Director of Public Prosecutions v Brentnall (a Pseudonym)
[2024] VCC 1448
•18 September 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-23-01367
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ASHTON BRENTNALL (A PSEUDONYM) |
---
JUDGE: | HIS HONOUR JUDGE KELLY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13 August 2024 | |
DATE OF SENTENCE: | 18 September 2024 | |
CASE MAY BE CITED AS: | DPP v Brentnall (A Pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1488 | |
REASONS FOR SENTENCE
---
Subject:CRIMINAL LAW
Catchwords: Attempted burglary — Attempted aggravated carjacking — possession of controlled weapon without lawful excuse — Plea of guilty — Six-month old child asleep in the car — Significant history of abuse and trauma — Bugmy — Verdins — Remorse — Significant drug abuse — Lengthy criminal history — Institutional abuse — Medical health issues — Type 1 Diabetes — Chronic acute pancreatitis — Guarded prospects of rehabilitation.
Legislation Cited: Sentencing Act 1991 (Vic)
Cases Cited:Director of Public Prosecutions v Myers (2014) 44 VR 486; Worboyes v The Queen (2021) 96 MVR 344; Bugmy v The Queen (2013) 169 CLR 571; R v McKee (2003) 138 A Crim R 88; R v Verdins (2007) 6 VR 269; R v Van Boxtel (2005) 11 VR 258.
Sentence: 16 Months Imprisonment followed by Community Correction Order of 12 Months; 100 Hours Unpaid Community Work and Therapeutic Conditions. Licence Disqualified for 24 months.
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms D. Guesdon | Office of Public Prosecutions |
| For the Accused | Mr A. Pyne | Barwon South West Lawyers |
HIS HONOUR:
1Ashton Brentnall,[1] you have pleaded guilty to one charge of Attempted Burglary, and one charge of Attempted Aggravated Carjacking. You have also pleaded guilty to the related summary offence of Possession of a Controlled Weapon without Lawful Excuse.
[1] A pseudonym.
2The maximum penalties are as follows:
· Attempted Burglary: 5 years imprisonment.
· Attempted Aggravated Carjacking: 20 years imprisonment.
· Possession of a Controlled Weapon: 1 year imprisonment and/or a fine of 120 penalty units.
Circumstances of offending
3Your offending was summarised by the Prosecution at your plea.
4On the 22nd of December 2022 at approximately 1:45 pm, you and Ms Indiana Dougharty[2] entered the front yard of a property in Highton and opened two packages left on the front porch.
[2] A pseudonym.
5You walked down the driveway to the rear of the property and into the rear yard. You tried to force the back door using a knife, damaging the rear door handle and leaving a shoe print on the frame (charge 1 – attempted burglary).
6At approximately 1:50 pm the homeowner Martin Lonie returned home and discovered the two opened packages. He saw you and your associate hiding down the side of the house. You tried to flee down the driveway.
7Mr Lonie asked you whether you had been going through his mail. You were holding a knife in your right hand. He took a step back and pulled out his phone to take photos of you.
8You walked towards Mr Lonie, raising the knife. You repeatedly demanded that he give you his car keys (charge 2 – attempted aggravated carjacking).
9Mr Lonie’s 6-month-old daughter was sleeping in the car. He ran out to the street and waved down a postal worker, asking him to call the police, saying of you, “he’s trying to car jack me” and “he’s got a knife”.
10You and Ms Dougharty fled the property. The postal worker followed you on his motorbike. Mr Lonie also followed you whilst on the phone to 000 explaining what had happened.
11You were found by police hiding in the bushes of a nearby property. You became distressed and threatened to harm yourself, holding the knife to your own throat. Officers used their tasers. You threw the knife away in response. You were arrested and taken to Geelong Hospital for observation. Whilst at the hospital you made a number of admissions, including that you had consumed Heroin, Ice and Xanax that morning.
12The knife was found in the bushes. A search of your backpack revealed two other knives in your possession (summary charge 8 – possess controlled weapon).
Victim Impact Statement
13I was provided a Victim Impact Statement prepared by Mr Lonie. He did not want it read aloud. I will therefore not disclose the details of the statement. What he describes, however, is an entirely understandable hypervigilance, anxiety and obsessive concern for his family’s safety in the wake of your invasion of his privacy and your threatening conduct. His daughter was extremely vulnerable at the time and the effect of your offending has been enduring and destructive of his wellbeing and the wellbeing of his family. It will doubtless strike him as odd that I am spending much of these remarks discussing your background and very little of it on the impact your offending has had on him. I do not intend to minimise the effect your offending has had on him and his family, but a just sentence requires an exploration of how you got to this point. It may assist Mr Lonie to know more about your background. It may allay some of his family’s anxiety.
