Director of Public Prosecutions v Bresnehan

[2019] VCC 555

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-02219

DIRECTOR OF PUBLIC PROSECUTIONS

v

ASHTON BRESNEHAN

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JUDGE:	HER HONOUR JUDGE GWYNN
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	24 April 2019
CASE MAY BE CITED AS:	DPP v Bresnehan
MEDIUM NEUTRAL CITATION:	[2019] VCC 555

REASONS FOR SENTENCE
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Subject:  Armed robbery
Catchwords:  Social disadvantage; intellectual disability
Legislation Cited:            Sentencing Act 1991, Disability Act 2006

Cases Cited:Bugmy v The Queen [2018] HCA 37, Marrah v The Queen [2014] VSCA 119

Sentence:15 months imprisonment and an 19 months Community Corrections Order with a Justice Plan

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Lew	OPP
For the Accused	Mr S. Kenny	VLA

HER HONOUR: 

1Ashton Bresnehan, you have pleaded guilty on indictment to a single charge of armed robbery committed on 5 September of last year.  That offence carries a maximum penalty of 25 years' imprisonment, which reflects how seriously Parliament regards the offence of armed robbery.  You have also pleaded guilty to a summary offence of committing an indictable offence whilst on bail, that offence being the armed robbery.  Committing an indictable offence whilst on bail carries a maximum penalty of three months' imprisonment.

2The circumstances of your offending were set out for me in a document entitled "Summary of prosecution opening", dated 15 January of this year, and it was an agreed document.  What that tells me is that at the time the offending, you were 24 years of age and you were living with friends at an address in Essex Street in Prahran.  Your co-accused, Allan Matemberere, was also residing at that address and you were friends.

3Mark Eden is the complainant and he was a 57-year-old male who resided at a unit at 3/4 Browning Walk in South Yarra.  He and Matemberere knew each other. Unit 3 was leased to a man called Lindsay White, but at the time of the actual offence, he was in Warrnambool.  White does not lock his unit.  He knew both Eden and Matemberere, each of whom had permission to access his unit in his absence.

4Shortly after 1 pm on Wednesday 5 September 2018, you and Matemberere left Essex Street and attended the front door of Unit 3/4 Browning Walk.  At this time, but unbeknownst to you, Eden was inside the unit on his own.  Matemberere called out and said, "Lindsay, are you home?", referring to White.  Eden did not answer and locked the door.  As I have said, White was not present.

5White's unit has an unlockable security door and a wooden door on the front.  The rear wooden door to the unit is always open.  Access to the rear door is over a small balcony. 

6Eden was scared and shaking, and went into the kitchen.  He heard another knock at the door and went into the loungeroom, and laid down on a mattress.  He heard someone at the back door of the apartment and saw Matemberere walk through the back door with you behind him.

7You picked up a wooden walking stick with a brass pig's head and a brass tip end from just outside the back door of White's unit, and walked in closely behind Matemberere.  Matemberere walked into the lounge room and threatened to kill or hurt Eden.  He approached him, and with his right hand in a closed fist, punched Eden on the left side of his face and forced him back onto the mattress. 

8You then hit him on the left side of his head with the brass part of the walking cane, causing a cut which then bled profusely.  Eden moved to the bedroom and was curled up in a foetal position on the mattress whilst you continued to hit him with the walking stick on his back.  By this stage, he was pleading, saying, "Don't hurt me, don't hurt me."  He managed to get up and sat on a chair in the bedroom area beside the bathroom door.

9You again hit Eden on the left side of his head with a walking cane and his left wrist, causing a pre-existing wound to split open.  Eden then crawled into the bathroom and attempted to lock himself in there, but you and Matemberere followed him in.  At some point during this incident, Eden was asked to remove rings that he was wearing and his watch.

10You asked Eden if he had keys to his room, and Eden replied that he was not sure because he could not see due to the blood running into his eyes from his head.  You wrapped a blue and white towel around his head.  Eden was made to open the front wooden door onto the balcony, and he then called out for help.  He saw the opportunity to get away, and slammed the front security door between him and you and Matemberere.  He then made his way to the offices of Housing Victoria in Malvern Road, South Yarra, and police were called.

