Director of Public Prosecutions v Breheny
[2020] VCC 1948
•1 December 2020
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 19-01387
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BEN BREHENY |
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JUDGE: | HER HONOUR JUDGE CANNON |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 13 October 2020 |
DATE OF SENTENCE: | 1 December 2020 |
CASE MAY BE CITED AS: | DPP v BREHENY |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1948 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – Pleas of guilty – Causing injury intentionally – Make threat to kill – Common assault – Damaging property – Conduct endangering persons – False imprisonment- Causing injury recklessly – Relevant criminal history – History of domestic violence – Psychologist called to give evidence as to her report – Symptoms of ADHD and PTSD - History of drug and alcohol use – Drug affected at the time of this offending – No issue of mental impairment such that Verdin’s principles apply – Deprived background – Impacts on personal and moral development – Principles in Bugmy apply
Cases Cited: Bugmy and The Queen [2013] HCA 27
Sentence:Convicted and sentenced to Total Effective Sentence of 6 years and 10 months’ imprisonment with a non-parole period of 4 years and 6 months’ imprisonment – 742 days’ pre-sentence detention declared as having already been served – s.6AAA Sentencing Act 1991 declaration - Pursuant to s.6F Sentencing Act 1991 (Vic), offender is sentenced as a serious violent offender in respect of Charge 2 and Charge 7 – Make threat to kill.
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr McKenry ( Plea) Ms S. MacDougall (Sentence) | Solicitor for Public Prosecutions |
For the Accused | Ms N. Karapanagiotidis (Plea) Ms N. Allison (Sentence) | Leanne Warren & Associates |
HER HONOUR:
1Benjamin Breheny, you have pleaded guilty to the following offences:
2Causing Injury Intentionally Charge 1
3Two charges of Make Threat to Kill Charges 2 and 7
4Common Assault Charge 3
5Damaging Property Charge 4
6Conduct Endangering Persons Charge 5
7False Imprisonment Charge 6
8Causing Injury Recklessly Charge 8
9Intentionally causing Injury, make threat to kill and damaging property, as well as False imprisonment each have a maximum penalty of 10 years' imprisonment and the remaining offences each have a maximum penalty of five years' imprisonment.
10In sentencing you I must take into account the maximum penalties, as these reflect the seriousness with which Parliament regards each of the offences.
11You were 31 years old at the time of the alleged offending and were working for yourself as a roof tiler. You were living at premises which you were renting in St Albans. I understand you are now 33. The victim in the matter is Marijana LOSCOTT[1]. She was 29 years old at the time of the offending. MS LOSCOTT and you had been in an intimate relationship for about five months between June and November 2018. MS LOSCOTT stayed with you at your premises from time to time.
[1] A pseudonym.
12By way of background and contextual information, I was told that throughout your relationship, you had been verbally, emotionally and physically abusive towards MS LOSCOTT. You had told her that if she wished to be a part of the relationship, she was to leave her 'pants' at the front door, referring to her being required by you to be submissive to you.
13Shortly after the relationship commenced, you started showing signs of paranoia; you began accusing MS LOSCOTT of being unfaithful and indulging in intimate relations with other people. Your paranoia continued and you continued accusing the victim of having intimate relations with other men while she was at work.
Incident 1
14On Sunday 4 November 2018, MS LOSCOTT and you were at 35 Bent Street, St. Albans. You were in the lounge room drinking vodka and watching movies when you began accusing MS LOSCOTT of having sex with other men. An argument ensued and MS LOSCOTT said: 'You want to sleep with a 14 year old girl Ben? You like 14 year old girls? How does it feel to be accused of doing something you didn’t do?''
15You were holding a small clear glass at the time and in an enraged state, you threw it at MS LOSCOTT’s face, hitting her in the right cheek area and causing bruising. The glass fell to the floor and MS LOSCOTT said 'What the fuck are you doing?'
16You stood up, picked up the glass from the floor, and threw it towards MS LOSCOTT’s face, just missing. You became frustrated and again picked up the glass. You hit MS LOSCOTT’s face and head with the base of the glass. MS LOSCOTT told you to stop. She fell to the floor, putting her hands up in an attempt to protect her face. You continued hitting MS LOSCOTT with the glass for about five minutes, only stopping to try and restrain her hands.
17The victim sustained two lacerations to the top of her head in the hairline. As a result, blood began pouring down her face and onto her Adidas T-shirt, her black and white pyjama pants, a green coloured doona and a black and white rug on the floor in the lounge room. MS LOSCOTT, with blood running down her face and coming from her mouth said to you: 'I can’t see, wait Ben why can’t I see?' You then stopped assaulting the victim. This attack upon the victim gives rise to Charge 1- Intentionally Causing Injury.
18After apparently noticing the victim bleeding, you appeared to panic, and helped her to stand. You walked her to the bathroom and pressed a towel to her head in an attempt to stop the bleeding. MS LOSCOTT told you not to touch her and you appeared to have a conversation with yourself about what you had done, saying: 'It’s bad, it’s really bad' and 'I’m gunna go to gaol. I might as well finish the job.' You put a towel over the complainant’s head and took her to the bedroom. The complainant asked if she could leave. You refused and told her to picture your foot choking the life out of her brother and father. This gives rise to Charge 2- Threat to Kill.
19As a result of MS LOSCOTT’s injuries you said: 'You can’t go to work tomorrow.' The victim said she had to go to work, asking you what she was going to tell her work colleagues about her injuries sustained from the assault.
20You took MS LOSCOTT’s blood covered t-shirt, hiding it under a seat in your car and handed MS LOSCOTT one of your t-shirts. MS LOSCOTT’s injuries included two lacerations to the top of her head in the hairline of her forehead, severe swelling to her forehead, swelling and bruising around her entire face and head and tenderness and bruising around her left ear.
