Director of Public Prosecutions v Brewer
[2023] VCC 302
•24 February 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
General List
Case No. CR-22-01868
Indictment No. N11523629
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| NATHAN SCOTT BREWER |
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JUDGE: | HIS HONOUR JUDGE PARRISH | |
WHERE HELD: | Melbourne | |
DATE OF PLEA HEARING: | 1 February 2023 | |
DATE OF SENTENCE: | 24 February 2023 | |
CASE MAY BE CITED AS: | Director of Public Prosecutions v Brewer | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 302 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Sentence – one charge of attempted aggravated home invasion – one charge of theft of a motor vehicle – pleas of guilty – three uplifted summary matters – two charges of driving a motor vehicle during a period of disqualification – one charge of committing an indictable offence – attempted aggravated home invasion whilst on bail – pleas of guilty.
Legislation Cited: Crimes Act 1958, s74(1), s77B, s321M; Road Safety Act 1986 (Vic), s30(1); Bail Act 1977, s30B; Criminal Procedure Act 2009, s145; Sentencing Act 1991 (Vic)
Cases Cited:Worboyes v R [2021] VSCA 169; Bugmy v R (2013) 249 CLR 571; R v Verdins; R v Buckley; R v Vo (2007) 16 VR 269
Sentence: Total effective sentence of 17 months imprisonment; 219 days of pre-sentence detention reckoned as time already served under this sentence; Community Correction Order for 18 months with various conditions; drivers licence disqualification for 12 months; disposal order; 6AAA declaration – two years 6 months immediate imprisonment.
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APPEARANCES: | Counsel | Solicitors |
For the DPP | Ms M Sevdalis | Solicitor for the Office of Public Prosecutions |
For the Offender | Ms I Skaburskis | Doogue & George Lawyers |
HIS HONOUR:
1Nathan Scott Brewer, on 1 February 2023 you pleaded guilty to the following charges on Indictment No.11523629.
Charge 1 - that you with three unknown co-offenders at Kurunjang in Victoria, on 12 July 2022 attempted to enter as a trespasser a home situated at
Dalray Crescent, and had with you an imitation firearm and knew or was reckless as to whether there was or would be another person present at the home while you and others were present at the home and Mr Azer was then present in the house.The offence of attempted aggravated home invasion is contrary to s77B and s321M of the Crimes Act 1958 and carries a maximum penalty of twenty years’ imprisonment.
Charge 2 - that you, at Kurunjang in Victoria on 12 July 2022, stole a Lexus RX450, registration ZRE 835, belonging to Daniel Wells.
The offence of theft is contrary to s74(1) of the Crimes Act 1958 and carries a maximum penalty of 10 years’ imprisonment.
Section 89(4) of the Sentencing Act 1991 (Vic), states that if a person is convicted of theft of a motor vehicle, the Court must cancel or suspend any driver’s licence held or fix a period of disqualification if no driver’s licence is held. Section 89(5) of the same Act states that, if a period of suspension or disqualification is not specified by the Court on making an order under sub-s(4), the period is three months.
Furthermore, s28(1)(b) of the Road Safety Act 1986 (Vic) affords the Court a broad discretionary power to disqualify or suspend a driver’s licence where the offending is in connection with the driving of a motor vehicle.
2Three summary charges were transferred to this Court pursuant to s145 of the Criminal Procedure Act 2009. On 1 February 2023 you agreed to have these matters heard before the Court and pleaded guilty to these uplifted charges:
Uplifted Charge 5 - that you, at Kurunjang in Victoria on 12 July 2022, did drive a motor vehicle on a highway, namely Dalray Crescent, during a period of disqualification from obtaining an authorisation to drive a motor vehicle.
The offence of driving a motor vehicle during a period of disqualification is contrary to s30(1) of the Road Safety Act 1986 (Vic) and carries a maximum penalty of two years’ imprisonment.
Uplifted Charge 6 - that you, at Kurunjang in Victoria on 12 July 2022, did commit an indictable offence, that is attempted aggravated home invasion whilst on bail.
Such offence is contrary to s30B of the Bail Act 1977 and carries a maximum penalty of three months’ imprisonment.
Uplifted Charge 7 - that you, at Melton South in Victoria on 12 July 2022, did drive a motor vehicle on a highway, namely Station Road, during a period of disqualification from obtaining an authorisation to drive a motor vehicle.
As already stated, the offence of driving a motor vehicle during a period of disqualification is contrary to s30(1) of the Road Safety Act 1986 (Vic) and carries a maximum penalty of two years’ imprisonment.
The Circumstances of the Offending
3Counsel for the prosecution tendered, initially, a document headed, 'Summary of Prosecution Opening', dated 22 December 2022 (Exhibit 1). In particular, I note the following important matters:
·You were born in March 1994 and you are presently 28 years old and, indeed, were 28 years of age when you committed the subject offences.
·The victim of the attempted aggravated home invasion was Mr Azer ('the complainant'). At the time of the offending the complainant was alone at his home at Dalray Crescent, Kurunjang.
·Prior to this offending, you and the complainant were unknown to each other.
·Overnight, between 3 and 4 July 2022, a 2013 Lexus RX450, registration ZRE 835, was stolen from Deer Park. The owner of the vehicle,
Daniel Wells, had parked the vehicle outside his address and the car was stolen with keys located within a secondary vehicle. Overnight, between the 6th and 7 July 2022, Victorian registration plates 1QU 45N were stolen from a Mitsubishi Outlander parked out on a street in Brookfield.·The premises of the complainant is a freestanding home located on the corner of Sirius Way. The driveway attached to the premises is located on Sirius Way, Kurunjang, and leads to a single attached garage. CCTV cameras are attached to the exterior, covering the front of the home and the driveway. Roller shutter blinds are affixed on all windows.
