Director of Public Prosecutions v Braine
[2022] VCC 798
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-22-00063
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| RUSSEL BRAINE |
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JUDGE: | HER HONOUR JUDGE TODD | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20 May 2022 | |
DATE OF SENTENCE: | 27 May 2022 | |
CASE MAY BE CITED AS: | DPP v Braine | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 798 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Plea of guilty – one charge possess a firearm while subject to firearm prohibition – one charge discharge a firearm at premises with reckless disregard for safety – related summary offences – circumstances of COVID-19 pandemic
Legislation Cited: Crimes Act 1958; Firearms Act 1996; Sentencing Act 1991; Interpretation of Legislation Act 1984; Control of Weapons Act 1990
Cases Cited:Pearce v The Queen (1998) 194 CLR 610; Atkinson v The Queen [2021] VSCA 127; Chief Commissioner of Police v Websdale [2019] VSCA [2020] Bruce v The Queen [2022] VSCA 100; Berichon v R (2013) 40 VR 490; DPP v Garoski [2018] VSCA 332; R v Graham [2007] VSCA 252; R v Verdins & Ors [2007] VSCA 102
Sentence: Total effective sentence of 5 years and 4 months.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms J. Poole | Office of Public Prosecutions |
| For the Accused | Mr S. Kelly | Stary Norton Halphen |
HER HONOUR:
Introduction
1On Sunday evening in August 2021 two men drove down a suburban street in Melbourne. They carried with them a sense of aggrievement and a loaded,
home-made firearm. They searched for a particular address, and, having found it, saw a man standing at the front of the house. The three men knew each other. The driver shouted through the car’s open window. The passenger discharged the home-made firearm in the direction of the man, scattering pellets over the house and the car, and terrifying the family inside.
Plea of guilty and maximum penalties
2Russel Braine, you have pleaded guilty to one charge of possessing a firearm contrary to a Firearm Prohibition Order, the maximum penalty for which is 10 years’ imprisonment, and one charge of discharging a firearm at a premises with reckless disregard for safety, the maximum penalty for which is 15 years’ imprisonment.
3You have also pleaded guilty to the related summary offence of possessing a dangerous article, an offence which carries a maximum penalty of 6 months’ imprisonment or 60 penalty units, a charge of committing an indictable offence whilst on bail, which has a maximum penalty of 3 months’ imprisonment or
30 penalty units and a charge of contravening a conduct condition of bail, which has a maximum penalty of 3 months’ imprisonment or 30 penalty units.
Circumstances of offending
4The circumstances of your offending are set out in the summary of prosecution opening dated 16 May 2022. This document became Exhibit A on the plea, and it forms part of and is attached to these reasons. I will not repeat it all here but summarise parts of it.
5Your friend Mr Holz had a dispute with Mr Jenkins. Unhelpfully, two more people joined this dispute. Mr Smith on the side of Mr Jenkins, and you on the side of
Mr Holz. It’s not important now but I understand it boiled down to Mr Holz being excluded from Mr Jenkins’ home where he had a range of personal possessions. There were various confrontations between the parties about this in the lead up to the events giving rise to these charges. Apparently, there is a long history of dispute between you and Mr Smith.6On Friday, 13 August you called Mr Smith; he did not answer, and you responded by sending him the following text message (‘Brody’ is another name for Mr Holz):
“Why’d ya hang up champ? Just making it clear I’ve been past Jeff’s house about 100 time the last two days trying to catch up for a chat, if anything of Brody’s has been touched or is missing from Jeff’s house make sure Yous know how to hide cause I will visit every location to collect if it is missing and believe me when I say EVERY location. I have a lot of hatred for you but never thought you’d lag, you should just come meet up and go 1 v 1 with me.”
7Two days later, on 15 August 2021 at 7:11pm, you sent a text to Mr Holz: “on my way”. At 7:17pm you called Mr Holz, and again at 8:03pm.
