Director of Public Prosecutions v Brennan

[2024] VCC 653

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 22-02006

DIRECTOR OF PUBLIC PROSECUTIONS

v

TIMOTHY BRENNAN

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JUDGE:	HER HONOUR JUDGE MARICH
WHERE HELD:	Melbourne
DATE OF HEARING:	29 April 2024
DATE OF SENTENCE:	10 May 2024
CASE MAY BE CITED AS:	DPP v Brennan
MEDIUM NEUTRAL CITATION:	[2024] VCC 653

REASONS FOR SENTENCE

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Subject: CRIMINAL LAW

Catchwords: Intentionally damage property, common law assault, theft – victims place of residence where entitled to feel safe – context of other offending – victim barricading self in room – presence of other potential victims – thughood and retribution - two early pleas of guilty, one at midpoint in proceedings - remorse - utilitarian benefit – bail variation encouraging – community corrections order compliance - lengthy criminal history.

Legislation Cited: Crimes Act 1958, Sentencing Act 1991.

Sentence: 18-month Community Corrections Order, 4 days imprisonment - time reckoned as served. 6AAA disposition 12 months imprisonment.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P. Teo	Office of Public Prosecutions
For the Accused	Mr M. Habib	Docherty Legal

HER HONOUR: 

1Timothy Brennan, you have pleaded guilty before me to an indictment containing three charges, each occurring on a single day, 3 June 2022, on a single primary victim.  Charge 1, being a rolled-up charge of intentionally damage property, carries a maximum penalty of 10 years' imprisonment.  Not only is the primary victim Sean Harris the victim of that offence, but also Ian Lapworth was the victim of that offence.  Charge 2, common law assault, which carries a maximum penalty of five years' imprisonment, was carried out upon Sean Harris; and Charge 3 of theft, which carries a maximum penalty of 10 years' imprisonment, also characterises as its victim Sean Harris.  The quantum of that offence is two first aid kits.

2The circumstances of offending are contained in a summary of prosecution opening for plea dated 3 January 2024 which the prosecution relied on in proof of those charges.  I was told in summary that at the time of your offending, now some two years ago, you were then 39.  You were residing in the Campbells Creek area with your partner, your mother-in-law and your three children.  You had been friends with the primary victim Sean Harris but that you had fallen out with him over an alleged $900 debt which you believed he owed you, and I have been told that these acts were in an attempt to recover that debt or in some form of retribution for the non-payment.

3The gentlemen victims, Sean Harris and Ian Lapworth, were related as stepson and stepfather.  They both lived at an address in North Bendigo.  Two days prior to your offences you sent a text message to
Mr Harris, indicating your unhappiness with him and you said that you so much looked forward to seeing him Friday and used other words consistent with wanting to cause him to feel pain.  That is uncharged but it is in the lead up to the events on Friday 3 June 2022.

4You called him in the early hours of the morning repeatedly but none of the calls were answered, understandably, at the time that you were making those calls.  At 2 pm on the afternoon of Friday 3 June 2022 you sent Mr Harris a text message, indicating that you were travelling towards him and then you had a text exchange, which again does not characterise you in the best light, including a threat to him; 'You are first called.  Do you remember I told you about making you hurt?  Make this not happen, make it right', ending in that text exchange with; 'I will not make troubles, I need the coin ASAP, thank you' and you then attempted to call him another six times.

5You then attended his house twice.  At about 3 pm he drove his vehicle into the driveway of his unit and parked outside and you and your partner followed him by driving your vehicle down the same driveway.  You approached the front door, so he went inside.  While he was inside and you were outside you demanded that he tell you where his stepfather was, and the victim told you that the stepfather was at hospital, which is a false statement.  You demanded that Mr Harris, your victim, contact the other gentleman and arrange for payment of $400 and he pretended to contact his stepfather.  You said that you would return in an hour.

6You left, you returned a little bit more than an hour later, made several more unanswered calls to him. He was inside the unit with his stepfather
Mr Lapworth and another gentleman, named Jason Roberts; he was staying as a guest.  You arrived back at the unit with your partner and another person in the car.  You exited the car, approached the front security door which was locked and began banging on the door to get Mr Harris' attention.  He attended the front hallway and spoke to you through the closed door and said that he would not be paying you any money.

7Then he shut the front door, locked it, and joined his stepfather in his stepfather's bedroom.  He barricaded himself into that room and called Triple 0.  You started to pull on the sliding screen door, ripping it off the handle, and tearing open the mesh screen, at which point the guest Mr Roberts unlocked the wooden door and asked you what was going on, and you said that you wanted to get inside.  The process of opening the door then meant that you could enter the unit and you then approached the stepfather, Mr Lapworth's, bedroom door and kicked at the door, causing damage to the door, denting it with your shoe.  This is the offending referable to your first charge on a rolled-up charge comprising the damage to each of the items of property.

