Director of Public Prosecutions v Bracken

[2017] VCC 1526

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-00283

DIRECTOR OF PUBLIC PROSECUTIONS

v

PHILLIP PAUL BRACKEN

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JUDGE:	HIS HONOUR JUDGE CARMODY
WHERE HELD:	Melbourne
DATE OF HEARING:	13 October 2017
DATE OF SENTENCE:	16 October 2017
CASE MAY BE CITED AS:	DPP v Bracken
MEDIUM NEUTRAL CITATION:	[2017] VCC 1526

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms S. Borg
For the Accused	Mr P. D'Arcy

Pages 1 - 13

 

 

HIS HONOUR: 

1Phillip Paul Bracken, on 12 October 2017 you pleaded guilty to two charges on Indictment No.F13832555.1.  Charge 1 was a charge of armed robbery, this has a maximum penalty of 25 years' imprisonment; Charge 2 is a charge of aggravated indecent assault, this charge has a maximum penalty of ten years' imprisonment.

Circumstances of Offending

2I turn to the circumstances of your offending.  Your offences were committed on 7 March 1986.  At the time of your offences, your victim was a 21-year-old nurse, returning to her home after an afternoon shift.  You were 18 years old.  On the day, 7 March 1986, at approximately 10.20 pm, your victim caught a train home from Flinders Street Station to Tottenham train station.  She arrived at Tottenham at approximately 10.45 pm.  At this time, your victim lived a short distance away from Tottenham train station.  She worked as a nurse, she was dressed in her nurses' uniform and was returning home from work.

3Your victim then left the train station, crossed at Sunshine Road and walked towards her house.  She turned the corner into her street and approached a laneway that comes off and intersects with that street.  As she did this, you came out of the laneway and walked towards her.  As you got closer, she saw that you had a knife and you were waving it at her.  The knife was in your right hand.

4Mr Bracken, you waved the knife at your victim, said to her, "Give me your money or I'll cut your throat".  You then grabbed her jumper, pulled her a little way into the laneway.  You told her that you wanted her purse.  She pulled the money out of her left pocket and told you that she did not have a purse.  She held the money up for you to see.  You took the money, a total of $47.  That was a charge of armed robbery.

5You then pulled your victim by the jumper further into the laneway.  You put your hands in her pockets and removed the contents, throwing them onto the ground.  The victim was scared and refused what you wanted her to do, and you threatened if she did not do what you wanted her to do, you would cut her throat.

6You then told the victim that you wanted to touch her.  You pulled her jumper up, she pulled it down and tried to push you away.  You still had the knife in your right hand.  You then pulled your victim's jumper up again.  You started pulling at the zip of her dress.  You got very angry and the victim pulled the zip down to placate you.  You pushed the left side of her dress and bra away and started fondling the left breast.  You did this for a short time, then you sucked on the left breast.  That is part of the charge of aggravated indecent assault. 

7You then ran your hand on the outside of the dress and she tried to push you away.  You did it again.   You then undid your fly and told your victim to, "Suck on this".  She refused.  You waved the knife at her and told her you would cut her throat.  She then told you, "I won't, and I don't care what you do".

8She was scared and crouched down and held her head with her hands.  You then tried to make her suck your penis.  She told you she was a virgin and that you would be disappointed.

9Mr Bracken, you then placed her hand on your penis and she pulled it away.  You did it again and told her to masturbate you.  She agreed to do this as you were angry and she thought you might do something to her if she refused.

10Your victim masturbated you with her left hand.  As she did this, you tried to pull her face closer to your penis.  You ended up ejaculating onto the left side of her hair and onto her jumper.  After you had done that, you ran off down the lane.  She got up and she ran home.  The whole incident took about five minutes.

11The ejaculate on your victim's clothing was kept and tested.  The DNA on the victim's clothing and your DNA matched.  You exercised your right to essentially make a no comment record of interview when arrested in 2014.  You have conducted a contested committal proceeding and on the eve of the trial this case was settled to a plea of guilty.

Victim Impact Statements

12I turn to victim impact statements.  There were two victim impact statements in this case.  The first, Exhibit B, was from the direct victim of your offending.  The second, Exhibit C, was from the husband of your direct victim.  Both of those persons read their victim impact statements in the court.

13I have read the evidence of your victim, when she gave evidence at the committal in conjunction with her victim impact statement.  First and foremost, your offending made her think her life was threatened.  The sex offence charge made her feel violated and she says this was more so because she was a virgin at the time.

14She had to move house, on police advice, and for her peace of mind.  She had to attend counselling to deal with her anger and sense of hopelessness.  Ultimately she buried this frightening and degrading experience in the deep recesses of her memory.  She got better, she got married, had children and raised a family with her husband.

