Director of Public Prosecutions v Brackman

[2022] VCC 605

IN THE COUNTY COURT OF VICTORIA

 Revised

Not Restricted

 Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 21-01318

DIRECTOR OF PUBLIC PROSECUTIONS

v

BRENT BRACKMAN

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JUDGE:	HER HONOUR JUDGE DALZIEL
WHERE HELD:	Melbourne
DATE OF HEARING:	4 May 2022
DATE OF SENTENCE:	4 May 2022
CASE MAY BE CITED AS:	DPP v Brackman
MEDIUM NEUTRAL CITATION:	[2022] VCC 605

REASONS FOR SENTENCE

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Subject:  CRIMINAL LAW

Catchwords:             Armed robbery

Legislation Cited:     Sentencing Act 1991 (Vic)

Sentence:                 Convicted and sentenced to 6 months imprisonment.

Section 6AAA declaration: Conviction and total effective sentence of 12

months’ imprisonment, with a non-parole period imposed.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms N. Burnett	Office of Public Prosecutions
For the Accused	Mr A. Maloney	Dribbin & Brown Criminal Lawyers

HER HONOUR: 

1Brent Brackman, you have pleaded guilty to committing the offence of armed robbery on 15 January 2021 and also to a charge of committing an indictable offence on bail related to that same offence.  The complainant Darren Lilly was aged 46.  He was living in an apartment building at Elizabeth Street in Melbourne.  He knew you, as you had previously lived in that same building. 

2At 4.25 am on 15 January Mr Lilly was sitting outside the apartment building in Elizabeth Street, Melbourne.  He was alone and smoking a cigarette.  You began walking towards him and he recognised you from your previous connection at the boarding house.  You were holding a 700 ml glass bottle of whiskey and you had a drink from it.  You approached Mr Lilly and you twice asked him for a cigarette and on both occasions, he said no.  You walked away towards Elizabeth Street, took another drink from the bottle and put the lid back on it and then walked back to Mr Lilly.

3You raised the bottle in your right hand at head height with your arm outstretched.  For a third time you asked Mr Lilly for a cigarette, saying, 'Give me a fucking smoke or I'll smash the bottle and kill you'.  You yelled at him to get it out of his pocket, which Mr Lilly understood to be a request for the cigarette.  He reached into his pocket, got out a cigarette and gave it to you.  And that is the offence of armed robbery.

4You made a further threat towards Mr Lilly and then walked away down on Elizabeth Street towards Franklin Street.  Mr Lilly finished his cigarette, went back to his apartment, and called Triple 0.

5At the time of this offence you were on three counts of bail, hence the offence of committing an indictable offence on bail. 

6You were seen by the police on the corner of Therry Street and Victoria Street.  You were wearing the same clothing that was visible in the footage at the time of the offence.  You still had the bottle of whiskey in your hand.  You shouted at the police and raised the bottle and smashed it in the gutter.  You were arrested at around 4.45 am.

7You were interviewed later that day at 12 noon.  You told the police that you recalled the incident where you asked for a cigarette, and you agreed that you were wearing the clothing that was visible in the footage.  You said that you had been drinking prior to the incident, namely a couple of beers and drinking the straight whiskey from the bottle.  You said that Mr Lilly was on his own and you did not notice anyone around because you were too drunk.

8You told the police that Mr Lilly was just upset because he had to give you a cigarette, and so he called the police and got you in trouble for an armed robbery.  You said all you wanted was one cigarette.  He had a whole packet of cigarettes and he was being 'an arsehole about things'.  That is the language you used.  You accepted that you may have gone about asking for the cigarette in the wrong way and you said that you had not raised the bottle in any threatening way, you just suggested that he give you the cigarette.

9The maximum penalty for armed robbery is 25 years' imprisonment and for committing an indictable on bail is three months' imprisonment.  Armed robbery in some circumstances can be a category 2 offence, but in the facts of your case it is not, so I do not need to address that.