21MS LOSCOTT took photos of her injuries on that day and her blood covered clothing. She provided these photographs to police on Wednesday 21 November 2018 at the Sunshine Police Station.
22On Monday 5 November 2018, MS LOSCOTT called in sick to work. She and you discussed a story to tell her work colleagues about the cause of her injuries and agreed that you would tell them she had been involved in a motorcycle accident. That same day, you drove MS LOSCOTT to the Cairnlea Super Clinic to obtain a doctor certificate for work. You made sure MS LOSCOTT’s injuries were covered before attending. The victim spoke to an unknown doctor and stated she was suffering hay fever. MS LOSCOTT did not disclose to the doctor her injures that she had received from you.
23The victim and you ate dinner at your place later on. You said to her: 'Are you gunna be a good wifey now?'' MS LOSCOTT did not want things to escalate further and did not reply.
24On Friday 16 November 2018, the victim explained to you she wanted you to be appropriate, as you were to attend her work Christmas Party on Sunday 18 November 2018. You assured her that you would behave yourself. You did not sleep between Friday the 16th and Sunday the 18th of November 2018.
Incident 2
25On Sunday 18 November 2018, you and MS LOSCOTT were to attend her work Christmas Party which was a group winery tour. When you and the victim left home, you appeared to be agitated. MS LOSCOTT was driving her car and you sat in the front passenger seat. You began 'freaking out', apparently worried that you had not shaved well enough. MS LOSCOTT decided to stop at her father’s place, so you could shave again before continuing on.
26Throughout the day you became more aggressive towards the victim. While you were with her, you began sending her text messages, calling her a 'pig' 'dog' and 'cunt' and said that she was yuck.' MS LOSCOTT told you that the text messages you were sending were not necessary. However, you continued making derogatory remarks to her, whispering these to her; but they were loud enough for some of her work colleagues to hear.
27On the way home from the work function, as the victim was driving, you were looking for your cigarettes and threw MS LOSCOTT’s handbag from the centre console onto the floor of the car. MS LOSCOTT looked at you and said 'Can you not?' You then punched her twice to the left side of her head with a closed fist. This is part of the conduct which gives rise to Charge 3- Common Law Assault.
28MS LOSCOTT’s ear was ringing and she stopped the car on the side of the road on Barkly Lane, Footscray. She thought you were going to start an argument, however, you told her to keep driving. MS LOSCOTT continued, turning left onto the Princes Highway towards the intersection of Barkly Street and Princes Highway (Geelong Road), stopping at a red traffic signal at the intersection of Princes Highway (Geelong Road) and Barkly Street, Footscray.
29While stopped at the red traffic light, you grabbed MS LOSCOTT’s Apple iPhone. You looked through her text messages and noticed a text message from her ex-partner, a Mikael AMBROSE[2]. You became enraged about the text message and smashed MS LOSCOTT’s mobile phone screen, face down into your knee, causing the screen to smash. You proceeded to damage the
phone by bending it in half, rendering it unusable. In fear of being further assaulted by you, MS LOSCOTT remained quiet. Your destruction of her phone gives rise to Charge 4- Criminal Damage.
[2] A pseudonym.
30MS LOSCOTT continued driving her car, when suddenly you grabbed hold of the steering wheel. You pushed the steering wheel, causing MS LOSCOTT’s car to veer into the path of oncoming traffic in Ashley Street, West Footscray. This, in part, gives rise to Charge 5- Reckless Conduct Endangering Serious Injury.
31You began making racist comments about MS LOSCOTT’s work colleagues and you accused MS LOSCOTT of being in a relationship with her work colleagues.
32The victim continued driving north on Ashley Street towards Ballarat Road, where she turned left on to Ballarat Road, Maidstone. You continued assaulting her, punching her numerous times to the left side of her head, cutting your ring finger on your right hand, between the first knuckles. This conduct is also encompassed by Charge 3 Common Law Assault.
33You became increasingly paranoid about CCTV cameras, concerned that they were going to capture MS LOSCOTT crying as she drove along.
34MS LOSCOTT was approaching the Sunshine police station on Ballarat Road, Sunshine. She was still crying when you said to her: 'Good on you, just in front of the police station,' apparently concerned about MS LOSCOTT and you being captured on CCTV cameras.
35MS LOSCOTT drove past the Sunshine police station, veering left onto St. Albans Road, Albion. She continued driving northbound on St. Albans Road, Albion when you grabbed hold of the steering wheel, pushing the car into the path of oncoming southbound traffic on St. Albans Road, Albion. MS LOSCOTT slammed her foot on the brakes to avoid a collision. You did this on one more occasion on St Albans Road. This conduct is also comprised in Charge 5- Reckless Conduct Endangering Serious Injury.
36MS LOSCOTT continued driving and made to take a short cut home, rather than go the usual way. However, before turning off the road she was on, you said: 'Ya not gunna get me on camera, dog. Go straight.' You appeared to be concerned about being captured on any CCTV cameras at a particular railway station.
37MS LOSCOTT complied with your demand and continued on, driving in accordance with directions you were giving her. She approached an intersection, slowing down and looking left and right to make sure there was no oncoming traffic. You said to the victim: 'You looked exactly into that camera. That was perfect, proves everything I said was true.' MS LOSCOTT did not observe any cameras in the vicinity.
38After a few minutes, the victim turned into your street. You then said 'We’re going to your Dad’s. No we’re going to Melton. We can finish this there.' MS LOSCOTT was concerned you were talking about her brother, who at the time was living in Melton with his young family.
39Before the victim had the chance to drive to Melton, you then said to her: 'No, take me home.''