15Out of the blue, a police call came to her in 2013.  They had a DNA match for her offender.  She was told you were in custody, awaiting a murder trial.  She understandably decided not to proceed with these charges at that time as you were out of harm's way and she did not want to go through with the process and reactivate past trauma.

16You were acquitted at that murder trial and then released.  At considerable personal cost to her, she decided to proceed with the charges against you.  Her husband was informed for the first time.  Her children had not been told the full extent of your offending. 

17At the time of the committal and in the lead-up period to the trial in this matter, your victim has experienced problems with sleep and anxiety.  She has requested counselling to assist her to go back to her normal state.

18Mr Bracken, there is no sentence a court can impose on you that will undo the harm that you have done to your victim.  However, what she does know is that she stood up to you and by doing so has brought you to justice.

19The second victim impact statement is from the victim's husband.  He sets out his shock and distress when told by police they had identified an offender against his wife.  He knew nothing of this.  He spoke of the pain and sadness on his wife's face about these matters.  He monitors the TV shows that they watch so that it does not trigger memories for her about these events.

20He has stated:

"She has a strong personality and a solid spirit and I know that she will not let this man break her."

21Well, she has not been broken by this.  She has been damaged but she has not been broken.  It has affected his sense of safety for his children and his wife. 

Personal Circumstances

22I turn to your the personal circumstances.  Mr Bracken, you are now 50 years old.  You committed these offences when you were 18.  At the time of your offending, you had no prior convictions.  You have subsequent convictions and court appearances.

23The first court appearance was at Sunshine Magistrates' Court on the 26 June 1987.  You were fined $150 for the possession of an unlicensed pistol.  Your counsel told me that you obtained this gun, which was a cut down .22 rifle, for protection after your car was burnt by unknown persons.

24The second court appearance was at this court, the Melbourne County Court on the 4 November 1987.  The charges were armed robbery and attempted armed robbery.  In the first case, you were the getaway driver in a service station armed robbery.  In the second offence, your role was to do with a motorbike.  You received a 12 month suspended sentence and a community-based order, as they were then known, for three years for those two offences.   You were given 200 hours of unpaid community work.

25The third court appearance was at Broadmeadows on 14 March 1989 for theft of a motor car.  You were fined $150.  The theft was taking a motor vehicle you thought was an abandoned vehicle.  The fine tends to support that proposition.

26The fourth court appearance was at Melbourne County Court on 9 May 1989 for the breach of the suspended sentence imposed on 4 November 1987.  The result was, the operational period was extended for a further 12 months. 

27There was then a 19-year hiatus between your breach of suspended sentence and your next court appearance on 5 May 2008 at the Sunshine Magistrates' Court.  The charges on that occasion were drug charges where you were convicted and fined $4,000.

28You were charged with murdering your de facto wife on 19 November 2012.  You were acquitted of the murder charge on 28 February 2014.  You spent 465 days on remand for that charge in custody.

29Your parents are in their late 70s.  You have two sisters.  You have lived with one of your sisters since your acquittal in February 2014.  You were initially educated at the West Footscray Primary School to Grade 6.  You then completed Form 1 and 2 at Maribyrnong High School.  You then moved to Footscray Tech and completed, as I understood it, Form 5 but left school at the age of 16.

30You started working at a local Coles supermarket and moved to the Melbourne Fruit and Vegetable Market.  You then commenced an apprenticeship as a mechanic at Peter Manton Motors.  Early in the apprenticeship, on
22 May 1985 that is before these offences, you had a motor accident.  Your left leg was badly broken.  As a result, your left leg is 1 to 1.5 centimetres shorter than the right leg and you walk with a limp.  You had two operations on your leg but by February 1986 you were having trouble getting back to your work. You offended in the March of 1986.

31Ultimately, you had lost your job in May 1987.  You then worked forklift jobs as a casual worker filling in for other companies and then later at Smorgon's in the same capacity.  In the period of 1989 to 1993, you completed a spray painting apprenticeship at Mercedes-Benz in South Melbourne.  You then worked in a variety of employments as a spray painter, forklift driver, truck driver and ran your own car detailing business.

32Your truck driving work ceased in November 2012 when you were arrested for the murder charge.  Since you were released from custody, you have been on a disability pension.  Whilst in custody, you worked in the metal shop.

33The last part of your offending in this case provided the evidence that would link you to these offences through DNA.  You conducted a committal hearing, as I say, your victim was cross-examined on that occasion.  After the service of a third expert statement in October 2017 concerning the DNA evidence in this case, you pleaded guilty to these charges.

