Director of Public Prosecutions v Brennan

[2020] VCC 232

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

AT GEELONG
CRIMINAL JURISDICTION

CR 19-01665

DIRECTOR OF PUBLIC PROSECUTIONS

v

LACHLAN BRENNAN

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Geelong
DATE OF HEARING:	29 October 2019
DATE OF SENTENCE:	10 March 2020
CASE MAY BE CITED AS:	DPP v Brennan
MEDIUM NEUTRAL CITATION:	[2020] VCC 232

REASONS FOR SENTENCE
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Subject:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. Brown	Office of Public Prosecution
For the Accused	Mr J. Barrera	Stary Norton Halphen

HIS HONOUR:

1Lachlan Brennan, you have pleaded guilty to a charge of armed robbery.  On 21 April 2019 you threatened the victim with a hammer, taking cash, his phone and backpack with his computer in it.  The victim was a Belgian backpacker who was parked in a campervan at the Leisure Link Recreation Centre in Waurn Ponds.  In addition, you threatened the victim, saying you had a gun.  When he followed you, you said you would shoot him.

2The victim was able to see where you went on your escape after the armed robbery.  He was assisted by members of the public who pointed out the house where you had gone.  Police were called and you were arrested at that home where you were staying or living with your then girlfriend and her mother.  You admitted your criminal conduct to the police when interviewed.  Fortunately the victim had all his valuable property returned to him.  The victim has travelled on in Australia and back to Europe, as I understand it.  Nonetheless his ordeal was frightening and likely to have left a mark on him.

3After your arrest you were held on remand for 33 days before being bailed.  This time was an eye opener for you.  Before moving on to what you have done to reform, I need to set out what were your circumstances leading up to the crime.  You had not long turned 19 when you committed this armed robbery.  You were born and raised in the surf coast area.  You went to school there until your parents separated when you were about 13.  You lived first with your father but your schooling fell away.  You moved to live with your mother and went to school in Melbourne.  However, you fell out with your mother, ceased contact with her from that age, about 16, until you were on remand.  Things have significantly improved in that regard.

4Your schooling and your general motivation at the time fell away as you increased your drug use, moving from cannabis, prescription drugs and then methylamphetamines.  After leaving school and your mother's house at the age of 16 you were from time to time homeless and most often couch surfing with friends.  At the time of the armed robbery you were living with your then girlfriend.  You were, it seems, without any direction.  The relationship did not last, that is with your girlfriend, did not last after you were remanded in custody.  Your relationship with your parents had been significantly strained.  You were at the time aimless, idle, using drugs at every opportunity and without connections to any solid foundations such as parents or adults.

5What has occurred since you were placed on bail and since I adjourned your plea has been a very significant period of solid rehabilitation.  You are now well along the path of recovering from drug addiction.  At the time of your plea,
29 October 2019, you were on the wait list for a youth residential rehabilitation program called Birribi.  You moved in on 16 December and have been there ever since.  You have about a month or so to go of that program.

6A letter from Ms Stevens, your support worker, is very encouraging.  You have enthusiastically taken to the program, impressing staff with your commitment and growing insight.  You have moved to roles with greater responsibility within the program.  Your rehabilitation from drug addiction is to your credit.  It gives me confidence that you can permanently reform.  You have also taken up treatment for mental health problems.  Again, they are very positive signs.  A letter from the Austin Health describes your engagement.

7Your relationship with your family has now improved.  Your father's letter indicates that he sees you now with a spark that he has not seen for years.  You have well thought out strategies to avoid drugs and drug users.  Relapse in the community is always a risk but in your case you have done much to ensure that you get through when you get back into the community.  You are, in your father's words, looking to become a positive contributor to our community.  This should be encouraged.  In your case significant weight must be given to your reform and reclaiming you as a law abiding citizen.  That is very much the case because you are a young man, 19 at the time, and just 20 now.  The law has always been that all that can be done should be done to rehabilitate young offenders, especially those like you who have little to no prior criminal history and have made committed steps to put drugs and crime behind you.

8In sentencing you I must recognise the seriousness of your crime, the fear you created, the effect of your crimes on the community, this being a daylight armed robbery in a popular swimming pool car park, but also I must not allow the seriousness to overwhelm all else, given the many matters that there now are in mitigation.  Thus the weight usually given to denunciation and general deterrence is significantly moderated given your age and your progress thus far.  An important consideration in whether you are to be afforded a second chance is your remorse and your ongoing commitment to reform.  The community can better accept a sentence that promotes rehabilitation for a young person if you are truly contrite and have done all you can to rehabilitate.  That is this case.

9I have taken into account the report of the psychologist, Mr Gault, and all matters carefully put on your behalf by your counsel, Mr Barrera.  I have taken into account your successful CISP bail program, as is now authorised.  I also take into account that you have spent three months thus far with a further month or so to go of restricted drug rehabilitation.  You have been under supervision and there have been impositions on your freedom now for three months, a fourth to come and also 33 days on remand.  Those 33 days on remand, as I said, operated as a significant deterrent to you.

10The Court of Appeal in the important case of Boulton and others made clear that when the sort of circumstances that we have here come together then a community corrections order is a just and appropriate sentence even for serious offending.  That ordinarily attracts significant gaol terms.  The Community Corrections long report that I received is positive.  The Youth Justice Centre report that I secured was also positive but urges that you be placed on a community corrections order because of the steps you have taken. The sense was that a Youth Justice Centre period of detention would possibly be a step backwards in terms of your report.  They were considered opinions and I accept them.