8I pause here to note that on 15 August 2021 you were subject to a Firearms prohibition order; the order took effect on 7 April 2021 and expires 10 years later in 2031. Further, I also note that, as the respondent to two active intervention orders and other matters, you were a prohibited person pursuant to the
Firearms Act.9You were also on bail. (See summary charge 10 commit indictable offence while on bail as amended).
10Back to the 15 August: At about 8:20pm that evening you drove a car; your passenger was Mr Holz; and in your possession was a firearm.
11At that time, Mr Smith was home at his house in Michelle Drive. It is a residential street. Also at home was Mr Smith’s pregnant partner Ms Spurrel and her two children aged 14 and 8.
12The car you were driving pulled up at Mr Smith’s driveway; the passenger side of the car closest to him; the front passenger window was open. You were both known to Mr Smith.
13You leaned across your passenger and shouted out the window in Mr Smith's direction: “You’re a dead dog.”
14Mr Holz took the home-made firearm and pointed it in the direction of Mr Smith who was at that time standing near his car.
15Mr Holz discharged the firearm once in Mr Smith’s direction. Mr Smith saw a flash and heard pellets rain down on the front of his car, carport, and the bedroom window where his son was sleeping. (Charge 1 – possess firearm contrary to prohibition order and Charge 2 – Discharge firearm)
16Mr Smith took cover behind his car door. He was uninjured.
17You drove away. Mr Smith got into his car and drove after you – going only a short distance before deciding to return home to check on his family.
18When Mr Smith got home, his partner Ms Spurrell was inside: her son, who was in the room with a window that was hit by the shot, was awake. The event was also witnessed by a neighbour.
19A crime scene investigation found the following: the distance from the roadway to the front of Mr Smith’s car was approximately 10.9 m. The front of Mr Smith’s car had been struck by the spread of fired shot. Investigators concluded that the ‘poor terminal performance’ of the shot was probably because the weapon, and the ammunition used in it, were both of poor quality.
20Subsequently, messages, calls, and location data were harvested from everyone’s phones, some of which I have already referred to.
21I have already noted you were on bail at the time of these events; it was revealed later you were not living at the address you had been bailed to, but rather at an address of your own choosing. That gives rise to summary Charge 11 – contravening a conduct condition of bail.
Arrest and interview
22You were arrested on 17 August 2021, outside of a supermarket. Seized from you on your arrest was a small wooden baseball bat with a black handle and screws inserted into the end, hidden in your jacket. (Related summary Charge 9 – possess controlled weapon)
23In your interview with police, you admitted that you had gone looking for Mr Smith the day before these events. You told police that you were hoping that if you showed up somewhere this would “sort of like scare him (Mr Smith) into giving Brodie’s stuff back”. You told police (falsely and for an unclear purpose) that
Mr Holz had been the driver of the car and you the passenger. You acknowledged your belief that the action of firing a shot could have led to someone’s death.24You were charged and remanded.
Personal circumstances
25Turning now to your personal circumstances. You are 27 years old; at the time of the offending, you were 26.
26You were born in Melbourne; your parents also had two daughters, both older than you. You described living in a stable home where you grew up; and you now enjoy a close relationship with your parents and your siblings.
27You lived with your family until you were 13-14 years of age, but by then your behavioural issues had brought you into conflict with your family, and you went to live with a school friend's family for a time.
28You stayed at school until Year 10; you had struggled academically and did not thrive in that environment. After leaving school, you started work in the roof tiling trade, and over about a six-year period that is where you worked. Although you completed the practical components, your failure to finish the trade school component of the apprenticeship meant that you failed to fully qualify in the roof tiling trade.
29You have had one significant adult relationship which lasted for seven years and from which a daughter, now seven years old, was born. You now have no contact with either your former partner or your daughter, and there is a current intervention order in place that protects them both. There is some suggestion that your former partner supports a variation of that intervention order to allow you to have contact with your daughter.
30You have had a significant addiction to drugs of dependence for the best part of the last decade. Since 2018 you have not worked, and you have been living without any real structure. You have, during this time, laboured under a significant addiction to methamphetamine.
