Director of Public Prosecutions v Bermingham
[2022] VCC 1559
•14 September 2022
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-21-01268
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BRETT JOHN BERMINGHAM |
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JUDGE: | HER HONOUR JUDGE BLAIR | |
WHERE HELD: | Bendigo | |
DATE OF HEARING: | 07 September 2022 | |
DATE OF SENTENCE: | 14 September 2022 | |
CASE MAY BE CITED AS: | DPP v Bermingham | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1559 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Sentence; Burglary; Theft; Criminal Damage; Significant and Overwhelming Addiction; Early Plea; Genuine remorse; Delay; Strong Desire to Rehabilitate; Significant Deprivation; Excellent Prospects of Rehabilitation
Legislation Cited: Sentencing Act 1991 (Vic)
Cases Cited:R v Verdins & Ors [2007] VSCA 2007; Worboyes v The Queen [2021] VSCA 169; Bugmy v The Queen [2013] 249 CLR 571
Sentence: Community Corrections Order for a Period of 12 Months.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Miss S. MacDougall | Office of Public Prosecutions |
| For the Accused | Mr N. Rolfe |
HER HONOUR:
1Brett Bermingham, you have pleaded guilty on indictment L10686094to one charge of burglary, one charge of theft and one charge of criminal damage.
Circumstances of offending
2The factual basis of your offending is contained in a summary of prosecution opening for plea. This document was tendered and marked Exhibit A on the plea. I do not propose to recite that document in full but I will briefly summarise the circumstances of your offending.
3Your offending occurred sometime between 8.30 am and 3 pm on 4 July 2018 and the victim, Peter Smith, who had been dealing in coins for collectors for approximately 30 years, was away from his home address during the day.
4Whilst he was absent, you entered his premises leaving open a side gate and both the front and back doors. A window next to the front door was smashed. You rummaged through his property removing a safe from his office and forcing it open. You also forced open two filing cabinets and removed an empty drawer from the cash register in his garage. You caused damage to the safe and filing cabinets while forcing them open. Once open you took approximately 30 coins of various value and grading that were listed and identified by the victim. Many of these coins were in protective casings to preserve their value and condition. You also took other coins of lesser value and that's a factual basis for Charges 1 to 3 the burglary, theft and criminal damage.
5The victim estimates the stolen coins were valued at approximately $125,000. This valuation was based on the purchase or sale price of the items taken.
6The victim alerted other dealers in coins to keep an eye open for the coins taken, as well as monitoring coin sales himself over the country. From late June 2019 the victim became aware of the location and regrading of several of his stolen coins. At the time of making his statement in September 2019 approximately 13 coins and the lesser value coins previously referred to, were still missing. Of those coins recovered their value has been reduced as a result of handling and wear and tear.
7The enquiry into the burglary and theft originally stalled in 2019 due to the inability of investigators to locate any leads as to the identity of the thieves or to locate the stolen property. The investigation was reopened in August 2019 when the victim informed police that he believed some of his stolen coins were being sold at the business of Max Stern & Co in Collins Street, Melbourne.
8
Further investigation revealed that four of the coins stolen by you were sold on
6 July 2018 at the business of Max Stern and Company in Collins Street, Melbourne by two males for a total $3,500. The coins were noted as being in very good “proof like” condition and were paid for by a business cheque from the National Australia Bank.
9
Police enquiries subsequently located a suspect, Travis Bathman as being one of the two males implicated in the sales to Max Stern & Co and further enquiries led to you being identified. As the enquiry progressed police were shown the
Second-Hand Dealers Register of the business which indicated that both
Bathman and yourself, had signed “statement made by supplier” forms regarding the coins identified as coming from the burglary.
10On 5 September 2019 you attended at Geelong police station by arrangement and participated in a record of interview, during which, you made extensive admissions. When asked about the burglary and theft at question 11 you simply said “I admit I done it”.
Nature and gravity of offending
11Burglary, theft and criminal damage are serious offences. In determining the gravity of your offending, I have had regard to the maximum penalties for each of the offences, which is ten years imprisonment. The maximum penalty of an offence is the yardstick set by parliament and the starting point when considering objective seriousness.
12These offences occurred at a residential address that was targeted by you as you were aware there may be coins of value located therein. This demonstrates some planning and forethought on your part. I take into account the value of the items stolen being $125,000. This would have caused a considerable loss to the victim and it is the amount that has seen you dealt with in this jurisdiction as opposed to the Magistrates’ Court.
13At the time of the offending you were in the grips of a significant and overwhelming addiction to methylamphetamine. The motivation behind your offending was a need to raise money to fuel this addiction. This in no way excuses your offending but it was clearly what drove you to offend.
