Director of Public Prosecutions v Bradnock

[2023] VCC 1507

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 21-02045

DIRECTOR OF PUBLIC PROSECUTIONS

v

NATHAN BRADNOCK

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JUDGE:	HIS HONOUR JUDGE MURPHY
WHERE HELD:	Melbourne
DATE OF HEARING:	22 August 2023
DATE OF SENTENCE:	24 August 2023
CASE MAY BE CITED AS:	DPP v Bradnock
MEDIUM NEUTRAL CITATION:	[2023] VCC 1507

REASONS FOR SENTENCE

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Subject:  Criminal Law - Sentence

Catchwords:  Home invasion – late plea of guilty – premeditation – delay – good prospects of rehabilitation – risk of deportation

Legislation Cited:  Crimes Act 1958, s77A; Drugs, Poisons and Controlled Substances Act 1981, s 73(1); Sentencing Act 1991, ss 3, 5(2H)

Cases Cited:DPP v Lombardo [2022] VSCA 204; DPP v Taleb [2014] VSCA 96; DPP v O’Brien [2019] VSCA 254; Hogarth v The Queen [2012] VSCA 302; DPP v Meyers [2014] VSCA 314

Sentence:Total effective sentence of 5 years’ imprisonment, with a non-parole period of 3 years and 4 months.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr T. Danos	Office of Public Prosecutions
For the Accused	Mr T. Marsh	Bowler & Co.

HIS HONOUR:

1Nathan Bradnock, you have pleaded guilty to one charge of home invasion, two charges of possession of a drug of dependence, and two uplifted summary charges of possession of a prohibited weapon without exemption, and possession of cartridge ammunition without a licence.  The maximum penalties are set out in the prosecution opening.

Circumstances of the offending

2The circumstances of the offending giving rise to the charge of home invasion on 7 May 2021 were set out in the prosecution opening which was read in open court on the plea earlier this week. I incorporate it by reference.

3In brief outline the offending has its background in a dispute between yourself and a 19-year-old young man named Zane, who was in a relationship with a 31-year-old woman named Jamie Heyton. Zane was not living with Jamie but did attend her home in Doncaster from time to time.

4The subject of the dispute appears to have been that you were of the view that Zane had taken a BMX bike belonging to your then partner, Carolyn House, who you were living with in a property in Doncaster. There was also a suggestion that Zane had been responsible for the theft of an off road motorbike from your property. You had been involved with Zane who was having his own difficulties with drug addiction.

5Over the two days 26 and 27 April there was an exchange of text messages, often in abusive terms, between you and Zane in relation to payment of $800 for the BMX bike.

6Around a week prior to 7 May 2021 you mentioned to your partner, Carolyn House, that you planned to “roll” Zane as payback for the BMX bike theft.

7On 6 May at about 10 pm Carolyn was with you and an associate,
Mr Madsen, at his house. Carolyn drove you and Mr Madsen back to Doncaster. She then saw Mr Madsen putting on some gloves, wrapping the wrists with tape, and a balaclava, and you put on a black jacket before both of you walked out the door.

8Zane had been at Jamie’s home on the evening of 6 May. He received a phone call that something might happen and attended at the property in the early hours of the morning and was sitting with Jamie on the couch.

9At about 2.20 am on 7 May you and an unknown male attended at the home. There was a loud knock at the door. Jamie asked who it was and Zane indicated that he heard a male with a Kiwi accent say pizza. He recognised your voice and ran out the back of the house. Next thing a glass panel at the side of the front door was broken and you and the unknown male entered the lounge room.

10Ms House states that the unknown male was wearing black clothing with a black scarf that had skulls on it. She recognised you but was not sure where she knew you from. The unknown male immediately stood in front of her. He was carrying a black Taser in his right hand and a large hunting knife in his left hand. He was clicking the Taser and yelling, 'Where is the stuff?'  She asked him what stuff and he told her to get up from the couch and get the stuff. The unknown male took her laptop and mobile phone.