Nature and gravity of the offending
31I now turn to the nature and gravity of your offending.
32You committed these offences in the early evening, on a residential home in an ordinary suburb – from these facts you must have inferred, at least the very strong likelihood, that people would or could be in the house. It is not said that Mr Holz (and by extension you) fired at Mr Smith, but you did know he was there, and
Mr Holz discharged a shotgun in the direction of the premises, and of him. I note that the prosecutor conceded that there was no evidence that you had actual knowledge that Ms Spurrel and her children were home at the time.33You were the driver and not the shooter, but you are criminally responsible for the shot fired from the car. I do regard your culpability as a little lower than Mr Holz on that front; however, you were subject to a Firearms Prohibition Order at the time the weapon was discharged in the direction of Mr Smith. Messages from before these events show that you were not a ‘passive actor here, you were well and truly engaged. I refer in particular to the text message you sent on the 13 August at 11:36am: I have already quoted here the ‘why’d you hang up champ’ message.
34This was not your fight. You had involved yourself in a conflict between two others; you, apparently had not been directly offended. You were a prohibited person during these events: this is precisely the conduct that the prohibition on your possession of a firearm sought to restrain.
35Only a few months before these events, you had been in Court for possession of a firearm as a prohibited person; notwithstanding the prosecution concession that you had no actual knowledge of the family inside the house, your counsel on the plea accepted that in the end the offending was rendered more serious by reason of the residential status of the building and that children were present.
36I regard this as very grave offending on both Charges 1 and 2. I will deal with the need to avoid double punishment later in these reasons and I note that you are not charged with and will not be sentenced for possession of ammunition.
37Notwithstanding your slightly more passive role as the driver of the car, I regard your culpability as high. With the recent prior conviction, on bail for other offending, you turn up with a home-made firearm and discharge it apparently in aid of rectifying somebody else’s minor property dispute. What you did was outrageous.
38Moreover, you were placed on conditional bail on 15 June 2021; you committed these offences while on that bail. You saw fit to reside at some other address other than the one that the order imposed on you.
Victim impact statement
39I have had regard to the victim impact statement of Shelly Spurrell, Charlie Nelsson and Elijah Smith, as well as the one authored by Mr Smith. I make it clear that I am not sentencing on the basis of any previous threats made nor on the basis that Mr Smith’s baseball cap was knocked off by the passing pellets fired in his direction.
40Predictably and understandably, the victims of your offending were left shocked, anxious, and with a feeling of danger infusing their lives. The nine-year-old circled both the ‘sad’ and ‘scared’ faces on the VIS form. The family were separated after these events; the mother, Ms Spurrell moved into temporary accommodation with her children. The children were then, and remain, anxious. They worried about their father and their dog while they were gone. They missed school days; they do not feel as they should feel at home, being comfortable and secure. You have taken that feeling from them, at least for now. I take the impact of your offending on them into account in this sentence.
Criminal Record
41You have an enduring criminal record, and highly relevant prior convictions, including the conviction for being a prohibited person in possession of a firearm, and the possession of cartridge ammunition without a permit, dealt with in court on 22 February 2021, for which you received aggregate term of 120 days’ imprisonment. That is very close in time to this offending. I take into account your prior history; it informs, in particular my assessment of the prospects for your rehabilitation and for the requirement for specific deterrence, about which I will say more in a moment.
Matters in mitigation
42Turning now to matters in mitigation.
Plea of guilty
43First, your plea of guilty. This was an early plea entered at committal mention stage, it is objectively valuable. Witnesses were spared the anxiety and distress of giving evidence in court, and that is important, and I take it into account.
44At any time, your plea would be acknowledged as delivering a strong utilitarian benefit to the community; but at this time, when the backlog of cases awaiting trial threatens the proper administration of justice in Victoria, your plea demands an additional and palpable benefit and I make it clear to you that were it not for this factor your sentence would have been significantly more stern than the one that I will impose today.