Personal circumstances
14Mr Bermingham, you are now 42 years old. You were born and raised in Warrnambool, Victoria. During your childhood your father worked as a truck driver and your mother was employed as a nurse for 30 years. In your early years your father was an alcoholic and subjected your mother to physical abuse. You were traumatised as a result of witnessing this family violence.
15You are one of five brothers. I was told that you otherwise enjoyed a good relationship with your family when you were growing up. Your brother Daniel, in his testimonial, described a close-knit family where you and two of your brothers worked in the family business and where the five boys would go fishing, diving and camping together and also played football for the same team. Currently, you enjoy the support of your mother who I noted must have travelled from Warrnambool to be at the plea and is here again today for sentence and you also enjoy the support of your siblings, except that an older brother is estranged, as he is unforgiving of your criminal history and past drug addiction.
16During your primary education you were the victim of serious sexual abuse, which I note that you have since reported and are taking action for. Although, you reported what had occurred at that time, no appropriate action was taken, and you did not participate in any counselling. Your education was cut short when you left Warrnambool College in year 8. Since that time you have shown yourself to be a person who is capable of hard work. From the ages of 14 until 20 you were employed in a meat processing factory, which was no doubt difficult work. You then worked for your father as a truck driver for the next seven years before moving to Western Australia. Whilst in Western Australia you worked in the mines and had your own business.
17It was in Western Australia that you met and married Tanya, together you have two children now aged 16 and 12 years. In 2012 you and Tanya divorced, and you now have minimal contact with your children. I understand this is primarily due to your desire to shield them from your drug use and offending behaviour.
18When you returned to Victoria you initially struggled with a period of homelessness. It was around this time that your father was diagnosed with cancer and you turned to the use of methylamphetamine as a coping mechanism. It was not long before your use was out of control with you smoking ice daily. Not surprisingly, as your drug use increased you began to engage in dishonesty offending as reflected in your prior history. Your brother Daniel whose testimonial I have already referred to, described how you went from being trustworthy to being manipulative and reckless. In 2016 your father passed away. Your drug use continued and by March 2017 you had amassed a significant collection of charges that saw you imprisoned for nine months and then released on a 12-month community corrections order, which you completed.
19
In December 2017 you commenced a relationship with your current partner,
Kristy Frew and as I note with mum, Kristy is here supporting you today and was here for your plea. In January 2018 you moved in with Kristy and then in
February 2018, she was diagnosed with cervical cancer. Kristy Frew provided a testimonial to the court, in which she described how her cancer diagnosis seemed to trigger anxiety and fear within you. Further, she described watching as your life spiralled out of control once again.
20
It was in this period that the current offences occurred. This was not the only offending you engaged around this time. I was told by your counsel, Mr Rolfe, that on 4 September 2018 at Shepparton Magistrates’ Court you were sentenced to
18 months imprisonment with a 12 month non parole period. 45 days of
pre-sentence detention were reckoned as served. An updated prior history was provided to the court which reveals at that hearing you were sentenced for nine burglaries and associated offending which resulted in an aggregate sentence in the terms described by Mr Rolfe.
21
According to your comprehensive prison history report you were granted parole on 3 July 2019 and released from custody on 23 July 2019. This sentence lapsed on 18 January 2020 with you having successfully completed this period of parole. I understand there has been no further offending since you were remanded on
22 July 2018.
22Since your release you have demonstrated a strong desire to rehabilitate. You are living with Kristy in Geelong. Your relationship is solid, and you have a definite future together. You have relocated and severed ties with unhelpful drug using peers. You sought employment with Coles Belmont as a casual, picking up extra hours when you could and working very long hours.
23In February 2021 you gained employment at Kyvalley dairy where again you started as a casual but have now become a team leader and a peer to many, that is according to your Production Supervisor, Jordan Larkins. Mr Larkins describes you in his testimonial as taking ownership of the operator role which is the heartbeat of the plant and after only two to three months running operations by yourself without instruction or guidance. Further, he speaks of your leadership skills, integrity and respect. Mr Bermingham, you should be proud of your achievements within the workplace. I am certain that you would not have earned such a glowing testimonial had you still been abusing drugs.
24
I should also mention the testimonial from Ian Radcliffe who I understand worked with you after your release from custody. Reading between the lines, Mr Radcliffe appears to have taken on somewhat of a mentoring role. He has been available to you to discuss and work through a range of issues that have led you to make positive and sustained changes. Mr Radcliffe described you as a genuine and authentic person who has turned his life around. He is confident you will not
re-offend in the future and will continue as a valuable and contributing member of society.
