Director of Public Prosecutions v Branson

[2018] VCC 335

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-01842

DIRECTOR OF PUBLIC PROSECUTIONS

v

PAUL BRANSON

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JUDGE:	HIS HONOUR JUDGE GUCCIARDO
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	22 March 2018
CASE MAY BE CITED AS:	DPP v Branson
MEDIUM NEUTRAL CITATION:	[2018] VCC 335

REASONS FOR SENTENCE
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Subject:
Catchwords:
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Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Accused	Ms C. Morgan
For the Director of Public Prosecutions	Mr C. Cameron

HIS HONOUR:

1Paul Darren Branson, you have pleaded guilty to one charge of aggravated burglary, one charge of causing injury intentionally, and one charge of theft.  At the time of the offending, and presently, you are 46 years of age.  You and Louise Bryson were in an on-and-off-again relationship for some ten years; a relationship characterised by your mutual drug habit.

2You have two children from this relationship, aged seven and five.  At the time of the offending, you were living with your mother in William Street, Wodonga in a house that backs onto the unit of the victim in this matter, Mr Duncan.  Bryson was living at an alternate address from you.

3The circumstances of your offending is contained in the summary of the prosecution opening, which was exhibited at your plea hearing and will be retained on the court file.

4On the night of 14 April 2017, you and Bryson spent the night together at your mother's house in William Street.  The following morning, you indicated to Bryson that you wanted to obtain drugs.  Neither of you had any money and you mentioned to her that you would go and steal Duncan's wallet.

5You attended Mr Duncan's unit nearby where you joined him, drinking beer and watching football on television.  At around 1.30 pm, Bryson called you and told you she was going to the Wodonga Plaza.  You told her to wait as you wanted accompany her.

6You both then attend at the plaza together where you indicated that in order to steal the wallet, Mr Duncan would need to be hit on the head and knocked out. Bryson agreed.  You both decided that you should return to the unit and continue to attempt to try to steal the wallet, but if that failed, you would call Bryson to come over and assist with the aforementioned plan.  Bryson then returned to the William Street address and you returned to Mr Duncan's unit.

7You then later called Bryson a number of times between 3.37 and 4.12 pm, calls which went unanswered.  You then returned to the William Street address briefly to speak to her.  You told her you had placed a piece of wood near the bins outside at Mr Duncan's unit, that you would leave the door to the unit unlocked so that she could enter, and you then returned to his unit where you continued to drink and watch football on television.

8Bryson ventured outside and retrieved the piece of wood you had placed near the bins. She then entered Mr Duncan's unit and proceeded to hit him over the head three or four times with the piece of wood, causing him to fall off his chair and onto the floor, and as he lay there she continued to assault him, hitting him five or six times in total.

9Mr Duncan called out to you for assistance.  You ignored his plea.  Bryson then fled the unit and ran up the street.  She passed by your mother and she threw the wood into the bushes and entered the house of a friend who lived nearby. 

10While Duncan remained on the floor, you removed his wallet from the back pocket of his pants and took approximately $140 in cash from it.  You then placed the wallet on the bookshelf in the living room before assisting him off the floor and sat him back down into the chair.  As Mr Duncan attempted to press the personal safety alarm which he wore around his neck, you tried to stop him, but he managed to press the personal alarm a total of five times between 4.20 and 4.21 pm.

11The alarm sent a distress signal to the company, VitalCall, and activated a light on a base unit located inside the flat which then initiated a verbal message that said that VitalCall had received the distress signal before an operator would then come online.  You became agitated and began yelling and hitting the unit, trying to turn it off.  Mr Duncan was trying to yell to the operator to call the police and a call to police was made.

12You then returned to the William Street address and retrieved your mother before returning with her to Duncan's unit.  Police and ambulance arrived a short time later.

13During conversation with Mr Duncan, police and ambulance officers realised that his wallet was not in his back pocket where he believed he had placed it and they located it on the bookshelf.

14He was transferred to Wodonga Hospital, where he was treated for multiple deep lacerations, grazes, cuts to his arms and hands and a metacarpal fracture.  He received multiple stitches to his scalp.