Sentencing Considerations

34I turn to sentencing considerations.  The basic purpose for which a court may impose a sentence are just punishment, deterrence both specific and general, rehabilitation, denunciation of your actions and the protection of the community.  In sentencing you, I must have regard to a range of factors, such as the seriousness of your offences, your culpability for them, your personal circumstances and those of your victim.  I am required to balance the interest of the community in denouncing your criminal conduct with the interests of the community in seeking to ensure, as far as possible, you as an offender are rehabilitated and reintegrated into society.  You have pleaded guilty to the two charges on the indictment.  You have conducted a contested committal; whilst your victim was cross-examined, the evidence around the actual offending was not challenged.  In short, your victim was spared a fully confrontational cross-examination that is sometimes the position in cases such as this one. 

35Nevertheless, she did have to give evidence at the committal.  Your plea of guilty has spared your victim from the trauma of giving evidence in this trial.  Your plea of guilty also has the utilitarian value of allowing for the orderly and effective administration of justice.  There is a certainty of outcome and a resolution of the substantive issues raised by your offending.

36Your plea allows for the preservation of court and police resources to deal with other matters.  Your plea vindicates the public confidence in the legal process set up to protect the community and you have, by your plea, relieved your victim of giving evidence against you in this trial.  It facilitates some closure for her as a victim of your offending.  The plea of guilty is also some demonstration of remorse on your part.

37The charge of armed robbery is a serious offence.  General deterrence is an important consideration in sentencing for that offence.  The importance of general deterrence is effected by the circumstances of the commission of the crime and factors personal to you as the offender.  The aggravating features of your armed robbery on this occasion are;
1. The obvious vulnerability of your victim;
2. The level of fear raised by the proximity of the weapon to your victim when you had shown it to her;
3. The randomness of your attack at night on a public street;
4. The prevalence of this type of robbery or armed robbery.
5. The forcing of your victim into a laneway which was a secluded place; leading to a community disquiet over this type of offending.

38Not content with taking a small amount of money from your young victim, you then engaged in a series of conduct amounting to a composite aggravated indecent assault.  The circumstances of the sexual offending were traumatic, frightening and degrading to your victim.  The use of the knife and the threat to cut her throat adds to your moral culpability because you would have known the level of fear you raised in your victim by your behaviour.  This sexual assault takes place in the isolated darkness where you had forced your victim into the laneway. 

39In this case, Mr Bracken, you were on remand for other matters for a period of 465 days.  Mr D'Arcy referred to this period of incarceration as ‘dead time’, or Renzella time, named after that case.  The offences for which you were held on remand were alleged to have been committed on 19 November 2012.  You were acquitted by a jury in the Supreme Court in February 2014 and the time in between those dates is the ‘dead time’ referred to by your counsel.

40The investigation into the present charges was reactivated as a cold case investigation in April 2012.  Your victim in this case was spoken to by the informant on 3 June 2013.  She was shown a photograph of you.  She did not recognise you.  However, she knew you were in gaol and that there had been a DNA match to you as her offender.  She justifiably took the view that you were in gaol and the process was distressing for her and she could move on and try and forget these offences.

41Your victim heard you were released and back in the community and that factor, combined with other matters, brought her to the conclusion to pursue these offences that you had committed against her.  You were interviewed about these charges on 22 August 2014 and subsequently charged.  The summary of these facts is that you were under investigation for these offences before this court; at the time you were on remand for the charges, which you have now served 465 days of ‘dead time’.  You were charged with these offences after you were released from prison. 

42In the case of R v Berry [2017] VSCA 202, the Court of Appeal held: ‘that where an offender has not been charged with an offence upon which he now falls to be sentenced until after he has spent time in custody on remand, the circumstances may require the sentencing judge to take that time in custody into account in a general way’.

43In the same case, the Court of Appeal stated that when taking into account ‘dead time’, the sentencing court is not to treat it as a mathematical exercise.  I take your time in custody on remand for charges which you were subsequently acquitted into account when fixing an appropriate sentence for these offences.

44The phrase "current sentencing practice" has been considered recently by the High Court in the case of Dalgliesh. The High Court decided that s.5(2) of the Sentencing Act contemplates that current sentencing practices must be taken into account in sentencing but it is only one factor and not the controlling factor in fixing a just sentence.

45In this case, the offending occurred over 31 years ago.  In the case of Stalio v The Queen [2012] VSCA 120, the Court of Appeal held that the phrase "current sentencing practice" is intended to refer to sentencing practices at the time of the sentence. The principle of equal justice has some application in your case. It is relevant in considering sentences at the date of the offending when the sentences for the offence is occurring some 30 years later. This principle is consistent with the consideration set out in s.5 (1) of the Sentencing Act, and in particular, to fix a sentence which is just in all the circumstances.

