on the spectrum of gravity for offences under Division 104. The prosecutor submitted that it could be considered a less serious example of the offence as it did not involve accessing, supporting, or facilitating any terrorism-related activity.
23However, the Prosecutor also submitted that the protective purposes of the legislation mean that deliberate breaches must be treated seriously.
24I note that the interim control order commenced on 6 July 2021 and this offending commenced within three weeks, and occurred at various times up until 4 November 2021. The AFP was aware of your breaches as they occurred, albeit they did not inform you that they were. The prosecutor submitted and I accept that police were concerned that your use of the internet was escalating in intensity as seen in charge 3, and at least some breaches were clearly deliberate as seen in charge one. I am by no means critical of the AFP for giving you some latitude over that time, rather than arresting you for the merest of non-compliance.
25Your Counsel, Mr de Kretser, submitted that your offending should be characterised as “minor in nature, some even trivial”. He highlighted the fact that despite being aware of your breaches for weeks or months before 5 November 2021, the police took no action. I note, however, that strictly speaking they took action by way of continued monitoring and assessment of your risk, albeit that did not result in any direct action against you.
26He submitted that this reflects an assessment that your actions posed no real risk to the community. He further highlighted the fact that investigators held meetings on 22 October 2021 to consider whether your access to material was deliberate, intentional or incidental.
27Mr de Kretser submitted in relation to your use of social media that if you had sought permission to do so, it would have been granted. He characterised your access as driven by curiosity, boredom, and a lack of direction, and not by some sinister purpose to threaten public safety. To some degree, the prosecutor accepted as much, although any request would have to be properly assessed and whether that would have resulted in their approval is speculative. As I have mentioned, I accept that any such request would not unreasonably have been refused.
28In relation to charge 4, Mr de Kretser submitted that the evidence is unable to disprove that you were simply responding to an automatic software request to enter a password following a software update on your phone. In any case, as the prosecutor fairly conceded, your use of a passcode did not impede any monitoring or conceal any inappropriate use of the phone. Further, it was conceded that the Control imposed no specific time period within which you were required to provide the passcode to the AFP, and you did so without hesitation when asked upon your arrest. I find your plea on this offence to be very significant and that the Commonwealth may not have been able to make out this offence at trial.
29I note the remarks of other courts in control order cases.
30In R v MO (No 1),[4] the offender pleaded guilty to three counts of contravening a control order after being committed for trial and was sentenced to a term of imprisonment of two years and six months, to be released on a recognizance order after serving 18 months. The offender (whose age was not detailed) was on bail at the time of offending, and he knowingly used a phone that was not permitted under the control order. The level of seriousness of the offending was considered “trivial” given that no discussions related to terrorism.
[4] [2016] NSWDC 144
31In R v Naizmand,[5] the Court found objective gravity of the offender’s conduct was “mid-range”. The offender entered a plea of guilty at an early stage to five counts of contravening a control order and was sentenced to a term of imprisonment of four years, with a non-parole period of three years. The offender was 22 years of age at the time of sentence, and he had deliberately accessed disturbing and violent extremist promotional material associated with terrorist organisations over a six-week period.
[5] [2017] NSWDC 4
32In R v Namoa,[6] the offender pleaded guilty to three charges of breaching (or attempting to breach) the control order and was sentenced to a term of imprisonment of 16 months with a non-parole period of 12 months. The offender was 22 years old at the time of offending, with relevant prior convictions but also a plethora of mental health issues. She deliberately permitted her husband to use her permitted phone and attempted to cause another person to send her a message on a platform she was not allowed to access. The level of seriousness of the offending was in the low range given the absence of any connection to terrorist activity.
[6] Unreported, District Court of NSW, Hanley J, 19 November 2021
33In R v Dakkak,[7] the Court distinguished MO and Naizmand, and found that the offending was neither trivial nor egregious. The offender pleaded guilty to one rolled up count involving three offences of contravening a control order and was sentenced to a term of imprisonment of one year and eight months with a non-parole period of 15 months. The offender was 25 years old at the time of offending and he has relevant prior convictions. Over a 10-day period, he accessed reading material and videos that included quotes supportive of execution. The Court was unclear whether he was trying to study the issue or seeking to substantiate his radical beliefs.
[7] Unreported, District Court of NSW, Neilson J, 11 April 2022
34In the second case of R v Naizmand,[8] the offender entered a very late plea of guilty to one charge of breaching a Control Order and was sentenced to a period of imprisonment of one year and four months with a non-parole period of one year and seven days. The offender was 25 years old at the time of offending and he asked his wife to obtain the phone details of the mothers of two people he was prohibited from contacting. The Court could not find beyond a reasonable doubt that there was any sinister motive by the offender in seeking these contact details but confirmed that there is a “very high level of inherent criminality” attached to any deliberate breaches, regardless of whether the breaches lead to more sinister conduct.