Matters in mitigation
25Your counsel in a persuasive and thorough plea has submitted that I should impose a Community Correction Order by way of disposition. His submission was predicated on several mitigating factors.
Plea of guilty
26Mr Rolfe submitted that you had entered an early plea and in doing so your plea has spared the need for any witnesses to give evidence at trial. Your plea has saved the court time and as such has facilitated the course of justice. That you would plead was never in doubt given that you made very prompt admissions in your record of interview. Such admissions together with your plea of guilty demonstrates that you have accepted responsibility for your offending. Further, your counsel submitted a plea of guilty during the pandemic should attract a more pronounced amelioration of sentence than at another time due to the enormous backlog in cases before the court[1]. I agree with these submissions and have given you a significant sentencing discount for your plea of guilty.
[1]Worboyes v The Queen [2021] VSCA 169.
Remorse
27I accept that you are genuinely remorseful for your offending. This submission was supported by various sources of evidence. First, your plea of guilty. Second, your admissions in your record of interview. Third, your expressions of remorse repeated in the psychological report of Ms Cidoni, and each of the letters tendered on your behalf. Fourth, when being assessed for the corrections order you expressed significant remorse and shame for your behaviour. You stated that you were fuelling your drug habit and that you felt sorry for the victim. Lastly, I watched you in court during the plea and could see that you were very emotional and that you have taken this matter extremely seriously.
28In my view, however, the most significant expression of your remorse is that you have demonstrated a desire to change, completing your parole, chasing and securing work, repairing relationships with your family and abstaining from drug use since 2018.
29I accept that your remorse is both profound and genuine.
Delay
30Delay is a very important mitigatory factor I take into account in your case. It is now over four years since you offended. You have lost the benefit of having this matter dealt with at a time when numerous other offences were before the court. I agree with your counsel that it is likely this would have added to that penalty, but it would have been dealt with at a time where the issue of totality could have been fully addressed by the court.
31Further, the delay has allowed you to demonstrate that you have an ability to foster rehabilitation as I have already described.
32I also accept that since your arrest in September, 2019 the worry and strain of this case would have caused considerable anxiety and stress. Since this time, you have been in limbo not knowing if you would be returned to gaol. To your credit you have not let this derail your progress toward rehabilitation.
Mental health – report of Gina Cidoni
33A thorough and informative report dated 14 March 2022 authored by Gina Cidoni was tendered on your plea. Of course that was a psychological report Ms Cidoni provided the following opinions;
(a) You have diagnoses of Post Traumatic Stress Disorder, Persistent Depressive Disorder, Generalised Anxiety Disorder and Stimulant Use Disorder (in remission).
(b) Your trauma exposure in youth has resulted in PTSD with symptoms of helplessness, confusion and disorganisation. It has likely affected your learning at school as you devoted a lot of energy to avoiding distressing memories. These disorienting states often result in the feeling of being psychologically overwhelmed and overloaded, where clear thinking is compromised.
(c) Your substance abuse came about as a way of avoiding uncomfortable memories and restoring a sense of wellbeing. Your use of drugs has placed you in compromising situations and with unhelpful peers.
(d) You were drug-affected when you committed the crime before the court. Your intoxication caused disinhibition and desperation. This overlies the conditions of untreated PTSD, GAD and depression that were also present.
(e) You will benefit from psychological therapy to address historical trauma, distress tolerance and coping styles. This will mitigate the risk of reoffending.
(f) There are circumstances of your mental illness which would make prison more onerous and would likely have a significant adverse effect on your mental health.
34I accept the unchallenged opinions of Ms Cidoni. I consider that limbs 5 and 6 of Verdins[2] are enlivened in your case. That is, you are likely to find imprisonment more onerous than a person who does not suffer from your mental health conditions and there is a serious risk that your already compromised mental health will deteriorate further should you be imprisoned. I take this into account in sentencing you.
[2]R v Verdins & Ors [2007] VSCA 102.
35
Your counsel also relied on the first limb of Verdins[3]. The fact that you had a
co-existing drug problem reduces the weight I should attribute to this limb. I accept that Verdins[4] does have application in your case. In my view your substance abuse was caused by your impairment and the impairment was connected to the offending. I accept that your moral culpability should be reduced given the mental health issues you were suffering at the time and the opinions of Ms Cidoni. In my view the application of general deterrence, although still relevant, should be somewhat moderated in your case.
[3]Ibid.
[4]Ibid.
