Director of Public Prosecutions v Bradding

[2014] VCC 2102

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 14-01437

DIRECTOR OF PUBLIC PROSECUTIONS

v

JOSHUA BRADDING

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF HEARING:	9 December 2014
DATE OF SENTENCE:	9 December 2014
CASE MAY BE CITED AS:	DPP v Bradding
MEDIUM NEUTRAL CITATION:	[2014] VCC 2102

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms F. Holmes
For the Offender	Mr R. Thyssen

1HER HONOUR:  Joshua Jonathon Bradding, you have pleaded guilty before me to one charge of recklessly causing serious injury, one charge of being a non-prohibited person possessing an unregistered category - a long-arm, and one charge of handling stolen goods.  The facts underlying your offending are as follows. 

2About two months before 2 October 2012, which is the date of the offending, you made the acquaintance of your co-accused Gokhan Can who then lived near you in suburban Preston.  He stopped by as you were working on a car and a friendship then developed.  Prior to 2 October 2012, you were informed by Mr Can that he believed his former partner Jordan McDonald with whom he had been in an 18 month relationship and of which a child had been born - had become romantically involved with the victim in this matter; Zacariah Suares. 

3Mr Can and Ms McDonald had ended their relationship but in the aftermath, Mr Can had become jealous of her seeing other people.  On 1 October 2012, Mr Suares sent a message to Ms McDonald's Facebook profile and Mr Can, posing as Ms McDonald, sent a message to him giving him a mobile phone number to contact, which in fact related to an old phone owned by Ms McDonald.  On 2 October 2012, Mr Suarez exchanged a number of text messages with the person whom he thought was Ms McDonald but was in fact Mr Can. 

4The text messages sent by Mr Can, where he was posing as Ms McDonald, were sent in order to lure Mr Suares to Preston on the promise of a romantic encounter and an arrangement was made for them to meet at around midnight on October 2 2012.  In fact, Mr Can had decided he was going to physically assault Mr Suares when he arrived, sending a text message to someone else indicating that he was going to, "bash this cunt" and "take his Harley", referring to Mr Suares' motorbike. 

5While Mr Suares was on the way, Mr Can collected you from your home which was very close to where the stabbing took place.  Mr Suares arrived at a milk bar in Preston, which was the point of assignation, got off his bike and had a cigarette. You and Mr Can walked then ran towards him.  You demanded the keys to the motorbike, threatening to otherwise burn it, then the bike was pushed over and damaged.  You punched Mr Suares to the back of his head and Mr Can stabbed him.  Mr Suares ran away towards a roundabout and you punched him again a couple of times.  The two of you then ran away whilst members of the public came to Mr Suares' aid, calling for police and emergency services, he being taken to the Royal Melbourne Hospital after receiving initial emergency treatment from ambulance officers.  He was assessed at hospital as a seriously injured patient, who should be seen within ten minutes and was found to sustain the following injuries, including; a collapsed lung, two stab wounds to the front of his right chest, two stab wounds to the back of his chest, a stab wound to his abdomen which penetrated at least four centimetres, lacerations to his liver and an abrasion to his left cheek.  Those injuries required the insertion of a chest strain under anaesthetic.  The injuries were life-threatening and he remained in hospital until 6 October 2012.  Multiple medical specialists were required to keep him alive and stable following the injuries he sustained.  On May 16 2014, police went to your home but you ran, jumped over a fence and tried to get away, but were eventually arrested.  When police went to your home, your then partner Karen Fisher handed them a double-barrel shotgun in a blanket and a set of stolen number plates.  On 16 May 2014, you were interviewed by police, during which you admitted the firearm was yours saying you had brought it from someone at the Olympic Hotel for $100.  You also admitted to possessing the stolen number plates, however made no comment in relation to the assault upon Mr Suares.

6Ultimately you were remanded in custody from 16 May to 31 July 2014.  Your then partner, Karen Fisher, whilst you were in gaol became involved with a drug-dealer and it appears she was shot in the leg during some sort of argument between  people involved in that enterprise at which time you determined you would in fact cooperate with police.  On 17 July 2014, you made a statement to police in which you made not only admissions but fully described the role taken by Mr Can in the assault upon Mr Suares.  It was accepted by the prosecution that you were unaware that Mr Can had a knife, or that Mr Suares would be stabbed and it is also accepted by the prosecution that you would therefore not have seen the type of serious injury Mr Suares ultimately suffered.