46At the time of your offending, you were 18 years old and a sentence that could well have been passed at that time was either a wholly suspended sentence or a youth training centre disposition.  The statistics for the sentences in 1986 were provided by the prosecution. A summary of them follows;
1. Armed robbery: The range for someone your age was from a three-year youth training centre order; a suspended sentence or; for an adult, up to five years' imprisonment.  There were no details about the cases that were behind those statistics.
2. Aggravated indecent assault: The range of sentencing was between two years' imprisonment to suspended sentences.  Again, there were no details of the cases behind those sentences.

47The current sentencing practice present in Victoria for armed robberies has a wide range.  The range is from an average sentence of three years' imprisonment for half of offenders, 20 per cent of them get community corrections orders and 20 per cent get a mixture of community corrections order and imprisonment.  The equivalent charge of indecent assault now has a sentencing range of 60 per cent community corrections order and 40 per cent are sentenced to imprisonment.

48I take into account the current sentencing practices for your offences and the sentences imposed for similar offending on a young offender at the time of your offences when fixing your sentence.  Your counsel, Mr D'Arcy, urged me to impose a community corrections order on you in respect of these offences.  The learned prosecutor agreed that the imposition of a community corrections order was within the range for an appropriate penalty given the circumstances of these offences and your circumstances, both now and at the time of the offending.

49At the time of the offending, as I say, you were 18, you are now to be sentenced for these offences at the age of 50.  At the time of your offences you had no prior convictions, it was conceded on your behalf that you had subsequent court convictions for firearms offences, attempted armed robbery, armed robbery, theft of a motor car and breach of the suspended sentence order.  There was a gap in your offending between May 1989 and May 2008.  In 2008 you were convicted as I have said before of a drug-related offending and a theft charge.  As a result of these offences, that is, the offences in 2008, a DNA sample was taken from you and this has resulted in the activation of the cold case investigation and the current charges.  In February 2014, you were acquitted of the murder.

50I have considered the principles set out in Boulton's case in respect of the imposition of a community corrections order in the circumstances of your case. I have had you assessed for a community corrections order. You have been found to be suitable for such an order. Section 5(4C) of the Sentencing Act directs the sentencing court to consider whether a community corrections order can achieve the purpose for which this sentence is to be imposed.

51The offences occurred when you were a young offender without prior convictions.  The delay of 31 years reduces the effect of specific deterrence in your case.  You have subsequent convictions but the relevant ones are nearly 30 years old.  Your prospects of rehabilitation are good.  You have spent 465 days in custody on remand for other matters that you were subsequently acquitted.  You have pleaded guilty to these charges.

52When taking all these matters into account, a just sentence is a community corrections order with conviction, with unpaid work, supervision, mental health assessment and treatment to deal with your self-reported difficulties with depression, anxiety, and offender reduction programs.  Would you stand please?

53On Charges 1 and 2, you are convicted and sentenced to three years' community corrections order, with 300 hours unpaid community work, supervision, mental health assessment and treatment, provision and the offender reduction.  Thank you.

54MS BORG:  Thank you, Your Honour.

55HIS HONOUR:  Is there anything?

56MS BORG:  No.

57HIS HONOUR:  Nothing rising?

58MR D'ARCY:  No, Your Honour, but it's not a s.6AAA case because it's not in prison.

59MR D'ARCY:  The only other matter, Your Honour, was the Charles Dickens-type request, Your Honour, for certificate.

60HIS HONOUR:  Yes, sorry, my apologies.  I have signed the certificate for those days.

61MR D'ARCY:  Thank you, that is the prevailing view, is it, Your Honour?

62HIS HONOUR:  Well, it is my prevailing view.  I suspect each Blue Sky judge will have a different view. 

63MR D'ARCY:  Yes.

64HIS HONOUR:  But that is mine because I was trying to manage these matters and a lot of people were involved in this case.

65MR D'ARCY:  I'm much obliged, thank you, Your Honour.

66HIS HONOUR:  I will just have that community corrections order prepared and then shown to be signed. 

67MS BORG:  The complainant was saying that she wanted a clarification about the dead time; can't be reused again and again if he's caught later, and I said we might explain it to her outside.

68HIS HONOUR:  Yes, thank you.  Is there anything else?

69MS BORG:  No, Your Honour. 

70HIS HONOUR:  Thank you.  Thank you both for your assistance in this matter.  I will adjourn until 10.30.

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