Director of Public Prosecutions v Audsley
[2013] VCC 1934
•2 December 2013
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-10-02407
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BRETT ROBERT AUDSLEY |
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JUDGE: | HER HONOUR JUDGE COHEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 26 August to 1 November 2013 (Trial) | |
DATE OF SENTENCE: | 2 December 2013 | |
CASE MAY BE CITED AS: | DPP v Audsley | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1934 | |
REASONS FOR SENTENCE
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Subject: Sentencing after jury verdict.
Catchwords: Aggravated burglary; recklessly causing serious injury; armed robbery; assault
Sentence: TES: 7 years and three months’ imprisonment; non-parole 5 years
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms K. Parnham (Sentence) Mr G. Slim (Trial and Plea) | Office of Public Prosecutions |
| For the Accused | Mr G. Traczyk | Simon Parsons & Co |
HER HONOUR:
1 Brett Robert Audsley, you were found guilty by a jury of one charge each of aggravated burglary, common assault, recklessly causing serious injury, and armed robbery.
2 The maximum penalty for aggravated burglary and for armed robbery is 25 years' imprisonment. For recklessly causing serious injury it is 15 years' imprisonment, and for common assault five years' imprisonment. These maximum penalties, especially the two highest, reflect the seriousness with which the community through parliament regards offences of this nature, and must and will be taken into account by me in deciding your sentence.
3 The charges arise out of events on 10 January 2009 at the property of the Mammone family, who ran a market garden business and lived in a house on the same property. Shortly after 11 am, three men entered that house, two with black tops zipped up to cover their faces and skeletons on the front, and one holding a hammer and one a piece of conduit (apparently re-enforced with wire but flexible) that looked like a bar, which in the circumstances were offensive weapons. The third man was wearing a grey hooded jacket and that was Mr Michael Turner, who nine months later admitted his involvement and has been given an indemnity against prosecution for the offences. Some or all of the three offenders also wore gloves.
4 The intruders were searching for the youngest son in the family, Paul Mammone, with intention to steal from him what they expected to be significant quantities of cash and probably drugs. There was also an intention by one or more of the intruders to assault him, it seems as a show of jealousy or punishment for having a sexual relationship with a woman with whom you were also having a sexual relationship at that time. There seems to have been no expectation that other members of the family would be home. In fact, Paul Mammone was away from the house working in a shed, but his parents and sister were in the house, his father about to leave to also go to work in the shed. The invasion of the house in these circumstances constituted Charge 1 of aggravated burglary.
5 On entering the house, the intruders found Stacey Mammone and demanded the whereabouts of Paul. She was struck on the forehead, receiving an abrasion, and then forced to kneel on the floor, pushed down by her hair, and then her head was held to keep her kneeling. This was the basis of Charge 2 - common assault of Stacey Mammone.
6 While demands were being made for the whereabouts of Paul and also for cash, it was noticed that Mr Dominic Mammone, Paul Mammone's father, had just walked out the back door and was outside putting on his boots. Mr Turner went after him and demanded he go back inside. Mr Mammone resisted and swung his boot at Mr Turner. He was then struck on the head - I am satisfied beyond reasonable doubt, as I will explain shortly, that that was with a hammer - and he fell to the ground. He suffered a fractured skull, requiring surgery to release pressure on his brain and resulting in partial paralysis from which he has not fully recovered. This undisputedly was a serious injury, and the hitting of him is the basis of the charge of recklessly causing him serious injury.
7 Before leaving the house, the intruders forced Stacey Mammone and her mother, Colleen Mammone, to take them to various rooms for cash. The number of intruders who accompanied them to each room is unclear, but at least one man was with Stacey Mammone throughout the search in three rooms for cash, and by then he was holding a knife that Stacey Mammone had been using to peel fruit when they arrived. Several thousand dollars in cash was taken. The stealing of cash by making threats against Stacey Mammone with a weapon is the basis of Charge 5 of armed robbery.
8 The prosecution case was put on the basis that the intruders were each criminally liable for the acts of all of them because all were engaged in a joint criminal enterprise. It was alleged that it was you who had the hammer and in fact struck Mr Dominic Mammone on the head, but it was not necessary for the jury to be satisfied of that fact beyond reasonable doubt to find you guilty, provided they were satisfied beyond reasonable doubt that you were one of the intruders, as all were part of this joint enterprise.
9 The jury's verdicts mean that a majority of jurors was satisfied beyond reasonable doubt that you were one of the intruders. That would make you one of the two who wore a zipped up black hood covering your face, and also one who carried a makeshift weapon as you entered the house, based on the evidence of Stacey Mammone.