·On Tuesday, 12 July 2022, the complainant had returned home from work at 1 am and went to sleep for the night. The complainant’s bedroom is located at the front of the home, immediately to the right upon entering the front door.
·At approximately 1.37 am the CCTV footage shows an unknown motorcyclist pass the address at a slow speed and the rider appears to take interest in the complainant’s address.
·At approximately 2.47 am you, in company with three unidentified males, attended the complainant’s address. You and the three males arrived in the 2013 Lexus RX450, displaying the stolen Victorian registration plates. IQU 45N. On arrival at the complainant’s premises the vehicle was parked in the driveway and all four males exited the vehicle and attended at the front door of the premises. You are in possession of an imitation
single-barrelled longarm firearm, which you held in your hands, and another male attended in possession of a jemmy bar.·You and the three unidentified males attended the front door, banging on the door in an attempt to gain access, causing the complainant to be awoken by the noise and then attending at the front door. The premises has a wooden front door and a security door which has three locks placed down the door, and both doors were locked. The complainant opened the solid wooden door and asked the males, '[w]ho are you', to which they replied, 'open the door otherwise we are going to kill you'.
·The complainant threatened to call police, to which you and the other males replied, '[g]ive us the money and the drugs', to which the complainant replied he did not have anything and called for help.
·The complainant managed to close the solid wooden door, at which time you and the other males were able to force open the metal screen door and further attempted to open the solid wooden door. Within the solid wooden door there was a glass panel, which was broken, and there were multiple footprints on the front wooden door, where you and the other offenders had kicked the door.
·You and the other males were not able to enter the house due to the strength of the door and the complainant placing his weight behind the door. The complainant was fearful he would be killed if you had gained entry to the house (Charge 1 - attempted aggravated home invasion using an imitation firearm).
·The complainant contacted Triple 0 while you and the co-accused were attempting to gain access to the inside of the house. The complainant was distraught when making such call and there could be heard you and your co-offenders banging on the door in the background.
·After a period of approximately five minutes you and your co-accused entered the vehicle and drove from the area.
·CCTV footage shows you as the driver of the 2000 Lexus RX450 entering the Coles Express service station on High Street, Melton at 7.45 pm on
12 July 2022. You are identified as the driver and had knowledge that the vehicle was stolen (see Crimes Act 1958, s73(14)(a), Charge 2 – theft of motor vehicle).·On 25 November 2020 you pleaded guilty to five driving-related offences at the Sunshine Magistrates’ Court. On each charge your licence was cancelled and you were disqualified from obtaining a licence for a period of 24 months (served concurrently). The Court further ordered that you were not to be re-licensed except by order of a magistrate. At the time of driving the stolen vehicle into the Coles Express service station you were disqualified as a driver (uplifted Charge 5, driving whilst disqualified).
·CCTV footage was further obtained of you being the driver of the
2013 Lexus RX450 entering into the Coles Express service station on the
15th and 16 July 2022 (Charge 7 - driving whilst disqualified).·On 20 July 2022 you were located at your mother’s address and arrested by police. You were then conveyed to the Melton police station, where you underwent a record of interview, but chose to make no comment apart from questions regarding whether police believed that the images in the CCTV footage looked like you.
·You were remanded in custody on 20 July 2022 and have made no application for bail.
·At the time of the offending you were on bail to appear at the
Sunshine Magistrates’ Court on 7 September 2022 in relation to charges of dangerous driving whilst being pursued by police and failing to stop your vehicle on police request, which related to an alleged incident which occurred at Melton on 11 April 2022. Bail was granted by police at the same time on your own undertaking and on the condition that you do not drive a motor vehicle. That matter was listed for mention at the Sunshine Magistrates’ Court on 9 February 2023 (Uplifted Charge 6 - commit indictable offence) (attempted aggravation home invasion) whilst on bail.·At the time of the offending you were subject to a Community Correction Order for charges of attempted burglary, theft, handling stolen goods and two charges of handling stolen goods, five charges of theft of a motor vehicle, reckless conduct endangering serious injury, driving a motor vehicle whilst disqualified, possessing a controlled weapon without excuse and possession of amphetamines.
·At the Broadmeadows Magistrates’ Court on 31 March 2022 you were sentenced to a 12-month Community Correction Order with conditions, including supervision, treatment and rehabilitation and judicial monitoring. Proceedings in relation to breach of this Community Correction Order was also listed for mention at the Sunshine Magistrates’ Court on
9 February 2023.
4Counsel for the prosecution tendered CCTV footage of the attempted aggravated home invasion (Exhibit 3). This footage was played in Court and ran for about five minutes. The footage began with no-one in the vicinity of the door leading into the premises, but shortly after, four people came to the front door and there was clear footage of people kicking the front door, attempting to enter the property. Furthermore, there was clear footage of you carrying the imitation firearm.
5You have been remanded in custody since your arrest on 20 July 2022 and I was informed that at the date of the plea hearing on 1 February 2023, that there were 196 days of pre-sentence detention, not including 1 February 2023.
6The three male co-accused in the attempted aggravated home invasion on
12 July 2022 have not been identified. Counsel for the prosecution also indicated that she seeks a disposal order in respect of clothing seized. Such order is not opposed.7Counsel for the prosecution also confirmed that your plea of guilty was at the earliest opportunity, with the matter resolving at a committal case conference on 12 October 2022.