Application of Bugmy
36Mr Rolfe also submitted that the principles of Bugmy[5] are a mitigatory factor that I should take into account. In this regard, he again relied upon the psychological report of Gina Cidoni. The case of Bugmy stands for the proposition that profound childhood deprivation is directly relevant to sentencing in and of itself. This is so because it is likely that moral culpability will be reduced for someone whose early years have been marked by such disadvantage. The effects of such hardship do not diminish over time, and full weight must be given to those matters in sentencing. Bugmy principles are relevant to the court’s assessment of moral culpability for the offence itself and also for the court’s consideration of the weight to be given your prior criminal history.
[5]Bugmy v The Queen [2013] 249 CLR 571.
37In your case, I accept that your childhood involved significant deprivation as a result of the exposure to significant family violence perpetrated by your father, and the sexual abuse you suffered at the hands of a primary school teacher who was a person you should have been able to trust. As referred to above, Ms Cidoni opined your trauma exposure in youth has resulted in PTSD with symptoms of helplessness, confusion and disorganisation. It likely affected your learning at school as you devoted a lot of energy to avoiding distressing memories. These disorienting states often result in the feeling of being psychologically overwhelmed and overloaded, where clear thinking is compromised.
38I accept the opinion of Ms Cidoni and consider there is both a foundation and a nexus between your experience, your drug abuse and your current offending. It is my view that moral culpability should not be eliminated in your case rather it should be somewhat moderated in line with the principles in Bugmy.
Rehabilitation
39It is my view that you have excellent prospects for rehabilitation. You have insight into your offending and remorse. You are excelling in stable employment, you have complied with a period of parole, you have not re-offended in the three years since your release from custody, you are in a stable relationship and enjoy substantial family support. Importantly, you are abstinent from illicit substance abuse. In coming to this view about your prospects for rehabilitation, I have taken into account the balanced and persuasive testimonials from those who have observed you closely in the last three years that were tendered on your plea.
Sentencing principles
40I consider that the relevant sentencing principles that must be applied in this case are general deterrence, albeit somewhat moderated, denunciation and just punishment. In my view specific deterrence plays little or no role in the sentencing matrix, given the fact that you have served a lengthy and immediate term of imprisonment after the offending before the court. Further, I am of the view that community protection in your case can best be achieved by fostering your rehabilitation.
41
Other sentencing principles that I must apply are parsimony and proportionality. That is, I must do no more than is necessary to punish you. I consider that a sentence of imprisonment is not required and in the circumstances of your case the sentencing factors can be addressed by the imposition of a
Community Correction Order.
Disposition
42So if you could now stand, Mr Bermingham. I have had you assessed for a Community Correction Order and you have been assessed as suitable for such an Order.
43In relation to the charges of burglary, theft and criminal damage you are convicted and you are placed on a Community Correction Order for a period of 12 months. The condition of this Community Correction Order include that you must perform
(a) 50 hours of unpaid community work over the 12 month period;
(b) Submit for assessment and treatment for mental health;
(c) Submit for assessment and treatment for drug abuse;
(d) And attend for supervision.
44I will offset the 50 hours of community work against the treatment. So that means if you engage in counselling, any hours that you do will be offset against the community work. If you were to do 50 hours of counselling, that will satisfy the requirement to do any community work.
45In addition to the conditions that I have imposed, there are standard conditions that you must comply with. The first and foremost of those is that you are not to commit another offence punishable by imprisonment for the period of the Order, which is 12-months. You need to report within two working days to your nearest Corrections office, which I understand is Geelong.
46You are required to advise your supervising Corrections office of any change of address of where you are living or working within two clear working days. And it is a term of all Community Correction Orders that you must submit to visits as directed and obey the instructions and directions of the Corrections officers and you cannot leave the state of Victoria without their prior permission.
47So Mr Bermingham, if you reoffend you will breach the Order, if you do not comply with the conditions you will also breach the Order, and if breach the Order you will come back before me and you may be resentenced for the original charges. You do not want that.
48I can only place you on a Correction Order if you agree so do you understand what is involved in the Order?
49OFFENDER: Yes.
50HER HONOUR: And do you consent to an order?
51OFFENDER: Yes
52HER HONOUR: All right. So I have got an order drafted. I will get Mr Rolfe to get you to sign that and just run you through the conditions of that.
53I note that there still may be application for a compensation order, if that can be quantified so that may be yet to come.
54OFFENDER: Yep.
55HER HONOUR: . All right, I will make sure that my associate will make a copy for Mr Rolfe and for yourself and for prosecution. I wish you all the very best with the order and with your future. I am sure you will be able to put this behind you and you will not come back to the court.
56OFFENDER: Correct.
57HER HONOUR: All right, great. All right. And thanks, Mr Rolfe, for your submissions, they were very helpful..
58MR ROLFE: Thank you, Your Honour.
59HER HONOUR: And thank you to the prosecution as well.
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