Director of Public Prosecutions v Brady

[2018] VCC 1501

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-00907

DIRECTOR OF PUBLIC PROSECUTIONS

v

DAMIEN BRADY

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JUDGE:	HER HONOUR JUDGE RIDDELL
WHERE HELD:	Melbourne
DATE OF HEARING:	14 September 2018
DATE OF SENTENCE:	14 September 2018
CASE MAY BE CITED AS:	DPP v Brady
MEDIUM NEUTRAL CITATION:	[2018] VCC 1501

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr S. Ginsbourg
For the Accused	Mr H. Boyd-Wilson

HER HONOUR:

1Damien Brady, you have pleaded guilty to nine charges reflecting three incidents which occurred during September and October 2017.  Those matters are outlined in the summary of prosecution opening tendered on the plea, and they are as follows.

2On 16 September 2017 at about 4.20 pm, 43-year-old Michelle Sterges walked from the front door of her Carrum Downs home to her grey Hyundai sedan parked in the driveway.  She placed her handbag on the front passenger seat and got in the car and started it.

3You approached the car and tapped on the driver's window.  You were armed with a knife approximately 15 cm long.  You said to Ms Sterges "Get out of the car, I'm taking your car".  Ms Sterges was afraid and got out of the car and saw the knife. 

4You got into the driver's seat.  You tried to close the door, but she tried to keep it open.  You said "Get out of the way or I'll gut you like a pig".  You then drove off.  Ms Sterges was still holding on to the door, and so was pulled along for a short distance before falling backwards onto the driveway.  That matter is Charge 1, the aggravated carjacking.

5As stated, Ms Sterges' handbag was in her car.  You drove away with it, thereby stealing it.  The handbag contained about $110 in cash, personal cards, a Pandora ring and her iPhone.  Those matters constitute Charge 2, theft.

6Ms Sterges could not get back into her house, as her house key was on the car key ring.  She flagged down a car to call police.  Her son, who was unwell in bed in the house, was woken by her eventually.  He got into his car and followed you for some distance.  Ms Sterges used the "Find my phone" app and her phone was ultimately recovered from the side of a freeway in Endeavour Hills.

7On 29 August 2017, some two weeks before these events, you had been in court at Dandenong.  Your driver's licence was cancelled, and you were disqualified from driving for a period of six months.  There are therefore a number of summary offences associated with this offence, namely driving while disqualified, driving in a manner dangerous to the public, and failing to stop at the direction of police.  Those offences occurred in the Bairnsdale area as follows:

8At approximately 6.44 pm on the same day, 16 September 2017, you drove Ms Sterges' Hyundai towards Bairnsdale on the Princes Highway.  You drove past a police highway patrol vehicle.  Your speed was detected at 147 km/h.  The highway patrol took up a position behind you and activated their lights.  You continued to drive at speed, overtaking another car, and continued towards Bairnsdale.

9At about 7 pm, you were observed by different police travelling on Main Street at Bairnsdale.  Your dangerous driving involved: overtaking another car; crossing over double lines on the two-lane road; driving straight through a roundabout at about 90 km/h in a 60 zone; driving along the main street towards the shopping precinct at 125 km/h in a 60 zone; overtaking another car without indicating; travelling on the incorrect side of the road for about 60-80 metres before crossing back over double lines, overtaking in a manner which forced both east and westbound traffic off the road, and; driving through another roundabout travelling in the incorrect direction, all at high speed.

10At one point, a police officer in the divisional van was forced off the road, taking evasive action.  Two different police cars had lights and sirens operating, however you did not stop.  Fortunately, traffic was light and was not interfered with.  Police eventually ceased their pursuit.

11The stolen car was observed later that evening in Lakes Entrance.  At about 9 pm that night, you drove Ms Sterges' car to the house of friends.  Peter Harris is the father of your girlfriend.  You appeared distressed and you spoke with him, telling him you had taken a lady's car at knifepoint, that you had seen police coming towards you, that police chased you but you outran them.

12Mr Harris attempted to persuade you to return the car.  You both prayed together before you gave the knife to Mr Harris and then left.  Mr Harris in his statement described your erratic behaviour.  He says he and his wife believed at that time that you were suicidal, and they were also somewhat concerned for their safety because you were making comments like "I'm not going to hurt you".  He had known you for eight to nine years, and says your presentation on this night was completely out of character. 