7The matter was resolved at the first committal mention when you entered a plea of guilty to the matters.  The Crown specifically conceded that at the time you made your statement, Mr Can's former partner was overseas and unable to be located so that your statement was of particular significance to police, particularly in progressing the case against Mr Can and ultimately in achieving a plea of guilty from him which is yet to be dealt with.  The Crown also conceded that your statement was indicative of remorse for your involvement in this offending. 

8I now turn to your personal circumstances.  You are 31 years old, the older of two children born to your parents who separated when you were about three and you thereafter having very little contact with your father.  Another half-brother was born to your father, who in 2006 unsuccessfully tried to hang himself and to this day remains in a hospitalised and vegetative state.

9Your mother thereafter re-partnered with your stepfather who was a painter, but he then died suddenly of a heart attack.  You left school partway through year 10 at Ballarat High School, you being raised there by your mother who works for the Rivers clothing outlet in Ballarat.  Your younger brother works at the Ballarat Hospital.  On leaving school, you undertook sporadic work working for about six months for a party hire firm where you were cleaning. You then undertook painting jobs with your stepfather until he died.  Along the way, due to various difficulties and what would seem to be mixing with a bad crowd in Ballarat, you developed problems with drug use, particularly amphetamines, ecstasy and marijuana.  In 2001, you moved to Melbourne having formed a relationship with Karen Fisher, which appears to have had a steadying influence upon you.  You were unemployed for four to five years, and it would appear you were caring for your partner who had bi-polar disorder, and suffered the after-effects of a broken back she suffered when young.  About five years ago, you worked as a labourer at Margot Engineering in Preston but then were diagnosed yourself with bi-polar disorder and placed on a disability pension about three years ago.  The relationship as I have said ended whilst you were in gaol, and she formed a relationship with the drug dealer and you have little contact with her since.

10Since your release from custody, you have lived in Ballarat with your mother and undertaken an amount of rehabilitative treatment, you having determined in gaol that you had long-standing problems that you needed to attend to.  That you have had difficulties in the past is borne out by your prior criminal history, which is lengthy but basically amounts to periods of offending interspersed with years where you have remained out of trouble.  Your offending history began in 2000, when you were dealt with in the Children's Court for shop-theft, possessing and using cannabis and unlawful possession, criminal damage, going equipped to steal, obtaining property by deception and driving offences. 

11You were sentenced to some months in a youth justice centre.  In 2001, you were dealt with in the Ballarat Magistrates' Court on multiple charges of theft, a charge of burglary, possession and use of cannabis, and were placed on suspended sentences and a community-based order.  There you breached in 2001 by further offending.  Again, in 2001, you were dealt with for breaching the community-based order for escape from a youth training centre.  In 2002, you were dealt with on multiple charges of theft from motor vehicle and ultimately placed on a partially suspended sentence.  This period of offending apparently pre-dated your move to Melbourne, they all being dealt with in the Ballarat Magistrates' Court and reflected your drug habit at that time.  In 2003, you were dealt with for making a threat to inflict serious injury as well as a threat to kill, on charges of going equipped to steal, theft from motor vehicle and attempt to commit an indictable offence.  Again, this was dealt with in the Ballarat Magistrates' Court and related to this earlier period in life when you were using drugs heavily.  You were arrested by a police officer on the charges of going equipped to steal and theft from the motor vehicle, then rang that officer in a drunken state and made threats towards him.  You breached your suspended sentence as a result of that offending and were sentenced to three months' imprisonment.

12In 2003, you were again dealt with in the Magistrates' Court for theft from motor vehicle and theft, for which you were gaoled.  Then in 2005, you were placed on an intensive corrections order on charges of receiving stolen goods, driving offences, theft and possess and use of cannabis.  You successfully completed that order.  You were not again dealt with or charged until 2010, when you were fined $500 for carrying a controlled weapon without excuse. Your counsel informed me that related to an evening where you heard a loud noise, went outside with a pen knife in your pocket and were charged.  That was the last matter on your criminal offending history until these matters.

13It appears that in 2005, you relapsed into drug use after you and your partner, Ms Fisher were rejected in an application you made for IVF treatment because of your criminal history.  It is clear in my view that you have gone through bouts of intensive offending, followed as I have said, by years of perfectly responsible behaviour.  And really, it could be said looking at your history overall that you had not really offended in any meaningful way since 2005 to the time that you were apprehended in relation to these offences.