11He was taken by ambulance to hospital and suffered lacerations, or cuts, to his head, back and arms.  He was admitted overnight for observation.  As part of his treatment, he received a staple in the open wound to his head.  You are not charged with the injury, but as I understand it, it forms part and parcel of the factual basis for the armed robbery charge.

12You and Matemberere left the vicinity of 4 Browning Walk and took the rings and watch that Eden had removed with you. 
As I understand it, the charge of armed robbery encompasses the theft of Eden's rings and watch whilst you were in possession of the walking cane, as outlined in the summary.  Whilst not outlined in the summary, apparently you were on bail at the time of the armed robbery.  That fact is the subject of the summary charge.

13Police subsequently attended at the address at which you were residing in Essex Street, South Yarra, and arrested both you and Matemberere.  You were found to have the complainant's rings on your fingers and the watch on your wrist.

14You were interviewed by police on 5 September where you did make certain admissions, but the contents of your interview were excluded from the Crown's opening by agreement.  Your preparedness to be involved in this offending is somewhat unexplained.  You were effectively homeless at the time and were using drugs heavily, having been released from custody some weeks earlier.  You had no personal dispute with Eden, and it would appear, picked up the weapon spontaneously upon entry

15Other factors which probably weigh into the equation are your extremely deprived upbringing and the fact that you suffer from a mild intellectual disability, as I will later outline.  I am of the view, based on the reports that
I have read and to which I will later refer, that your intellectual disability reduces your moral culpability for what would otherwise be accurately described as a serious offence.

16A filing hearing was held in this matter on 6 September 2018 at the Melbourne Magistrates' Court with committal mention listed on 29 October 2018.  Prior to that date, negotiations occurred between the parties and you entered a plea of guilty to the charges presently before me. 

17In my view, and it is agreed, your plea should be treated as a plea of guilty at the earliest opportunity.  I am satisfied that your plea of guilty has utilitarian value, and has spared the court time and expense of contested proceedings.  It has also saved the witnesses the trauma of having to relive the events through the court processes.

18I understand your victim declined to make a victim impact statement, but undoubtedly, these events have had impact upon him.  I accept that through your plea, you take responsibility for your offending.

19I also take into account, as I am obliged to do, matters personal to you. 
You are presently still 24 years of age and are a man of Aboriginal heritage. 
You live most of your life in Tasmania.  I am told your mother comes from South Australia and has both Aboriginal and Maori heritage.  Your father is of Aboriginal heritage.

20In your formative years, your household was one in which domestic violence and drug and alcohol use by each of your parents was rife.  You entered state care at the age of approximately 15 months.  Your education and any employment history is extremely limited.  You presently have no direct contact with your parents, and you have been a long-term abuser of both alcohol and drugs.  You travelled from Tasmania to Victoria in 2017 with the hope of locating your father, who you believed was in the prison system.

21In the materials tendered before me, there is little doubt that you suffered what is accurately described as a deprived upbringing.  The precise circumstances are set out in the documents tendered, and I do not intend to repeat them in detail other than the cursory summary I have given them.

22I am satisfied that the decisions of Bugmy v The Queen [2018] HCA 37 and Marrah [2014] VSCA 119 are relevant. In Bugmy, the High Court recognised that the impacts of social disadvantage during an offender's formative years do not diminish over time.  Indeed, the majority said, and I quote:

"The experience of growing up in an environment surrounded by alcohol abuse and violence may leave its mark on a person throughout life.  Among other things, a background of that kind may compromise the person's capacity to mature and to learn from experience.  It is a feature of the person's makeup and remains relevant to the determination of the appropriate sentence, notwithstanding that the person has a long history of offending."

23In Marrah, the Court of Appeal of Victoria noted the causal connection between disadvantage and subsequent criminal behaviour.  Again, I quote:

"The common experience of the law is that frequently, such disadvantage precedes the commission of crime and often explains and contributes to an offender's criminal behaviour.  The frequency with which criminal conduct can be explained by such disadvantage does not relieve each sentencing judge of the obligation to take such matters into account.  Though they do not provide an excuse for offending behaviour, they must be given due weight in the sentencing calculus.  That is not to say an offender's social disadvantage has the same mitigatory relevance for all purposes of punishment.  It may so explain the offender's conduct that the offender's moral culpability may be substantially reduced, yet it will increase the importance of protecting the community from the offender. 
It will not diminish the need for the sentence to vindicate the dignity of a victim and reflect the community's disapproval of the offending."