Your Criminal Record Dated 20 December 2022
8Counsel for the prosecution tendered your criminal record, dated
20 December 2022, together with a certificate under s84(1) of the
Road Safety Act 1986 (Vic) (see Exhibit 2).9Your criminal history commences on 25 November 2015 when you were convicted of offences, including theft of a motor vehicle, two charges of theft from shops, contravening a conduct condition of bail, theft, failing to stop a motor vehicle on request and resisting an emergency worker on duty, and sentenced to an aggregate four months’ imprisonment and were declared to have served 82 days' pre-sentence detention. You were also sentenced to a Community Correction Order for 18 months, with special conditions of assessment and treatment for drug use, offending behaviour and mental health.
10Over the years you have been sentenced to nine community-based dispositions between 2013 to 2022 and have only completed two of those orders and contravened five others.
11You have many convictions for unlicensed driving, several convictions for possessing prohibited weapons without a permit and many convictions for theft of motor vehicles.
12Your last recorded sentence was on 31 March 2022, when, at the Broadmeadows Magistrates’ Court, you were convicted of attempted burglary, theft, handling or receiving stolen goods, theft of a motor vehicle, reckless conduct endangering serious injury, drive while disqualified, possessing a controlled weapon without excuse and possessing amphetamines.
13You were sentenced to an aggregate 161 days' imprisonment. At the time of your sentence you had served 161 days' pre-sentence detention and such was reckoned as a period of imprisonment already served under the sentence. In particular, you were sentenced to a Community Correction Order for 12 months, which was commenced on 31 March 2022. Such order contained conditions for supervision, treatment and rehabilitation involving the treatment and assessment for drug use, mental health and offending behaviour, together with judicial monitoring.
Your Personal Circumstances and Background
14Your counsel tendered the following material:
(a)A document headed, 'Defence Submissions on Plea', dated
30 January 2023 (Exhibit 'A');(b)Character references from your mother, Ms Lisa Wilson, dated
29 January 2023 (who I might add also attended Court on that day), and from Shannon Gordan, dated 29 January 2023 (Exhibit 'B');(c)Report of the neuropsychologist, Dr Loretta Evans, dated 25 January 2023 (Exhibit 'C');
(d)The Contravention Report in relation to the alleged breach of the Community Correction Order made by the Broadmeadows Magistrates’ Court on 31 March 2022. Such contravention proceeding commenced on 28 October 2022 and at that time alleged you had contravened such order without reasonable excuse in relation to failing to undergo treatment and rehabilitation as required on 15 June 2022 and 15 July 2022, and also failing to be supervised, monitored and managed as directed on
14 June 2022 and 11 July 2022.Of course, pleading guilty to the subject offences would also be relevant to contravention proceedings, as such offending occurred during the currency of the Community Correction Order.
15Partly based on some of the documents which were tendered on your behalf, and partly based on various submissions made to me by your counsel, I note the following:
·You were born and raised in the Melton area and was the only child born to your parents, Scott and Lisa. You also had one older maternal half-brother, Corey, now aged 31. Your biological father was schizophrenic and a drug user.
·Your parents separated when you were approximately two years of age and your mother re-partnered with Anthony, and they had a son together, Jordan, now aged 25. You reported to the clinical neuropsychologist,
Dr Evans, that your stepfather was physically violent and physically abusive to all members of the family on a regular basis, particularly towards your mother, who was physically abused and sexually abused, up until such time that Lisa and Anthony separated after 10 years.·Your mother subsequently re-partnered with Robert, and they had a child together, Konnor, now aged 11, and in contrast to your earlier experiences, you described Robert as a, 'good man'.
·When asked to describe your upbringing to the psychologist you reported that you had fortnightly weekend access with your biological father, and described your childhood as, 'real hard', adding, 'mum wasn’t around. I had separation anxiety with mum. I couldn’t concentrate at school'.
·During your early schooling you were expelled from Grade 1 and repeated Grade 2, and were subsequently diagnosed with learning difficulties, dyslexia and attention deficit hyperactivity disorder. You had some support from a teacher’s aide for most of your primary schooling and were admitted to the Austin Hospital for six weeks when you were in Grade 3 for behavioural concerns and counselling.
·You reported that you were expelled from two secondary high schools despite participating in the CAMHS program and ceased your education altogether partway through Year 7, aged 14.
·After leaving school you informed the psychologist that you were, 'always out a lot - with the wrong people. I was always at the neighbours’ house', and you were in trouble with the police, adding that you had been kidnapped on five occasions, with the first such event said to have occurred when you were 14 years old.
·Occupationally, you informed the psychologist that you had been briefly employed as a concreter, fencer, rubbish removalist and mechanic.
·You informed the psychologist that you were given the Disability Support Pension at the age of sixteen, and this was your main source of legitimate income. You had been unemployed for some time prior to your remand.
·At the time of your assessment by the psychologist on 18 January 2023, you described yourself as single, but had two children, a daughter, (now aged 11) and a son (now aged seven), by two different partners.
·Prior to your incarceration you stated you had been residing with your mother, stepfather, younger brother and Tanisha, as your mother had full custody of your daughter.
·You disclosed to the psychologist that, although capable of independently conducting your activities of daily living, you contributed minimally to the running of the household, stating that your mother insisted on completing the chores and managing your financial affairs.
·You informed the psychologist that you had learned to drive without difficulty, but had never formally obtained any driving licence.
·When not working you claimed that you spent your time at home or walking your younger brother and daughter to and from school. When pressed to cite any interests, you stated you enjoyed riding motorbikes or, 'watching the kids play footy'.
·You described your mother, stepfather and the mother of your son (and her now husband) as your major sources of support.
·You informed the psychologist that you were first exposed to alcohol in your early years, but you were, 'never a big drinker', and denied a history of excessive or problematic alcohol consumption.