11As Jamie got up from the couch she was clipped on the hip with the Taser. Zane was watching from the back yard. Jamie walked towards her bedroom and one of the males asked where Zane was but she was unsure which male asked this. The unknown male then asked where was Zane's stuff.

12She told him that the only belongings of Zane were his bag, which was on the bed. This was taken. You then said, 'That’s it, let’s go'. Jamie asked for her laptop back in the unknown male refused. The two of you then left the home.

13While Zane was out in the backyard he called Triple 0. Police arrived and spoke to both Jamie and Zane and each provided a statement. Zane showed Jamie a Facebook photograph of you and she recognised you as one of the men who entered her home.

14While Zane was speaking to the police you actually called him but he did not answer.  Carolyn House recalled that you and Mr Madsen returned to her house about an hour after you had left and you had with you a black sports bag, a laptop and a phone.  You and the co-accused told Ms House that you had been to Zane’s girlfriend’s house and broke the window to get in as Jamie would not open the door.  The two of you told her that they grabbed the stuff and then left.

15Later arrangements were made for Jamie’s mobile phone to be returned to her. The laptop was never found.  Subsequently the police executed a search warrant at your property on 10 May. The SD card from Jamie’s laptop was located, as well as the black Nike bag belonging to Zane. Police also found a Taser which is the subject of the uplifted summary charge.  They also found a single round of ammunition.

16Police also found a quantity of dried cannabis in plastic bags and also some magic mushrooms. These are the subject of the drug possession charges.

17You gave a no comment record of interview in relation to the home invasion, but admitted your possession of the drugs. You also admitted possession of the Taser.

18The identity of the other person who was involved in the home invasion has not been confirmed and no other persons have been charged.

19You were remanded on 10 May 2021 and subsequently granted bail on
20 July 2021.

Victim impact statement and seriousness of the offence

20Before considering a characterisation of the seriousness of the offence it is important to note the impact on the complainant of this offence.  The prosecutor read a powerful victim impact statement on her behalf.

21In her victim impact statement she indicates that your offending, including the legal process, has had a major impact on her, affecting her psychiatric and mental health, and she has had to engage with psychologists and psychiatrists and mental health services to attempt to heal the wounds from what she described as 'this traumatic event'.

22She goes on to say:

'Going through the process, the court process, I was gradually finding ways to cope, only to realise that the trauma continues to significantly impact every facet of my life.  The recurring anticipation of legal proceedings has prevented me from resuming any semblance of normality which would have been present if this incident had never occurred'.

23She is able to share it with her family, share the difficulties.  She then goes on to say that:

'The aggressive intrusion, marked by the sound of shattering glass and the fear of imminent harm has left both of us, obviously referring to Zane, emotionally scarred and mentally shattered.  The incident has triggered severe anxiety that consumes us constantly, leaving me unable to resume work and function in my daily life, and my best friend experienced a deep sense of guilt and moral responsibility for being unable to prevent or stop the incident'.

24She goes onto say that it has had a financial impact on her and that it has also rippled through her social scene.  She is now less punctual than she previously was, and has difficulty engaging in social activity.

25She says:

'The incident has left me isolated and shattered in social aspects as well.  I am no longer the outgoing productive forward looking planner I used to be.  I find myself bound by the thought of leaving my home, engulfed in traumatic angst.  This has resulted in chronic tardiness, making it impossible to meet deadlines or appointments.  The incident has eroded my ability to engage in work, family and social commitments, leaving me feeling a profound sense of disconnection and fear'.

26She goes on:

'Furthermore, the strain caused by this traumatic event has extended to our friendship.  My best friend feels morally responsible for the profound impact this incident has had on my life, despite his inability to foresee or prevent it.  This has created a sense of helplessness and remorse that has strained our relationship and deepened the emotional turmoil caused by the incident'.

27It is clear from the victim impact statement that your offending has had a significant and continuing impact on the complainant's psychological and material wellbeing.  This must be considered in characterising the seriousness of the offending here.

28Although Zane did not provide a victim impact statement, it is implicit from the victim impact statement supplied by Ms House that your offending has had an impact on him as well, as well as on their relationship.