24The relevance of those decisions has relevance to the sentence in your case, but should not be seen in isolation from other relevant factors.

25By way of aside, to some degree, Matemberere pleaded guilty to charges of intentionally cause injury and theft as a result of the events of 5 September 2018.  He was convicted and sentenced to 140 days' imprisonment for the charge of intentionally cause injury and was placed on a community corrections order for a period of 12 months on the charge of theft.

26There are significant differences in the charges faced by you and significant differences in terms of matters personal to you such that I am of the view that parity has no role to play.  One of those differences includes the fact that you do face the single charge of armed robbery which, as I have outlined, carries a maximum of 25 years' imprisonment.  There are also significant differences in terms of your relevant criminal histories, as well as your level of intellectual functioning.

27In terms of your prior criminal history, you have admitted a criminal history which commences in 2009 and ceases with your current remand.  There are
14 appearances from your time in Tasmania which include offences of dishonesty as well as relevant offences, including an aggravated armed robbery, an attempted armed robbery and three armed robberies.  You have previously been sentenced to terms of imprisonment.

28On moving to Victoria in 2017, your criminal history in this state commenced and you have an appearance at Heidelberg Magistrates' Court on 12 October 2017 in relation to offences of dishonesty and bail breaches, at which time it would appear you were convicted and sentenced to four months' imprisonment.

29You are not to be punished for that criminal history again, but it is relevant to considerations of specific deterrence - that is, putting you off reoffending - community protection, and prospects for rehabilitation.  What is also relevant to those considerations is your recognised intellectual disability. 

30Tendered on your behalf were two very relevant reports and extremely helpful reports - the first from Dr Nina Zimmerman, forensic psychiatrist, dated
26 October 2018.  The second is from Ms Jane Lofthouse, neuropsychologist, dated 4 January 2019.

31Dr Zimmerman's report confirms that you have a history suggestive of significant early trauma, severely disturbed behaviour and emotional development since 18 months of age.  She also confirms the diagnosis of mild intellectual disability.  She diagnoses you with what is called a reactive attachments disorder, which she describes as follows, and I quote:

"A disorder of childhood involving a consistent pattern of inhibited, emotionally withdrawn behaviour towards adults, whereby the child rarely seeks comfort when distressed and rarely responds when comforted.  There is minimal social and emotional responsiveness, limited positive effect and episodes of unexplained irrationality, sadness or fearfulness evident even during non-threatening interaction with adult caregivers.  These behaviours and symptoms emerge in a background of social deprivation in the form of persistent lack of having basic emotional needs met, repeated changes in primary caregivers, or rearing in environments that severely limited opportunities to form selective attachments."

32That opinion contributes to my basis of forming the view that the decisions in both Bugmy and Marrah have relevance.  Dr Zimmerman is also of the view that your cognitive function, independent of your intellectual disability, is likely to be impaired as a result of your perinatal experience of trauma and your exposure to drug use and abuse.  It was her recommendation that you be assessed by a neuropsychologist.

33I have taken the contents of Dr Zimmerman's report in its entirety and note that it is unchallenged.  Also relevant from that report to the sentencing process is her view that a custodial sentence has the potential to impact disproportionately upon you in light of your particular vulnerabilities relating to your intellectual disability.  She is also of the view that to reduce your risk of reoffending requires what she describes as a "sustained, long-term and multi-faceted approach."

34Dr Zimmerman's view that you should be assessed by a neuropsychologist was addressed, and I have taken into account the contents of a neuropsychological assessment conducted by Ms Jane Lofthouse, noting that it is also unchallenged.

35In her opinion, your full intelligence scale is within the extremely low range and fixed at 65.  You present with what she describes as a complex picture in terms of your capacities.  You have a significant impairment to your ability to draw on verbal information.  You also have difficulty maintaining attention and experience, and suffer a memory disorder.  She is of the view that, and I quote:

"Memory impairment, attention fluctuations and slowed mentation are also likely to impinge on Mr Bresnehan's ability to learn new material, even under conditions where he is able to hear information several times."