·You also informed the psychologist that at an estimated age of 20 years you began to use 15 milligrams per day of gamma-hydroxybutyric acid ('GHB') which extended to 25 milligrams every day, 'off and on', until your remand in September 2022. Furthermore, occasional exposure to heroin was reported, but regular use was denied.
·You commenced using cannabis at age 12 and within two years this had allegedly increased to a, 'few grams a day'. You informed the psychologist that this had continued until your remand in prison and, as the psychologist noted, there was, accordingly, regular exposure to cannabis over a
14 year period.·You informed the psychologist that you began to smoke (and occasionally inject) methylamphetamine ('ice') from the age of 14. You estimated that within two years you were smoking 1 gram every day if not incarcerated. In such circumstances it is noted by the psychologist that exposure to ice had been for approximately 14 years.
·Furthermore, when queried about the use of cocaine you informed the psychologist that there had been, '[e]xperimental use', but regular use was denied.
·In relation to past medical history you informed the psychologist that in addition to the diagnoses of dyslexia and attention deficit hyperactivity disorder during childhood, you claimed:
(a) to have jumped from a car at the age of four;
(b) have been struck by a car while riding a motorbike at age 21 and possibly treated at the Royal Melbourne Hospital;
(c) had experienced head trauma, secondary to physical assault, but had, 'never been checked or knocked out', and denied any frank neurological signs or symptoms.
·At the time of assessment you stated that you were presently being prescribed methadone and had been a tobacco smoker prior to your incarceration.
·The psychologist had access to various medical records from various nominated hospitals and noted:
(a) In relation to the records from the Austin Hospital:
ꟷ You were admitted on 12 August 2003, following a referral from
Mr Jeremy Cass for, 'severe behavioural disturbance', in the school and home environment. The behaviour was characterised by frequent violent tantrums, as well as impulsive and aggressive behaviour towards family members, school staff and peers, together with potentially self-harming behaviours and limited capacity for self-calming when anxious.ꟷ You had been under the care of Dr Bob Salo, who had commenced you on Ritalin on 18 June 2003, with some benefit.
ꟷ You were first suspended in Grade 1 for behaviour described as bullying, and in Grade 2 it was reported that you were embarrassed and rejecting of individual learning programs and became, 'increasingly difficult to manage', with episodes of, 'uncontrollable rages', and, 'not able to tolerate any form of limit setting'.
ꟷ It was documented that you struggled to trust anyone or take responsibility for your aggressions and themes of power/control, as well as attachment to your mother dominated the sessions, together with, 'some ideas of persecution'.
ꟷ You were described as having, 'the intellectual capacity to learn if [you] could accept individual learning programs within a mainstream school'.
ꟷ Documentation confirmed that you were diagnosed with oppositional defiance disorder, separation anxiety, attention deficit disorder with hyperactivity and severe expressive and receptive language problems that appeared in the context of, 'long term conflict between separated parents, witness to domestic violence, confusion over family loyalty/boundaries, chronic learning problems leading to difficulty with teachers and peers'.
ꟷ You were discharged on 19 September 2003 from the
Austin Hospital to the care of the Royal Children’s Hospital and Sunshine Child and Adolescent Mental Health Service, and various recommendations, including medication, as well as suggestions to improve social skills.
·You were first seen for psychological evaluation by Mr Bernard Healy on
29 September 2016 and presented with symptoms of an underlying mood disorder. Mr Healy conducted IQ testing, and the combined results produced a full-scale IQ score of 72, which was said to be, by Mr Healy, to represent a low level of intellect that was, 'congenital in origin'. The psychologist was critical of some of Mr Healy’s conclusions and, in particular, his conclusion about you suffering an intellectual disability was, 'fundamentally flawed'.·You were reviewed by Mr Healy in August 2016, that might be wrong, I will check that date, approximately 12 months later, and he recorded that you had not appreciatively changed your presentation. Mr Healy noted, 'In view of [your] low level of intellect, however, [you have] difficulty appreciating the gravity of [your] offending, but in particular [your] vulnerability to use illicit drugs'.
·At the request of your general practitioner, you were referred to Dr Fabian Elzo for counselling to address symptoms of anxiety and depression and at that time was prescribed antidepressant medication, a mood stabiliser, as well as methadone, and attended in February and March 2018. Dr Elzo reported you were not forthcoming with information and was often unable to provide specific details. Dr Elzo described you as being:
'…"relatively attentive", yet, "notably anxious", fidgety, with concentration difficulties; "whose behaviour, speech, cognition (poor short term and long term memory), and perception, were consistent with an intellectual disability, anxiety symptoms, and mild substance intoxication"'.
·During your assessment with the psychologist you stated you could not recall if you had attracted any previous formal mental health diagnoses, but did note that your father had been diagnosed with paranoid schizophrenia.
·The majority of your time in custody has been in a protection unit, apparently as a result of you giving a statement in relation to drug gangland matters.
The References Relied on
16I refer to the reference from your mother, Ms Lisa Wilson, who initially describes in her reference the family structure, and then goes on to describe you as someone who is a:
'… caring, loving son and father”, who has “taken some wrong turns, but also trys (sic) very hard in general life even though sometimes it can be a struggle for him'.
17She notes that you have a good bond with your children and your younger brother, Konnor. In particular, she asserts that you will always have a place to live with her and she will always support you to improve your life.
18She notes that your father chose to place a lot of blame on you for his own downfall as a partner and father, 'often showing it through violence towards [herself] infront (sic) of [you]'.
19I refer to the reference from Shannon Gordan, who describes knowing you for about five years, with him living across the road from your family home. He reports that he also gave you a job in his company, 1300 BINIT, and describes you as a great worker who was, 'very eager to learn, always willing to give anything a try'. Gordan would pick you up in the mornings and ultimately you started going out with Gordan to AFL matches, along with the children most weeks.