14The rehabilitative treatment you have undertaken consisted of drug and alcohol counselling through United Care, attendance upon a psychologist, Ms Lynn Rowley on a weekly basis, and attendance upon a psychiatrist Dr Trevine, who has re-diagnosed you saying he does not believe you have a bipolar disorder but instead a deep-seated anger and anxiety difficulty which is more effectively to be treated by psychotherapy which you are now undertaking.  You are also being looked after by a housing worker who is seeking accommodation for you. 

15I received a number of references from relatives attesting to your essential good character and behaviour over a period of about nine years, and also indicating clearly that you continue to attract fairly widespread family support.  That includes not just support from your brother, with whom you mainly socialise now that you are living in Ballarat, but from your mother with whom you reside, from an aunt who has spoken of her closeness to  you and a cousin who is starting up a floor laying business which you have been involved in to some extent already, with an offer from him to give you an apprenticeship in that field.

16It was the prosecution's submission that notwithstanding the significant concessions that have been made about your role in this offending that I should deal with you by a sentence of imprisonment to be immediately served.  You have already served 77 days.  It was conceded by the prosecution that a combination sentence comprising a term of imprisonment and a community corrections order would not be inappropriate.

17The offending was very serious and I have received a victim impact statement from Mr Suares, who wrote that he was off work for about two months and lost around $8,000 in salary.  He stated that he was told by doctors he was lucky to be alive.  He had to pay excess to an insurance company for damage to his bike.  He also spoke about emotional trauma which he very unsurprisingly suffered, that is, he felt unsafe to go out and live a normal life for a long time.  He had trouble socialising with friends and to this day, despite enormous support from his family, he still does not go out and socialise as he used to and spends most of his time working.  He says he stays away from crowded places and is always aware of his surroundings.   Also unsurprisingly, it is his desire that his attackers be, "Put behind bars for a long time so they can't do this to anyone else". 

18This is of course extremely serious offending, and normally a man in your position could only expect an immediate term of imprisonment although the Crown, as I have said, has conceded amongst other things that a combination term and a community corrections order would not be inappropriate.  However, in my view there are exceptional circumstances in your case which lead me to the view that I should simply impose a community corrections order.

19They are, (1) your very early plea of guilty, which the Crown conceded was indicative also of remorse, (2) your considerable cooperation with police in providing a statement at a time when police were unsure as to whether they could contact Ms Can's former partner, who was overseas and possibly uncontactable, so that your information was very important both on progressing the police case and in securing a guilty plea from Mr Can, (3) of considerable significance in my view is the Crown concession that you were not aware Mr Can had a knife and had no expectation the victim would be stabbed and injured as he was, but simply punched (not that that is a particular praiseworthy view on your part).

20The serious injuries suffered by Mr Suares clearly resulted from the stab-wounds, which it is neither suggested you delivered, nor had the knowledge would be inflicted.  The plea of guilty to recklessly causing serious injury, which in my view you could well have resisted adds further significance to your acknowledgement of guilt in this case and indicates genuine remorse for your offending.  In other words, your role in this whole incident had little to do with the ultimate serious injuries inflicted upon Mr Can and your role is therefore vastly different to that of Mr Can.  (4) It is conceded by the Crown that your statement against Mr Can has put you in danger and the police have held fears for your safety since you made it.  Indeed, you have been directly and indirectly threatened as a result since this offending.  Those threats pre-dated your arrests, and ironically I am informed by your counsel, led to you to purchase the shotgun which was apparently unloaded and unworkable, resulting in charge 2 on the indictment.  So your decision to make the statement was a courageous one in the circumstances.

21(5) Flowing from this it is also conceded by the Crown that any time in custody would be rendered more difficult and dangerous for you.  (6) Your prior convictions, although numerous, relate to blocs of offending interspersed with periods amounting to years in between each and as I have already said, apart from one minor offence in 2010, effectively you had not appeared before a court for nine years prior to your appearance in these matters;

22(7) Apart from the charges involving threat to kill or cause serious injury, which as I have already noted were made by you when drunk to the police officer who arrested and charged you, you have no history of violence.  Most of your offending is dishonesty offending and related to your drug use at the time.  (8) You have made considerable rehabilitative efforts since being released from gaol, attending on a drug and alcohol counsellor, a psychologist and a psychiatrist, the latter significantly, as I have said, believing there has been a misdiagnosing of your bi-polar disorder, and you instead suffering from anxiety and anger issues which are best treated by therapy and the discontinuation of previous medication.  I am satisfied therefore, that you have good prospects of rehabilitation and do not present a danger to the community.