13Police later recovered Ms Sterges car in Cranbourne.  Stolen number plates had been fitted to the car.  A single female occupant was in the driver's seat and stated you gave her the vehicle about a week earlier. 

14The second of the three episodes occurred approximately ten days later, between 26-27 September, and involved you smashing the window of a BMW X5 and stealing a handbag containing a debit card and personal items.  They were not recovered.  The car and items belonged to Shelley Wilkinson.  The car was parked near her residence in Blairgowrie.  Those matters relate to Charge 3.

15The third in the series of events occurred approximately two weeks later again on 9 October 2017, and occurred outside a café in Ozone Street, Rye.  It was approximately 7.54 pm, and the victim Josh Hallam had parked his Toyota Hiace van in the street.  Upon returning to his vehicle he threw his keys onto the driver's seat.  He was approached from behind and felt an object against his back.  You said to him "Give me your keys".  He said "Are you serious?" and turned around.

16You held up a kitchen knife at neck height.  He estimates it was about 18 inches away from him.  You said again "Give me your fucking keys or I'm going to kill you".  Mr Hallam patted his pockets, looking for his keys.  You saw them on the driver's seat, got into the car and drove it quickly away on Ozone Street.  Those matters are Charge 4, the aggravated carjacking.

17Although the car was located about a week later in Blairgowrie, property inside the car, which included a boat wrench, four surfboards and Nikita power tools and equipment, was not recovered.  Those matters relate to Charge 5 of theft.

18Just prior to committing that offence, you had in fact approached a young woman intending the same actions, however you apparently changed your mind and desisted, thereafter choosing Mr Hallam and his vehicle.

19Two months after that event on 6 December 2017, you were arrested in Lakes Entrance and interviewed.  You denied that it was you in the CCTV footage from 9 October, and denied having ever been inside Mr Hallam's car.

20These are serious offences.  The charge of aggravated carjacking was introduced in this state in 2016.  The aggravation in your case is the presence of a weapon on both occasions, and the threat of violence to the victims.  Those charges carry a maximum penalty of 25 years' imprisonment, placing them among the most serious offences on our criminal calendar. 

21In the case of an offender who is over 18 years, I must impose a non-parole period of not less than three years unless a special reason exists not to do so.  Sensibly, no reason was advanced in your case.

22Your attendance on the Harris family demonstrated some remorse for your offending, however that is ameliorated by the fact that you reoffended in the same fashion only a short time later.  As will become apparent, this situation is reflective of the fact that you were in the grip of serious drug addiction at the time.  I must state at the outset, drug addiction of course is no excuse for your offending. 

23In addition to the two charges of aggravated carjacking, the dangerous driving is a serious example of such driving, whereby members of the public and police were placed at risk by your excessive speed, driving on the wrong side of the road and causing others to take evasive action.

24Your offending demands that considerations of denunciation, general deterrence and just punishment be at the forefront of sentencing considerations.  The high maximum penalty and mandatory minimum imposed by Parliament demonstrate this.

25In the second reading speech, the Attorney-General stated of the maximum penalty and the minimum non-parole period:

"This is intended to be a serious deterrent to those who plan to use weapons and violence to take another person's vehicle."

26Your personal circumstances were outlined on the plea, and are contained in the psychiatric report of Dr Alan Jager.  They are as follows.

27You grew up in Warrandyte in a solid and loving family.  You were the youngest of three children.  Your father was an industrial metallurgist with Holden, Ramset and Stanley.  Your mother was an auditor for Shell.  Your two siblings are married with careers and children, and you have little contact with them.  Your parents however remain supportive, and have been in court throughout these proceedings.

28You completed Year 10 at Warrandyte High School before leaving to pursue an electrical apprenticeship.  After going to trade school for six months, you were unsuccessful in finding an apprenticeship.  You commenced employment at a factory in Box Hill, which manufactured audio speakers, and you learnt some soldering skills.

29You then obtained an apprenticeship as an electrical technician in Preston, however there was no trade school attached to that apprenticeship, and it was not akin to being an electrician, so you left after 18 months.

30At about the age of 18 years, you switched to concreting.  This was a turning point and you enjoyed approximately nine years of solid employment.  You worked mainly as a contractor for a company called Slab-Pro.  They regarded you highly and engaged you as a foreman on building sites.