10I will deal now with your personal circumstances.  You are now 48 years old.  When you were young, your father was tough on you and your parents separated when you were 14, with you then living with your mother.  You left home when you were 18, although you have returned to live with your mother from time to time.  Your mother worked hard and you related well with her and speak of her fondly.

11You left school after you failed Year 12 and then you had a range of casual labouring-type jobs.  You told Mr Healey, who assessed you, that at that time you were thinking of trying to get the disability support pension, which would help you with getting more stable accommodation. 

12You have twin brothers whom you have not seen for some time.  With your declining mental health and your alcohol issues, you have lost contact with your family and, although you told Mr Healey you believed that they would be there for you, you were ashamed of your issues and so you have avoided contact with them because you have not wanted to burden them.  You told Mr Healey that you really miss having contact with one of your brothers in particular and his children.

13Life in the last years has been very difficult for you.  You have been struggling with your mental health, with homelessness and with drug and alcohol issues.  While you have received help from some people and organisations, you have not always had somewhere to live and at the moment you have no place to go to upon your release from prison.

14Looking back, you were a footy player and played cricket when you were a teenager and in your 20s and you had some injuries from those sports.  And more recently, because of your homelessness, you have had a lot of health problems.

15Your criminal record starts with minor matters from 1992.  There are a number of matters in 2002 and the years following that for offences such as drink driving and assault, but nothing really serious that has brought you before the higher courts until now.

16You started smoking cannabis and hash when you were a teenager, and you developed a substantial habit for using cannabis.  Over the last 10 years or so you have also started using ice, injecting substantial amounts.  You have had some minor use of other drugs.  One of your major issues has been alcohol abuse from your mid-teens.  You told Mr Healey that you have had no treatment for drug and alcohol abuse.

17Some significant events which affected you and your mental health were in 2008 when your grandfather passed away and you were really traumatised by the grief of that.  Mr Healey considered that you still have strong feelings of grief regarding the death of your grandfather. 

18Also, in 2008 you were diagnosed with schizophrenia and you were initially provided with depot medication.  Since that time you have not always been compliant with taking the medication for that illness, though I am told that now that you are on remand you have been taking your medication and that you can really feel the benefits of that.  You realise now when you are taking your medication that you do need to take it and I hope that the insight that you have about that now will help you to continue to take your medication when you are released.  A goal for you is being well and stable so that you can resume contact with your family. 

19Mr Healey said that the history you provided shows that you have a very serious problem with alcohol over many years.  He said that you are aware that when you are drinking you are more likely to come into conflict with others and that you had lost friends and work because of your drinking.  At the time of this offence, you were affected by alcohol and Mr Healey considered that your mental illness and lack of medication at the time would have had an impact on your judgment.

20I take into account the following matters when sentencing you.  First, this is a low-level offence.  Armed robbery is inherently a serious offence with a maximum penalty of 25 years, but this instance of it was not planned, you did not have a knife or a gun but rather used the bottle you had with you and you did not inflict injury to the victim.  Also, relevant to assessing the gravity of the offence is that the victim of the offence has had no ongoing trauma.

21I accept that your judgment at the time was impacted not only by your alcohol abuse but also the effects of your mental illness. 

22A very significant factor in mitigation is that you have pleaded guilty, saving the time and effort of bringing witnesses to court.  This is a very significant factor in mitigation, particularly in view of the effect of the pandemic on the courts.  I also accept that your plea is a reflection that you understand that you have done the wrong thing.

23I take into account that whilst you do have a substantial number of priors most of them are for street-level incidents and alcohol issues and that there is nothing approaching the gravity of a 25-year maximum armed robbery. 

24On the charge of armed robbery, I sentence you to six months' imprisonment.  On the charge of committing an indictable offence on bail I sentence you to one month's imprisonment and I will not order any cumulation between those two sentences.  Therefore, your total effective sentence is six months.

25I declare pursuant to s6AAA that if you had not pleaded guilty, I would have sentenced you to 12 months' imprisonment and imposed a non-parole period.  And I declare 173 days as pre‑sentence detention and direct that that declaration be entered into the records of the court.

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