15You then returned to the William Street address with your mother before meeting with a friend who was renting garage space from your mother at the same property.  The two of you then attended Elgin's Hotel bottle shop where you purchased alcohol, and you stated that this man, that you told Bryson to hit Mr Duncan harder and motioned as if swinging downward with a baseball bat.  You also stated to him that you "stole money from the old cunt", taking his wallet from his back pocket while he was incapacitated on the floor after the assault.

16Police arrested Bryson on 16 April 2017 and she was conveyed to the Wodonga police station for interview.  After her interview with the police, she agreed to ring you and have police record the conversations on the same day, and three phone calls were made from her to you.

17And during these calls, the offending was discussed and you made the following admissions:  that Mr Duncan was not aware that you had left the door to his unit open for her to enter, that you watched Bryson enter the unit, and that you stole $115 cash from him.

18You were arrested on 18 April and on a record of interview which was conducted you disputed much of the agreed facts of the offending.

19The prosecution's position in this matter was submitted to be neutral and they asserted that beyond getting money to buy drugs for both of you, any further motivation is unknown.  As far as providing an explanation of participation by coercions or threats, as was asserted by Bryson.

20Although there are some indications that the relationship between you and Bryson was volatile, dysfunctional and probably marred by domestic violence, and it is asserted by her in a statement, I am not in a position through these assertions, merely, or through inferences, to conclude beyond reasonable doubt that this was in the fact the case and therefore am left with a position asserted by the Crown and indeed accepted by you that your criminality is equal to that of Bryson.

21Certainly, in this respect, there are fully co-operating individuals acting together for a common purpose and outcome.  Your moral culpability is equal in my view. Even if pressure or threats had been applied by you to Bryson, the vehemence and violent intensity of her attack was vicious and probably the expression of an asserted belief about the victim's dealing with her child at some point in the past.

22Your role was no less cowardly:  attacking an elderly person who you had befriended and watching the assault, preventing him from calling assistance having enabled entry, and then exaggeratedly feigning concern, according to police, at the offence and stealing money from his pocket while he is bleeding on the ground.

23This was low and disgusting behaviour; stealing money from an acquaintance even at the cost of injury.  Such behaviour is utterly unacceptable.  Duncan was a 74-year-old man living alone.

24He may well have trafficked in his own medication, as some of the material would suggest - Fentanyl, morphine - but this is another matter that is merely asserted in your statements and is peripheral to the plan hatched by the two of you.  He was attacked from behind and injured in a brutal fashion in his own home for a small amount of cash.

25He has made a victim impact statement which I take into account.  He says before this, he was retired and enjoying his life, playing indoor and outdoor bowls and gardening.  This event has changed his life.  It has deprived him of the motivation to do anything and has affected confidence from him.

26He no longer feels safe in his own home.  He is anxious and hyper-vigilant, loses sleep which is hardly useful to him.  He is angry and more socially isolated from friends and family.

27The objective gravity of this offending is significant.  Your moral culpability is high.  The offence of aggravated burglary carries 25 years' imprisonment as a maximum.  This level of penalty indicates the gravity of the offence as regarded by the legislators.

28It is an offence which strikes at the heart of the safety and security of each person in the comfort of the home, safety and security each citizen is entitled to feel there.  The community is rightly perturbed and concerned about such criminality, and looks to the court to punish those who breach this right with impunity, and the community looks for protection and stern punishment to deter like-minded persons and to deter such conduct.

29Intentionally cause injury and theft each carry 10 year maximums and are, in turn, serious offences.

30You are 46 years old.  Your plea was acknowledged to have come late in the piece; your intention having been formalised when it became clear that Bryson would be a prosecution witness, and had co-operated by her undertaking following her statement.

31Your plea will attract a discount upon your sentence, but it was not an early one.  Although it carries utilitarian benefit to the community of having avoided a criminal trial and the need to call the victim to give evidence at trial, I note that he was cross-examined at committal.  I accept there may be some regret at your predicament and at the injury done to Mr Duncan, but I am not persuaded that your plea carries with it much remorse.