Personal history
14I was provided with a report of Dr Joseph Poznanski[3] and a report of Dr Jan Heath[4] dated which combined set out your personal history.
[3] Psychological Assessment Report of Dr Joseph Poznanski dated 10 October 2019 (‘Poznanski Report’).
[4] Psychological Report of Dr Jan Heath dated 5 March 2021 (‘Heath Report’).
15You were born in 1986, the eldest of three children. You report having three foster brothers to whom you feel close, one of whom tragically passed away in Afghanistan following a road-side bomb blast.
16You experienced sustained, depraved sexual abuse at the hands of your maternal grandfather between the ages of 5 and 7. The effect upon you of this monstrous betrayal is unimaginable.
17You also suffered physical abuse by your father throughout your childhood. You were removed from your parents’ care at age 5 when a nun witnessed your father beating you in the front yard and reported it. DHS became involved and removed you from your family. Records from that time describe you “crying for (your) mummy”. You were described by a foster mother as, “a very anxious unhappy little boy, who was insecure in his relationship with his mother in particular.” You became a ward of the state in 1995 and remained a ward until 2001. You had over forty foster placements during your childhood.
18Your experience of wardship was marked by trauma and abuse. You were sexually abused by a worker at Grovedale Residential Unit at around age 12. You reported suffering further physical abuse at Mercy Residential Unit and later, at the MacKillop Centre Unit. You reported staff failing to intervene when other residents violently assaulted you.
19You struggled at school, displaying aggressive and sexualised behaviour from a young age which led to expulsion or suspension from five schools. You were described by a teacher at St Vincents as articulate and intelligent. You did not finish the year there because you were gaoled for three months.
20You reported commencing work at age 14 at a supermarket for six weeks. You worked fitfully as a fork-lift operator in your early twenties. You had a brief stint as a maintenance man at an amusement park when you were 22 years old.
21You resorted to drugs and alcohol to ‘numb’ your emotions. Your criminal behaviour escalated. Between 1998 and 2000, you abused drugs which led to criminal offending. Your drug use has remained constant throughout your life since then, apart from periods spent in custody.
22You returned to your parents’ care in 2001. Your father resumed his physical abuse of you. You became homeless. You have been incarcerated throughout your teenage and adult life. You have attempted suicide several times.
23You have recently settled a civil claim against the State of Victoria relating to the abuse you suffered as a child. For the first time in your life you now have the capital to buy your own home.
24You have an 8-month-old daughter with a former partner with whom you had a brief relationship in 2022. You have not met your daughter but hope to do so in the future.
Defence submissions
25Mr Pyne adopted and restated the extensive submissions made on your behalf by Ms Myers at your sentence indication. He submitted that a disposition which supports you upon your release from prison meets all the relevant sentencing considerations. He submitted that either a combined sentence or a straight non-custodial disposition would be within range.
Prosecution submissions
26The Prosecution submitted that the seriousness of your offending, your lengthy criminal history, denunciation and general deterrence warrant a head sentence with a non-parole period.
Moral culpability and gravity of offending
27Mr Pyne characterised your offending as at the lowest end of the spectrum for this kind of offending; it was unsophisticated and unplanned, and the contact with your victim was brief.
28The Prosecution conceded that your offending was opportunistic, unsophisticated and unplanned. It was submitted nevertheless that your offending was not at the lowest end because you offended in company, you confronted an unsuspecting victim and you had a weapon.
29The court in Myers identified a suite of factors used to assess the objective gravity of the offence of Aggravated Burglary.[5] Although the court in Myers was concerned with the completed offence, these factors are relevant to my assessment of your attempt.
[5] Director of Public Prosecutions v Myers (2014) 44 VR 486, 498 [43].
30Your offending has several aggravating features, but it was clumsy, amateurish and you did not persist with it. Although you were in company, you were quickly discouraged, and you fled as soon as you were discovered. You admitted your role to police. Your attempted burglary is a low-level example of its type.