45Your plea also does, I accept, indicate your acceptance of responsibility. You made admissions to the police, and I accept that your cooperation does, to some degree, reflect your remorse.
Mental health
46After your lawyers became concerned that you may suffer from some neurological dysfunction, you were assessed by Dr Linda Borg, neurologist. In the end, Dr Borg’s report has little work to do legally, and your counsel did not submit otherwise. Briefly, the results of the testing Dr Borg undertook were unusable because they exhibited a range of unusual response patterns related to measuring effort. It is sufficient to say that early concerns about head injury or neurological disfunction were not borne out. In Dr Borg’s opinion, you do not present with any neuropsychological, neurodevelopmental or mental health conditions. She noted some elevated levels of depression and anxiety. Your counsel did not press ‘Verdins’ submissions, or indeed anything to emerge from Dr Borg’s report.
Remorse
47I accept that you are, to a degree, remorseful, indicated by your guilty plea and your co-operation with police, and that you made admissions to almost everything, except for saying you were the passenger, not the driver. This assertion was neither true, nor, in fact, mitigating in the circumstances.
Prospects for rehabilitation
48Your mother and sister and a family friend wrote references that indicate their enduring affection and support for you; I have taken their contents into account. Your counsel acknowledged, appropriately, that there is some disjunction between the person your family members describe and the one who appears in a car with a loaded weapon in the prosecution opening. Your mother describes your involvement with the drug scene and how your ice use has had a radical impact on you. It is clear that at the time of this offending you had regular methamphetamine use: approximately 1 g per day. It is clearly a complete scourge on your existence.
49Your barrister submitted that your rehabilitation hinges entirely upon your decision to, and capacity to, cease your use of methyl-amphetamine. For now, you retain the very great affection and support of your family; not everyone in your situation can say that. It is clear that you would have their support in your confronting this addiction, however, ultimately the decision is yours and given this offending and your prior history I accept what was conceded on your plea, which is that your prospects for rehabilitation at this time, seen in context, must realistically be assessed as ‘guarded.’
Burden of imprisonment
50The measures taken to limit the impact of the COVID-19 pandemic in the custodial environment have been in place since your remand and will continue for some time. I accept that this will make the burden of your imprisonment more onerous and more uncertain, and I take that into account.
51Moreover, I accept that your current incarceration is made more difficult by knowing of your father’s frail health, and the possibility of you not seeing him while at liberty again looms over you, and also knowing that you are one of the causes of your father’s suffering. I take this impact on you into account in this sentence.
Relevant sentencing principles
52Turning now to the principles that I must have regard to on sentence.
53It was uncontroversial that in this sentence the need for both general and specific deterrence is very great. Your persistence in the firearms possession offending in the face of a very recent conviction in the Magistrates’ Court in February 2022, just 6 months earlier, underlines how important it is that this sentence be set at a level which might actually deter you, specifically, from doing this again.
54The need for general deterrence to take a front seat in this sentence is also clear, and in relation to both charges. The power to make a Firearms Prohibition Order is conferred for the protection of the public. In
Chief Commissioner of Police v Websdale the Court said:[T]he public interest to which these provisions were directed was the public interest in keeping the community safe from firearms-related violence. This is, in other words, a power conferred — and exercisable — for the promotion and maintenance of ‘public safety and peace’.[1]
[1] [2019] VSCA 305, [35] (Maxwell P, Tate, and Niall JJA).
55In the very recent decision of Bruce v The Queen, the Court of Appeal said:
As to general deterrence, the purpose of the Firearms Protection Order scheme is to promote community safety by ensuring that weapons do not fall into the wrong hands.16 It is of the first importance that the sentences imposed for possessing firearms in breach of an Firearms Protection Order are set at a level which will send a strong message to others who might be tempted to disregard an Firearms Prohibition Order to which they are subject. In furtherance of that purpose, I am obliged to sentence you in a way that reflects the community’s interests in people in your category not possessing firearms, and, sending a message to others who consider breaching their firearms prohibition orders.[2]
[2]Bruce v The Queen [2022] VSCA 100, [39] (‘Bruce v The Queen’).