31Another turning point in your life came three weeks after your 27th birthday.  You were the front seat passenger in a motor vehicle driven by a friend.  You were involved in a serious accident when the car was flipped and landed on the passenger side.  This resulted in serious injuries to your right shoulder.  You needed hospitalisation and rehabilitation. Over the next few years, you had three operations on your shoulder.  Your work as a concreter ceased as you were not physically able to undertake the work. 

32Those events occurred just after you had bought your first house, which was located in Frankston.  You became unable to repay your mortgage, and you were forced to sell the house.  Your living became unstable, although at times you returned to your parents.

33That loss of your livelihood and hard-earned accommodation saw you descend into a deep depression.  You had previously been a heavy drinker, and what was loosely termed a "recreational" user of speed.  However, during this period of time you began intravenous use of speed, and your drinking increased.

34I am told at one point you received a six-figure superannuation payout, and that this "went up your arm".  Your addiction became so severe that you developed a drug-induced psychosis in 2009.  You were hospitalised, you believe, at the Alfred or Royal Melbourne Hospital.  Your thinking and behaviour was highly dysfunctional.  You developed auditory hallucinations and paranoia.

35In 2010 you slashed your wrists and attended the Alfred Hospital, where you remained for six nights before running away because you thought they were going to chop up your body and use the parts for people - another example of your disordered thinking.

36You attended Royal Melbourne Hospital sometime later, when you thought you heard your parents being tortured across the road and saw silhouettes.  You were seen, but discharged.

37You gave evidence on your plea.  You said that after being discharged from hospital in that period, you engaged with a psychiatrist Dr Larry Osbourne, at a clinic in Burwood Road.  It seemed you were gaining some traction with Dr Osbourne, and you describe yourself as starting to open up and talk to him about your addiction and the underlying causes.  Sadly, Dr Osbourne died and you were unable to engage with the woman that replaced him. 

38You did eventually manage to rid yourself of your addiction to speed, returning to your parents' house, and you say all of the psychotic thoughts died away.  To your credit then at age 32 years, in approximately 2011, your addiction was in remission, and as your counsel said, you "made a comeback".

39You retrained as a locksmith, completing a course at Box Hill TAFE.  You purchased a tray truck and started working as an owner/driver/contractor.  Unfortunately there was not much work available, and you struggled to make enough money to cover your costs.

40In 2013, you bounced back again after receiving a payment from the TAC in relation to the car accident.  You purchased a house in Skye.  Approximately 18 months before your arrest, and having been out of work for some time, you again felt physically fit enough to re-enter the workforce as a concreter.  Given your previous good performance, you were given work by Slab-Pro.

41You said in evidence that you were asked to provide lifts to the son of the secretary at Slab-Pro.  Unbeknown to you, he had a serious ice addiction.  Sadly, this simple request represented another turning point in your life.  As time went on, he began asking you to stop at dealers' houses so he could purchase ice.  Inevitably you were offered some.  You conceded in evidence that you were not strong enough to say no.  You had never used ice before. 

42You said initially you smoked it.  You kept using it because at the start you liked the feeling.  Gradually the pattern of your usage saw you using ice before and after work.  A few months after the commencement of ice, however, your feelings about it changed as your thoughts started to become erratic.  You said in evidence you wanted to stop, however you were in the grip of its addiction, which you found extremely strong.  You describe the effects the ice was having on you, namely you were suffering again what can broadly be described as hallucinations and paranoia. 

43At some stage your parents tried to intervene.  They took you to a doctor and there was referral to a counsellor in Frankston.  You attended three or four sessions, however felt that these were not beneficial.  You conceded in evidence that you made excuses for everything, despite your parents doing their best to help you.  You admit now with full sobriety in prison, that you wish you could have put yourself in a hospital environment away from ice, however you also concede that given your behaviour at the time, you do not believe anyone could have forced you into hospital because you were so paranoid.

44On the day before the aggravated carjacking of 16 September, you state you had consumed two points of ice, and four to six cans of alcohol.  You had not slept that night.  You remember feeling a compulsion to get to your girlfriend in Lakes Entrance.  Your thoughts were very disordered.

45At that point, you did not have a car, having lent it to someone you hardly knew.  When it was returned, you described it as being "trashed".  You mentioned this as an example in your words of your "absolutely ridiculous decision-making at the time", lending your car to someone you barely knew.