20In particular, Gordan states that once you have completed your sentence he would be, 'more than happy to offer [you] employment'.
The Evidence of the Neuropsychologist, Dr Loretta Evans
21Dr Evans conferred with you for three-and-a-half hours without incident, during which time a formal interview was completed, as well as a battery of psychometric measures.
22Dr Evans obtained background information, a variety of medical and psychiatric reports supplied to her, a telephone conversation with your mother and, obviously enough, obtained a medical history and psychiatric and forensic history from you, and made a neurological assessment.
23On the basis of the various histories and her own testing, Dr Evans expressed a variety of opinions and, in particular, the following:
(a)Notwithstanding the various opinions expressed in the past that you have some type of intellectual disability, Dr Evans was of the opinion that the current results of her various testing does not show any permanent global deficits across a variety of cognitive domains, nor the inability for functional adaptation. On this basis, you do not meet the relevant diagnostic criteria to support a diagnosis of intellectual disability;
(b)Dr Evans was of the view that, with consideration to the alleged late development of language learning difficulties from an early age, expressive and respective language difficulties identified in 2003, very low word acquisition and word knowledge, as well as impaired reading and spelling abilities, consistent with longstanding cognitive inefficiencies when required to decode and process written information, thus, in her opinion, literacy deficits reflect an underlying developmental disorder and, in particular, of a diagnosis of a specific learning disorder (with impairment in reading);
(c)Further, Dr Evans was of the opinion that this underlying neurodevelopmental condition is potentially exacerbated by mood symptoms, as well as your history of trauma and Cluster B personality elements, all of which are likely to become more pronounced with acute alcohol/illicit drug intoxication;
(d)The clear discrepancy between verbal and non-verbal memory skills with minimal recall of visually-presented information, was considered to be initially suspicious of trauma to regions of the cortex. However, in the absence of any supporting medical evidence of trauma, or brain imaging results to suggest atrophy, ischaemic changes, or other conditions to these areas, permanent dysfunction and/or the presence of a traumatic brain injury, it was difficult to conclusively determine but, nevertheless, possible;
(e)Dr Evans expressed the opinion that a, 'key contributor to [your] presentation is [your] exposure to violence and trauma, as well as onset of chronic distress from early childhood'. In particular, Dr Evans was of the opinion it was highly likely that you met the criteria for a diagnosis of reactive attachment disorder in childhood. Importantly, she noted that traumatic childhood experiences have the potential to cause a chronic stress response that negatively impacts on the maturation of
limbic-autonomic circuits and interrupts the development of limbic association areas and social behaviours. In particular, she states:“Essentially the "survival" mechanisms of the brain and body become more dominant than the "learning mechanisms" and have enduring neurological effects. These alterations, in turn, provide the neurological framework through which earlier abuse increases the risk of developing post-traumatic stress disorder, depression, anxiety, symptoms of attention-deficit/hyperactivity, borderline personality disorder, dissociative identity disorder, substance abuse, and health problems”;
(f)Dr Evans notes that you have a known history of verbal and physical abuse in the home environment, together with exposure to violence and alleged kidnapping throughout childhood and adolescence. Alterations in arousal are also documented; with hypervigilance, sleep disturbance, attachment issues, fear of the dark, night terrors and dysregulated behaviours beginning in childhood. You also cited poor sleep and, 'always feeling edgy'. Such background factors and concurrent symptoms are likely to contribute to negative emotional states, diminished interest and possibly feelings of detachment from others. Hence on balance, she considers you are likely to meet a diagnosis of post-traumatic stress disorder;
(g)Dr Evans noted that your psychosocial history is documented to include: exposure to traumatic events/abuse, attachment issues, fire lighting in childhood, a diagnosis of oppositional defiance disorder, aggression towards family and peers, onset of illicit drug use and offending behaviours at a young age, coping with well-documented psychological stress and highly dysregulated behaviours. In this regard, Dr Evans considered that your history and presentation is:
“… consistent with maladaptive Cluster B personality characteristics: primarily antisocial (and possibly borderline) traits … Such a maladaptive personality structure is likely to serve to compound underlying post trauma symptoms, as well as behavioural regulation, and has the potential to appreciably influence [your] reactions and functions. Thus, in combination with post-trauma symptoms, such aspects of personality are likely to be key contributors to day-to-day functioning, and negatively influence thought processes and reactions, particularly under circumstances of heightened distress or "perceived"/actual threat”.
(h)Dr Evans opined that alcohol, cannabis and methylamphetamine abuse, beginning at a young age, can either inhibit cortical maturation, thereby limiting actual cognitive potential and produce permanent changes to cortical structures with chronic daily use. In this regard, frontotemporal and subcortical regions of the cortex are primarily affected and impact on speed of information processing, attentional systems and working memory capacity, as well as other aspects of behaviour.
24Dr Evans was also queried about your potential rehabilitation, and she notes that she is of the opinion that you have sufficient awareness and insight, together with adequate bilateral reasoning to indicate you are capable of remorse at a basic level. In particular, she notes that the primary contributing factors associated with re-offending are substance abuse, previous violence and prior detention failure, hence she comments, “without intervention and successful outcomes, [your] rehabilitative prospects would be seriously compromised”.
