Director of Public Prosecutions v Brewer (a pseudonym)

[2020] VCC 1986

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 19-01905

DIRECTOR OF PUBLIC PROSECUTIONS

v

ALVIN BREWER (A PSEUDONYM)

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Melbourne
DATE OF HEARING:	19 October 2020; 17 November  2020
DATE OF SENTENCE:	9 December 2020
CASE MAY BE CITED AS:	DPP v Brewer (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2020] VCC 1986

REASONS FOR SENTENCE

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Subject:

Catchwords:

Legislation Cited:

Cases Cited:

Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr J. Singh	Mr D. Clark
For the Accused	Mr M. Page	Mr M. Brannan

HIS HONOUR:

1Alvin Brewer[1], you have pleaded guilty to one charge of intentionally cause injury, to three charges of threatening to cause serious injury, one charge of persistently contravening a family violence order and one charge of sexual assault.

[1] A pseudonym.

2The victim was your ex-wife.  You had separated and an intervention order was granted on 21 November 2017 and operated for ten years.  Your persistent breaches, and there were many, were from 23 December 2018 to 13 January 2019.  They involved contacting the victim by phone, by text message, by other messaging services and attending at her house.

3On 11 January 2019 you spoke to the victim and threatened to knock the teeth out of her head and her ten year old son and that child's father if they were at the victim's house when you got there.  Though this was only one conversation or threat referring to three people the prosecution charge three separate offences and you have pleaded guilty to each of them.

4They are serious matters but I consider there must be one sentence for them.  You then went to the victim's house letting yourself in while she was out ensuring the child was safe.  On her return you were immediately aggressive towards the victim who told you she was going to call the police.

5You grabbed her, hitting a door into her and then you attacked her, punching her repeatedly in the face and head.  Then for some reason you abruptly stopped.  You left in the victim's car to go and get alcohol.  You returned and remained at the victim's house lying on a mattress until later in the evening listening to music with her.

6You propositioned her for sex but she declined.  You then lifted her nightie, turned her onto her front and rubbed your penis near her anus.  She was not consenting and you did not reasonably believe she was.  You left her and went to sleep elsewhere in the house.

7The next day you went off to work.  The victim contacted the police having spoken to her family.  She contacted the police the following day or days.  You were arrested and charged with more serious offences that are now before the court.

8The victim's injuries were examined and the forensic medical officer noted considerable bruising, abrasions to the face, neck, hands, wrists and arms.  She was hurt.  Your violent conduct on 11 January is another example of entitled cowardly men endeavouring to continue to subordinate an ex-partner notwithstanding that there is a court order to protect the victim from this very sort of conduct.

9The Court of Appeal in this State has time and again emphasised that this scourge of violence by men against women must be met by firm punishment.  The message of deterrence must be unambiguous.  That message is that if you use violence, threats and sexual assault against a woman, in particular in the context of a relationship that is over, you will receive stern punishment, usually involving terms of imprisonment measured in years, not months.

10What you did was shameful.  You knew that and you certainly know now just how wrong and harmful this violent behaviour is.  The community is simply sick of violent cowardly men using their size and dominance to overpower and subordinate women who are simply endeavouring to get on with their lives after ending a relationship.

11Women are entitled to feel safe in their own home – the victim was here.  They are entitled to feel safe protected by the court orders obtained to prevent continuing violence and harassment by phone, text message and the like.

12Thankfully for the victim the injuries were not more serious or lasting, but I infer that as is common it is the psychological impact that is deeper and longer lasting.

13Before mentioning some of your personal circumstances it is important to note that you pleaded guilty once the prosecution charges and case crystallised and lesser offences replaced earlier ones.  The plea of guilty is one of considerable value for the relief it provides to the victim and the general benefit it provides to the now very over-stretched criminal justice system.

14A plea of guilty when jury trials are suspended is of real and considerable mitigatory value.  In practical terms the mitigatory value must be palpable and capable of being discerned by you and others who face charges and need to understand the high stakes involved in pleading not guilty as opposed to the benefits of pleading guilty.

15The time awaiting the resolution of this matter has been served by you on remand which from March 2020 was particularly onerous due to the restrictions imposed in response to the pandemic.  I give mitigatory weight to the fact that gaol has been more difficult and isolating during a pandemic.

16As I will set out in discussing your personal circumstances your time in custody in Victoria at all times has been particularly isolating.  That is because your family, including your four children, reside in New South Wales having previously been in Tasmania.  You have few connections to Victoria thus the absence of contact for the whole time of your remand, the 22 months, has been significant.

17As to your personal circumstances, you are now 33.  You were 31 at the time of this offending.  You grew up in Queensland in a close and loving family.  From school you worked first at McDonald's and as an apprentice roofer, though you did not finish that apprenticeship.