32You facilitated and effectively planned the assault and theft.  You used your influence and encouragement to have someone else achieve your main aim of stealing money for drugs.  You lied to the police to diminish your role, blaming Bryson, saying you tried to stop her and tried to call for help by pressing the panic button.  You arranged it and left the weapon at the ready for Bryson to use at your behest for your common purpose.

33You have a prior criminal history, both in Victoria and interstate, which is significant and go to your future prospects and a realistic assessment of your rehabilitation, and are significant because they are substantial and relevant in terms of their content.

34Your Victorian criminal history begins in 1994 with a series of drug and dishonesty offences including burglary.  In 2001, you received three months' imprisonment for dishonesty offences, which breached an earlier suspended sentence for dishonesty which was restored.  In 2002, more months were added for another four burglaries.

35In 2005, more dishonesty and burglary offences were dealt with by way of an intensive Corrections order which you failed to comply with and which resulted in gaol terms in 2006.  In 2008, in South Australia, you appeared for bail offences and dishonesty offences as well as a number of drug offences.  Driving and dishonesty offences again appear in 2009 in South Australia.

36In 2011, back in Victoria, you appear charged with burglary and theft, handling, and assault police for which you received a suspended sentence and a community-based order; an order which you failed to comply with.  The sentence was suspended for 12 months.  You breached that suspended sentence by drug and dishonesty offences.

37In 2015, driving, bail and drug offences in Wodonga were dealt with by a community corrections order, aimed at assisting you to overcome financial and drug issues.  You contravened that order.  It was varied and in 2015 you again committed theft in New South Wales.

38In November 2016, you were convicted and fined for assault and threat to inflict serious injury while on bail and the victim on that occasion was Ms Bryson.

39I recite this sorry history not because I will punish you again for those matters but because they indicate that you have little regard for the orders and sanctions of the Court, even where these have been made in order to assist you.

40On this occasion, it is inevitable not only that a prison sentence is imposed, but that there is recognition that you must be deterred specifically and that the community must be protected from you.

41I take this history into account.  I take your personal circumstances into account.  Upon your plea, I was told that your younger years were unremarkable up till the age of about 15.  Since that time, you have been affected by drugs of one type or another, and your priors are all clearly drug-related over a 20 or so-year period.  Your period in detention for those offences has been the first period of abstinence.

42You have a supportive mother, but you only met your father when you were 17 years of age.  You dropped out of school in Year 11 and started working in a factory.  Cannabis use from 15 onwards turned into amphetamine use, and in the late 90s, in Melbourne's western suburbs, you became addicted to heroin.

43You met Bryson and when your first child together was six years of age you moved to Seymour and then Wodonga.  Your drug addictions were not dealt with, including addictions to OxyContin and morphine.  Your last employment was about eight years ago.  You have two older children from an earlier relationship, who were in court at your plea.  You have only sporadic contact with your younger children who are in foster care, but who you wish to be reunited with.

44Although I saw no evidence of any courses you may have completed, I was told you have participated in anger management, mood management programs to deal with change, a parenting course, and have completed the drug and alcohol programs which have been offered to you.  Whether any of these had any real impact on your frame of mind is unknown to me, but any view of your prospects must be guarded.

45A combined order was sought in submissions.  In my view, such an order is completely inadequate in your circumstances.  In my view, this matter is to be grave to be disposed of in this fashion.

46Please stand, Mr Branson.

47On aggravated burglary, Charge 1, you are convicted and sentenced to 3 and a half years' imprisonment.

48On Charge 2, intentionally cause injury, you are convicted and sentenced to one year imprisonment.

49On Charge 3 of theft, you are convicted and sentenced to nine months' imprisonment.

50I order three months of Charge 2 and one month on Charge 3 to be cumulative on Count 1, making a total effective sentence of three years and ten months.

51I fix a non-parole period of two years and three months.

52I note you have spent 338 days in custody. I declare these days to have been pre-sentence detention of days excluding today.  But for your plea of guilty, I would have sentenced you to four years and nine months with a non-parole period of three years and three months.

53Yes, you can remove Mr Branson.

54The next matter is the matter of co-accused Louise Bryson.  I might just stand down while she is brought up.  I see Ms Lynch is here.  Thank you.

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