23(9) You have considerable family support.  I received letters from relatives and family friends, all of them impressive, describing the family network you have behind you and pledging ongoing support.  Your cousin, as I have also said, has offered you an apprenticeship in floor-laying, in his reference confirming that offer as well as the fact that you have already undertaken an amount of work for him in setting up in his business.  Again, this leads me to the view that your prospects for rehabilitation are at the least most positive. 

24(10) In all the circumstances, I would have been minded to order a three month term of imprisonment combined with community corrections order.  However, I would have had to have ordered 77 days pre-sentence detention so that service by you of the only further 13 required days seems an artificial and unnecessary requirement, particularly given the concessions by the Crown as to your role in this offending.  For these reasons I have decided that I am going to place you on a community corrections order. 

25The handling stolen goods  charge relates to the stolen number plates which were in your possession at the time.  I am also satisfied that your possession of the firearm arose directly as a result of fears you entertained in relation to your co-accused Mr Can, post-dating the offending against Mr Suares.

26In all the circumstances, it seems appropriate that I place you on an aggregate community corrections order, which will last for 2.5 years.  I can only place you on this order with your permission and I need to outline to you the basic conditions that attach to that order.  They are that you must, within two days of receiving this order, that is, by Wednesday, have reported to the Ballarat community corrections office.

27You must not, while on your order, commit any offence punishable imprisonment either inside or outside Victoria . You may not leave Victoria without the permission of the community corrections officer.  You must report to and receive visits from the community corrections office as directed.  You must notify the community corrections office of any change of address or employment within 48 hours of that change, and you must obey all lawful directions of the community corrections office.  I am also going to order a special condition that you perform 200 hours of unpaid community work, I am going to order that you be assessed and treated for drug and alcohol issues and I am going to order that you are assessed and treated for mental health difficulties.  Are you prepared to abide by these orders?

28OFFENDER:  Yes.

29HER HONOUR:  In addition I am going to order six monthly judicial monitoring so that your first judicial monitoring will occur on 9 May 2015, and I am also going to order a special condition of supervision.  Could you stand up please?  Are you prepared to enter this order?

30OFFENDER:  Yes.

31HER HONOUR:  You need to understand that if there is any breach in this order, you will be brought back in front of me and I can re-sentence you.  All right?  We will make it Friday 8 May, because 9 May is a Saturday, 2015.  Very well, we will have the documentation brought up and we will get you something to sign. 

32MS HOLMES:  A forfeiture order, Your Honour, for the gun and the plates.

33HER HONOUR:  Yes, I will sign those.  Have you handed those up to me?  I hope not, because if you have, I have already managed to lose them.  I will return these references to you.

34MS HOLMES:  I could have my instructor email to Your Honour ‑ ‑ ‑ 

35HER HONOUR:  That's fine.  I'm happy to do that.

36MS HOLMES:  And a 464zf sample as I understand it was also sought.

37HER HONOUR:  Yes, I am prepared to grant that because of the seriousness of the offending.  Because I am imposing a community corrections order, I do not need to make a statement pursuant to s.6(aaa) of.  In relation to s.464(zf) application, that is an order that you provide a saliva sample to police and I need to tell you that police are entitled to use reasonable force to obtain it, if you resist in any way, and there is a list of police stations that you can attend upon to provide that.  All right?  Have we given him that?  All right, it says that I was supposed to put the date here, when he attends at the police station.  Have a look at that.

38MS HOLMES:  I think it is within a certain period.

39HER HONOUR:  All right.  A charge at the - I'll just put Ballarat police station, will that do?

40MS HOLMES:  Yes, Your Honour.

41HER HONOUR:  Do you know where the Ballarat police station is?  I'm sure you do.  I meant that because you've lived at Ballarat for a long time.  Not very nice of your counsel to laugh in that way.  And we'll get Mr Bradding to sign that first, and I'll sign that other thing.  So do you understand all that, Mr Bradding?  So, you've been a bit lucky.  So, you understand all that, Mr Bradding?  You've been a bit lucky.  So good luck with that.  It sounds like you shouldn’t get into any more trouble.  You don't sound like a bloke who makes a habit of getting into trouble or certainly haven’t for quite some years.  So, I wish you well with that.  Is there anything else that I need to attend to?

42MS HOLMES:  No, Your Honour. 

43HER HONOUR:  All right, there's no problems with that is there?  All right, thank you.  Very well.  So they're the orders, they can be handed back.  You need a copy of each?  Here's the community corrections order.  I'll give you those. Otherwise, we will adjourn.  I've given back the references.  Here's the file.  I'll take that up here, and I'll see everyone - yes, we will adjourn until 9.30 tomorrow morning. 

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