Director of Public Prosecutions v Bremner

[2022] VCC 2227

IN THE COUNTY COURT OF VICTORIA

AT Melbourne

CRIMINAL DIVISION

 Revised
Not Restricted
 Suitable for Publication

Case No. CR-20-00482

DIRECTOR OF PUBLIC PROSECUTIONS

v

JASON BREMNER

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JUDGE:	His Honour Judge Moglia
WHERE HELD:	Melbourne
DATE OF HEARING:	23 June 2022
DATE OF SENTENCE:	29 November 2022
CASE MAY BE CITED AS:	DPP v BREMNER
MEDIUM NEUTRAL CITATION:	[2022] VCC 2227

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – SENTENCING.

Catchwords:              Recklessly causing serious injury – conduct endangering persons – victim driving while intoxicated causing minor collision – offender zip-tied victim – unprovoked punch – victim unconscious – failure to assist – little remorse – victim permanently disabled – high objective seriousness – specific deterrence - high risk of further offending – high need for support services and treatment programs upon release.

Legislation Cited:      Crimes Act 1958 (Vic); Confiscation Act 1997 (Vic); Sentencing Act 1991 (Vic).

Cases Cited:Brown (aka Davis) v The Queen [2020] VSCA 60; Worboyes v The Queen [2021] VSCA 169.

Sentence:Total effective sentence 12 months imprisonment; 2 years community correction order including judicial monitoring, drug and mental health programs; 6AAA: 4 years and non-parole period 2 years 6 months; disposal orders as sought.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Z. Petric	OPP
For the Accused	A. Cannon	James Dowsley & Associates

HIS HONOUR:

1Jason Bremner, you have pleaded guilty to 1 charge of recklessly cause seriously injury (maximum penalty 15 years) and 1 charge of conduct endangering persons (maximum penalty 5 years) occurring on 30 September 2017.

Your offending

2The agreed basis for your guilty plea is set out in the summary of prosecution opening dated 20 June 2022. You are to be sentenced based on those facts, which I summarise and make findings about as follows.

3Overnight on 20 September 2017, you were at your home at 16 Trafford Rd, Carrum Downs, with your de-facto partner Sarah Clifton, whose car was parked outside on the nature strip.

4At about 4.00AM, the victim Vladimir Melincianu drove his car along your street whilst alcohol affected. He collided at a relatively low speed with your partner’s car resulting in minor damage to both vehicles.

5You heard the collision and went outside to confront Mr Melincianu. Your neighbours said you appeared frustrated and angry and that you were shouting with aggressive body language. You saw Mr Melincianu stumbling and showing clear signs of being drunk. Your neighbours saw this too. You confronted him and argued with him over the collision. He showed no signs of retaliation or violence, but stumbled away a short distance from the scene.

6You followed Mr Melincianu and grabbed him and told him not to leave. You returned to your house, got some plastic cable ties and then returned to Mr Melincianu in the street and tied his feet together to immobilize him.

7After doing so, you returned to your house where you and Ms Clifton both called 000. During the call you can be heard yelling: “I’ll knock him out, I’ll fuck him up… I’ll fuckin’ get him…”. At this time, Mr Melincianu had fallen to the ground due to being bound by the cable ties, having managed to get back on his feet, you approached him again, this time carrying a ‘cricket bat’. You held the bat above your shoulder and threatened him. You punched him to the face, causing him to fall and hit his head on the roadway where he then lay unconscious (Charge 1: recklessly cause serious injury).

8Ms Clifton saw this and screamed: “Jason we need to call an ambulance!”. You and Ms Clifton then stayed at your front doorstep while Mr Melincianu laid unconscious on the roadway for some period of time. You did not render any assistance to him at all (Charge 2: conduct endangering persons).

9Paramedics arrived at around 4:20 AM, to find Mr Melincianu lying unconscious on the road. He had a large haematoma on the back of his head, and was bleeding from both his nose and mouth. They took him to the Alfred Hospital where he remained unconscious for over 24 hours.

10Dr Jason Schreiber reported that Mr Melincianu suffered “blunt trauma to the head and face” and that “the injuries were severe and life-threatening”. Further, he said Mr Melincianu probably would have died “without emergency treatment by the ambulance and hospital staff”. The “future risks of seizures are high” and that he is “likely to have low quality of life due to the injuries” (Exhibit A).