36Added to this mix, of course, is your deprived upbringing and its impact upon you, as outlined by Dr Zimmerman.  Ms Lofthouse states that:

"Due to the significant nature of Mr Bresnehan's intellectual impairment, he will be unable to benefit from mainstream rehabilitation programs and in particular, if his intellectual deficits are not taken into account."

37Based on the reports provided by Dr Zimmerman and Ms Lofthouse, I am satisfied that there should be a reduction in the weight that should otherwise be given to general deterrence and specific deterrence.  I am also satisfied that your time in custody is more burdensome than an offender that does not present with your particular difficulties, primarily, your intellectual disability - but again, not in isolation.  Having accessed the reports, in my view, your diagnosed conditions also provide causal link to your resort to offending.

38It was Ms Lofthouse's recommendation that you are likely to qualify for support through the Disability Services Act 2006, and it was her recommendation that you be referred for assessment. Accordingly, I ordered that you be assessed as to your suitability for a Justice Plan. There was a particular view that
I required to be advised on - what services would be available under parole and what services would be available under a community corrections order?

39The first relevant document is authored by Lauren Bourke, manager, Disability Support Service, which confirms that you do have an intellectual disability within the meaning of the Disability Act 2006. I have also received two reports authored by Mark Stevenson of the Department of Health and Human Services. You qualify for Disability Services.

40You are likely to be allocated a Disability Justice Coordinator who is able to link you in with appropriate supports.  It is recommended that you engage with a Disability Justice Coordinator and that you agree to any forensic disability supports and treatments that are identified by a Disability Justice Coordinator.
It is further recommended that you engage in counselling as directed to assist you to deal with significant trauma throughout your life.  Those recommendations apply should any Justice Plan be imposed.

41The author indicated that the Department will monitor your participation in the services recommended and will advise if any Justice Plan requires review.  An additional letter, dated 18 April 2019, and also authored by Mark Stevenson confirms that you will be supported by Disability Services whether on parole or a community corrections order.  Of course, it would be hoped that you would be supported by Disability Services at any time you are in the community within Victoria.

42I am told there is potential for you to be referred for supported disability forensic accommodation.  I would be keen to see this take place, as it can only be in yours and the community's interests.  Such placements are based in the community and are supported with trained staff.  I would encourage any referral process that needs to be undertaken to commence.

43It would appear that previous sentences, whilst they may or may not have taken into account that you suffer from an intellectual disability, they do not appear to have catered specifically to your now-identified intellectual disability and do not appear to have engaged services specific to your complex needs.  This is the first opportunity the court has had to do so.

44The basic purposes for which a court may impose a sentence are punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community.  In sentencing you, I must have regard to a range of matters such as the seriousness of the offending, your culpability for it, your personal circumstances, and those of Your victim.

45I am also required to balance the interests that the community has in denouncing criminal conduct with the interests the community also has in seeking to ensure, as far as possible, that offenders are rehabilitated and are reintegrated into society.

46I have also taken into account the relevant sentencing considerations referred to in s.5 of the Sentencing Act where relevant to your case. 

47I do make the ancillary orders, as sought, for disposal and will now turn to sentence.  You still do not have to stand up, Mr Bresnehan.

48Whilst not having obtained instructions on provision of the Justice Plan assessment materials, the clear position of the Crown is that the relevant sentencing considerations can only be properly reflected in the imposition of a head sentence with a minimum term.

49The defence position is that supervision in the community is crucial now that your intellectual disability has been identified and can be catered to with appropriate services.  The defence position is that this can be accommodated, as can the relevant sentencing considerations, by what is described as a combination sentence; that is, the imposition of a gaol term in combination with a community corrections order.

50Courts do have discretion in terms of choosing a sentencing disposition which does enable all the purposes of punishment to be served simultaneously in a coherent and balanced way in preference to the option of imprisonment, which is skewed towards retribution and deterrence, factors which have less weight in the overall sentencing mix for you.