10 In sentencing you, I need to assess the seriousness of the offending and your overall culpability as part of that. That requires me to decide certain facts in relation to your role. Before using any such fact as an aggravating factor, I would need to be satisfied of it beyond reasonable doubt.
11 The offences of aggravated burglary and armed robbery carry the second highest level of penalty available in this state and must be regarded as of a serious nature in general. On many occasions, the circumstances or manner of commission of the offence is such as to cause the overall average or mean of sentences in this state for these offences to appear comparatively low. As Mr Traczyk rightly submitted, in this case the seriousness of them was raised because in the course of them a very serious injury was caused to Mr Dominic Mammone, but I also bear in mind that there should not be double punishment in that the sentence on the charge of recklessly causing serious injury will carry that degree of condemnation.
12 I consider that the invasion of a family's home in the middle of a weekend morning by three men carrying offensive weapons and two of them masked, was a serious form of aggravated burglary in the way of intimidation and the threat of violence to them. That events escalated to the causing of the very serious injury that they did, may well have been due to disinhibition from the effects of methylamphetamine, although there is no actual evidence of that. However, far from being an excuse, that would simply emphasise the danger in such behaviour and the total selfishness of the indulgence in such drugs. That no consideration was apparently given to whether people other than Paul Mammone might have been present reflects a lack of forethought, but also disregard for unintended consequences to other people.
13 It was appropriately conceded throughout the trial that the injury to Mr Mammone was very serious. I have read the victim impact statements of him, as well as of the other members of his family, and I will not repeat them at length. I accept that the incident itself was traumatic for Stacey and Colleen Mammone at the time, and of particular concern to Stacey Mammone as she was pregnant at the time, and that the incident has left significant feelings of fear and insecurity on an ongoing basis. However, clearly the overwhelmingly most serious consequences have been those to Mr Dominic Mammone, and the impact that has had on his whole family. He was critically injured, requiring transfer by air ambulance to the Alfred Hospital, surgery to relieve pressure on his brain, and many, many months of hospitalisation and rehabilitation for him to be able to talk again and walk again. He has been left with ongoing disability, including in the use of his right hand and in his speech and with walking, and some paralysis down the side of his face. He describes humiliation when people do not have the patience to talk to him because he struggles to speak. He gives a moving account of some of the limitations on him now, including interaction with his grandson, and his concern for the impact of his injuries on his family, leading ultimately to the decision to sell the property on which they had all lived and worked, and which he had worked so hard to develop. He has clearly felt frustration and also anguish about his predicament.
14 He says in his victim impact statement: "I ask myself now, who am I? What is my role? What can I provide for my family? I don't know." Understandably, he struggles with the long term effects on himself and what he sees them doing to his family, but he seemed to me to have answered those questions by his own example to his family. Called as the first witness in this trial, he walked into court and to the witness box unaided, and gave his evidence forcefully, and in my view genuinely to the best of his recollection, and with great dignity, particularly given his difficulty with speech. His very determination to talk again and to walk again after this injury reflects great courage. What he can give his family is the example of his great determination, his strength of character and his dignity.
15 While the consequences of the injury to Mr Dominic Mammone have been very serious and I must take them into account as an aspect of assessing the seriousness of the offences, I do so in the context that I am satisfied that the injury to Mr Dominic Mammone was not premeditated, and that he was not the intended victim of any assault when the three intruders entered that day. As an instance of the offence of recklessly causing serious injury, in my view the objective level of seriousness in this case is in the higher mid range for that offence. It is not at the highest level of seriousness despite the extremely serious consequences for Mr Mammone and his family, because it was the result of a brief encounter, a single blow, albeit a heavy blow to the head with a heavy object, there was no ongoing torturing or humiliating of the victim, and as I have said, it as not pre-meditated.
16 The armed robbery was also not in the higher range of seriousness for that offence. It involved makeshift offensive weapons rather than guns, and the knife described was not brought by the offenders but found there and used opportunistically. While intimidating, the behaviour did not involve tying up of victims, and lasted a relatively short time. What I do regard as serious about it is that the objective of obtaining more cash was pursued even after the serious injury to Mr Dominic Mammone had occured, reflecting a callousness and greed.
17 Turning to your own role, first I am satisfied beyond reasonable doubt that you were the instigator of these offences and that, to the extent that there was a plan, it was of your making. I make that finding on the following basis:
(a) The jury must have accepted Mr Turner's evidence that he was picked up in a car at the end of his street and that you were in that car. Given the jury verdicts, I am satisfied beyond reasonable doubt:
(i) that you were the driver of the car that took the offenders to and from the property;
(ii) that you knew the address of the Mammone property;
(iii) that it was your knowledge of Paul Mammone which was the basis for the burglary, both the expectation of cash being present and the desire to assault Paul Mammone.
