Director of Public Prosecutions v Ashdown

[2022] VCC 1613

IN THE COUNTY COURT OF VICTORIA

AT Melbourne

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-21-01649

DIRECTOR OF PUBLIC PROSECUTIONS

v

BRADLEY ASHDOWN

JUDGE:	HIS HONOUR JUDGE TIWANA
WHERE HELD:	Melbourne
DATE OF HEARING:	6 September 2022
DATE OF SENTENCE:	30 September 2022
CASE MAY BE CITED AS:	DPP v Ashdown
MEDIUM NEUTRAL CITATION:	[2022] VCC 1613

REASONS FOR SENTENCE
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Subject:Criminal law – Sentence

Catchwords:              Aggravated burglary – Contravene family violence final intervention order – Spontaneous offending – Partner of the accused and her female friend present in the house – Relevant prior criminal history – Late guilty plea – Served time in custody in onerous COVID-19 conditions – Progressing well since being released on bail.

Legislation Cited:      Crimes Act 1958 (Vic); Family Violence Protection Act 2008 (Vic); Sentencing Act 1991 (Vic)

Cases Cited:Bugmy v The Queen (2013) 249 CLR 571; Worboyes v The Queen (2021) 96 MVR 344

Sentence:                  229 days’ imprisonment and 18-month Community Correction Order.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr M Turner	Office of Public Prosecutions
For the Accused	Mr M Kozlowski	Emma Turnbull Lawyers

HIS HONOUR:

Introduction

1Bradley Ashdown, you have pleaded guilty on indictment to one charge of aggravated burglary contrary to s 77 of the Crimes Act 1958. This offence carries a maximum penalty of 25 years’ imprisonment.

2You also consented to this Court hearing and pleaded guilty to one related summary charge of contravening a family violence final intervention order, contrary to s 123(2) of the Family Violence Protection Act 2008. This offence carries a maximum penalty of 2 years’ imprisonment and/or 240 penalty units.

3An agreed prosecution opening dated 12 July 2022, was read aloud in Court.[1]       

[1]        Exhibit A.

Circumstances of the offending

4At the time of the offending, you were 48 years old and had been in a relationship with Amy Carlson[2] for approximately three years. There was a Family Violence Final  Intervention Order in place that protected Ms Carlson against family violence from you. The order did not prohibit contact and you were allowed to remain living together.

[2]        A pseudonym.

5On 26 September 2019 at approximately 3:06pm, Ms Carlson sent a text to Erica Norton[3] telling her that you had kicked her out of your house following an argument. Ms Norton picked up Ms Carlson and took her to her residence in Glenroy.

[3]        A pseudonym.

6On 27 September 2019 between 10:00pm and 11:00pm, you and Ms Carlson were communicating via text and phone calls and agreed that you would attend Ms Norton’s address to pick Ms Carlson up.

7At approximately 12:30am, you parked your vehicle in the driveaway of Ms Norton’s home and climbed over the small front gate. You approached and knocked on the front door. There was no response and you spoke to Ms Carlson on the phone. Ms Norton opened the door slightly and she and Ms Carlson spoke to you through the door. You then walked away from the residence and told Ms Carlson that you would wait for her in the car. You spoke to Ms Carlson on the phone again.

8Ms Carlson did not come out. You then stepped back over the gate and approached Ms Norton’s residence again.

9CCTV footage[4] with clear audio, shows you on your phone speaking to Ms Carlson in an aggressive and aggravated manner (Summary Charge – Contravene Family Violence Final Intervention Order). You became increasingly agitated and started kicking the front screen door. Ms Norton yelled telling you to leave. She then opened the front door slightly to tell you to leave. You kicked the screen door which caused it to fling open and entered the house. Yelling can be heard on the CCTV footage. At the time of entry, you intended that Ms Norton would fear being assaulted (Charge 1 – Aggravated Burglary).

[4]Exhibit B.

10Once you entered, Ms Norton was situated near the front door while Ms Carlson had locked herself in the bathroom. As you followed Ms Carlson towards the bathroom, you came into contact with Ms Norton and she fell backwards. Ms Carlson called triple zero. You asked Ms Carlson to leave with you, but she refused. You then left through the front door, passing Ms Norton, who was now standing in the front yard and still yelling at you to leave. You left in your vehicle prior to the police arriving.

11At around 12:58am, police arrived and spoke with Ms Carlson and Ms Norton. The CCTV was observed and seized by the police.

12On 29 September 2019, you were arrested and conveyed to Fawkner Police Station where you were interviewed by the police. You said that you entered the house after the door was opened. You denied hitting or threatening anyone. You admitted kicking the door in order to get Ms Carlson and Ms Norton’s attention.

13You were remanded in custody where you remained until securing bail on 14 May 2020.

Impact of the offending

14Ms Norton has made a victim impact statement. It is clear that your offending has created ongoing fear in her. She does not feel safe in her own home.

Personal circumstances

15You were born locally and completed schooling up to Year 10. You lived with your parents and one younger brother.