25In a similar way, when asked about the risk of you re-offending, she states:
“… With consideration to a clear tendency to self-medicate with illicit drugs, together with previous detention failures, as well as scores on the Historical Clinical Risk Management scale, [you] declared a history of poor coping mechanisms and a tendency to relapse into illicit drug use in response to psycho-social stressors or psychological distress. Therefore, unless [you] can demonstrate appreciable benefit and successful completion of targeted programs (that thoroughly addresses behavioural control, potential psychological schemas likely developed in childhood as well as underlying trauma and mood symptoms), and achieve long term drug abstinence, on balance I consider the risk of re-offending is clearly elevated”.
Matters Put by Counsel in Mitigation
26Initially, your counsel noted that you grew up in an environment of family violence, suffered mental illness from a young age, and turned to drugs at the age of 12. Furthermore, you witnessed and experienced physical and emotional abuse by your stepfather against, not only you, but other family members, and sexual abuse against your mother. You have struggled with drug addiction for your whole life.
27It was also noted by your counsel that you have two children who live with you and your mother (that is, their grandmother). On her instructions, you have tried, in recent times, to stop using drugs, find work and create some sense of stability and support for your two children. In this sense, your counsel submits that you are motivated to rehabilitate, but acknowledges that turning your life around will be challenging, as demonstrated in the past, where you have made some progress then fallen back into drug use when under some degree of stress.
28Your counsel also submitted that when on the last Community Correction Order for previous offending you commenced a methadone program and had stopped using drugs for about two months. This has been the only attempt you have made to treat your drug addiction. However, shortly before the subject offending both of your grandmothers passed away within weeks of each other, and this caused you great grief, as you were very close to both of them. Unable to cope with your grief, you stopped taking methadone and resumed using drugs.
29Again, your counsel submitted that at the time of your offending you had been using drugs heavily, including methamphetamine and GBH and, in particular, had not slept for five or six days.
30Again, your counsel noted that you had viewed the CCTV footage of the offending and are aware of the stress and terror that your offending would have caused the complainant and neighbours.
31Your counsel notes that you have failed to complete a number of
Community Correction Orders in the past and, most recently, the
Community Correction Order Breach Report notes a general attitude of compliance until you were breached for further offending. In this sense, you completed the ACSO assessments and sessions, and engaged in six drug treatment sessions at Odyssey House, and also completed four of the five random urine screens in April and May 2022. You failed to attend on
5 July 2022, which was around the time of your offending, and you attended judicial monitoring on two occasions.32According to your counsel, you cite your children as a motivation to rehabilitate and, in this respect, it is noted that the current age of your older child (11 years) is close to the age when you commenced using drugs and experienced a major shift in lifestyle and you do not want your children to follow this path.
33Your counsel also highlights that Dr Evans notes that your prospects of rehabilitation, albeit guarded, would involve you being engaged in treatment in relation to your drug habits.
34In particular, your counsel refers to the following particular matters in mitigation of your offending:
(a)Consistent with the submission of counsel for the prosecution, your plea of guilty was an early plea, in that it demonstrated a desire to facilitate justice, and was of utilitarian value in that it saves the Court the cost and time of a trial, which, of course, would have involved evidence being given by the complainant in relation to the attempted home invasion and being called upon to relive the circumstances of that event, and probably other witnesses in relation to the theft of the motor vehicle.
(b)Such a plea was entered into when the ordinary operation of the Court had been affected by the COVID-19 pandemic, and such plea should attract an, 'actual and palpable amelioration of sentence'.[1] Counsel for the prosecution submits, correctly in my view, that such matters are relevant to mitigation of the sentence;
[1]See Worboyes v R [2021] VSCA 169 at paragraph [35]
(c)It was further submitted that you are remorseful in relation to the attempted home invasion. I accept there has been some remorse by you in respect to that offending which, again, would seem to be part of what is seen to be your recognition that you must overcome your drug habits, and according to both your counsel and counsel for the prosecution, it is accepted that seems to be the major cause of your criminal activity;
(d)Your counsel submitted that the report of Dr Evans permits a correlation between your childhood exposure to violence, drugs and abuse on the one hand, and the interruptions in your personal neural development. In this respect your counsel relies on the principles relied on in Bugmy v R[2] to support her submission that your moral culpability is reduced.
Of course, the High Court in Bugmy,[3] stated:
“[43]... 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 make-up and remains relevant to the determination of the appropriate sentence, notwithstanding that the person has a long history of offending.'
'[44] Because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving, ‘full weight’, to an offender’s deprived background in every sentencing decision. However, this is not to suggest, as the appellant’s submissions were apt to do, that an offender’s deprived background has the same (mitigatory) relevance for all of the purposes of punishment. Giving weight to the conflicting purposes of punishment is what makes the exercise of the discretion so difficult. An offender’s childhood exposure to extreme violence and alcohol abuse may explain the offender’s recourse to violence when frustrated such that the offender’s moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender.”[4]
(Footnote omitted.)
[2](2013) 249 CLR 571
[3]Op cit
[4](Ibid) paragraphs [43]-[44]
35Your counsel submitted that your moral culpability is reduced as a result of your childhood exposure to violence, drugs and abuse and this will impact on your sentence. Counsel for the prosecution submitted that the principles enunciated in Bugmy[5] are not relevant, as the psychologist, Dr Evans, does not identify the relevant issues to the extent of Bugmy[6] and in this sense Bugmy[7] should not be applied. I reject such submission and am of the view that Bugmy[8] has some application which would impact on your moral culpability.
[5]Ibid
[6]Ibid
[7]Ibid
[8]Ibid
36Your counsel further submitted that your prospects of rehabilitation are, “guarded”, but essentially depends on whether you can overcome your drug habits. I accept such submission that, as noted earlier, drugs appear to be the major cause of your criminal activity.