(b) There is no evidence to suggest that Mr Turner had any connection with that property or anyone in the Mammone family or any knowledge about any of them before being taken there that day.
(c) I bear in mind that the jury was unable to reach a conclusion as to whether or not your co-accused in the trial, Mr Parks, was the third offender, but if he were, there was no evidence that he had any connection or knowledge of any member of the Mammone family or that property.
(d) From the evidence of Stacey and Colleen Mammone that the intruders entered the house calling for Paul, it is clear that he was the target of the burglary and it was not a random burglary at that property.
(e) I am satisfied beyond reasonable doubt that Karen Lord was not one of the three intruders, due to –
(i) a description of the intruders being men;
(ii) she was too busy texting her advice, first to her friend Linda and then to you, at the very time that the burglary was occurring;
(iii) even though she had knowledge of Paul Mammone and the property - indeed she seems to have been the source of at least part of your knowledge - I do not think that there was any reasonable possibility that she organised the burglary as I am satisfied that she did not want to alienate Paul Mammone.
(iv) I am also satisfied that her text to you at 11.40 am, accusing you of hitting Mr Mammone, would not have been made with any expectation of police being able to examine her messages, and therefore was not simply a cover up or diversion.
18 In deciding that you were the instigator of the offences, I do not find that there was careful pre-planning, nor that there was any intention as the three of you entered the house that day to injure Mr Dominic Mammone at all. I am satisfied that Mr Dominic Mammone was hit on the head in a spontaneous action in the heat of unexpected escalation of events. I am satisfied beyond reasonable doubt that he was struck with a hammer, that being based:
(i) on the evidence of Mr Dominic Mammone himself, who saw a hammer; and
(ii) on the evidence of his son, Paul Mammone, albeit he was at least 30 metres away, that he says he saw his father struck on the head with the hammer;
(iii) on the evidence of Stacey Mammone and Colleen Mammone that the men had between them a hammer, as well as a piece of pipe, which I take to be the conduit;
(iv) on the evidence of Stacey Mammone saying she saw down the hall her father hit on the head with a hammer;
(v) on the medical evidence which was that the injury caused to Mr Mammone was consistent with him being struck with an object such as a hammer.
19 The most serious factual issue for me to decide is whether I should find that it was you who struck Mr Dominic Mammone on the head. Mr Traczyk points to various parts of the evidence which he argues create at least reasonable doubt as to whether it was you who struck that very serious blow. The relevant evidence on this is:
(1) Mr Dominic Mammone himself described a man shorter than him, of chubby, and having a full brown beard approximately an inch long, and having long, lighter brown hair which filled his hood, and that the hood was partly raised. Mr Mammone said this man confronted him and told him to go inside, and he says it was the same man who struck him on the head with a hammer. Not only is there no evidence of you having a beard at the time; if he is right about the height then the person he describes was most unlikely to have been you, as you are considerably taller.
(2) The evidence of Stacey and Colleen Mammone is that two of the intruders had their faces covered and that it was the third person who had a grey hood on his jacket but not a covered face, although neither of them describes that face, who went down the hall to get Mr Dominic Mammone. Mrs Mammone saw that man face to face with her husband, although she did not see anyone strike him. Stacey Mammone says she saw the man who had gone down the hall moving quickly, stand over her father and then hit him on the head with a hammer.
(3) Paul Mammone, approaching from more than 30 metres away on his quad bike, at first described seeing a man with a black hood or balaclava who struck his father on the head with a hammer, but he does say that he saw two men near his father and ultimately he was not sure which of the two men had the hammer.
(4) Mr Turner said that while he was telling Mr Mammone to get inside, you came from behind Mr Mammone and struck him on the head with the hammer.
20 The prosecution argues that Mr Turner should be believed on this. It argues that although Mr Dominic Mammone was clearly genuine in his belief that he was describing the person who struck him, there are many reasons why he may be mistaken in that description, including as to whether somebody else approached him from behind, as Mr Turner says you did.
21 Both defences during the trial argued that it was probably Mr Turner himself who struck Mr Dominic Mammone on the head, causing the serious injury. Mr Turner did admit in cross-examination to having struck Mr Dominic Mammone twice, albeit not to the head, in that he said that when Mr Mammone swung his boot at him, he slapped his hand away and then pushed him and also punched him to the chest as Mr Mammone came towards him, and that he had the piece of conduit partly up his sleeve for reinforcement at this time. He had not previously indicated that he had made any contact with Mr Mammone physically, which was raised as a serious attack on his credibility, but he still maintained that it was you who came up behind Mr Mammone as this was occurring and struck him on the head with the hammer.