46You conceded in evidence that you knew what you were doing wrong during this period of offending.  Further, as I have referred to, you acknowledge that about ten minutes before the offence committed against Mr Hallam, you approached a young woman.  You were going to steal her car, however you said to her "Fuck, I'm sorry, I can't do this to you".  You acknowledged in evidence remembering the police chase through Bairnsdale and knowing it was the police.

47You conceded in evidence that during the 12 months leading to these offences, there were periods of lucidity, which allowed you to reflect on your drug-taking and the effect it had on both your thinking and behaviour.

48You stated that at some stage after the October offending, you did some minor renovations to your house in Skye and sold it with the determined intention to move away from Melbourne and the drug scene you were familiar with.  You intended to pursue a quieter life with your girlfriend, Nicole Harris, in the Bairnsdale/Lakes Entrance area.  You did describe this as a bit of a fairy tale, given the grip of your addiction.  However, you did make that move, which is why at the time of your arrest, you were residing in Lakes Entrance.

49You have now had approximately nine months to reflect not only on this offending, but on the impact of drug use upon you.  Dr Jagar described you as remorseful.  The quick resolution of these charges by way of your pleas of guilty is also reflective of your remorse. 

50I have had the benefit of your direct evidence, wherein you stated that you no longer want to use ice.  You stated "It's almost like a nightmare for me, sitting here in front of you all", and further you acknowledge "it has not just affected me, my family and friends, it's affected innocent people in horrific ways."

51I take that comment as a reference to the victim impact statements.  In this case, Ms Sterges in her victim impact statement outlined the significant effect of your offending on her.  She described working incredibly hard to support herself and her son, and struggling financially. The car you stole was her first new car, purchased when she was 43.  She was terrified by your words and actions, overcome with panic and shaking.  She was fearful you may return, and was unable to get inside her house.

52She later felt that she was not safe within her own home, second-guessing herself and resulting in long-term anxiety tension headaches and migraines.  She is now medicated and suffers from panic attacks, where she has been overcome with fear.  She feels exposed and vulnerable in her front garden.  In short, the effects of your behaviour are long-lasting for her.

53Her son also writes of the impact on him of your senseless act.  He described his mother's extreme distress and the months of frustration and trauma afterwards as they struggled to retrieve their property.  The car, once returned, had damage to every panel.  He describes emotionally and socially being out of control, experiencing anxiety and hypervigilance.  Understandably, this had an effect on those around him, impacting his personal life.  He was forced to have time away from work and to seek professional help.

54I have read your letters of apology to Ms Sterges and to the court.  I accept those apologies are genuine.  However, I do hope you ruminate on the effect of this offending on those victims and others who have not made statements, but who no doubt have experienced an impact.

55I do accept your counsel's submissions, namely that your remorse is sincere, and your reflection upon your behaviour and drug-addiction has allowed you to obtain considerable insight into the harmfulness of your drug abuse and the adverse effects on you and other people. Further, I accept that you have some understanding on how it affected your psychologically. 

56Principles of Verdins[1] were not urged upon me.  It was conceded that any psychosis is the result of your drug use.  Your drug use of course is no excuse for your offending.  It is not a mitigating factor and does not reduce your moral culpability.  You repeatedly returned to drug use following periods of lucidity, where you recognised the effects drugs were having on you. This is in the context of a history which saw your drug use end, at one stage, in hospitalisation.

[1]

57I accept the prosecution's submission that any sentence should make clear that people who voluntarily consume ice and then commit offences such as these must receive significant periods of imprisonment.  I must consider principles of community protection and the need for specific deterrence.  These principles go hand in glove with the consideration of your prospects of rehabilitation.

58It is trite to say that your prospects are almost entirely dependent on your ability to abstain from drug use.  You frankly admit that gaol has been a positive for you in allowing you space and time to reflect on your mistakes.  You have used your time constructively, engaging in an intensive drug and alcohol program of some 60 hours group therapy, engaging three days per week for approximately four weeks.  I take into account the fact that you have in the past been able to beat a serious addiction.  You have also recovered yourself from serious injury and the financial difficulty that that caused. I take into account your positive work history and the fact that you have skills which should lead to employment. 

59Those who have known you for a long time, firstly your parents but also Peter Harris and long-time family friends Joe and Sheryl Labrieri, who have watched you grow up, describe you in terms which show that this behaviour is at odds with your normal character. They say you were a committed participant in your local community, playing football, doing cubs and scouts.  You were described as friendly, considerate of others, and hardworking. 