31The Attempted Aggravated Carjacking is again a low-level example. The use of a knife elevates its objective gravity, but when your request for the keys was rebuffed, you gave up and ran away. Your companion did not threaten Mr Lonie and she did not assist you in threatening him. It was conceded by the Prosecution that you were unaware of the presence of Mr Lonie’s daughter in the car.
32You were on bail at the time and that aggravates this offending, but it is nonetheless low-level offending.
Guilty plea
33You pleaded guilty at the point a jury was about to be empanelled. This is not an early plea, but it has utility, having saved the court resources and sparing the victim giving evidence. You are entitled to a discount of your sentence considering this utility, as well as the last drops of the Worboyes discount.[6]
[6] Worboyes v The Queen 96 MVR 344, 356-357 [39].
Remorse
34Mr Pyne submitted that you expressed remorse shortly after you were arrested by apologising to Mr Lonie when handcuffed on the lawn. You were forthcoming with police in your interview and demonstrated insight, telling them that you were on a “self-destructive course” at the time of your offending.
Prospects of rehabilitation
35You were first gaoled at age 14 for offences of car theft, unlicensed driving and shop lifting. Since then, you have become institutionalised, reporting to Dr Poznanski that ‘in jail everything is structured. You are locked up for 23 hours a day and that is comfortable’. Dr Poznanski observed that you ‘feel safest in the confines of [your] jail’,[7] and that your experience of imprisonment has provided a ‘sense of safety, emotional and behavioural containment and predictability’.[8] Concerningly, you reported to Dr Poznanski that you think about how to return to prison.[9]
[7] Poznanski Report (n 2) 16.
[8] Ibid 18.
[9] Ibid 8.
36Remarkably, despite your lengthy criminal history, you have not had the benefit of any rehabilitative, community-based programmes. You have been through a revolving door of prison terms punctuated by brief stints on the outside. You have not been provided with the tools to minimise the risk of endangering the community. Mr Pyne submits that this is no longer the case. I am told you now have a good relationship with your parents and your father is becoming more open to accepting his role in damaging you. You are in regular contact with your parents via phone and zoom and they are willing to let you live with them temporarily upon your release from custody.
37You have recently settled a civil suit against the State regarding the abuse you suffered as a child. You are no longer at risk of homelessness as a result. I am told you plan to buy a house upon your release. You have additional support in the community, including your two foster brothers as well as your Aunt and Uncle. Your family friend Julie works in disability support and has been assisting you in applying for the National Disability Assistance Scheme and the Disability Support Pension. You have used your time in custody productively, having remained employed for much of your current remand, working in various jobs including cleaning, delivering meals and collecting laundry.
38Dr Poznanski believes that you have insight and resilience. He believes that with the appropriate therapy, you are likely to learn strategies to effectively manage your trauma-related psychological responses. Your civil settlement allows you to fund the psychological treatment you need.
39You were assessed by Community Correctional Services (‘CCS’) and found suitable for a Community Correction Order. Although you were assessed as a high risk of re-offending, you demonstrated insight and remorse. Counsel at your sentence indication submitted that you have been engaged in and compliant with a methadone program for over 11 months and have been abstinent for that period.
40You have complex and deep-seated psychological and emotional issues that affect your capacity to cope in the community and inhibit your capacity to regulate your conduct. Despite that, you have demonstrated a capacity for self-reflection. You now have a plan to integrate into the community thanks to your improved financial circumstances. Your prospects are guarded but there is cause for guarded optimism.
Bugmy
41Mr Pyne submitted that you are entitled to the full weight of the principles in Bugmy considering your profound childhood disadvantage marred by physical and sexual abuse, displacement, homelessness and exposure to drugs and violence from a young age.[10]
[10] Bugmy v The Queen (2013) 169 CLR 571, 594-5 [40], [43].
42The Prosecution conceded at your sentence indication hearing that the principles in Bugmy should operate to substantially reduce your moral culpability. It was also conceded that the Poznanski report establishes a link between your childhood deprivation and your offending on the basis that you were having to recount your childhood trauma in relation to your civil suit at the time of your offending.
43You have experienced horrendous and protracted abuse throughout your childhood. Your experience of sexual abuse at the hands of your grandfather was compounded by the abject failure of the State to investigate your disclosures and the physical and sexual abuse you then suffered as a young teenager in State care. I note the following passage in Dr Jan Heath’s report:
It is remarkable that the Department did not investigate the disclosure by [Ashton], regardless of the retraction, as [Ashton’s] problematic sexualised behaviour had been consistently reported for two and a half years by the end of 1994.[11]
[11] Heath Report (n 2) 26.