40MS LOSCOTT approached your driveway and had decided to reverse into it, so that she would be able to escape more readily if she needed to. However, you said to MS LOSCOTT: 'Don’t reverse into my fucking house, drive in properly.' You told the victim to drive up the driveway to where the fence was at its highest, saying that it was so 'People can’t see us in the car.'
41The victim drove her car into the driveway of your house and then you and she remained in her car for about 40 minutes. You lifted your foot up towards the dash screen of her car, as if you were going to kick it. The victim asked you what you were doing and you said 'Turn it off. I don’t want them to listen.' MS LOSCOTT turned off her car.
42You started talking to MS LOSCOTT about your relationship and how MS LOSCOTT’s work colleagues were 'not good' for your relationship with her. As time went on, it became very hot in the car and the victim asked you several times if she could open a window or door, put the air conditioner to cool herself down or get out the car. You refused on all occasions and said 'How do you think I feel?'
43Ultimately, you said 'Let’s go inside and have a cold shower.' MS LOSCOTT and you got out of the car and went into the house. The victim remained at your house address until she attended work the following day. She obtained a new mobile phone to replace the one that you had broken.
Incident 3
44On Tuesday 20 November 2018, MS LOSCOTT attended your house after work. You were at home with a work friend, ‘Aaron’. MS LOSCOTT knew that when you and Aaron were together you were most likely using drugs and most of the time this included the drug 'Ice' (methylamphetamine).
45You asked MS LOSCOTT to drive Aaron home to the Thomastown area and she did so, with you accompanying them. To her observation, you were affected by drugs. You asked the victim to stop at a bottle shop, so you could buy alcohol, saying that you were only going to buy one drink. The victim gave you some money and you purchased a box of cask wine.
46You returned home with the victim at about 7pm. You went to the lounge room and listened to music while the victim prepared something to eat in the kitchen. MS LOSCOTT sat on the couch in the lounge room eating when you began talking to her about the 'Music making sense.' You began talking about women cheating on their partners and wanting more and how it was all making sense in your head.
47MS LOSCOTT was unsure what you were talking about. She told you that she was going to give you some space and would go to the bedroom to straighten her hair. You said: 'You’ve made it very hard for me to have my own space. It’s all about you.' The victim was worried if she said anything it may spark an argument, so she left the room and collected some belongings from the boot of her car.
48MS LOSCOTT went to the bedroom and began straightening her hair when you came in and said 'I’ve just watched you turn things so all my attention is on you. When all I want to do is listen to music you can’t even let me have that.' You walked back to the lounge room and MS LOSCOTT stayed in the bedroom, straightening her hair.
49The victim finished straightening her hair when you came into the bedroom again. You said 'Go, leave and enjoy your night with the people that are waiting for you.' The victim explained to you this was not the case and you went back to the lounge room.
50You and MS LOSCOTT then texted each other for about an hour. The victim was in the bedroom and you were in the lounge room. You each spoke about how you had tried your best in the relationship, but it was best that you each moved on and go your separate ways. You started sending MS LOSCOTT condescending and sarcastic text messages and MS LOSCOTT began worrying that your behaviour was going to escalate. She was fearful for her life and decided that she needed to tell someone where she was, in the event that something serious happened to her.
51On 20 November 2018 at 11:43 pm, MS LOSCOTT sent a text message from her mobile phone to AMBROSE’s mobile number. The text message read: 'Please trust me. It’s Marijana. I’m at Bent Street, St. Albans. Ben Breheny 4/12/86. Please don’t reply or call this number back. If you don’t hear from me tomorrow via phone call ONLY – even if voicemail. Please tell my Dad where I am. Tell him to call Mum and she will tell him everything. I’m sorry to put this on you but I don’t have anyone else I trust. Sorry Mikael. But please don’t say or do anything until tomorrow.'[3]
[3] Exhibit 3; Statement of Mikael Ambrose
52AMBROSE received the text message and replied, thinking perhaps it was not serious. MS LOSCOTT deleted the messages as she received them, terrified you would see them and react violently.
53AMBROSE contacted police about the message he had received. Soon after, MS LOSCOTT sent the text message to AMBROSE, you came into the bedroom, took her phone from her, deleting the text messages between you and the victim. You gave MS LOSCOTT back her mobile phone and went back into the lounge room.
54MS LOSCOTT sent a text message to you, telling you that it was stupid of you to delete the text messages and it was best she went home. You replied: 'Do what you have to do.' MS LOSCOTT started packing her belongings to leave and approached the back door to put some belongings in her car. Before getting out the door, you stopped her and told her to collect all her belongings from her 'beauty room.'
55MS LOSCOTT told you she felt uncomfortable with you watching her and asked you to sit in the lounge room while she packed her things. This comment enraged you - you were holding a tall glass and raised it; pointing at the victim, you said: 'Get the fuck inside, you’re not going anywhere.' You slammed the back door shut and ushered MS LOSCOTT towards the bedroom, raising your glass again and saying: 'Get in the fucking bedroom.' MS LOSCOTT complied and you shut her in the bedroom.
56The victim opened the bedroom door, saying she was feeling claustrophobic and she was 'Not a child.' You got up from the couch in the lounge room and shut the bedroom door, saying: 'Stop acting like a child and I won’t treat you like one.' You continued to deprive MS LOSCOTT of her right to leave the house. Whenever the victim opened the bedroom door, you shut it again.
57Ultimately, MS LOSCOTT opened the bedroom door and walked towards the kitchen. You asked what she was doing and she explained she needed a glass of water. You said: 'Okay, but don’t stand in the kitchen or hallway for everyone to see and make a scene.' MS LOSCOTT got a glass of water and stood in the kitchen. You said: 'What the fuck are you doing, stay in the bedroom!' The conduct that I have just described from the time that you shut the back door on the victim partly gives rise to Charge 6- False Imprisonment.