11I am persuaded to a community corrections order sentence but do not believe it is necessary or in the community's interest to require you to do more gaol in combination with the community corrections order.  I make it clear that this is an unusual sentence due to the compelling matters that establish your rehabilitation.  Without those matters a sentence of Youth Justice Centre or even imprisonment would have been the appropriate sentence.

12Let there be no doubt, Mr Brennan, that if you return to old ways now that the pressure of the court case is over, you will most certainly be incarcerated.  The community corrections order will be onerous and justifiably so.  It is to punish you for the serious crime, which carries a maximum term of 25 years' imprisonment, but it also will allow you to continue your rehabilitation.  Thus the penalty I impose for committing the crime of armed robbery is to sentence you to imprisonment one month but that is tailored because you have done 33 days and there is no point in sending you back to gaol now.

13In addition to that sentence I impose a two year community corrections order with conviction.  I require you to do some unpaid community work.  Just when you get that done will have to be negotiated with the in-house drug rehabilitation facility that you are in and the Office of Corrections but I am sure it can be managed.  You will have to 100 hours of unpaid community work.  In addition, you will have to undergo treatment and an assessment for drug rehabilitation, together with treatment and assessment for mental health difficulties.  All the hours that you spend involved in drug rehabilitation and attending for mental health programs can be calculated as hours going to reduce your unpaid work requirements.  In addition, you will need to be under the supervision of the Office of Corrections for two years.

14That is a lengthy period of time but it is required in this case just to ensure that you are well settled in the community.  As I say, you will have to negotiate deferral of Community Corrections requirements until you are able to fully engage upon your coming out of the particular rehabilitation facility you are in at the moment.

15Had you pleaded not guilty to these offences and been found guilty of them, I would have imposed a two year Youth Justice Centre sentence.

16Is there anything else required?

17COUNSEL:  No, Your Honour.

18HIS HONOUR:  All right.  So it is clear, you have done 33 days in custody.  That period of time having been reckoned, I will declare that it is part of the sentence that I have already imposed.  Indeed, it is more than the sentence of imprisonment that I have just imposed.  I will ensure that this declaration is entered into the records of the court so the prison authorities are left in no doubt you have already done the month of imprisonment that I have imposed.

19There are no further orders.  Then I will produce a community corrections order document and Mr Brennan can come out of the dock and sign that here with his lawyers.  Yes, come up here behind your barrister.  Take a seat.

20All right, so, Mr Brennan, I will read through all the conditions that attach to a community corrections order.  At the moment Mr Barrera, is says that he is to report to the Geelong Community Corrections Centre within two clear working days.  Is that appropriate?

21MR BARRERA:  Sorry, Your Honour.  If it could be changed to Heidelberg, Your Honour.  That's closer to where Eltham is.

22HIS HONOUR:  It is.  Well, Eltham is a long way from Geelong to just go and, say, report.  Will they - they will look after it.  We will have to produce another document because it is - so Heidelberg; is that right?

23MR BARRERA:  Heidelberg is where the - the closest one to the facility at Eltham.

24HIS HONOUR:  Yes, all right.  If there is a Corrections Centre in Heidelberg we do not want to stretch the resources of the drug rehabilitation facility.

25MR BARRERA:  Yes, Your Honour.  Sorry, Your Honour, I should have mentioned that earlier.

26HIS HONOUR:  Thank you.  All right.  Until that - that will have to be produced but the mandatory conditions that apply to all community corrections orders are that you must not commit an offence for which you can be imprisoned during the time that the order is in force.  Well, that is critical.  Do not commit any offence at all.  You must comply with the obligations upon you that are set by Office of Corrections that arise from sentencing regulations, as I understand it.  They will need to take photographs of you to be able to identify you.  Just comply with all that.  You must report to, and receive, visits from the Office of Corrections.  You must let the Community Corrections officers know within two clear working days if you change your address or job.  You must not leave Victoria without getting permission to do so and you must obey all lawful instructions and directions from the Office of Corrections.  You must report to the Community Corrections Centre.  That is at Heidelberg.  The address is here.  You have got to do that within two clear working days.  So get there tomorrow and sort this out and explain everything about how you are going to start your community work, when you are going to do that, what you are doing.  They will dovetail it in with what you are doing with your mental health and various other things.  Do you understand?

27OFFENDER:  Yeah.

28HIS HONOUR:  So the conditions that apply to you other than the ones that apply to everyone, these are the ones that apply to you.  You've got to do 100 hours of community work over the two years as directed.  All the hours of treatment and rehabilitation that you satisfactorily undertake, they will be counted as unpaid hours.  You must be under the supervision of the Community Corrections.  That is for the whole time.  So they will look after - they will keep in touch with you even after you have probably finished the 100 hours.  You will come back to Geelong and it has been transferred just to make sure that you understand there someone still concerned about you doing the right thing, and it goes for two years so you will be well part - you will be 23 now by the time it comes on, a bit under.

29You must undergo assessment and treatment for drug abuse and dependency and you must undergo any mental health assessments that you are required to do.  Do you understand?  If you sign that it will bring the matter to an end.  Thank you.  Right, that is signed.  You will get a copy of that.  You are free to go.  Thank you very much, Mr Barrera, for your considerable assistance with this matter.

30MR BARRERA:  Thank you, Your Honour.

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