Seriousness of the offence

29You were the instigator of this offence. It constituted a forced entry in the early hours of the morning of a home. The complainant was an innocent victim of your conduct. It was premeditated given your comment to Ms House earlier. You bear a high moral culpability for this offending.

30Although you are not to be sentenced for the conduct of the co-offender, who was brandishing a knife and a Taser, and committed the armed robbery on
Ms House, the fact that the robbery occurred is an illustration of what can follow a forced entry into a property where you and your co-offender were taking the law into your own hands.  Thus this was serious offending.

Other offences

31You have also guilty to two possession of drugs offences. There was a significant volume of dried cannabis material found at your property. Having considered the matter and listened to the submissions from counsel, I am satisfied that the cannabis and the other drugs were for your personal use, as there was no in this indicia of trafficking. Further, it is clear that you have a long-term addiction to cannabis.

Prior convictions

32You have admitted a minimal prior criminal record. You are now aged nearly 48. On 30 June 2015 before the Ringwood Magistrates' Court you were fined an aggregate find of $1000 on a number of charges relating to fraudulent use of an identifying number, using an unregistered vehicle on a highway, stating a false name, driving without L plates, forging and identifying number, driving without L plates, driving an unroadworthy vehicle, and failing to advise of a change of address.

33I regard this prior appearance as having minimal relevance here.

Matters in mitigation

34I now turn to matters in mitigation put on your behalf in the plea.

Plea of guilty

35The chronology of this matter is set out in the prosecution opening. The index offending was on 7 May 2021. The matter was the subject of a contested committal and the original presentment also included a charge of armed robbery. Ms House did not give evidence at the committal which was held in September 2021.

36On 22 November 2022 your partner, Ms House, made a statement in relation to the matter. She made a subsequent statement in May 2023.

37The matter was listed for trial on 30 May 2023.  Your defence had been that you were not involved in this event, and the prosecution was not in a position to prove that beyond reasonable doubt.

38On 29 May Ms House was the subject of a s198B hearing. In her cross-examination she adhered to her earlier statements.  Subsequently to her cross-examination you offered to plead guilty to a charge of home invasion and the prosecution agreed to withdraw the charge of armed robbery. You were arraigned and pleaded guilty to home invasion, and the other two charges on the indictment and the two summary charges on 31 May 2023, and the matter was brought on for a plea earlier this week.

The value of the plea

39You are entitled to the benefit of your plea of guilty. It was however entered late. Your counsel submitted that it was only after Ms House gave evidence in the s198B hearing that the prosecution case materially changed such that you were prepared to plead guilty.

40Mr Danos, the learned prosecutor, submitted however that the evidence of
Ms House had been available at least since November 2022 and thus it did not really alter the picture and a plea could have been entered a lot earlier. The prosecution had also other evidence that supported a strong case against you that you were a participant in the home invasion.

41I accept the submission of the learned prosecutor that this was a late plea. You are entitled however to the benefit of the plea. You have accepted responsibility for your conduct. You have obviated the need for witnesses, including the complainant and Zane, to give evidence at the trial. You have facilitated the course of justice.

42You are also entitled to a further benefit of the plea in the COVID environment and its impact on the criminal justice system.  The plea is evidence of some remorse but there is no other evidence of remorse.

Delay

43There has been some delay in this matter due to COVID, and the fact that it was to be a contested trial until you made your offer to plead guilty to home invasion on 30 May 2023 on the eve of the trial.

44The delay since the index offending however has allowed you to show evidence of your rehabilitation by not reoffending. However, it is only since
30 May this year that you have been prepared to admit your responsibility for your conduct on 7 May 2021. Your lack of offending since the index offending however supports a conclusion that your prospects of rehabilitation are good and that this offending can be seen as being out of character, and I take that into account.

Personal circumstances

45Your personal circumstances were outlined on the plea and also in the plea submission by your counsel, Mr Marsh, and in the medical report of
Ms Cidoni, psychologist.