56You must also be punished for what you did: your purpose was clearly to terrify
Mr Smith, and you did that, and much more. Through this sentence the Court denounces as entirely unacceptable the seriously dangerous conduct that you engaged in.
Need to avoid double punishment
57Authority makes it clear that while you are to be liable for two offences on the indictment (and the related summary offences), to the extent that those two indictable offences overlap you are not liable to be doubly punished.[3] Here, the ‘ongoing criminal activity’ referred to in some of the cases[4] is given specific expression in the form of Charge 2, for which you will be sentenced. I do not place your firearm possession charge into what has been called ‘the more serious category’[5] having taken it into account in my assessment of the gravity of
Charge 2.[3]Interpretation of Legislation Act 1984 (Vic) s 51; Pearce v The Queen (1998) 194 CLR 610.
[4]Berichon v R (2013) 40 VR 490, [26] (‘Berichon’).
[5]R v Graham [2007] VSCA 252.
58It is clear that the offence of possession a firearm and its discharge overlap to a significant degree; however, there is to be some cumulation between the two charges because of the additional culpability that inheres in the fact that you were subject to a prohibition order during the time you possessed the weapon that was ultimately discharged in the act giving rise to Charge 2. The focus of the
Firearms Prohibition Order offence, as the Court of Appeal has recently articulated, is on the offender’s disobedience of the order of the prohibition to which he/she is subject.[6] Charge 1, I note, was complete, before Charge 2’s acts began.[7] In sentencing you for Charge 1, I will, however, take into account the need for specific deterrence; this will increase the sentence on that charge, and is consistent with what the Court said in Berichon as to ‘the previous criminal history (…) warrant(ing) a more substantial sentence’.[8][6]Bruce v The Queen, [43].
[7]See DPP v Garoski [2018] VSCA 332, [34].
[8]Berichon, [26].
Current sentencing practices
59I have had regard to other sentences imposed by other Courts for charges in these categories. My task though is to do individualised justice and no case is exactly like yours, but I take into account the general sentencing landscape for these offences.
Submissions on disposition
60Both parties submitted that this was a case that required the imposition of a head sentence with a non-parole period, and this is clearly the only formulation of sentence open to me.
Disposition
61Russel Braine,
(a) On Charge 1: possess firearm while subject to Firearm Prohibition Order, you are convicted and sentenced to three years’ imprisonment.
(b) On Charge 2: discharge a firearm at premises with reckless disregard for safety, you are convicted and sentenced to four years' and eight months' imprisonment. This is the base sentence.
(c) On each of the related summary offences 9, 10 and 11 you are convicted and sentenced to one month imprisonment on each of these three charges.
(d) I direct that eight months of the sentence on Charge 1 be served cumulatively upon the sentence on Charge 2; all other sentences are to be served concurrently, making a total effective sentence of five years' and four months.
(e) I fix a non-parole period of three years' and six months.
Pre-sentence detention
62283 days (as at 27 May 2022)
s 6AAA reduction
63I declare that, had you not pleaded guilty but been found guilty by a jury, I would have imposed on you a head sentence of seven years with a non-parole period of four years' and six months.
Ancillary orders
64Forfeiture – baseball bat automatically forfeited per s 9(1) Control of Weapons Act, unless ordered to be returned to the accused.
Are there any other ancillary orders sought, I'm yet to declare pre-sentence detention?
65MR RACHAGAN: No, Your Honour, no ancillary orders.
66HER HONOUR: No other ancillary orders. And I declare, and I'll hear the parties on whether this is an accurate statement, but I declare 283 days pre-sentence detention already served. Is that correct, counsel?
67MS ZAYDAN: That is correct, Your Honour, thank you.
68HER HONOUR: Mr Prosecutor?
69MR RACHAGAN: Yes, Your Honour.
70HER HONOUR: Thank you.
71HER HONOUR: That completes this matter, and we'll adjourn until Monday. Thank you.
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