37Although your counsel expressly declared she does not rely on any of the
so-called principles set out in Verdins,[9] she does note that, given your incarceration, it would have been more difficult than normal because ofCOVID-19 restrictions, both as to having contact with family and/or friends and, indeed, access to various courses at the prison. I take that into account.[9](Op cit)
38Your counsel submitted, correctly in my view, that there are aggravating features of your offending: the use of the imitation firearm; the use of a face covering; and the degree of organisation leading up to the offending. Furthermore, your counsel submitted again, correctly in my view, notwithstanding that the offence involved an attempt at home invasion, the circumstances surrounding the attempt were such to terrify the complainant and cause harm, and it was acknowledged this is a serious example of attempted aggravated home invasion.
39Your counsel urged me to infer that you were not the leader of the four men who attempted the home invasion, in part, because seemingly you were the nominated driver of the stolen vehicle and, furthermore, the degree of sophistication and planning of the attempted home invasion most probably went beyond your intellectual capacity.
40Counsel for the prosecution submitted just the opposite, submitting that you were a leader of the group at the time of the home invasion. Ultimately, I do not consider that the evidence can allow me to draw a finding whether it be beyond reasonable doubt that you were the leader of the group, or on the balance of probabilities, that you were just one of the four members who attended.
41Furthermore, your counsel submitted that in relation to theft of the motor vehicle it is not put by the prosecution that you actually stole the motor vehicle but, rather, the charge of theft involves you attending the service station with no other co-offenders at that time, knowing that car had been stolen. Indeed, there is no direct evidence as to who actually stole the vehicle.
42Ultimately, your counsel submitted that although a term of imprisonment was warranted, particularly for the attempted home invasion offence, such a term should be combined with a Community Correction Order. In particular, it was submitted that the theft of the motor vehicle as far as you are concerned, which although demonstrated by your attendance at the service station, does involve, 'some concurrency', as it was the vehicle at the time of the home invasion.
43Ultimately, your counsel submitted a period of imprisonment in combination with a Community Correction Order would be an appropriate disposition. In particular, she submitted that a Community Correction Order appropriately crafted with drug-related conditions would be the best way to lead to your rehabilitation on the basis that you make a genuine attempt to overcome your drug habit. Your counsel conceded that there had been several failures in relation to breaches of Community Correction Orders in the past, although, as already recorded, during the currency of the last Community Correction Order there was seemingly some reasonable compliance with the drug requirements of the order.
The Position of the Prosecution
44As I have already recorded, counsel for the prosecution does not accept that the principles in Bugmy[10] have application, but does accept that there was an early plea and that the principles in Worboyes[11] do apply.
[10]Op cit
[11]Op cit
45Counsel highlights that the breach report in respect of the last Community Correction Order, which was ordered on 31 March 2022, would suggest that your engagement was, 'superficial'. Of course, she also highlights that the last Community Correction Order, ordered on 31 March 2022, had an induction on 4 April 2022, with further offending occurring approximately two weeks later and the subject offending occurring on 12 July 2022, about three-and-a-half months later.
46She also submits on the evidence there is no connection between you and the complainant, and the complainant was no more than a 60-year-old man without any illicit drug involvement. Counsel for the prosecution considered that the objective seriousness of the attempted home invasion was, 'high', and that an immediate custodial order is appropriate, taking account of general and specific deterrence and just punishment.
Community Correction Order
47The Court arranged for you to be assessed for a Community Correction Order, which was undertaken on 6 February 2003. The assessor of the Community Correction Order was a Ms Susannah Borich, and in her report I note she assesses you as being at a high risk of re-offending, according to the level of Service Risk Assessment Tool.
48Ms Borich also noted that you had an extensive history with Community Correction Services and that you had been sentenced to nine community-based dispositions between 2013 to 2022, and contravened five orders.
49During the assessment you were queried by Ms Borich as to what would be different this time if you were afforded the opportunity to again engage in a community-based disposition. You stated that you were aware that your mother is now older and that due to your absence your children were being taken care of by her, and that you wanted to, “step up as a father”.
50Ms Borich assessed you to be suitable for a Community Correction Order with the following conditions: supervision; judicial monitoring; and the treatment and rehabilitation of both drugs and mental health.
Conclusion
51The offence of attempted aggravated home invasion is a serious offence, as is made plain by the maximum penalty of 20 years' imprisonment. As pointed out by your counsel, there were the following aggravating features of your offending: the use of the imitation firearm; and the use of a face covering; and there is a degree of organisation leading up to the offending.
52Furthermore, your counsel submitted, clearly correctly in my view, that notwithstanding the offence involving an attempt at home invasion, the circumstances surrounding the attempt would have terrified the complainant and, accordingly, this was acknowledged as a serious example of an attempted aggravated home invasion.
53You were one of four men, three others have not been identified, and seemingly you were the nominated driver of the stolen vehicle, the subject of the second charge on the Indictment. Although there is no direct evidence that you physically stole the vehicle, you were driving around in the vehicle by yourself, well knowing that the vehicle had been stolen. You have a past criminal history of stealing cars.
54As I have pointed out during the course of these reasons, I do accept that the following matters are relevant to mitigation of your sentence:
(a)Your early plea, which does have utilitarian value and obviated the need for the complainant to give evidence at any trial. Furthermore, given that your plea of guilt was during the COVID-19 pandemic, you also attract a further, “actual and palpable amelioration of sentence”, as a result of the decision of Worboyes;[12]
(b)That you have shown remorse for your offending and, more particularly, as a result of what you said to Ms Borich during the assessment of the Community Correction Order. Ms Borich records that:
'When asked about his serious offending. Mr Brewer showed remorse for the victim. He stated that they should have never been put through and been at the mercy of his actions. Mr Brewer acknowledged that his offences could affect the victim?s [sic] life and cause on-going trauma.';
(c)The application of the principles enunciated in Bugmy which, in my view, reduce your moral culpability for the subject offending for the reasons which I have already recorded;
(d)At the time of your offending you had withdrawn from the methadone program and recommenced drug use. You have stated, and I accept, that you were trying to cope with losing both of your grandmothers within two weeks of each other. You were drug affected when committing the home invasion;
(e)Your period of imprisonment has been and will be, although arguably to a lesser extent, more difficult than normal because of COVID-19 restrictions which do impact on contact with family and/or friends and, indeed, access to various courses in the prison. I take this matter into account also.