11Mr Melincianu’s psychologist, Dr Joseph Poznanski, wrote on 11 December 2017 that since the incident in September 2017, Mr Melincianu has been “very anxious, hypervigilant, unable to sleep, unable to concentrate and [suffers] from persisting vertigo”. Dr Poznanski also noted that his patient had suffered a haemorrhage and fractures at the base of his skull due to the incident (Exhibit A).

12These reports about Mr Melincianu form appendices to the victim impact statement that he made on 11 February 2019 (Exhibit A).  Mr Melincianu confirmed that 16 months after the incident, he is “still showing signs of brain damage in [his] frontal lobe”. He said the incident has rendered him partially deaf and in need of dental surgery. He confirmed that he suffers from vertigo and is severely prone to falling. He has become socially “withdrawn”, struggles with insomnia, “heavy depression” and “traumatic stress”. His son has ceased full-time employment to be his full-time carer.

13In an update dated 13 February 2020, Dr Poznanski reported that Mr Melincianu presents with symptoms consistent with a diagnosis of Neurocognitive Disorder due to Traumatic Brain Injury, in addition to Chronic Post-Traumatic Stress Disorder, Major Depressive Disorder and Anxiety. He noted that Mr Melincianu’s emotional problems require ongoing psychological treatment.

14Dr Timothy Stobie, GP, provided a further update, dated 11 August 2022, reporting that Mr Melincianu has “objectively demonstrable brain damage”, which manifests as “neurocognitive deficits” on his “executive cognitive function, memory and cognitive processing”. He also noted an exacerbation of balance problems, and “ongoing severe dizzy spells with frequent falls”. Dr Stobie concluded that Mr Melincianu is permanently disabled and will never be able to return to work of any sort.  Those reports are also part of Exhibit A.

Procedural history

15Following your arrest on 30 September 2017, police interviewed you and you answered their questions. You admitted that you zip-tied Mr Melilncianu’s feet and hit him once. You said, “I hit an innocent – I hit a bloke that trashed my wife’s car” and, “he was drunk, on drugs, trying to flee”. You said you “walked off” because you “didn’t care” and that if police did not attend, you were going to hogtie him and put him in your shed and “beat the shit out of him.” You also said you “should be entitled to zip-tie his legs together and hit him.”

16Police interviewed you again on 28 April 2018. You said that you don’t think it was reckless or wrong to restrain the victim. You said that you gave him “a tap on the jaw”, but said, “I didn’t assault him. I was protecting myself from him hitting me and from fleeing the scene. I was trying to restrain him. …It was not reckless because I didn’t know why he was unconscious” and that the victim was “fine”.

17There was a significant delay between the date you were charged and when you finalised a contested committal hearing on 19 March 2020.

18Your trial was listed on 19 April 2021 but was vacated due to COVID. On 14 February 2022 your trial was again vacated due to the unavailability of your trial counsel. You agreed to plead guilty on 19 April 2022.

19Ms Cannon submitted that the delay was largely due to factors beyond your control. The prosecutor Mr Petric submitted that it was partly caused by your own conduct, including your intention to contest the charges, the latter of which you are entitled to do. I do not make any finding about fault for the delay, but note that during that time you have not offended further, which helps me assess your prospects of rehabilitation.

20Significantly, your guilty plea means Mr Melincianu need not give evidence at trial. The community is also saved the time and expense of a trial. Your plea indicates your willingness to facilitate justice and that you accept to some degree responsibility for your offending.

Personal circumstances

21You are now 38 years old. You were raised in Baxter with one older half-sister and two younger half-siblings. Your parents separated before you turned one. Your mother formed a relationship with your stepfather, whom you were raised to believe was your biological father.

22In your early teens, you suspected you had different biological origins to your half siblings because you were treated differently. You confronted your mother and stepfather about the issue, but they denied it.

23Your stepfather struggled with alcohol and substance abuse. He abused you physically and verbally. Twice he threw you through walls, punched, and beat you. Your mother never attempted to intervene and protect you. She struggled with substance abuse issues of her own.