[8] Unreported District Court of NSW, Craigie J, 6 June 2022
35In assessing the objective gravity of your offending, taking into consideration the above cases, and having regard to the particular facts in your case, I conclude that your offending falls in the lower end of the range of objective gravity for this offence.
36General deterrence, denunciation and just punishment are important considerations in sentencing for a Control Order breach offence.
37In Lodhi v The Queen,[9] it was held that “a terrorism offence is an outrageous offence and greater weight is to be given to the protection of society, personal and general deterrence, and retribution.” I note Lodhi was not a breach of a control order case.
[9] (2007) 179 A Crim R 470, Price J (Spigelman CJ and Barr J agreeing), p.539 [274]
38In R v MO (No 1),[10] Berman DCJ stated that;
“Control orders of this type must be obeyed. Even making trivial calls such as the offender made divert resources away from the authorities’ attempts to fight terrorism… Anyone else the subject of a control order needs to understand that if they deliberately breach the order, as the offender has, a sentence of some significance will be imposed upon them.”
[10] [2016] NSWDC 144 at [9]
39In R v Namoa,[11] Hanley DCJ stated:
“In the context of the nature of the legislative objectives, any breach [of a control order] must require a custodial sentence… to emphasis general and specific deterrence.”
[11] (Unreported, District Court of NSW, Hanley J, 29 November 2021) at page 8
40Your Counsel conceded that some measure of general deterrence, just punishment and community protection is necessary, but emphasized the importance of fostering your rehabilitation, and supporting you in your commitment to return to a productive life.
41Your Counsel did not rely on contrition as basis for mitigating sentence, but noted your acceptance of responsibility by way of your guilty plea.
42The Prosecutor submitted that there is no evidence that would support a favourable finding about your prospects of rehabilitation.
43Your Counsel submitted that while you now possess a relevant criminal history, you also have protective factors in place such as work, family, and community support. I accept that you retain the support of your parents and the fact that you have already initiated your engagement with the Board of Imams since your previous release from custody in 2021.
44Rehabilitation is an important factor in sentencing you, not only to reduce the risk of your institutionalisation, but it provides the best means of protecting the community of similar offending. Based on the limited material before me, I find your prospects of rehabilitation to be guarded to reasonable. I acknowledge that your prospects will ultimately depend on your engagement in employment and other pro-social activities with the commitment the like of which I think you are well capable.
45I have considered each of the matters in s 16A of the Crimes Act 1914 (Cth) (‘Crimes Act’), and have aimed to determine a sentence that is of a severity appropriate in all the circumstances of the offence. I have considered all matters contained in s 16A(2) that arise in your case as set out above.
46I am satisfied that no sentence other than imprisonment is appropriate in the circumstances of your case.
47I sentence you as follows:
(a) On charge 1, breaching the prohibition against deleting your internet history – 1 year;
(b) On charge 2, breaching the prohibition against installing or using social media apps – 6 months;
(c) On charge 3, breaching the prohibition against accessing media about weapons or extreme violence – 1 year;
(d) On charge 4, breaching the prohibition against setting a password on your device without notifying police – you are convicted and without proceeding to sentence release you upon you providing security by way of recognizance of $500 for a period of 1 year that you will remain of good behaviour and secondly that you maintain your engagement with the Board of Imams for the period of the bond.
48The sentences on charges 1 and 2 commence today. The sentence on charge 3 commences 6 months after the commencement of the sentence on charge 1.
49The total effective sentence is 1 year 6 months.
50I note that these offences are minimum non-parole period offences under s19AG of the Crimes Act and accordingly I fix a non-parole period of 15 months.
51I declare that you have served 455 days and direct that this be reckoned as a period already served under this sentence.
52In accordance with section 6AAA of the Sentencing Act 1991 (Vic), but for your plea of guilty I would have imposed 2 years 4 months and fixed a non-parole period of 21 months.
53Mr Brookman, the imprisonment term that I have imposed will entail a term of imprisonment of not less than 15 months, and if a parole order is made a period of service in the community called the parole period, to complete the service of your sentence.
54If a parole order is made, the order will be subject to conditions and that parole order may be amended or revoked, and there may be consequences that may follow if you fail without reasonable excuse to fulfil the conditions of your parole.
55In relation to the bond that I have imposed after convicting you of Charge 4, there are two conditions. The first is that you remain out of trouble, that is you do not reoffend in any way for a period of 1 year. If you remain in custody for some time during that period, and you clearly will for a couple of days at least, that will include any offences that occur in prison.
56It also means that you must maintain engagement with the Board of Imams. If you fail in relation to any of those conditions then you will breach your recognisance and you can be returned to court for further orders. You are not required to pay the $500 now, but you will be liable to paid it if you breach the bond.
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