58You proceeded to yell at MS LOSCOTT, saying things like: 'Who do you think you are, coming into my life, turning it upside down? When it all gets too hard and too much you just run back to Daddy in your safe little home.' You continued to rant about MS LOSCOTT ruining your life because she made you commit to her and all you wanted was to have fun; and how she had waited until you wanted her more than she wanted you, so she had control over you.
59You said: 'How about you come up with ideas and tell me how you’re going to fix all of this.' MS LOSCOTT said: 'I can’t tell you how to do anything, Ben.' You said: 'Why can’t you tell me? What, you think you’re better than me?' You put your glass down, and glared at MS LOSCOTT. The victim was in fear that you were going to physically assault her.
60It was at this time, at about 1:31am on Wednesday 21 November 2018, when police attended your address and knocked at the front door.
61The victim and you heard the knock and a male voice saying that it was the police and to open the door.
62You turned off the light and grabbed MS LOSCOTT in an underarm embrace, lying down on the bed, holding her so her face was into your chest. You began whispering to MS LOSCOTT, saying: 'It’s just you and me, baby girl. We’re gunna run away and get married. Please don’t say anything, I’ll go to gaol. They’re gunna come in and you have to act like you don’t know why they’re here, you have to say no comment. I’ll kill your family if you answer the police.' This gives rise to Charge 7- Threat to Kill.
63MS LOSCOTT wanted to call out to the police but she was too afraid to. You held MS LOSCOTT on the bed for about 40 minutes after this, whispering to her that you and she could make the relationship work. She felt that there was no escape from your grip.
64You continued whispering to MS LOSCOTT, slurring your words as you were affected by alcohol. You began talking about the police attending your home address, believing MS LOSCOTT was an undercover police officer and this was the reason for their attendance. You said: 'This is all a set up. Your mates are waiting for you.' You would not let MS LOSCOTT sleep, keeping her awake to listen to you.
65You noticed three missed calls from a private phone number, saying 'Who would be calling you on private number?' You said that this confirmed MS LOSCOTT was an undercover police officer.
66MS LOSCOTT asked you if she could go to the toilet and you let her go. The victim returned to the bedroom and was sitting on the left side of the bed. You told her to lie down on the bed, where you began hugging her as you had done earlier, with your right arm over her shoulder and your right leg entwined around hers. This conduct forms part of the basis for Charge 6 - False Imprisonment
67At about 4:30 am, MS LOSCOTT was awakened by you punching her in the stomach from behind with the full force of the base of your right fist. You punched her several times before stopping, hugging her again and telling her to go back to sleep. As MS LOSCOTT began falling asleep again, you began punching her in the stomach from behind. You did this on approximately three occasions, saying to her: 'Look how much you enrage me. I wake up to do this to you.' This gives rise, in part, to Charge 8- Recklessly Causing Injury.
68You stood up from the bed and filled your glass with wine. You stood over MS LOSCOTT, saying: 'I’ve made the decision, the business is closing down because I’m going to die or go to gaol. You need to pay for what you’ve done, all you Loscotts need to pay for what you’ve done today.''
69You tried to spit on MS LOSCOTT, but your mouth was too dry. You said: 'You think it’s funny?' and threw the wine from your glass at the victim. You began talking about your previous relationships, stating that the love of your life was Nicole and that her father was a 'righteous man.' You began praying, saying things such as, 'Nicole, I beg of you please come down, put down this wrath on the Loscotts.'
70MS LOSCOTT was sitting on the bed, up near the bed head. She noticed when you spoke about Nicole you appeared to calm down. So she decided to try and speak with you about Nicole, in a bid to calm you sufficiently to enable her to leave the property. She suggested that you try to reconnect with Nicole. However, you replied: 'How dare you say her name.' You began punching MS LOSCOTT in the stomach as hard as you could, doing this several times. This conduct partly gives rise to Charge 8 - Recklessly Causing Injury.
71You fell backwards from the bed, hitting your back on the door. A metal coat hanger fell, prompting you to grab hold of it. You tried to scratch MS LOSCOTT’s face with the hook end of the coat hanger. You then dropped the coat hanger and grabbed the complainant by the scruff of her jumper, twisting it in your fist. MS LOSCOTT was lying on her back on the bed; you pushed down on her throat with your fist, which made it difficult for the victim to breathe. MS LOSCOTT began to feel faint to and to lose consciousness before you let go, apparently believing that she was about to lose consciousness. This conduct also forms part of Charge 8 - Recklessly Causing Injury.
72You had started to walk away, but turned around, and noticed that MS LOSCOTT was conscious. You then said: 'Ya faking are ya, cunt? Ya faking?' You began punching MS LOSCOTT in the vagina, yelling derogatory statements and telling her how 'disgusting' she was. MS LOSCOTT was on the bed, trying to kick you off her. She fell to the floor into the corner between the bed and bedroom window. You continued punching MS LOSCOTT, kicking her in the stomach, legs, and kneeing her in the face. I was told that this further conduct was not part of any charge and relied on as context evidence only -therefore, you are not to be sentenced in respect of this.
73You became tired and stopped assaulting MS LOSCOTT. You appeared exhausted. As you went to get another glass of wine, you said to the victim: 'Clean up the mess and make the bed.' The complainant fixed the bed sheets and sat at the top of the bed. You continued guarding the bedroom door, which was MS LOSCOTT’s only escape. You sat on the right side of the bed next to her.
74You began slapping the complainant while trying to get her to repeat sentences as you said them such as: 'I’m a whore. I sleep with 17 year old boys. I’m a vile creature, no one can love me. No one will want to be with me.' MS LOSCOTT believed you were going to kill her before she would get the chance to leave the property again. Again, the slapping does not give rise to a charge and was led as context evidence only.