60I accept the submissions that the behaviour on these occasions, in particular of the two carjackings, is out of character, in particular the shows of violence.  Although you behaved in such a way when significantly drug-affected, this does not in fact reflect an underlying personality trait.  You do not have prior convictions for violence, although you have a number of driving priors. 

61According to the forensic psychiatrist, you have gained considerable insight into the adverse effects of amphetamine use, and you express considerable remorse regarding your behaviour and the effect on victims.  He reports "he feels bad for the lady.  He feels terrible for putting her through that", and you are glad no one was hurt.

62Insight and remorse are good starting points for rehabilitation.  Your counsel submitted that your prospects of rehabilitation are good.  The prosecution say guarded.  You are 39 years old.  Your life has had some critical turning points, and I view you as someone who has bounced back on a number of occasions.  Your frank concessions given in evidence impressed me as genuine.  You appear to be someone with internal grit, no doubt born of your solid upbringing and the values instilled by your family and particularly your parents.

63I accept your current state of determination not to descend back into ice use.  You do have a broader risk of using drugs generally, including alcohol.  Conversely, you have a supportive family, you have a house waiting for you, a relationship to pursue, and skills which make you employable.  Coupled with your remorse and insight, I am willing to say in my view your prospects of rehabilitation are good.

64I have given consideration to the legislative parameters in place for these offences.  I have also looked at the case law provided, which of course at this stage is limited.  In particular, I have looked at the cases in this court of Najjar[2], Arvidson[3] and Backer[4].  In summary, all of those offenders were younger persons, but with much more extensive criminal history than Mr Brady.  Two were in breach of court-imposed community corrections orders, all three admitted stimulant drug use.

[2]DPP v Nadjjar 2018 VCC unreported

[3]Jeremy Arvidson 2017 VCC 1264

[4]DPP v Backer 2018 VCC 592

65I have also considered counsel's submissions regarding cumulation and concurrency, along with the issue of totality.  Each of the carjackings must be reflected in my sentence, and in my view the dangerous driving also warrants specific cumulation.

66I accept in relation to the driving offences and carjacking that there should be licence disqualification.  In relation to the carjacking, that is under s.89(4)[5]. 

[5]Sentencing Act 1991

67In all the circumstances, I propose to sentence you as follows.  So if you could stand, Mr Brady.

68In relation to Charge 1 of aggravated carjacking, you are convicted and sentenced to four years and three months' imprisonment, and that is the base sentence;

69In relation to Charge 2 of theft, you are convicted and sentenced to six months' imprisonment;

70In relation to Charge 3 of theft, you are convicted and sentence to three months' imprisonment with one month cumulative on the base sentence;

71In relation to Charge 4, the aggravated carjacking of Mr Hallam, you are convicted and sentenced to four years' imprisonment with two years cumulative on the base sentence;

72In relation to Charge 5 of theft, you are convicted and sentenced to six months' imprisonment;

73In relation to Summary Charge 7 of driving in a manner dangerous, you are convicted and sentenced to 15 months' imprisonment, with six months cumulative on the base sentence.  Your driver's licence is cancelled and disqualified for 15 months;

74In relation to Summary Charge 10, of failing to stop, you are convicted and sentenced to three months' imprisonment, your driver's licence is cancelled and disqualified for ten months;

75In relation to Charge 11, driving whilst disqualified, you are convicted and sentenced to two months' imprisonment;

76In relation to Charge 19, drive whilst disqualified, you are convicted and sentenced to two months' imprisonment.

77The total effective sentence therefore is six years and ten months' imprisonment, and I direct that you serve a minimum term of four years and ten months' imprisonment.

78In relation to presentence detention, I declare that you have served 282 days, and I reckon that as attributable to this sentence. 

79But for your plea of guilty, the sentence I would have imposed would have been a sentence of eight and a half years with six years' imprisonment.

80In relation to your driver's licence disqualification, for the two charges of carjacking, I make that order pursuant to s.89.  Your driver's licence is cancelled, and you are disqualified for a period of four years commencing today.  That disqualification will run concurrently with the other periods of disqualification.  Any matters to raise, counsel?

81MR GINSBOURG:  I will just check the calculation.

82HER HONOUR:  Please. 

83MR GINSBOURG:  No, nothing to raise Your Honour.

84HER HONOUR:  Thanks very much, all right, I will leave the Bench, thank you.

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