[12]Op cit
55Your prior criminal history is extensive and, as pointed out by Ms Borich, you have been sentenced in the past to nine community-based dispositions between 2013 to 2022 and, over that time, have completed two orders and contravened five times. Of course, you have a current Community Correction Order which commenced in March 2022 and your subject offending occurred approximately four months later. Notwithstanding the foregoing, I again state that I accept the submission made by both counsel that the core of your criminal offending is drugs. Furthermore, you have expressed a clear motivation of why you wish to rid yourself of the drugs, not only for the obvious reason to improve your health, but to take care of your children in the future and protect them from the exposure which you experienced when you were young.
56In relation to Charge 2 on the Indictment I accept that the circumstances surrounding you constitute theft of a motor vehicle, but appreciate there is no direct evidence of you actually physically stealing the vehicle at the time of its disappearance. I also note that, in relation to motor vehicle you have never held a licence, notwithstanding the various orders for cancellation and the like. And also, as I have already noted, your criminal history involves a number of car thefts over the years. In sentencing you for the car theft, general deterrence and, more particularly, specific deterrence, that is, to deter you from stealing cars, together with the protection of the community, are prominent sentencing considerations.
57As I have recorded, although your offending is a serious example of attempted home invasion, you have also reasonably strong mitigating circumstances which impact on your sentence.
58In relation to your sentence, I consider that issues of general deterrence and specific deterrence carry less force than normal because of your reduced moral culpability, as does denunciation.
59In relation to the uplifted summary matters, those involve two charges of driving a motor vehicle during a period of disqualification and also one charge of committing the indictable offence of attempted aggravated home invasion while on bail. Given what you told the psychologist, it would appear that you never held a licence to drive a motor vehicle, however, orders were made in the past to disqualify you from driving and you flagrantly ignored such orders. Again, the charge relating to committing an indictable offence, the attempted aggravated home invasion while on bail, must be seen in the context that your bail was granted by police on 11 April 2022 and the offending occurred approximately three months later.
60After careful consideration, I intend to convict and sentence you to a combined sentence involving some imprisonment and a Community Correction Order. I consider that a Community Correction Order is the best, 'vehicle', for you to strive towards your stated goal of overcoming your drug habit in order to look after your children.
61Please be upstanding:
(a)in relation to Charge 1 on the Indictment, you are convicted and sentenced to a period of imprisonment of 12 months. This is the base sentence;
(b)in relation to Charge 2 on the Indictment, you are convicted and sentenced to a period of imprisonment of six months.
Furthermore, pursuant to s89(4) of the Sentencing Act 1991 (Vic), I order that any driver’s licence held by you is cancelled and, further, I fix a period of disqualification of obtaining a driver’s licence for a period of 12 months from this date;
(c)in relation to uplifted Charge 5, you are convicted and sentenced to a period of imprisonment of three months;
(d)in relation to uplifted Charge 6, you are convicted and sentenced to one month’s imprisonment to be served concurrently with the other sentences ordered this day;
(e)in relation to uplifted Charge 7, you are convicted and sentenced to three months’ imprisonment;
(f)the Court directs that three months of the sentence imposed in relation to Charge 2 on the Indictment, one month of the sentence imposed in relation to the uplifted Charge 5, and one month of the sentence in relation to uplifted Charge 7, to be served cumulatively upon each other and the sentence in relation to Charge 1 on the Indictment. The total effective sentence is 17 months’ imprisonment;
(g)further, I declare that you have been in custody in respect of these offences for 219 days and such days to be reckoned as a period of imprisonment already served under this sentence, which is to be deducted administratively;
(h)I also grant the Disposal Order sought by the prosecution in respect of clothing seized;
(i)further, in relation to Charge 1 on the Indictment, you are sentenced to a Community Correction Order for a period of 18 months. You must, within two days of your release from prison, attend the Melton Community Correction Services at 2A Barries Road, Melton, Victoria. In addition to the mandatory terms, there will be the following conditions:
(i)pursuant to 48E of the Sentencing Act 1991 (Vic), you are to be supervised, monitored and managed, as directed by the Secretary for the duration of the Order;
(ii)pursuant to s48DE(3)(a) of the Sentencing Act 1991 (Vic), you are to undergo any assessment and treatment (including testing) for drug use and/or dependency;
(iii)pursuant to s48DE(3)(e) of the Sentencing Act 1991 (Vic), you are to undergo any mental health assessment and treatment that may include psychological, neuropsychological or psychiatric, or treatment in a hospital or residential facility;
(iv)pursuant to s48D(3)(f) of the Sentencing Act 1991 (Vic), you are to undergo any program that addresses factors related to your offending behaviour;
(v)pursuant to s48K of the Sentencing Act 1991 (Vic), you are to undergo judicial monitoring, with the first date of monitoring to be at 9.30 am on Tuesday, 5 March 2024 at the County Court of Victoria;
(j)pursuant to s6AAA of the Sentencing Act 1991 (Vic), I declare that, save for your pleas of guilty in relation to the indictable offences, I would have sentenced you to two-and-a-half years’ imprisonment.
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