16Your parents worked long hours and never showed any real affection toward you. On the contrary, your father, who drank heavily, displayed considerable aggression. You were scared of him. When angry, he would put holes in the walls. You recall your parents yelling a lot at each other. You were also the victim of your father’s anger. He would smack you and assault you with a strap.

17You began smoking cannabis when you were aged 13 or 14. You were also using up to three grams of speed daily, and have tried ice, heroin and benzodiazepines. You continue to smoke up to a gram of cannabis per day. In the past, you also drank heavily. You continue to drink but have reduced your consumption considerably.

18You told Ms Lechner[5] that between the ages of 19 to 24, you were ‘in and out’ of psychiatric hospitals as a result of drug-induced psychosis.

[5]Exhibit 2.

19Despite your issues, you have a significant history of employment. Having left school, you worked at a service station. You then worked as an electroplater and a spot-welder with the Ford Motor Company. At the age of 25 you undertook a boiler-making apprenticeship for four years. You have also worked in building garbage trucks. Currently, you are in full-time employment as a boilermaker with a company based in Tullamarine. I have had regard to the reference provided by your employer.[6] You have been frank with your employer about your offending. Despite your offending, you are considered a trusted and respected member of the workforce.

[6]Exhibit 4.

20Your parents are now deceased. You maintain a good relationship with your brother.[7]

[7]Exhibit 5.

21You are a father to an adult son who lives in Queensland. You have maintained a close relationship with your son. In addition to your relationship with your son’s mother, you have had 3 further significant relationships. Despite the current offending, you have continued your relationship with Ms Carlson.

Psychological assessment

22I have had regard to Ms Lechner’s psychological report. She assesses you as being of ‘low-average’ intelligence. Your disadvantaged background has left a mark. You present with symptoms of poor emotional and behavioural regulation secondary to exposure to domestic violence in the home. Ms Lechner reports that you have severe symptoms of psychological distress, moderate depression and moderate anxiety. You also appear to have some unresolved post-trauma symptoms relating to both your childhood years and a number of assaults endured by you in your adult life. You have high emotional dependency, having been raised in a home where affection was missing. You are easily overwhelmed and react in situations of conflict.

Criminal history

23You have a significant criminal history spanning between 1989 and 2016. You have appeared before the courts for violent offending, including offences of assaulting and resisting police, recklessly causing serious injury, intentionally and recklessly causing injury, unlawful assault, common-law assault, criminal damage and carrying an offensive weapon. You also have a prior history of breaching intervention orders and offences involving dishonesty.

24On 3 December 2003, you were sentenced in respect of an aggravated burglary to 3 years’ imprisonment with a non-parole period of 2 years.[8] In 2010, you were sentenced to a term of 4 years and 2 months’ imprisonment with a non-parole period of 3 years. You have served other terms of imprisonment as well as being sentenced to community orders, fines and suspended sentences.

[8]I was told that this related to stealing property from a dwelling rather than intending any violence.

Gravity of the offending

25The seriousness of the offence of aggravated burglary is made plain by the maximum sentence of 25 years’ imprisonment legislated by Parliament. Your offending was committed at night with the knowledge that two females were present in the house. As is plain from Ms Norton’s victim impact statement, the fear she felt at the time of the offending has lingered and interfered with the quality of her life. You kicked the door more than once and entered the dwelling intending that Ms Norton would fear for her personal safety. She was in fear of being attacked by you and repeatedly yelled at you to leave.

26At the time of the offending, you partner was protected by a family violence intervention order. You breached that court order by your display of verbal aggression towards Ms Carlson.

27In respect of the aggravated burglary, I accept that you did not attend Ms Norton’s home in order to commit the offence. The offending was spontaneous, it did not involve an intention to inflict violence and no weapons were involved.

28It is apparent that you became angry when your partner refused to come out and leave with you. That anger led you to commit the offending. That is no excuse. Ms Carlson was entitled to say no, and you should have left.

29General deterrence must be given prominence and your appalling conduct must be denounced. Your criminal history, as alluded to earlier in these reasons, requires specific deterrence be given greater importance in sentencing.

Matters in mitigation

30I accept that your moral culpability must be assessed in light of your disadvantaged childhood. Your background allows me to reduce your moral culpability. However, your inability to control your emotions and display aggression requires that I give greater importance to community protection.[9]

[9]Bugmy v The Queen (2013) 249 CLR 571.

31Although you pleaded guilty, your plea was entered late in the day. It was entered on the day your trial was due to commence. Having said that, the witnesses were spared further cross-examination at trial and your plea saved some court time and expense. In times where the pandemic has led to a considerable backlog of trials, a plea of guilty must be given significant credit to encourage those who are guilty to so plead.[10]

[10]Worboyes v The Queen (2021) 96 MVR 344.

32I accept that your plea of guilty is evidence of some remorse. You expressed your remorse to Ms Lechner, accepting that your actions would have frightened your victims. You told Ms Lechner that you understood that your lack of emotional and behavioural control could not justify your offending.