44Dr Poznanski also opined that:
Perhaps had Mr [Brentnall] been effectively protected within the MacKillop Residential Service (under the auspice of DHS, a government agency responsible for provision of a safe and caring living environment to the Wards of the State), he would go through a much earlier recovery from the sexual abuse he had endured from his maternal grandfather.[12]
[12] Poznanski Report (n 1) 15.
45You were exposed to drugs from a young age and that exposure operates to further reduce your moral culpability. The Court of Appeal in R v Mckee said:
The extent to which a decision to experiment with drugs is freely made, in my view, bears upon the moral culpability of the offender who commits a crime as a consequence of addiction to drugs. Age is relevant to the question, as Spigelman C.J acknowledged. I would add that in the case of adults, despair and low self-regard may also play a significant part in the decision to use drugs and that condition may be the result of social or economic disadvantage, poor education or emotional or physical abuse.[13]
[13] R v McKee (2003) 138 A Crim R 88, 92 [13].
46You were first introduced to drugs and alcohol in residential care at aged 12. You were introduced to heroin and ice at aged 14 years. Your perception of custody as a predictable and safe environment is the tragic reductio ad absurdum of a lifetime of neglect and abuse by those who were entrusted to care for you.
47Your moral culpability for this offending is reduced in the general and specific senses discussed in Bugmy. Your offending is a depressingly inevitable consequence of the horrendous predations upon you by an adult entrusted to care for you. You were then passed around like a parcel from foster placement to foster placement and preyed upon again whilst in State care. You were exceedingly vulnerable. What happened to you is unpardonable and we cannot pretend to be surprised to find you on the fringes, unable to cope, acting out and exchanging reality for chemically altered states of consciousness. You are less culpable than the institutions charged with the responsibility of raising you and equipping you for life.
Verdins
48Mr Pyne did not seek to rely on any Verdins principles at your plea.[14] I have factored in your mental health and personal circumstances in a general sense.
[14] R v Verdins (2007) 6 VR 269.
Delay
49You were arrested in relation to this matter on 22 December 2022. Since then, you have served two sentences. I accept that you have had this matter hanging over your head for some time. As I have already noted, you have also used your time in custody productively, having maintained employment while in remand doing jobs such as cleaning, delivering meals and collecting laundry. I accept you are entitled to some limited mitigation for the delay you have suffered.
Medical issues
50You are diagnosed with chronic acute pancreatitis and Type 1 diabetes. You experience frequent pain and severe symptoms and you require constant monitoring in custody. You have recorded blood sugar levels up to 18 which is four to five times higher than normal levels. You have been hospitalised twice during your recent period in custody and you are currently on medication.
51Counsel in written submissions at your sentence indication hearing also noted that you have experienced regular grand mal seizures but have been unable to obtain a diagnosis despite seeing multiple doctors.
52Mr Pyne submitted that your multifarious health issues make imprisonment abnormally burdensome. This burden can be considered in the way discussed in R vVan Boxtel.[15] This submission was not opposed by the Prosecution, and I have taken it into account.
[15] R v Van Boxtel (2005) 11 VR 258, 268 [33].
Sentencing Principles
53Pursuant to s 5 of the Sentencing Act, the purposes for which you are to be sentenced are:
(a) To punish you in a manner and to an extent which is just in all of the circumstances;
(b) To deter you or others from committing similar offences in future;
(c) To facilitate rehabilitation;
(d) To manifest the denunciation of your conduct;
(e) To protect the community; or
(f) A combination of two or more of these purposes.
54Your conduct needs to be denounced and others in the community need to be discouraged from breaking into homes and robbing people of their cars, brandishing bladed weapons. Your case is very unusual given your extensive criminal history does not include instances where you have been trialled on a sentence which keeps you in the community, subject to strict conditions. You are 38. An alternative to gaol alone needs to be found. The community’s best interests are served by fostering your rehabilitation which has taken a back seat until now. You may struggle to comply with a Community Correction Order, but an alternative to prison needs to be tested. I am mindful of the principles of totality and parsimony in dealing with you. Your moral culpability is substantially reduced by operation of Bugmy.