24Your own behaviour deteriorated between the ages of 7 and 13. One of your half-sisters sexually abused you and this contributed to your behavioural problems.

25At age 12, you told your parents of the abuse, but you were dismissed and disbelieved. The abuse made you feel ashamed and frightened, and you later experienced symptoms consistent with Post Traumatic Stress Disorder.

26You attended school until year 9 or 10. You struggled academically and preferred practical subjects and outdoor activities. Around age 10 or 11, you were formally diagnosed with attention deficit hyperactivity disorder. You struggled with “sustaining focus and attention, distraction, information processing and memory” and were prescribed dexamphetamine.

27You were sensitive to feelings of rejection and had problems managing your anger. Your deteriorating behaviour attracted attention. You were suspended multiple times, often due to fighting with other students. When the school principal unexpectedly touched your shoulder, you reacted and hit him for which you were expelled.

28You left the family home when you were about 14. You were homeless for a period before living with a friend and then with your older half-sister and her partner. You are estranged from your mother, stepfather, and half-siblings.

29You started a cabinetmaking apprenticeship but did not complete it. You then worked as a panel beating mechanic, but became unreliable during your first relationship. Over the following twenty years, you worked in various labouring jobs including bricklaying and plastering, however, you were dismissed due to interpersonal issues with colleagues about 5 times. You accept that you are prone to being argumentative.

30At the time of the offending, you had been employed for 7 years as a foreman, but you lost this job due to being remanded and having time off to attend court. Since 2020, you have not been employed due to your deteriorating physical and mental health issues.

31In 2012, at age 28, you confronted your mother and stepfather again about your biological origins. Your mother confirmed that your stepfather was not your biological father. You have since ceased all contact with them. You have since found out that your biological father died in May 2022 due to illness.

32You were with your first wife Kim from 2001-2008. Your relationship was troubled by her alcohol and substance abuse addiction. You were granted custody of your son Jakob but became estranged with your older son Bailey. You married your second wife Ms Clifton in 2015 and have a daughter together. Due to the stress associated with legal proceedings combined with other family issues, you separated a few months ago but remain co-residents.

33You have been before the criminal courts on 14 previous occasions since 2001. In 2014 you were imprisoned for violence and possession of a firearm and ammunition. The remainder of your history is composed of drug, dishonesty and driving offences.

34From 2011, you have seen psychologist Michael Warner. In his report dated 1 November 2018 (Exhibit 2). You saw him 12 times in 2011-2014 to deal with anxiety, depression and anger arising from childhood sexual abuse. He reports that in 2014 at the time your prior assault matter was before the Court, you had responded well and were able to cope with your emotions. In October 2018, after this incident, you returned and were moderately depressed and severely anxious. However, you minimised your responsibility for the incident, saying only some of your actions on the night were inappropriate. Mr Warner suggested you might have an autism related disorder.

35Forensic Psychologist Carla Ferrari in her report dated 9 June 2022 (Exhibit 1) stated that although you took responsibility for your actions, you were of the view that you have been unfairly charged because you believe Mr Melincianu’s multiple injuries were caused by the collision and not by your conduct.

36Ms Ferrari commented in her report that MDD, ADHD and PTSD often manifest as neurological changes in the prefrontal cortex, which is responsible for emotional regulation, executive functioning, impulse control, and cognitive and behavioural self-control. Ms Ferrari further stated that “symptoms of these conditions can fluctuate in intensity and frequency” and often become exacerbated “under situations of extreme stress.” She also observed that individuals with PTSD, such as yourself, are more likely to “respond to situations disproportionately when their threat system is reactivated.” Ms Ferrari concluded that your untreated ADHD and PTSD has clearly played a significant underlying role in your history of offending, including the offending before this Court.

37You said the impact of the offending on you, however, has been significant. You have lost your marriage, your job and both your physical and mental health have deteriorated. Recently, your mood has destabilised and you have attempted to take your own life. You worry that the mental health improvements your son Jakob, now 16, has made would be jeopardised if you were gaoled. You were also concerned about the impact of sentence on your chance to reunite with Ms Clifton and your capacity to engage in psychological counselling about the issues at the root of your offending.