8While you were kicking the door, you were yelling out to Mr Harris that you were going to cut the throats of both Mr Harris and Mr Lapworth, which understandably caused Mr Harris to fear that the threat would be carried out.  This is in my view the most serious offending, the common law assault, and subject of your Charge 2.  Then, because you could not get into the bedroom as it was barricaded, you went into the lounge area, grabbed some first aid kits and left the unit and put the first aid kits in the boot of the car in which you had arrived, which is the offending referable to your Charge 3 of theft.  Then, you and the other two in the car drove away.

9Police investigation commenced and at 8 pm that night they attended your home address and you were arrested and the first aid kits were located.  You were then interviewed and participated in a record of interview.  To your credit you admitted attending the unit; not to your credit, you denied entering the property without authority.  You made full admissions to Charge 3, the theft, but you did deny the subject of Charge 1, causing damage to the doors, and you denied making threats, which is a denial of Charge 2.

10When I come to evaluate how serious these allegations are I need to take into account the objective gravity.  I will come back to your moral culpability which is how I evaluate what was on your mind at the time.  Instead, we just look at it from an outside point of view, and here in particular I look at the assault and it disgusts me.  The words that you used involved a threat to inflict serious consequence on the victim; it took place at his place of residence, a place where he was entitled to feel safe; it happened in the context of other offending, and your motive related to what you thought was getting back money for an unpaid debt, but as part of this exercise I need to take into account the effect on the victim and those around and the simple fact that the victim needed to barricade himself into a room tells me how frightened he was.  It is intolerable, it is just disgusting offending, it occurs in the presence not only of other potential victims but other people who came along with you, and it does not fill me with much respect for you, especially in relation to that assault.

11There was other offending at the time.  I appreciate that the theft might not be the most serious offence that I will deal with even today.  The damage involved not only physical damage but inconvenience again at a person's place of residence, which is a place where they are allowed to feel safe, not subject to any acts of thughood or retribution.  Again, not your proudest moment.  I will come back to your moral culpability.

12You spent four days on remand and then bail was granted, and as part of this exercise I need to take into account the fact that nearly two years have passed since the commission of this offence.  Also as part of my evaluative exercise I need to take into account that you made an offer to plead guilty to what in effect became Charges 1 and 3 before your committal proceeding was even held, so I note and take into account that you were willing to plead guilty to those charges at a reasonably early stage, some would say the earliest stage although it did not quite resolve the matter, because at the time the committal ensued on a more serious charge, with cross-examined witnesses including civilians and police.

13I have been told and I accept that you made a plea offer to resolve the charges that you currently face now nearly 12 months ago in May of 2023 and the prosecution accepted that plea offer some six months later in November of last year.  I am prepared to accept and take into account on Charges 1 and 3 that you indicated your willingness to plead guilty at the earliest stage and on Charge 2 that you indicated that willingness at a mid-point in relation to the sequence of time.  At the time you showed your willingness to plead guilty to these charges they were of significant utilitarian benefit because the court was experiencing such problems getting trials listed and finalised as a result of the COVID-19 pandemic.  Your plea saved the court and the witnesses the inconvenience and stress of coming to the County Court to give evidence and I also take into account that utilitarian effect.  I am also prepared to infer that they are reflective of some remorse and insight, and I take that into account on your counsel's submissions but also as I have observed what you have told others.  It seems that even though you might still want to point fingers elsewhere, that you understand that you did the wrong thing.

14I have the benefit in this matter not only of submissions but also of a psychological assessment and report from Jeffrey Cummins.  He told me about your history, your circumstances, including the fact that you have a partner and children, the children are medicated, and it has not been an easy exercise for the two of you to parent all of your children and you are hoping at some stage that you can put some of the turbulence of your life behind you so that you can be a good example to them and so that they can have some continuity of care from both parents, which is what we hope for, of course, for children at a young age.

15I was told about your educational history and the fact that you attended schooling until expulsion from one school mid-way through Year 8 and then you left school at 14 and nine months to work.  It looks like you might have had some ADHD which interfered with your ability to concentrate in schooling and led to you taking medication at a young age for that condition.

16I was told that while you started working in erecting sheds, you have not really worked for the last 10 years or so for a number of reasons, including that you experience rheumatoid arthritis, particularly in your hands, which makes the physical labour that you had previously done very difficult, and you also experience anxiety, which is a matter that I will turn back to in a moment.  In that chronology, Mr Cummins told me that you had a traumatic injury as a result of being what you called run over by a motor vehicle when you were around six or seven and as a result of being diagnosed with anxiety, a few years after that while you were still in high school you started taking medication, including Valium and Lyrica, and you have had issues with consuming medication ever since.  In fact, as part of your need in your view to medicate your arthritis and your anxiety, unfortunately about 10 years ago you started using methylamphetamine and that has been very difficult for you to cease using.  In fact, you mentioned to Mr Cummins and to your counsel that you were using methamphetamine at the point of commission of these offences.