75At 6.00 am, MS LOSCOTT’s mobile phone alarm rang. Her phone was turned off at the time, but the alarm she had set earlier in the night, at your request, still rang. You accused the victim of recording you. MS LOSCOTT gave you the mobile phone and you removed the battery and threw it onto the floor.
76You laid down on the bed, appearing tired. The victim was very concerned that she would not get out of the house alive. She asked you if she could go to the toilet. At first you refused, saying: 'No, you should piss yourself like the dog you are.' The victim begged you and you finally allowed her to go to the toilet.
77MS LOSCOTT walked to the back door, unlocked it and escaped. She ran with no shoes on, to a nearby property and knocked at the door. However, there was no answer, so she ran on to another property and raised alarm. A Ms Tran opened the door and she said to her: 'Please call the police; please let me in, He’s trying to kill me.'
78While MS LOSCOTT was waiting at the front door, she saw you in the street. You appeared to be looking for her. You looked up and down the street before walking back down Bent Street. The victim ducked down, hiding behind a vehicle in the driveway of Ms Tran’s address, until you had gone.
79With Ms Tran’s help, she went to the police station and reported the matter. Her injuries, which comprised bruising, as I understand the position, were photographed by the police and she also gave them the photos which she had taken of her injuries from the first incident to which I have previously referred.
80While MS LOSCOTT was at the Sunshine police station, she received a text message from you saying: 'How did I end up at the hospital?''
81At about 1.41 pm, police attended the Sunshine Hospital emergency department. At about 2.10 pm they found you in an emergency department hospital bed and you were placed under arrest. Your mother, Lee-Ann was with you.
82You told police that you had been feeling suicidal and had called your mother to take you to the Sunshine Hospital for a mental health assessment. You were yet to be seen by a nurse or doctor. Police took you with them and you were assessed by a forensic medical officer, who said that you were no longer feeling suicidal.
83Subsequently, on this day at the Caroline Springs police station, the Forensic Medical Officer advised police of your current mental state. Ultimately, you were deemed fit for interview with an independent third person, due to a possible undiagnosed mental impairment.
84At about 7.00 pm, the independent third person attended the Caroline Springs police station and had spoken to you briefly before the interview. You made 'no comment' answers in the record of interview, saying you had no memory of any of the incidents. You were refused bail and remanded in custody. The police investigation went from there and is detailed in the prosecution opening. A number of exhibits were seized from your home.
85Mr Breheny, your conduct is most serious and is deserving of a punishment which is just in all of the circumstances and your conduct must be firmly denounced. You terrorised and brutalised a young woman repeatedly - a woman with whom you were in a relationship and who obviously cared for you. However, you treated her appallingly, apparently thinking that you could treat her in any way that you saw fit. You sought to completely control her and if she said or did anything that you did not care for, you punished her in the ways that have been set out in the factual basis for this sentence.
86While it appears to be the case that you behaved in such an outrageous and cowardly fashion when affected by Ice and/or alcohol, or were suffering from sleep deprivation due to the effects of Ice, these are not matters in mitigation. Indeed, in my view, given your criminal history and previous dispositions, you are indeed fortunate that there is not a submission from the Crown that your ingestion of such substances are aggravating, as it seems to me you might well have known that Ice and alcohol predispose you to domestic violence and violence more generally.
87In any event, I put you on notice that there is a link between you taking drugs, including alcohol and being violent such that if you choose to take these in the future and commit criminal offences, then your decision to take drugs, including alcohol, may well be treated as an aggravating factor.
88It does appear that there were aspects of your thoughts and actions, which you conveyed to the victim, that were irrational and/or paranoid, but you were not mentally impaired - that is, you were aware of the nature and quality of your acts toward her and you knew that what you were doing was wrong.
89I suspect that your trip to the local hospital with your mother and text message to the victim about this had a good deal to do with your own self-preservation, rather than genuinely being suicidal. You knew that the victim had escaped and that there was every chance that the police would be involved, so you went into victim mode, I suspect. However, I put my suspicions to one side in circumstances where I did not understand the Crown to be pressing this aspect.
Victim Impact Statement
90In sentencing you, I take into account the impact on the victim in this matter which has been profound, as you might expect. She is a most courageous woman, who read her victim impact statement aloud. She said that when you pleaded guilty to the offences, she felt a sense of validation. She said that your offending had stripped her of her sense of security and had changed the way that she now lives her life. Since your offending, she suffers from severe anxiety and depression and had to resort to medication to help her cope with these.
91She suffers sleeplessness and panic attacks and has to see a psychologist to deal with the trauma that you have caused her. She said that in the first couple of weeks after the offending, she kept replaying the night of 21 November in her head. Many simple things that she saw or did nowadays triggered her memory of this night. She had been a free spirited, happy go lucky and positive person when she met you, but she now saw things from the worst case scenario, constantly concerned about her safety and the need to feel protected.
92She has now invested in security measures to help her to feel safe. If she does not know the person who is at her front door, she has a panic attack. She said that even now, with the help of her medication, she was unable to operate at work in the way that she used to and has had to change the way that she does things. She constantly looks over her shoulder. She said that the closer that the day of the plea hearing was the more elevated and heightened she had become.
93She felt that she had to change her address in order to help her feel more secure and has become hypervigilant when she is at places like the public park. She constantly questions herself as to why this happened to her and what she could have done to prevent your offending against her. She continues to ruminate, but her reactive responses to triggering events are getting better. She said that she still feels sick in the stomach when talking about what you did to her and that she still feels angry about why this happened to her. She hopes that these feelings will resolve one day.