51It has to be acknowledged that the path to rehabilitation may be a difficult one for you, and it seems your ability to access appropriate services now has a role to play.  I accept that protection of the community is important, given the difficulties with which you present.  But again, I am of the view that that can be accommodated with proper intervention.  A community corrections order can be punitive, achieve deterrence, and may be suitable even in cases of relatively serious offences such as those which might previously have attracted a medium term of imprisonment.

52What I propose to do is impose an aggregate sentence, as I am satisfied that the offences are founded on the same facts, or form, or are part of a series of offences of a same or similar nature.  In so doing, I bear in mind the principles of both totality and proportionality, such that they apply.

53In this case, I am satisfied that a combination of 15 months' gaol to be served, to be followed by an 18-month community corrections order, is punitive, can act as a deterrent and can also mark the court's disapproval of your actions.

54The community corrections order should be tailored to your particular circumstances and the cause that contributed to your offending, and is directed at providing you with a chance for supported rehabilitation.  It is important that courts do look to the future as well as the past.

55In terms of the gaol term imposed, I reckon 231 days as served.  In terms of the conditions of the community corrections order, they are to have you supervised by the Office of Corrections, for you to undergo treatment and rehabilitation for drugs and alcohol, and for you to comply with the Justice Plan dated 11 April 2019.

56I would like to see that the recommendations of that Justice Plan form part of the corrections order in that you engage with a Disability Justice Coordinator from the Department of Health and Human Services, that you do agree to any forensic disability supports and treatment that are identified by any Disability Justice Coordinator, and you do attend and engage in counselling as directed.

57I am attracted to the idea of judicial monitoring.  It is just a matter of being able to fix a date, which sounds like it will be in 2020.  We will come back to that in a moment, perhaps. 

58There are standard conditions for a corrections order.  The first of those is that you do not reoffend whilst it is there by an offence punishable by imprisonment.  You need to report to the Office of Corrections within two working days of your release.  Hopefully, there will be someone to assist you with that.  You have to let your Corrections officer know if you move or you get a new job.  You also have to submit for visits, as directed, and obey their instructions.  You cannot leave Victoria without getting their permission.

59In my view, this order presents you with a chance to change your life in a positive fashion, should you choose to take up that opportunity, and the supports that would be made available to you.

60As I have said, it can be breached if you reoffend.  It can be breached if you do not do it.  And then you will come back, and I will have to look at resentencing you for the original offences, plus breaching the order.

61I do direct that Dr Zimmerman's and Ms Lofthouse's report should be made available to Correctional Services in order to properly tailor rehabilitative efforts and reduce any risk of reoffending.

62So anyone who wants to assist me with fixing a date for judicial monitoring?

63MR KENNY:  Your Honour's sentence of imprisonment would, by my reckoning, expire on 5 December.  So if Your Honour was attracted to a three-month ‑ ‑ ‑ 

64HER HONOUR:  February, maybe, 2020.

65COUNSEL:  Yes. 

66HER HONOUR:  Just to make sure that things have happened.

67MR KENNY:  Yes. 

68HER HONOUR:  It is my unfortunate experience that things do not always happen.  In fact, it is my common experience that people assessed as high-risk do not get the interventions in place promptly that would reduce that risk. 
So I am hoping this is not such a case.

69MR KENNY:  Yes. 

70HER HONOUR: Now, that seems to me that that order's inside power taking into account s.44 of the Sentencing Act.  I can impose 12 months in combination if the 12 months are not - sorry, now I have lost my train of thought.

71MR KENNY:  Following the deduction of the pre-sentence detention, yes.

72HER HONOUR:  Yes, the pre-sentence detention.  I am of the view that these orders are inside power.  Does anybody take a different view?

73MR LEW:  No, Your Honour. 

74MR KENNY:  No. 

75HER HONOUR:  Are there any other orders I need to make today?

76MR LEW:  No, there was just the disposal order.

77HER HONOUR:  I indicated I will make the ancillary orders as sought.  Is there anything else?

78MR KENNY:  Not for my part, Your Honour.

79HER HONOUR:  So just while Mr Lew considers what else he needs to tell me, Mr Bresnehan, there is going to be a document that you are going to be asked to sign.  That will be the corrections order.  All right?

80OFFENDER:  Yeah.