33You have spent 229 days in custody. Having been granted bail on 12 May 2020, you have progressed in a positive manner. You obtained employment as a boilermaker with your current employer some 18 months ago. You continue to work for them on a full-time basis. In addition, you have sought counselling with Dr Evers, a psychologist. You commenced counselling in March 2021 and have maintained it until now. The counselling has focused on maintaining good emotional regulation. You have developed better communication strategies in your personal relationship and have learnt anger management techniques. Dr Evers has praised your consistent engagement and your efforts at improving yourself and your life.[11]

[11]Exhibit 3.

34You have continued your relationship with Ms Carlson. Ms Carlson has provided a reference. She states that you are currently enjoying a good relationship and are both undergoing counselling to assist.[12]

[12]Exhibit 6.

35Since this offending in September 2019, you have not re-offended. There is nothing pending. Your rehabilitation is currently going well but it is a long process, and you will need help along the way.

36Having spent 229 days in custody in onerous conditions due to the pandemic, it is to your credit that you have made a conscious decision to change your ways and better yourself as a person.

Sentencing

37In circumstances where you have maintained rehabilitation since May 2020, I do not wish to interrupt your progress and break your will in turning your life around. Instead, I will impose a sentence that will allow you to build upon the progress you are making. If you take advantage of the support, that ultimately will protect the community.

38I intend to accede to the sentencing submission made by your counsel, namely the imposition of a combination sentence. In light of your recent progress on bail, the prosecution also agrees that all sentencing purposes including general deterrence, specific deterrence, denunciation and community protection can be met by a term of imprisonment along with a suitably structured Community Correction Order (‘CCO’).

39Can you please stand.

40Having carefully considered all the matters raised in this case, and weighed the various sentencing considerations, I sentence you Mr Ashdown as follows:

41On Charge 1, aggravated burglary, you will be convicted and sentenced to a term of 229 days’ imprisonment.

42In addition, on Charge 1 and the summary charge of contravening a family violence final intervention order, you will be convicted and sentenced to a CCO for a period of 18 months commencing today.

43Every CCO has core conditions that you must comply with. They are as follows:

·        You must not commit any offence punishable by imprisonment.

·        You must comply with any obligation or requirement prescribed by the regulations.

·        You must report to and receive visits from the Secretary.

·        You must report to the community corrections centre within two clear working days.

·        You must notify the Secretary of any change of address or employment within two clear working days of the change.

·        You must not leave Victoria except with the permission of the Secretary.

·        And, finally, you must comply with any direction given by the Secretary that is necessary for the Secretary to give to ensure your compliance with the order.

44In addition to the mandatory core conditions, the CCO will also include the following special conditions:

·        First, you will have to perform 150 hours of unpaid community work as directed.

·        Second, you must undergo assessment and treatment (including testing) for drug abuse or dependency as directed.

·        Third, you must undergo assessment and treatment (including testing) for alcohol abuse or dependency as directed.

·        Fourth, you must undergo any mental health assessment and treatment as directed.

·        Fifth, you must engage in programs that address factors relating to your offending behaviour.

·        Sixth, you will be subject to supervision as directed for the duration of the CCO.

·        Seventh, you will be subject to judicial monitoring. That means you will have to appear before me as directed so that I can monitor your progress. I direct the first judicial monitoring hearing will take place at 9.30am on Friday 20 January 2023.

45You must report to Broadmeadows Community Correction Services within two working days from today.

46Pursuant to s 48CA(2) of the Sentencing Act 1991, I direct that 50 hours of treatment and rehabilitation successfully undertaken is to be counted as hours of unpaid community work for the purposes of the unpaid community work condition.

47Mr Ashdown, you need to understand that if you were to breach the CCO in any way, either by committing another offence or by not complying with any of the core conditions or any of the special conditions, then you could be charged with the offence of breaching the order.

48The offence of breaching a CCO itself carries a maximum penalty of three months' imprisonment. So were you to breach the order, you would need to come back to Court and face sentencing for that breach offence. In those circumstances, you could also be re-sentenced for the offences for which you were placed on the order originally. You would then face the very real possibility of being sent back to prison.

49So, there are serious consequences attached to any breach. Do you understand that?

50OFFENDER: I do, your Honour.

51HIS HONOUR: Do you also understand all the conditions of the proposed CCO?

52OFFENDER: Yes I do, your Honour.

53HIS HONOUR: Do you consent to being placed on a CCO in the terms I have outlined and to abide by all of its conditions?

54OFFENDER: Yes.

Pre-sentence detention

55Pursuant to s 18 of the Sentencing Act 1991, the period of 229 days of pre-sentence detention is hereby declared as having already been served in respect of this sentence, and I order that such declaration and its details be entered in the Court’s records.

Section 6AAA declaration

56Pursuant to s 6AAA of the Sentencing Act 1991, I indicate that had you pleaded not guilty and been found guilty, I would have sentenced you to a term of 3 years’ imprisonment with a non-parole period of 2 years’ imprisonment.