17It is to your credit that you sought a variation of your bail - and cautiously I give this significant weight in the sentencing exercise - some months ago by varying your bail to oblige you to abstain from the use of illicit substances, including methamphetamine which is still a problem, and in the past GHB.  This starts giving me some cautious comfort that notwithstanding your history, which I need to deal with as well, that you might be at least a fair prospect for rehabilitation, more so if you can continue to keep an eye on your drug consumption.

18Mr Cummins understandably diagnoses you as experiencing mental health issues, in particular he says generalised anxiety disorder.  He recommends, and this is a recommendation that I support, that you would benefit from psychological assessment and support as part of any eventual order that I make.

19I have seen your criminal history.  It is not for the fainthearted.  It goes back to the first appearance in 2001 in the Magistrates' Court.  There are approximately 15 court appearances, that is why I say it is not for the fainthearted.  It is not the first time you have come before the court on an assault.  Your earliest is in 2008 which led to a fine.  Then there was a recklessly cause injury in 2010 that led to an intensive corrections order, and in 2012 another unlawful assault.  Then in 2016 I see for the first time references to breaches of intervention orders and you breached and you breached and you breached.  You scaled through community corrections orders and back a number of times, which did provide you with some support in the past in relation to your mental health issues and your drug issues.  You could not stay out of trouble in relation to those intervention orders and they eventually led to you being gaoled more than once.

20That gives me some pause in relation to assessing your moral culpability which I promised that I would, because I can see that through line in relation to some personality factors in that where you feel as if something is perhaps owed to you, as you say that it was on this occasion, then you are prepared to do what it takes to act out on that selfish need, even if it breaches a court order as it did in relation to the intervention orders, and to community correction orders, even if it means violating someone's home as it did on this occasion.  So your moral culpability appears to have been distorted by your need to get back the money, and the fact that you were using drugs at the time, but I am concerned about the fact that it is not completely out of your character to do something selfish that is also illegal and also tends to give a bit of a 'stuff you' to the person that you feel has wronged you, irrespective of the steps that have been put in place to try to minimise that risk.

21That all gave me some concerns but it is not all negative, and this is why with some reservations then I started going back to what Mr Habib had submitted was appropriate to be imposed by way of sentence in this case.  More recently, he has been able to come to court armed with reports that cast you in a different light, such as the report that he has reminded me about this morning, your referral to Bendigo Community Health Services for drug and alcohol counselling; an order of the Magistrates' Court that shows that all unfinished business is out of the way and you are already subject to a community correction order that as yet I understand has been the subject of full compliance, and again he reminds me of the order that you entered into which indicates that you are starting to put drugs behind you and that you are willing to enter into orders that restrict you from taking drugs, such as the variation to the bail order.

22I am coming to an end.  I need to do a difficult balance.  I feel very sympathetic to the victims and the situation that they faced.  I need to deter others generally from the same sort of behaviour.  I need to punish you, I need to denounce your behaviour, not only using my language but also drawing on the time you spent in custody. In other similar circumstances, if the two years had not passed, and I am now in a better position to see where you have come from and where you are going, a sentence of imprisonment on the second charge would have been appropriate.

23I also need to impose a sentence that imposes a measure of specific deterrence, which is to deter you from other offending, but the law also requires me to take into account not only your prospects for rehabilitation but also impose a sentence that supports you on that journey.  Having regard to all of the submissions that have been made and the multiple hearings that have come back before me, the progress that you have made, noting the principles of sentencing that relate to some of the features of your case, delay, the totality principle through the circumstances in which the offending occurred, happily for the victims - not too happily - a short period of time and parsimony, which is whether I need to send you to gaol when there might be another option.

24With some caution, I am prepared to place you on a community correction order.  You have been assessed carefully by the Office of Corrections and with some reservation, particularly having regard to your risk of return to offending, they have assessed you as suitable for another order.  You have indicated your willingness to enter into the terms of that order.  Having regard to your gaol time served on Charge 2 and also the difficulties that you experience with work as a result of your physical condition, I am going to impose the following conditions which are over 18 months that:

(1) you be under the supervision of a community corrections order for the duration;

(2) that you submit to assessment and treatment, including testing for drug abuse and dependency;

(3) you submit to mental health assessment and treatment;

(4) that you attend programs or courses aimed at addressing factors relating to your offending behaviour.

25That is a single order on all three charges but I also intend to consume the four days of custody in relation to your second charge.  But it is up to you,
Mr Brennan.  Are you willing to enter into an 18-month order on those terms or not?

26OFFENDER:  Yes, Your Honour.

27HER HONOUR:  All right. 

28I will indicate that had the matter proceeded to trial but resulted in a guilty verdict on all three charges, as best I can in my evaluation I would have sentenced you to 12 months' imprisonment. 

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