94She said that she had since learned of the power and control that a person could have over her - someone that she cared about and wanted the best for. She said that she stayed because of the person she was, but lost sight of what was happening to her. She said that she will never understand why it was her who was the victim of such offending, that she was finally free of the toxic relationship that she endured with you and she knows that this will never happen to her again.
95She said that she was taking back the power and concentrating on her growth, healing and the future. She said that she was thankful for her amazing family and her safe support network including her incredible partner, who was helping her to recover and to feel safe again and loved. She said she refused to live her life as a victim of you.
96Mr Breheny, these are the very real effects of your offending upon Ms Loscott and I take them into account in sentencing you.
97I take into account your criminal history, which is relevant and is concerning - all of your prior matters were dealt with in the Magistrates' Court.
98On 4 July 2006, you were convicted of two charges of recklessly causing injury, one charge of intentionally causing injury and one charge of making threat to kill. You were sentenced to a 12 month community based order with conditions of supervision, 40 hours unpaid community work, offending behaviour programs and treatment in respect of drug and alcohol addiction and in respect of your mental health.
99You did not commit further offences until March 2013, but these were driving offences and a charge of failing to answer bail, so they are not overly relevant to the matters before me.
100In August 2014 you were convicted of recklessly causing injury, intentionally damaging property and robbery and sentenced to six days' imprisonment, being time served, in combination with a 12 month community corrections order, with similar conditions to the community based order previously imposed, insofar as offending behaviour programs and rehabilitative assessment and treatment conditions were concerned.
101On 12 May 2017 you were dealt with for assault with a weapon and were granted an adjourned undertaking without conviction and required to complete a particular drug rehabilitation course called Recoveroz.
102On 31 August 2017 you were convicted of criminal damage, extortion with threat to kill, make threat to kill and commit an indictable offence whilst on bail and sentenced to an aggregate term of imprisonment of 89 days, being time served, in combination with another 12 month community corrections order, with similar conditions to the previous community corrections order you had received.
103On 9 February 2018 you were convicted of unlawful assault and ordered to perform 150 hours unpaid community work. On 3 August 2018 you were convicted and fined in respect of negligently dealing with proceeds of crime- again, this matter is not overly relevant to the matters before me.
104I understand that some of the matters to which I have just referred relate to incidents of domestic violence perpetrated by you.
105At the plea hearing I was told that there were some subsequent matters to be dealt with in the Magistrates' Court, namely a dangerous driving charge committed on 7 August 2018 and two breaches of a community corrections order. I was told that these were to be dealt with as a consolidated plea at some stage.
106I allow for a moderate discount for your pleas of guilty, which were entered at a rather late stage, after you had conducted a contested committal hearing and the matter had been listed for trial in this court. In pleading guilty at the stage that you did, you ultimately saved the witnesses, especially the victim, the time and trouble of giving evidence at trial. I understand that there had been some resolution discussions along the way, after you were committed to stand trial. I accept that the degree of utilitarian benefit should also be seen in the context of the delay of all trials commencing for some time, due to the COVID-19 pandemic.
107You ran a contested committal hearing, which is your right and you are not to be punished for having done so; however, in circumstances where the complainant was extensively cross-examined, it does not bespeak much in the way of insightful remorse as at that stage.
108In the initial report to Ms Lechner, psychologist, you said all the right things in respect of how the current victim would have felt and appropriately characterised your conduct as ‘disgusting.’ However, in view of your failure to tell her fully about your history of domestic violence, I am somewhat circumspect about your expressions of remorse and insight. I note that your mother also says that you are remorseful and speaks of your progress whilst on remand in a letter prepared by her and your stepfather, which was tendered at the plea hearing.
109When Ms Lechner took you through your criminal history, you did not disclose any past episodes of domestic or intimate partner violence which resulted in Ms Lechner assessing your risk of future spousal violent offending as moderate to high. In her initial report she said:
'Mr. Breheny has no prior history of intimate partner violence or of breaching Intervention Orders. He also has insight regarding the abhorrent nature of his offending. Despite his lack of prior history, the risk of spousal violence reoffending remains 'moderate/high' on account of the nature of the incident and his poor psychosocial adjustment.'
- That was a report in May of this year.
110When Ms Lechner was subsequently provided with police summaries in respect of some prior matters, which clearly indicated that you had engaged in violence with intimate partners in the past, Ms Lechner changed her assessment of your risk to ‘high’.
111Ms Lechner gave evidence at the plea hearing after the prosecution requested that she be made available. Mr McHenry for the prosecution ably cross-examined Ms Lechner in respect of her opinion that she maintained from her first report, that you had reached a turning point in respect of your offending behaviour. After Ms Lechner had admitted that she had not canvassed with you, your level of engagement with any of the previous community-based dispositions, there was the following exchange:
112Mr McHenry: 'So, where I'm going with this, Ms Lechner, is you've talked about this being a turning point for him. Hasn't he been in a situation where he's been dealt with before the courts on repeated occasions for intimate partner violence in the past and received sentences that you might have expected would've helped to address that?'
113Ms Lechner: 'Ah, this is a significantly longer sentence, and I think the nature of the offending itself over time, he's come to realise - I understand now, that it went to a contested hearing et cetera. But obviously over time, he's come to understand that that's significantly poor behaviour and abhorrent behaviour. Ah, and sometimes it just needs people to have a really long hard look at themselves, and that means that they're in custody for an extended period of time for that reflection to take place.'
114Mr McHenry: 'And your assessment of that realisation that you say he's come to over time, is based upon the single contact that you had with him in May of this year; is that right?'
115Ms Lechner: 'That and his mother's report in terms of she - she sees that he's - she also indicates that there's been an improvement in his mood and his attitude. And yes, it was based on that and ah, I guess the - all the progress that he's obviously made within custody, that's reflected in the courses that he's completed, the position that he holds.'