38Consultant Psychiatrist Dr Adam Deacon provided a report on you dated 13 October 2022 (Exhibit 6). He stated that you have a complex presentation, but unlikely to have any autism spectrum disorder. He acknowledged your variable depressive disorder, anxiety and substance use disorder relating to cannabis. You have had PTSD symptoms persisting from the abuse you suffered at age 7-11. You have attempted suicide on a few occasions, most recently in early 2022 in the context of compounding stressors. You also report a history of interpersonal difficulties associated with mood dysregulation and agitated behaviour. You have a low frustration tolerance and limited ability to cooperate when under stress. He noted your sense of entitlement and indignation regarding the offence and that your ‘reaction’ to the circumstances were not completely unreasonable.

39You have used cannabis since age 12, which you say moderates your mood and enhances your sleep and appetite. You continue to use up to 2 grams per day and are chronically dependent. You previously abused amphetamines and heroin over many years, but stopped using heroin when you were with Ms Clifton.

40You reported to Dr Deacon that you have not used any illicit drugs except for cannabis over the last five years. You have been a regular drinker throughout your adult life. You denied problems with alcohol but confirmed your history of drink driving.

41You told Dr Deacon that you have ceased taking your antidepression and mood stabilising medication recently in case you go to gaol. I note that you had not taken the same action with your cannabis use.

42Importantly, Dr Deacon stated that your mental health at the time of the incident was stable and well. He could not find any nexus between your mental health problems and the offence.

43Your friend Kevin Dooley wrote a letter to the court dated 22 June 2022 (Exhibit 5). He described you as a reliable and altruistic friend who would go above and beyond to look after his interests, especially during tough times.

44Ms Clifton wrote in her letter to the court (Exhibit 4) of the significant impact the offending has had on both you and your family. She described you as a hard-working man and a caring father and husband and expressed her wish for the whole family to move past this incident.

45Ms Olivera-Damas confirms by letter dated 29 Nov 2022 that you have been working on a casual basis in her concreting business and are working well (Exhibit 8).

Sentencing issues

46Your counsel Ms Cannon relied on numerous matters in mitigation, including your guilty plea, its added utility during the COVID pandemic, your remorse, underlying mental health issues and childhood trauma, strong family support and employment history, good prospects of rehabilitation, the lack of subsequent offending as well as the substantial delay. Subject to reservations about your remorse and your prospects, I accept those submissions.

47The prosecutor submitted, and I accept, that the seriousness of Charge 1 is reflected in the maximum penalty of 15 years imprisonment. The prosecutor relied upon the following matters as aggravating factors, your use of the cable ties, Mr Melincianu’s vulnerability in the circumstances, your failure to assist him when he was unconscious, and the fact that your aggression was unprovoked. I accept these matters.

48The serious and lasting impact of your offending on Mr Melincianu is clear. He is permanently disabled and will suffer a low quality of life for the foreseeable future. In all of the circumstances, the objective seriousness of your offending is high.

49The true extent of your mental health problems and the effect they may have on sentence was an important issue on your plea. Your counsel relied on the concerns raised by Ms Ferrari about the underlying significance of your history of PTSD symptoms, your depressive episodes and your anxiety. I accept that these have had some, perhaps significant, effect on you over the years.

50The prosecutor acknowledged these conditions, but submitted that there is nothing cogent in the material that links them to the offending on this occasion. Dr Deacon supports this view, stating it is unclear whether your poor impulse control is caused by your underlying ADHD or your personality structure.

51I am not satisfied that there is a reasonable relationship between your mental health conditions and the offending in this case. I will, however, take into account your personality traits and other conditions as described by the experts when assessing your overall personal circumstances and the weight to be given to general deterrence and other factors.

52Your prospects for rehabilitation are somewhat guarded. You have not offended again since this incident, which is to your credit. However, you have not proactively engaged in further psychological and psychiatric intervention or made any significant progress in tackling the underlying issues at the root of your history of offending. I note that you seem to have constructed yourself as the true victim in this case and rather than focussing on addressing your needs, you had in fact ceased taking your medication. I have been told today that you recommenced taking them over the last couple of months. These aspects raise concern and suggest that upon your release you will need to be supervised by a body with flexible powers.  