22 I note that Mr Dominic Mammone's description of the person who confronted and struck him does not actually match Mr Turner either, insofar as a full brown beard and light brown hair is concerned, as I find those most unlikely descriptions from my observations of Mr Turner as he now appears, and although Mr Turner may have been closer to the height described, he could not be said to be chubby.
23 It is understandable that there would be variations between the descriptions from the Mammone family members' evidence of the intruders and of which one struck Dominic Mammone. Taking these variations into account, particularly that Mr Dominic Mammone's description of the man he says struck him does not resemble you, and further because you would have been one of the two wearing the zipped up hood, so without your face visible, I have concluded that I cannot be satisfied beyond reasonable doubt that you were the person who struck Mr Mammone on the head. In these circumstances, I sentence you on the basis that you were one of the three intruders and equally criminally liable for that blow, but not the one who actually delivered that blow.
24 Even though I am not taking you to have struck the most serious blow, I do regard your role in relation to the overall offending as highly culpable in what I regard as very serious offending as I have described.
25 Also to be taken into account is your admitted prior criminal history. That includes four prior court appearances for a variety of offences of dishonesty, including burglary and theft, as well as for possessing amphetamines, possessing a controlled weapon without excuse, and also for a breach of suspended sentence. There is some relevance in the dishonesty offences, although they are not of as serious a nature as the charges of aggravated burglary and armed robbery which arise in the current case, and nor are there offences approaching the level of violence of which you now stand convicted. While your prior criminal history does you no credit, I do not take it to reflect a long-standing entrenched pattern of frequent violence or frequent serious offending.
26 Also of relevance is that since January 2009 you have faced courts on several further occasions for charges in the same nature as your prior offences, in that they included offences of dishonesty, stating a false name when required, possessing various drugs and prerequisite chemicals. However it also includes later in 2009, charges of intentionally causing injury, recklessly causing injury and assault by kicking. You do not admit these offences or convictions, but ultimately the Crown did not see it as necessary to go to the proof of and did not have details about the actual circumstances of that offending. As I say, I do not have an account of the circumstances of the latter offences, and cannot draw much from the information that that there was initially a total effective sentence of one year two months imposed for them, which was reduced on appeal to the County Court in September in 2009 to two months' imprisonment.
27 The subsequent offending is relevant as reflecting on your character generally, but also in that it indicates that you have become involved in violence on subsequent occasions.
28 I did seek clarification of how much time you in fact spent in prison in 2009. I was told that you thought it was nine months in total for a succession of matters, although according to the custody records consulted by the prosecutor and your counsel it appears you were imprisoned in July 2009 and released in November 2009, being a little over four months in prison. That seems to have been your first period in prison, other than when you may have been arrested to be interviewed and charged.
29 You were then arrested for these charges on 17 February 2010 and remanded until granted bail some ten months later. That period in custody, together with the period since I remanded you after the jury's verdict, will count as pre-sentence detention and be reckoned as served towards the total sentence I impose. As you are aware, you are now looking at serving a sentence of imprisonment of much greater duration than any you have served in the past.
30 I turn now to your personal circumstances. You are now aged 33. You give your occupation as a machine operator, and I heard during the trial that you at least do some welding which you had an annual arrangement to do for a man who owns a series of childcare centres.
31 You have been in a relationship for some 16 years with Michelle, and have two children together, they now being aged 13 and two. I am told that notwithstanding the two other relationships aired during the trial, there is an ongoing supportive relationship with your partner, Michelle, and inevitably in those circumstances there is considerable impact on your partner and children from the prospect of your imprisonment. Your father sat in court through most of the trial and the plea hearing, and is clearly also of support for you, as are some other family members and friends who have been present in court from time to time.
32 While I heard during the trial of you suffering significant injuries in a car accident in the month before these offences, you were clearly sufficiently recovered by the time of these offences to be able to drive some distances on 10 January and to be away from home all of that day. I was not provided with any medical information about any lingering aspects of those injuries.
33 There is mention in your criminal history report of a Magistrates' Court note in August 2008 that you had suffered significant psychological issues from a brain injury suffered in a car accident in the late nineties. Notwithstanding that, your counsel said that there was thought to be no need to obtain a psychological or similar report in relation to you, so I approach the sentencing of you on the basis that your health or psychological or cognitive conditions need not be regarded as of specific relevance in your sentencing.
