Director of Public Prosecutions v Braun
[2024] VCC 1020
•2 July 2024
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MILDURA
CRIMINAL DIVISION
CR-23-02052
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DARCY BRAUN |
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JUDGE: | HIS HONOUR JUDGE MOGLIA | |
WHERE HELD: | Mildura | |
DATE OF HEARING: | 2 July 2024 | |
DATE OF SENTENCE: | 2 July 2024 | |
CASE MAY BE CITED AS: | DPP v Braun | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1020 | |
REASONS FOR SENTENCE
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Subject:Criminal Law – sentence – guilty plea
Catchwords: Sentencing – arson – 26 year old – cannabis use and non-compliance with mental health medication – moral culpability reduced significantly due to clear connection between illness and conduct – general and specific deterrence sensibly moderated – prison more onerous – rehabilitative progress on bail – ongoing supervision crucial to manage risk – early plea – utilitarian value of plea
Legislation Cited: Crimes Act 1958 (Vic); Sentencing Act 1991 (Vic)
Cases Cited:
Sentence:Total effective sentence 87 days imprisonment plus 18 months community correction order; 87 days reckoned as already served; 6AAA: 2 years with a non-parole period 12 months.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr D. O'Doherty | OPP |
| For the Accused | Ms S. Gillahan | Victoria Aboriginal Legal Service |
HIS HONOUR:
1 Darcy Braun, you have pleaded guilty to arson. As you heard earlier today, the prosecution alleges that whilst in Mildura last August 2023 you were staying with people you knew, and you were there for a few days and came to suspect that they had stolen your car.
2 During the sentencing conversation you said that there were other things that they had done and you were not too happy with them. Your friendship or relationship, whatever it was, had effectively broken down.
3 At the end of those few days, in that setting, where your relationship with your friends had broken down, you were in a fairly unwell mental state. You had not been medicated for some six months for a serious health condition that results in you being unable to behave in the way that you usually would when you are well.
4
You lit a fire. And, for whatever mixed motives you had at the time (that is not important for me to decide, perhaps) you walked away from the fire. Thankfully, it was in the middle of the day and the neighbours saw it and they called
Triple 0 and there was a fire brigade who came and was able to control the fire.
5 It destroyed the whole property. Thankfully, the property was not joined to other houses or units, which means that it did not destroy other homes or affect other people as much as it might have.
6 You were picked up by police the next day; arrested and interviewed. You did not tell them the truth but you answered their questions and you were then in remand for 87 days, almost three months.
7 To your credit, at a fairly early stage in the proceeding you pleaded guilty and you indicated that you would do so in the Magistrates' Court and the case was adjourned here to the Koori Court after some steps in between.
8 Your counsel, Ms Gillahan, relied on three documents during your plea. Exhibit 1 being a report of Dr Rajan Darjee dated 29 May 2024. Exhibit 2 is a letter from Mr Ashton Wren, a dual disability worker from MDAS here in Mildura, of recent times, although it is undated. Exhibit 3 is a reference from Ronnie Burns from Yambuk Labour Solutions dated 2 July 2024 about you being a good worker with him and that he is happy to provide you work.
9 In terms of your background, as we heard earlier on, your father is an Arrernte man from Northern Territory who currently lives up near Alice Springs on Country. Your mum is not an Aboriginal woman. She was with your dad until they split a couple of years after you were born, by which time she had moved to Ballarat.
10 You have two sisters, they are older than you; one who lives in Ballarat, next door, and one who lives in Melbourne. You are closer to the one who lives next door and she has two kids.
11 Until you were 18 you lived there in Ballarat with your mum and next to your sister and you went to school. You did well in some parts of school, not others. By Year 12 you were missing a bit of school, but you had been interested in sport and it is clear to me that you have got a brain that functions and you are able to see things and think things through, and that is a gift.
12 After school you engaged in various training courses. You got various certificates, including in civil construction, and you did various work labouring and helping others. Ultimately you settled and found the most interest in carpentry – making things; making things that work and help people. I can see the value in that and I expect you can, too.
13 Recently you started working with Yambuk and it has been said that you have been a good worker for six months, having been out on bail for seven-and-a-half months.
14 So, it is clear to the Court that you are a young man with capacity. You have a good thinking capacity. You have an ability to work. Like so many of us, you have a mental health condition that means you need medication. There is no shame in that, it is just a reality for you, like it is for many of us.
15 Over the years that has not been an easy condition for you. It has involved doctors, it has involved going to hospitals here and there, in Northern Rivers, in Darwin, in Ballarat, and you have got a current doctor who is treating you to good effect. For the last seven-and-a-half months on bail you have been stable, not smoking, and building a good life.
16 In the lead up to this fire, however, that could not be said. You had been smoking, you had not been taking your meds and you were not in a stable place. You were in Mildura, which was not familiar country to you. You were with friends who you lost connection with and things were on the rocks.
17 After three months in custody, you were released on bail. The magistrate took a risk whether to let you out of custody at that time into the treatment and care of your family and those in Ballarat, and you have done them proud. For seven-and-a-half months you have done them proud.
18 That has not just involved staying at home, sticking your head under the pillow and trying to ignore the world – you have been out working. I take it you have helped your sister next door look after the kids and engaged in carpentry and creating things, using your skills to make a plan to deliver goods that are reliable and help people live their lives. When I say it like that you can probably tell where I am headed.
19 The future, for you, you have told your lawyer and Ms Gillahan has made submissions, lies in exploring culture and community. And, for you, with a dad who is an Arrernte man, and a mum who is not Aboriginal, that has left you in the middle and that is a tension, as has been said, sometimes it seems like you live in two worlds.