53You were engaged in an extended pre-sentence assessment and I have had regard to the report by Dandenong Community Correctional Services dated 17 August 2022 (Exhibit 7). You have had “mixed success” with such orders in the past. You are assessed as being at a high risk of further offending. Consistent with the accounts you gave to others, you did not take responsibility for the consequences of this offending. but offered justifications for your violent actions. While you have been assessed as suitable for a CCO, this does not decide the issue.

54In the “tailored and seemingly distorted account of the offence” that you gave Dr Deacon, you minimised your responsibility for Mr Melincianu’s injuries and justified your conduct. Accordingly, in all the circumstances, I find that specific deterrence attracts some emphasis in this case.

55Ms Ferrari stated that your impaired emotional regulation can cause undue distress and may deteriorate in custody. She observed that your mental health was precarious earlier this year and that removing you from your family support system may further destabilize you. She concluded that imprisonment would likely be more onerous on you compared to others. I prefer the view of Dr Deacon who stated that you could be a “relatively vulnerable man in a custody setting” and that your “mental health challenges could be exacerbated”. I accept you have some vulnerabilities, but how they affect you will largely depend on how you choose to accept treatment. I have moderated your sentence accordingly.

56I accept that both Ms Ferrari and Dr Deacon identified “key criminogenic risk factors” specific to you and that dealing with them will require specialized and consistent psychological interventions. Ms Ferrari recommended multimodal treatment including medication and psychological interventions focussed on developing your capacity to regulate emotions, improve your functioning, and stop the cycle of self-medicating via cannabis. Dr Deacon said your risk of further offending is largely contingent on the improvement of your capacity for self-regulation. He said you could be aided by psychological work to improve your capacity to “control [your] propensity towards angry and hostile reactions.”

57Ms Ferrari recommended your immediate engagement with prison mental health and regular monitoring for suicide risk. She emphasized the importance of support and supervision after your release, to provide relevant referrals to support services and treatment programs. I aim to provide for this in the sentence I impose.

58It was submitted that I should take into account the concerns about your 16 year old son going off the rails. In order to do so, I would need to be satisfied that any hardship he faces due to your imprisonment was exceptional. I have no material upon which to make such a finding, other than what you have told Ms Ferrari and Dr Deacon. I am not satisfied that this is such a case. However, I do accept that your son’s situation will bear on your mind and tend to make any time in custody more onerous for you subjectively.

59Your counsel submitted that a community correction order alone, with a significant punitive component would deter others while imposing just punishment and denouncing your conduct, all the while facilitating management and treatment for your complex presentation of mental health issues in the community. Today, that submission was somewhat moderated by your concession that a CCO combined with some time in custody was within range.

60The prosecutor submitted that your offending attracts the need for general and specific deterrence, denunciation, community protection and just punishment by way of gaol time.

61In all the circumstances, having regard to each of the sentencing purposes, I find that a wholly non-custodial disposition is not appropriate.

62I note, however, the long delay since the offending, and that you have pleaded guilty during the COVID pandemic when the work of the Courts has been sorely strained and delays have increased, for which I have reduced your sentence significantly.[1]

[1] Worboyes v The Queen [2021] VSCA 169.

63I sentence you as follows:

(a)   On charge 1, recklessly causing serious injury – 11 months; and

(b)   On charge 2, reckless conduct endangering a person – 4 months.

64One month of the sentence on charge 2 is to be served cumulatively upon the sentence on charge 1.

65On both charges 1 and 2, I also impose a community corrections order with conviction for 24 months, including supervision, assessment and treatment for drug use, mental health and programs to reduce the risk of re-offending and judicial monitoring.

66The total effective sentence is 12 months imprisonment and a Community Correction Order for 2 years.

67The first date for judicial monitoring, for which you will need to attend Court, will be on 30 November 2023 at 415pm.

68In accordance with section 6AAA of the Sentencing Act 1991, but for your plea of guilty I would have imposed 4 years and fixed a non-parole period of 2 years 6 months.

Ancillary orders

69I make the disposal order as sought and unopposed, relating to the white cable ties seized, in accordance with s78 in the Confiscation Act 1997.

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