46You are now nearly 48. Your parents are of Maori extraction and were born in New Zealand.  Your parents separated when you were aged three but remained amicable. You have a brother who lives in New Zealand. Your father died in a boating accident in 2001. Your mother began a relationship with your stepfather when you were aged five. Your stepfather was physically abusive. Your mother separated from him in 1992 and remains living in New Zealand. You met a woman when you were aged 17 and were married and had two children now aged 26 and 27. They remain in New Zealand.

47You separated from your wife in 2000 and commenced another relationship. Subsequently in 2000 you arrived in Australia. You also lived in London for a period. You have been involved in other relationships but have no other children.

48You met your current partner three years ago and were married in May this year. You have a good educational and employment history, having a degree in farm management and animal husbandry from an agricultural university in New Zealand.

49You worked in agriculture but had an accident and had to cease in that field. You have been however involved in a number of other occupations since that time including having undertaken a motor mechanic apprenticeship.

50Since you ceased the farming enterprise you have been a motor mechanic, worked in hospitality and also in hard plastering. You also undertook firearms training and have worked as a military contractor in Iraq, Afghanistan and and other places.  You have witnessed severe war trauma in those places.

51In more recent times you worked in solid plastering in Australia. In 2017 you required surgery for a serious cancer diagnosis that caused you to stop working. From August 2022 however you have been back in the workforce working in industrial coatings.

52It is clear from your occupational history that you have been a significant contributor to the workforce and as a tax payer in Australia.  I take that into account.

Burden of risk of deportation

53As I indicated you come from New Zealand and are of Maori extraction. You have not become a citizen of this country. In the event that you are sentenced to a term of imprisonment of more than 12 months, then your visa will be cancelled and unless the minister exercises his discretion in your favour, you will be removed from the country.

54This will make a sentence of imprisonment more burdensome for you due to the prospect of this contingency eventuating, and I am obliged to and I will take that into account.

55Further, in the event that this eventuality occurs, you will have the additional burden of separation from your partner in Australia and from other connections you have made in Australia.  These are matters that I take into account in your favour.

Psychological report

56Your counsel submitted a report from Ms Cidoni, psychologist. She notes that you have suffered significant trauma in your life both in childhood and as an adult in your role in military theatres. She is of the view that cannabis use, in combination with depleted coping resources, impacted your ability to manage stress and regulate your emotions and frustration.

57She is of the opinion that you have a low likelihood of reoffending.  She is also of the view that a sentence of imprisonment may have an impact on your psychological well-being and trigger traumatic memories and overall worsen your psychological state.  I take these matters into account in your favour.

Prospects of rehabilitation

58Your counsel emphasised that aside from the minor traffic matters that I have referred to, you come before the court aged nearly 48, without any other relevant prior convictions. This alone he submitted, and I accept, leads to a conclusion that this conduct was very much out of character.

59Further, given your prior record, your prospects of rehabilitation are very good. You have effectively moved on. In May of this year you married, you have returned to the workforce. You are on the path to rehabilitation from this out of character act.

60Further, you have had this matter hanging over your head, including a charge of armed robbery, since you were arrested on 10 May 2021, then later released on bail on 20 July 2021.

61As your counsel submitted, you are likely to respond well to a sentence of imprisonment given your age and station in life.

Sentencing submissions

62The offence of home invasion is a category 2 offence under the Sentencing Act. The court cannot make a combined order of imprisonment and a community correction order unless specific circumstances exist under s5(2H) of the Sentencing Act.

63Your counsel submitted that a number of matters in your favour were such that they would meet the stringent test to allow either a non-custodial or a combined sentence to be imposed.

64Your counsel relied on rehabilitation that has occurred since the commission of the offence, delay in completion of this matter, due to Covid, and the impact of Visa cancellation and possible deportation as meeting the test of, 'Substantial and compelling circumstances that are exceptional and rare', such that a sentence of imprisonment ought not be imposed.

65As discussed with your counsel in the course of the plea, I do not accept that the matters you have put forward go anywhere near amounting to exceptional and rare circumstances. As discussed in the case of DPP v Lombardo [2022] VSCA 204 the circumstances must not only be powerful, but also be wholly outside the run-of-the-mill factors seen in offending of the relevant kind.