55Charge 2 constitutes a “serious motor vehicle offence” pursuant to s 87P of the Sentencing Act.[16] I am therefore required to cancel any drivers licence you possess and disqualify you from obtaining a drivers licence for no less than 24 months.[17]
[16] S 87P(f)(vii).
[17] S 89(1)(a), (2)(b).
Sentencing
56Mr Brentnall, what I am proposing to do is sentence you to a combination of a period of imprisonment of 16 months followed by a Community Correction Order for a period of 12 months commencing from today.
57Before I ask you to consent to such an order being made, I have to tell you a little bit about the order, so you know what it means.
58The following Core conditions apply to all Community Correction Orders:
·You must not commit, whether in or outside Victoria, during the period of the order, an offence punishable by imprisonment.
·You must report to and receive visits from the Secretary to the Department of Justice, or his or her nominee, during the period of the Order.
· You must report to the Community Correction Centre at Geelong within 2 clear days following your release from custody.
·You must notify the Secretary, or his or her nominee, of any change of address or employment within 2 clear working days after that change.
·You must not leave Victoria except with the permission of the Secretary to the Department of Justice, or his or her nominee.
·You must comply with any direction given by the Secretary that is necessary for the Secretary to give to ensure you comply with the Order.
59There are a number of other conditions attached to this Order, and they apply to you:
· You have to perform 100 hours of unpaid community work over a period of months/years as directed by the Regional Manager. 50 hours of treatment and rehabilitation satisfactorily undertaken are to be counted as hours of unpaid community work for the purposes of the unpaid community work condition.
· You must be under the supervision of a Community Corrections Officer for a period of 12 months.
· You are required to be supervised, monitored and managed as directed by the Secretary, or his or her nominee.
· You must undergo assessment and treatment (including testing) for drug abuse or dependency as directed by the Regional Manager.
· You must undergo assessment and treatment (including testing) for alcohol abuse or dependency as directed by the Regional Manager.
·You must undergo mental health assessment and treatment including (but not limited to) mental health, psychological, neuropsychological and psychiatric treatment in a hospital or residential facility as directed by the Regional Manager.
· You must undergo programs or courses aimed at addressing factors relating to the offending as directed by the Regional Manager.
· You must attend for review of your progress and compliance or otherwise with conditions of the Order and you have got to come back before me on 18 March 2025 at 9.30am.
60I direct that I be advised by your Corrections Officer of any non-compliance of these conditions and I will then determine if the matter should be brought back before me.
61I can only impose a Community Correction order if you agree to such an Order being imposed. So I need to tell you just a little bit more about that.
62I should advise you that if you contravene or breach that order by committing further offences you can be charged and a sentence of imprisonment is one of the options that can be imposed for that breach.
63You can also be re-sentenced for the offences that are before me. One of the options available includes a term of imprisonment.
64So you have got to be extra careful for the next 12 months. No committing any further offences that might incur a term of imprisonment, otherwise you are back before the Court and you will be re-sentenced. So you have to be extra careful.
65I also advise you that if you fail to comply with any direction of the Secretary to the Department of Justice, that is a Community Corrections officer, worker if you like, as part of this order, a substantial fine can be imposed.
66Now you are aware of all of that?
67Do you consent to being put on the order?
Sentence
68Mr Brentnall please stand, I will now proceed to sentence.
69Ashton Brentnall, on charge 1, attempted burglary, you are convicted and sentenced to 12 months gaol.
70On charge 2, attempted aggravated carjacking, you are convicted and sentenced to 16 months gaol to be followed by a Community Correction Order of 12 months.
71Charge 2 is the base sentence. The sentence in charge 1 is to run wholly concurrently with the sentence for charge 2.
72On summary offence 8, possession of a controlled weapon, you are convicted and discharged.
73You have served 16 months pre-sentence detention on these charges, and I declare this period as time served against the sentence I have just imposed.
74Pursuant to s 89(4) of the Sentencing Act, following your conviction on charge 2 I order that your licence be cancelled and you be disqualified from obtaining a new licence for a period of 24 months.
75The Prosecution have sought a forfeiture order for a number of items obtained in relation to the investigation and prosecution of these matters. The application not being opposed, I order that the items listed in the schedule of the order be disposed of in the manner prescribed.
76Pursuant to s 6AAA I declare that but for your pleas of guilty I would have sentenced you to 4 years gaol with a non-parole period of 2.5 years.
0
8
0