81HER HONOUR:  I will let Mr Kenny speak to you about that.  I will dip out for a minute once that is available so that you can have a private discussion.

82OFFENDER:  All right. 

83MR LEW:  Your Honour, my concern is in respect of the aggregate sentence.  Because the provision of the Sentencing Act which deals with aggregate sentences, and I am maybe being overly cautious here ‑ ‑ ‑ 

84HER HONOUR:  No, no.  Please, if - yes.

85MR LEW:  Sub-section 2:

"The term of an aggregate sentence of imprisonment imposed does not exceed the total effective period of imprisonment that could've been imposed in respect of the offences in accordance with this Act, had the court imposed a separate sentence of imprisonment in respect of each of them."

86HER HONOUR:  That is 25 years.

87MR LEW:  That is, Your Honour.  I'm aware that some of my colleagues have interpreted that provision as meaning that the total sentence couldn't be more than the maximum penalty of either of the offences.

88HER HONOUR:  Yes, I do not.  If you want to take the time to see if there is any case law on that, I will give you the opportunity.

89MR LEW:  I'm not ‑ ‑ ‑ 

90HER HONOUR:  I am really happy to do so.  I would rather not make an error.

91MR LEW:  Your Honour, I raise that now and Your Honour, it might be that if there is a - if I receive instructions upon the view, I can let Your Honour's associate know.

92HER HONOUR:  Well, you can make a phone call, too, if you like.  I will be standing down temporarily anyway so Mr Kenny can take Mr Bresnehan through the order, because that will take a bit of time, I imagine.  So I do not mind if you want to take that opportunity to double-check.

93MR LEW:  Yes, Your Honour.  I would be grateful for that opportunity.

94MR KENNY:  Your Honour, my position in relation to that is that without reviewing the authorities, the practice of imposing aggregate sentences that exceed the maximum penalty for the individual offence is routine and ‑ ‑ ‑ 

95HER HONOUR:  I must admit, I am relatively confident I have the power. 
But if Mr Lew wants the opportunity to double-check, I cannot criticise that either, nor would I.

96MR KENNY:  Yes. 

97HER HONOUR:  The overall effect of my sentence is clear.

98MR KENNY:  Yes. 

99HER HONOUR:  If I need to adjust it any way, nothing will effectively change other than I would be imposing two separate sentences in some way, shape or form.  But I will just check the documents that my associate has printed, then
I will disappear and you can make your enquiry, Mr Lew, and you can take your client through this order in language that he can understand.  Unfortunately, when we hand down sentences, we do speak another language.

100MR KENNY:  Yes. 

101HER HONOUR:  So I will do is I will stand down temporarily and my associate needs to adjust the order.  You need to take your client through it and Mr Lew needs to make his enquiries.  I will return when you tell me I can.

102MR KENNY:  Yes, Your Honour. 

103HER HONOUR:  All right?  So I will stand down temporarily.

104(Short adjournment.)

105HER HONOUR:  Thank you.  Have you had the opportunity, Mr Lew?

106MR LEW:  I have, Your Honour.  The Court of Appeal agrees with Your Honour on the point.

107HER HONOUR:  I will take that when I can.  And you have had the opportunity to take your client through the order?

108MR KENNY:  I have, Your Honour, yes.

109HER HONOUR:  So I will get to see Mr Bresnehan on 19 February and see how you are going.  All right?  Just by way of matters that I should have already referred to and did not, clearly, I had Mr Bresnehan assessed as to his suitability for a corrections order.  That assessment was undertaken.  He was assessed as unsuitable.  That does not prohibit me making an order.  I did not find the assessment report to offer me any real guidance.

110In addition to that, in terms of any s.6AAA declaration, but for his plea of guilty, I would have considered a sentence around 26 months with a minimum of 14.  But there is some artificiality in that because there were so many other factors of more significance which I did have to take into account in sentence, particularly his deprived upbringing and the intellectual disability.

111Is there anything else?

112MR KENNY:  No, Your Honour. 

113HER HONOUR:  All right.  Thank you to each of you for your assistance. 
Mr Bresnehan, good luck.  I will see you next year.  Mr White, thank you very much for your attendance as well.  Closing the court until Friday at 10 am.  Thank you. 

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