116Mr McHenry: 'They're all focussed on drug treatment, aren't they? There's nothing there about men's behaviour change or….psychological treatment in regard to offending-specific programs. They were all in regard to effectively dealing with the addiction?'
117Ms Lechner: 'Yes, I believe so, which is why I've said he needs further treatment in those other areas.'
118Mr McHenry: 'Is it fair to say that in your discussion with his mother, Ms Breheny, that that was - again, I'm going from the report rather than any more information than that, but focussed on the change he's observed, drugs led him to spiral out of control. They're a coping mechanism, he feels invincible; that didn't deal with the subject charges or the - anything to do with his intimate partner violence, did it?'
119Ms Lechner answered: 'Ah, no.'
120Mr McHenry: 'All right. So again, your assessment about his realisations again are really just based on one interview that you had with him in May of this year?'
121Answer: 'Correct.'
122'And that's an interview in which you've now come to the conclusion that he was either minimising or less than honest about his relevant criminal history as regards prior family violence?'
123Answer: 'Yes.' (T 47, line 21 - 49, line 7).
124I must say that Mr McHenry made a most salient point, which shed some light on shortcomings, in my view, in Ms Lechner’s opinion and the thoroughness of her assessment of some aspects of you in this matter. In your case, heartfelt remorse and appropriate insight are very much works in progress, in my view.
125I take into account your background, which is a most unfortunate one, insofar as your upbringing is concerned. Your father abused alcohol and was violent when drunk. Your parents separated when you were four or five. You have an older sister, Alicia, with whom you are very close.
126Your mother used drugs, namely ‘speed’, when you were young. After separating from your father, she took up with another male, who was also violent and was violent toward you. Your mother then commenced another relationship with a man who you described as being extremely violent. On one occasion, your mother was hospitalised because of his treatment of her. He committed suicide when you were 23 years old. In spite of his dreadful treatment of you and your mother, you saw this man as your role model as you were growing up.
127It was submitted that you have suffered such a level of disadvantage in your upbringing that it ought be seen as impacting on your moral culpability in respect of your offending now before me. In essence, it was submitted that drug taking and domestic violence were so prevalent in your upbringing that they have impacted on your moral development in a way that was contemplated in the decision of Bugmy.
128I accept that there has been such an impact on your personal development, to the point where your resort to drugs and domestic violence has, unfortunately, become part of your make up. I make some reduction in respect of your moral culpability because of this and I have given full effect to your deprived background in sentencing you. On the other hand, your deprived background, which has become part of you, is also relevant to the weight that I must give to protection of the community.
129In terms of your education, you left school after completing Year 9. You were expelled from two secondary schools before this, for fighting. You experienced difficulties in concentrating at school and a counsellor told you that you might suffer from ADHD. Ms Lechner, psychologist said in her report dated 13 May this year that you have all the symptoms of this condition presently. After leaving school, you completed an apprenticeship in roof tiling and started your own business when you were only 21.
130You have two children, who are now aged 16 and 13. You had custody of these children from when you were 21. I was told that your children were removed from your care after their mother staged a home invasion. As their safety was in danger, DHHS placed your children in the care of their maternal grandparents. I understand that your daughter is still with her grandmother but that your son is in the care of child services in Queensland. I was told that after you lost custody of your children, your life took a downhill turn and you lost your business. Your employment was then rather sporadic.
131I was told you started using cannabis when you were only 13 years old and you smoked this daily till you were 21. When you were 18, you started using Speed and you were using Ice by the time you were 20. You have used a number of other drugs in the past, but at an experimentation level. You commenced drinking alcohol where you were 13 or 14 and have had ongoing issues with alcohol abuse, drinking daily in the period leading up to your arrest.
132In 2016 you completed a three month residential rehabilitation program with Recoveroz as part of your bail conditions and you opted to extend your stay for a further three months. You did very well on that program and also held responsible positions with Narcotics Anonymous and with Recoveroz. You left the service with a sense of direction and motivation and you were drug free.
133You eventually obtained your own accommodation with the help of your mother and stepfather and despite the advice of those at Recoveroz to take things slowly, you committed to a house with high rental payments, perhaps with a view to having your children live with you there; you started a new roof tiling company and you also started a new relationship with the victim in this matter.
134You employed three men and you went from drinking and imbibing cannabis to consuming Ice once more in the company of one of your employees, to whom I have previously referred. I was told that you became overwhelmed with all of the commitments in your life at that time, which led to your regression into drug use.
135Ms Lechner diagnosed you as having symptoms of ADHD, Stimulant Use Disorder (in remission) and Post-Traumatic Stress Disorder. It was not submitted that, at the time of your offending, that you were suffering from any impairment of mental function which would give rise to the application of any Verdins principles.
136I accept that this is the longest time that you have been in gaol and that you have undertaken a number of courses and expressed the wish to do what is necessary in order to permanently change for the better. I also accept that time in gaol has been harder, due to restrictions imposed along the way, because of COVID-19 and I make allowance in your favour because of this. You have behaved well whilst in custody, gaining a responsible position there. According to a letter from Caraniche dated 8 October this year, you:
'Commenced individual counselling with Caraniche on the 27th of July 2020. During this time, (you) completed weekly individual counselling sessions at Karreenga Prison via telehealth. (You) attended scheduled sessions punctually where (you had) continued to participate and engage appropriately; consistently demonstrating motivation for change relating to (your) substance use and offending behaviour.'
137I accept that you are drug free and have expressed a willingness to engage in appropriate treatment in the future to address issues in respect of your rehabilitation. You have engaged in a number of courses and programs whilst on remand, which is to your credit.