66I accept the submissions of the learned prosecutor that the matters that you have raised, which I have considered, do not on any view meet this stringent requirement.

67It follows that the court must, while having regard to considerations of parsimony, impose a sentence of imprisonment upon you.

Current sentencing practices

68In sentencing I must have regard to current sentencing practices. The learned prosecutor referred to the case of DPP v Taleb [2014] VSCA 96. I have considered that case but do not find it of assistance as it was concerned with parity where the co-offender had been sentenced in the Magistrates' Court to a lenient sentence.

69The case however referred to the other leading case of DPP v O’Brien [2019] VSCA 254. In that case the Court of Appeal said:

'This home invasion has all of the terrifying features referred to by this court in Hogarth.  Sentencing courts must continue to respond to conduct of this kind with substantial sentences.  General deterrence is a sentencing principle of great importance in cases such as these'.

70In O'Brien the court goes on to refer to earlier cases of Hogarth v The Queen [2012] VSCA 302 and DPP v Meyers [2014] VSCA 314 about the need for higher sentences for this egregious form of conduct. The sentiments in the decision of O'Brien and the cases referred to therein are relevant in sentencing here.

Purposes of sentencing

71The basic purposes for which a court may impose a sentence are punishment, deterrence both specific and general, rehabilitation, denunciation and protection of the community.  In sentencing I must have regard to a range of factors such as the seriousness of the offences, your culpability for them, your personal circumstances and those of the victims, if any.

72I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that as far as possible offenders are rehabilitated and reintegrated into society.

73In the present case, as indicated in the case of O’Brien, considerations of general deterrence and denunciation must be prominent in sentencing you. Individuals within our community are not entitled to take the law into their own hands and forcibly invade a private home in company in order to settle personal grievances.

74Your conduct on that evening was absolutely outrageous and has had a significant and continuing impact on the innocent complainant whose home you forcefully invaded. The sentence of the court must send a signal to all persons minded to undertake such action that such conduct will result in significant sentences.

75Your conduct must be utterly condemned. The seriousness with which Parliament takes this offence is evidenced by the maximum penalty and the requirement that, save in rare and exceptional circumstances, a sentence of imprisonment must be imposed.

76I have taken into account all the matters put on your behalf including your late plea of guilty, the entry of the plea during the COVID congestion in the criminal justice system, and the impact of a sentence of imprisonment on you, given your visa status. You face the risk of deportation and that makes it more burdensome. There is also some risk that your psychological condition will be exacerbated by a sentence of imprisonment.

77Considerations of specific deterrence have less salience given your lack of any significant prior criminal record and your age.

78In sentencing you I have taken into account in your favour the 71 days that you spent on remand. It was during the height of COVID lockdowns in 2021 and any period on remand is more burdensome than periods under sentence due to the uncertainty of not knowing when you are likely to be released and the unavailability of programs.

79Having considered all the submissions made on your behalf, I impose the following sentences on you.

80On the charge of home invasion you are sentenced to five years' imprisonment.  I order that you serve a period of three years and four months before being eligible for parole.

81On the charge of possession of cannabis and on the charge of possession of psilocybin, the two drug possession charges, you are sentenced to an aggregate sentence of fine of $600.

82On the summary charge of possessing a prohibited weapon, you are convicted and fined $750.  On the charge of possessing cartridge ammunition, you are convicted and discharged.

83I declare that you have served 74 days pre-sentence detention and I declare had you not pleaded guilty I would have imposed a head sentence of six years' imprisonment with a non-parole period of four years.  Are there any other matters, Mr Prosecutor?

84MR DANOS:  Just the disposal order, Your Honour, which has been filed.  It relates to the drugs and the Taser and the ammunition, Your Honour.

85HIS HONOUR:  I will make the disposal orders as the prosecution has sought.  Anything else?

86MR DANOS:  No, Your Honour.

87HIS HONOUR:  I thank both counsel for their assistance in this matter and I will adjourn.

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