20 This court, as I said earlier this morning, is a court that respects Aboriginal culture. So, when I observe that you live in those two worlds, whilst I am not Koori, from my point of view I at least have my eyes open and accept what you say about that being a struggle.
21 I accept that it is important for you to engage in culture and community and that it is important that this court not put a roadblock in the way of that. But that is not to say that developing your connection to culture and community is just like slapping a couple of bits of wood together and hammering them with a nail.
22 I suspect, and I find so far as this case is concerned, that progressing your connection to culture and community is more like a detailed cabinet that you are building; it requires a bit of planning, and it requires marshalling the resources that you need to make sure it sticks together and is as useful as you want it to be.
23 It is important, as I have said, to acknowledge that when people are unwell and are not behaving in the way they ordinarily would when they are well that this court acknowledges that, and I do.
24
Legally speaking, I find that your moral culpability in relation to the offending in this case is reduced significantly. I make that finding based on the opinion of
Dr Darjee in Exhibit 1, who established, in my view, a clear connection between illness and the conduct.
25 Accordingly, I find that the need to attach great weight to general deterrence and specific deterrence in this case are sensibly moderated. So much is clear in the magistrate's decision to grant bail to you seven-and-a-half months ago. Lying underneath that decision was the hope that with appropriate treatment you would be able to regain your sense of self and not approach day to day life unwell.
26 Happily, that has occurred and so it allows me to make findings about those three months which I find to have been harder for you than a person who did not have your condition. So, in effect that three months counts for more time in custody than is on the calendar. I find that the burden of your time in prison was harder and that tends to reduce the need to impose further penalty.
27 At the same time, your history and the risks at play in this case mean that something else must have increased attention. That is the responsibility that I have as the judge in this court – to ensure that you and the community remain safe. That means that your near future must involve ongoing supervision and support and the kind of planning and gathering of resources that are necessary before any consideration can be given to you moving interstate.
28 Those considerations would involve whether or not you can adequately be supported, medicated and supervised where you intend to go. All of that is possible, but it needs to be planned. It would be in nobody's interest for you, Mr Braun, to embark on a journey north and to only make it part-way, or to make it there but in a bad way. I expect that given time, as you have had this afternoon, you understand at least that in principle, even if it is difficult, if not painful, to delay what you really wish would happen today.
29 It is for those reasons that I am going to impose a community correction order combined with the time you have spent in custody. Arson is a serious offence, not only because of the intention to damage property by fire, but the risks that it creates to others. It is for that reason people who commit arson can expect to be gaoled. As I commented during the plea hearing and just recently, those gaol terms are often for years, not months.
30 Notwithstanding the reduction in the need for punishment in prison because of your condition and your wellness now and your treatment since being granted bail, but also because of the ongoing supervision you will be mandated to engage in, I find that there is not a need at this stage to require you to go back into custody.
31 The sentence I impose today will be for 87 days imprisonment, and I will declare that you have served those 87 days already. It will also involve a CCO, combined with those 87 days, of 18 months. That CCO is intended to ensure, as best as I can, that you remain on the path to a good life. Your responsibility to the community is to engage in that, not just to prove that you are worth it, but to ensure that nobody else is placed at risk by what you might do when you are unwell.
32 I am sure from your perspective, ultimately, it will feel better as a life, rather than the one you had in the six months up until the fire.
33 Your remaining out of custody comes with responsibilities. At the beginning of this order those responsibilities will be to the State of Victoria, and so you must stay here. You must engage with Corrections in your supervision meetings with them every week. You must continue to see your doctor, stay well, and show that you can be trusted, as indeed I expect you can be. You must also engage in some assessment and, if needs be, some treatment in relation to smoking so that you can be equipped with the knowledge and the skills to resist the temptation to do something that is bad for your health.
34 It is an unfair reality that for you, along with some others, that smoking has a bad effect on your mental health; that is just the luck of the draw, but it is your situation and it is you that has to deal with it.
35 If you build up trust during the operation of this order and are found to be suitable to be transferred interstate, I will happily consider that. If, over time, the order is unmanageable or unreasonable you can return to court to ask for a variation. If you do not comply with the order, you will be returned on a breach and I will be urged to lock you up, and that does happen.
36 The order will commence today if you sign it. It will have conditions that you undergo supervision. Secondly, that you engage in assessment and treatment if recommended for drug abuse, including testing. Thirdly, it will include assessment and treatment in relation to your mental health, but I expect that means Corrections will simply monitor that you are seeing your psychiatrist and maintaining your medication.
37 With some misgivings, because I am unsure as to what the programs would mean, I will impose a condition that you be assessed and that you engage in programs as recommended. But it may be that I will hear more about that at some stage once any assessment suggests what must be done.
38 I don't propose to include a condition about judicial monitoring, Ms Gillahan, but if I can address this to you. You and your instructor will understand what I've said about the transfer, the capacity I have to consider applications, so I don't think I'll include judicial monitoring in these circumstances.
39 In all the circumstances I have decided not to impose any conditions for community service. Without any disrespect to those who manage those programs, I am not convinced that that would be productive for Mr Braun with his vulnerabilities. Is the disposal order opposed?
40 MS GILLAHAN: No, it's not, Your Honour.
41 HIS HONOUR: I make the disposal order in relation to the items seized, as sought. Mr O'Doherty, are there any other orders?
42 MR O'DOHERTY: No orders, Your Honour.
43
HIS HONOUR: Thank you for your assistance, both of you. Good luck,
Mr Braun. Remember, patience. We'll have you sign that and I will stand down and let you do that and talk to Ms Gillahan and then I'll sign it.
44 In terms of the 6AAA indication, had you not had pleaded guilty to this matter I would have imposed a sentence of 2 years with a non-parole period of 12 months.
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