138You have a qualification as a roof tiler and have had your own business in the past, which is to your credit. You have family support from your mother, current stepfather and other family members, which are protective factors, although they were not sufficiently protective in the past to stop you from committing the offences for which I now sentence you. I have taken into account the letter which was written by your mother and stepfather in support of you and the plans that they have for you in the future, which includes living with them and helping you to start up your business once more.
139The letter indicates that they understand you and your needs, as well as the need to ensure as best they can, that you address your wellbeing, behavioural and drug issues. Whilst their offer of support is insightful, you are a grown man and they have no control over you ultimately, if you choose to take the wrong path upon your release. However, it is to be hoped that you will embrace the support that they offer you whilst you are in custody and upon release.
140I have accepted that the case of Bugmy applies to you, such that your upbringing has effectively hardwired you to resorting to drug taking and angry episodes when under stress, which in your case have translated to abuse of intimate partners. On the one hand, it is submitted that you are capable of rehabilitation and on the other hand it seems to be suggested that this may well be problematic, due to your deprived background and reverting to drug taking and violence. In the past you have made some solid attempts at rehabilitation but I am concerned that your current offending reflects an escalation in your offending.
141Ultimately, you have taken responsibility for your offending and according to Ms Lechner, you did not seek to victim blame and you have been in gaol for a significant period, where you have had time to reflect. You say that you have reached a turning point - I hope that you have but this remains to be seen, especially when you are not in a structured environment, as you presently are.
142There are some positive signs in the cold light of day, but there are also some aspects of you and your make up which are concerning. When you are in the community, the challenge will be to abstain from drugs and maintain appropriate treatment for drugs, alcohol and mental health and you also must learn once and for all how you treat other human beings, especially intimate partners, whether you are stressed or not. You have a long way to go and you are hampered by instincts which are born of your troubled background, which will continue to raise their ugly heads until you are able to finally deal with them, if this is possible.
143In view of your offending, your criminal history, your limited insight and compromised remorse, in my view, but also weighing up protective factors in your favour and your efforts at rehabilitation in more recent times, I assess your prospects of rehabilitation as guarded. I give fairly strong weight to specific deterrence and protection of the community. I give strong weight to general deterrence in a bid to deter others from offending in the way that you have.
144I have applied the principle of totality in your case, being mindful that some of the offences occurred within a short period of one another and that all of the offences occurred over a fairly brief period; but I have also borne in mind that each of the offences had a separate and, no doubt, cumulative impact on the victim, which is also relevant. The reckless conduct endangering put others in harm’s way, which is a separate matter again.
145Also, you are to be sentenced as a serious violent offender in respect of each of the charges of make threat to kill. However, in my view, a level of cumulation is warranted in respect of a number of offences, due to their nature and separate impacts, to which I have previously referred. As I have said, I have also applied the principle of totality, which has resulted in modification of the levels of cumulation which might have otherwise been imposed.
146Your Counsel submitted that a community corrections order, in combination with a gaol term, was warranted in your case. I was not persuaded by this. Her secondary submission was that you ought serve a gaol term with a non-parole period which was not too lengthy. The prosecution submitted that a gaol term with an appropriate non-parole period was justified in your case.
147In my view, having weighed up all competing considerations and the weight that needs to be applied to all relevant sentencing principles, there is nothing in your case which would justify imposing a non-parole period that is any shorter than it might otherwise be.
148You are convicted of the offences:
149You are sentenced as follows:
150Charge 1 - Causing Injury Intentionally: 4 years, which will be the base sentence
151Charge 2 - Make Threat to Kill: 18 months
152Charge 3 - Common Assault: 15 months
153Charge 4 - Damaging Property: 8 months
154Charge 5 - Conduct Endangering Persons: 12 months
155Charge 6 - False Imprisonment: 18 months
156Charge 7 - Make Threat to Kill: 18 months
157Charge 8 - Causing Injury Recklessly: 16 months
158I direct that six months from the sentence on Charge 2, five months from the sentence on Charge 3, two months from the sentence on Charge 4, four months from the sentence on Charge 5, six months from the sentence on Charge 6, six months from the sentence on Charge 7 and five months from the sentence on Charge 8 be served cumulatively with each other and with the base sentence, producing a total effective sentence of six years, 10 months and I direct that you serve four years, six months, before becoming eligible for parole.
159If not for your pleas of guilty, I would have sentenced you to a total effective sentence of eight years, six months, with a non-parole period of six years. I declare that you have already served 741 days by way of presentence detention. Is there anything arising, counsel?
160MS MacDOUGALL: I don't think so, Your Honour, I'm just having a quick look at the maths.
161HER HONOUR: Ms Allison?
162MS ALLISON: Excuse me. No, Your Honour, that appears to be correct.
163HER HONOUR: All right. Very well, now Ms Allison, did you wish to have a word with your client, before the transmission is turned off?
164MS ALLISON: I'd be grateful for the opportunity, thank you.
165HER HONOUR: All right, thank you. Ms MacDougall, the maths has been doublechecked ‑ ‑ ‑
166MS MacDOUGALL: Yes as ‑ ‑ ‑
167HER HONOUR: ‑ ‑ ‑ but if you notice some difference ‑ ‑ ‑
168MS MacDOUGALL: ‑ ‑ ‑ and Your Honour, I have also just checked it. No issue.
169HER HONOUR: Yes, thank you. Very well. I'm now going to adjourn, but Mr Taylor, if you could leave Ms Allison to speak with Mr Breheny and Ms Allison, if you could just use the chat function to tell Mr Taylor when you want the transmission to be turned off after that please.
170MS ALLISON: Certainly, thank you, Your Honour.
171HER HONOUR: Thank you. We'll now adjourn.
172MS MacDOUGALL: If it please the court.
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