18After a short time as a security guard you took up long haul truck driving which has remained your career since.  To your credit you have a very solid work history.  This provides a solid foundation for your rehabilitation.  You want to get back into the workforce as soon as possible.

19You were in a long term relationship in Queensland.  After that ended you had the responsibility of caring for your four children.  They have been in the direct care of your mother, first in Tasmania and more recently in New South Wales.  You are close to them and very keen to be reunited.

20The responsibility of taking over parenting four young children will operate as a stabilising factor again aiding your rehabilitation.  I just pause to say what is obvious, Mr Brewer, do not let them down again and do not let your mother and father go through this again, stay away from criminal conduct.

21Your interstate truck driving work took you up and down the eastern states.  It was during a period in Victoria that these serious crimes were committed.  The point here is you are and your life is more in other states than Victoria, your children under the care of your mother who are in the Blue Mountains and you intend on release to go directly there and re-establish yourself.

22You have a prior court appearance or conviction in 2016 in Victoria but no other convictions as I understand it in any other place.  The prior matter in Victoria saw the imposition of a community corrections order for offences of family violence which is concerning.  You were subject to the community corrections order at the time which adds to the overall seriousness.

23I have read the impressive testimonials from your siblings, parents and other family friends.  They write of the good qualities they have seen in you, expressing surprise that you acted violently given how they have seen you over the years.

24Your mother in particular writes of your dedication to your children and how your time on remand has been acutely felt by all.  She writes of changes she has discerned in you while you have been in prison, including your remorse at your bad behaviour.

25Your father expressed the same sentiments.  As noted your family is very close and you will have significant support on release to keep you on the rehabilitative pathway.  While in different circumstances supervised release on parole or a community corrections order may well be beneficial, here because you are to move immediately to New South Wales to a stable environment such additional punishment as a community corrections order or even further gaol with the prospect of parole are not appropriate.

26There must always be individualised sentencing.  You have done a significant gaol term in onerous conditions already for the offences and given all your personal circumstances and matters in mitigation it is a significant term of imprisonment notwithstanding the seriousness of the offending.

27I have already made clear the primary importance of denunciation of your family violence and of deterrence, the purpose of deterrence, to other men.  Those purposes could only be met by a term of imprisonment in all the circumstances.

28Taken with the sentencing purpose of your rehabilitation and the array of mitigatory matters that I have mentioned such as your plea of guilty, the hardship of your time in custody, I have come to the conclusion that the time you have served in prison is enough, it is the just and appropriate sentence.

29It is not common to impose a 22 month sentence on a person with very limited prior matters without considering a non-parole period, but it is permitted by the Sentencing Act and it is appropriate for your circumstances when you are moving to New South Wales.

30For committing the crimes that you have pleaded guilty to I impose the following sentences.  For persistent contravention of a family violence intervention order you are sentenced to four months' imprisonment.  For intentionally cause injury you are sentenced to nine months' imprisonment.

31For the threats to cause serious injury, the three charges, you are sentenced with an aggregate sentence of six months and for the crime of sexual assault you are sentenced to imprisonment for 16 months.  I order that one month of the sentence imposed on the persistent contravention of a family violence order, three months of the sentence imposed for intentionally cause injury and two months on the aggregate sentence of threat to cause serious injury all be cumulative upon each other and upon the base sentence of the sexual assault.

32This gives a total sentence of 22 months.  You have been on remand since your arrest in January 2019.  The time that you have been on remand has been calculated and can be reckoned as 697 days.  I declare that those 697 days is part of the sentence I have just imposed and 697 days is in fact
22 months and a few weeks.

33So having declared that the 697 days as part of the sentence of 22 months that I have just imposed I will ensure that this declaration is entered into the records of the court so the prison authorities know that you have done every day of the sentence that I have just imposed and are on my calculations eligible for release.

34It is always a matter for the prison authorities as to the calculations and that will be done.  Had you pleaded not guilty to these offences and been found guilty of them I would have imposed a sentence of four years with a minimum term of three years.  Is there anything further required?

35MR SINGH:  A disposal order, Your Honour.

36HIS HONOUR:  There is a disposal order.  That will be signed.

37MR SINGH:  If Your Honour pleases.

38HIS HONOUR:  Anything else?

39MR PAGE:  If Your Honour pleases.

40HIS HONOUR:  Nothing else?  Mr Page, I will give you a moment through my staff to discuss things with Mr Brewer and hopefully someone is capable of organising what might be necessary for him from hereon in.

41MR PAGE:  I am grateful and can I just check, what was the sentence on the charge of intentionally causing injury, Your Honour?  I got the cumulation but not the sentence.

42HIS HONOUR:  Sorry, I think it was nine months.

43MR SINGH:  It was nine months, Your Honour.

44MR PAGE:  I am grateful, Your Honour.

45HIS HONOUR:  Thank you.  If there is nothing further I will head away and others can leave when they are asked to and Mr Page can speak to his client.  Thank you.

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