34 There was evidence during the trial indicating that you had been using drugs yourself on the night before the offences, but there is no evidence as to how much, when, or what effect that might have had on your behaviour, and I have no information as to whether you have an ongoing problem with drug use.
35 The main purpose of my sentence must be to send a message to the community generally that violent home invasions will not be tolerated and will attract serious punishment. To the extent that the aim of your offences included some type of personal punishment of Paul Mammone, the message to you and others must be that personal vengeance will also not be tolerated. There must also here be some specific deterrence, because although neither your prior nor subsequent offending has been as serious as these offences, you do not seem to have wholly accepted that you need to stay away from violent or dishonest behaviour.
36 Finally, I consider that the circumstances call for a clear element of punishment as the community expression of its denunciation of such serious violence as you were part of that day.
37 While you have the prior and some subsequent offences I have described, I do not regard your criminal history as indicating that there is no prospect of your rehabilitation. On the contrary, although now 33 and facing a considerable number of years of imprisonment as a result of being found guilty of these charges, there remains a supportive family for you through this period, and on your eventual release from prison, and you also seem to have a work history which should assist you to re-establish yourself when you are released. The drug use, however, seems to have been an integral part of the social arrangements in which you and all who participated in this offending were in the habit of indulging, and the effects of those drugs on each of you remains unknown.
38 You defended each of the charges against you, as was your legal right. You do not receive a heavier sentence for doing that; however, you do not receive the benefit of the leniency you would have attracted for a plea of guilty, there being no indication of remorse nor any savings of time or cost to the community, and certainly no acceptance of responsibility for the actions of which a jury has now found you guilty. Your case also directly attacked the integrity of the police investigation and of the informant personally. The jury must have rejected those attacks. You are not to be punished here for that course, but there is no leniency involved for facilitating the process of justice.
39 Finally, I have taken into account that it is now close to five years since the events in question. You were not charged until 13 months after the events. You then spent some ten months on remand and there has obviously been extended time since then, during which the charges will have been hanging over you, and you will have known that if convicted they carried a considerable likelihood of a lengthy term of imprisonment. I take into account that whatever the causes of that delay, overall you have had the uncertainty of the charges hanging over you for close to four years since your arrest, and that would have been a cause of stress and concern. It seems that you have even had another child born in that time. I take the uncertainty and stress of the delay into account in some moderation of your sentence.
40 Brett Audsley, on each of the charges you are convicted and sentenced as follows. On Charge 1 of aggravated burglary, four and a half years' imprisonment. On Charge 2 of assault of Stacey Mammone, nine months' imprisonment. On Charge 4 of recklessly causing serious injury to Dominic Mammone, six years' imprisonment. That is the base sentence. On Charge 5 of armed robbery, four years' imprisonment.
41 I direct that nine months of the sentence imposed on Charge 1, two months of the sentence imposed on Charge 2, and four months of the sentence imposed on Charge 5 be served cumulatively on each other and on the sentence imposed on Charge 4. That makes a total effective sentence of seven years and three months' imprisonment. I fix a minimum term before you could be eligible for parole of five years' imprisonment.
42 I declare 337 days of pre-sentence detention to be reckoned as served, and direct that that be recorded in the records of the court and deducted administratively.
43 There were also ancillary orders sought, but I have not received the form of them.
44 MS PARNHAM: Your Honour, I have an order here for retention of a forensic sample.
45 HER HONOUR: I did not hear any opposition to that at the time. I cannot quite recall, Mr Traczyk, whether you said anything about it. You may have said it is not opposed, I just cannot quite recall.
46 MR TRACZYK: No, it is not opposed, Your Honour.
47 HER HONOUR: Yes. It seems to me that in the circumstances the seriousness of the circumstances of the offending of themselves warrant that the order be made, and also I note it is not opposed, so I will make that order limited to a - sorry, it is the retention of it so it has already been taken.
48 MS PARNHAM: Correct.
49 HER HONOUR: That means it will be placed on the Victorian database of DNA, and I will sign that order. Am I correct that 337 is the right calculation?
50 MS PARNHAM: That was my calculation, Your Honour.
51 HER HONOUR: Mr Traczyk?
52 MR TRACZYK: Yes, I agree, Your Honour.
53 HER HONOUR: Thank you. I have signed that ancillary order. Mr Audsley, the head sentence is seven years three months' imprisonment, non-parole period of five years, of which 337 days has been served which is 11 and a bit months done so far. Do you understand the sentence?
54 OFFENDER: Yes, Your Honour.
55 HER HONOUR: I will ask that Mr Audsley be removed from the court, please.
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