Director of Public Prosecutions v Brien

[2017] VCC 89

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

AT MILDURA
CRIMINAL JURISDICTION

CR 16-02027

DIRECTOR OF PUBLIC PROSECUTIONS

v

GEOFFREY BRIEN

---

JUDGE:	HIS HONOUR JUDGE M.P. BOURKE
WHERE HELD:	Mildura
DATE OF HEARING:
DATE OF SENTENCE:	14 February 2017
CASE MAY BE CITED AS:	DPP v Brien
MEDIUM NEUTRAL CITATION:	[2017] VCC 89

REASONS FOR SENTENCE
---

Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. O'Doherty
For the Accused	Mr T. Lavery

HIS HONOUR:

1Geoffrey Brien, you are to be sentenced to the indictable offences of causing injury intentionally and stalking.  The maximum sentence for each offence is ten years' imprisonment.  You are also to be sentenced for two charges of a summary offence, contravening a family violence intervention order.  The maximum sentence for that is two years' imprisonment.

2You pleaded guilty before me yesterday 13 February.  You were interviewed by police about the indictable matters on 16 May 2016.  After initial denial,  you made full admissions.   At committal in November 2016, you entered pleas of not guilty.  However you were then charged with the more serious offence  of rape.  Committal ran by hand-up brief without the need for witnesses.  The Crown has not proceeded on that charge and the matter was quickly listed for plea in this court.

3You receive the benefit of your plea of guilty and the high level of cooperation  that short history of the proceedings shows.  Your plea has facilitated the interests of justice.

4At your plea hearing Mr O'Doherty for the Crown tendered a written Crown opening and photographs of the injuries you caused to your victim, Carolee Lewis.

5Mr Kennedy for you tendered the forensic psychological report of Gina Cidoni, dated 9 January 2017.

6The circumstances of your offending are set out in the tendered Crown opening, which is Exhibit A.  My own summary may be relatively short.

7In May 2016 you had been in a relationship with Carolee Lewis for about four years.  You were living at an address in Culgoa, near Sea Lake in the Mallee region of Victoria.  The relationship seems to have been tumultuous and badly damaged by heavy drug use by both of you.  Carolee Lewis had taken out, or there had been taken out on her behalf  an intervention order in mid-April, prohibiting you from being at the address and committing family violence against her.  Despite this, you were still living there on 9 May.  It seems clear that Carolee Lewis consented to that.  The day was uneventful.  At about 11 pm you joined her in bed and wanted sexual intercourse.  She refused.  There was verbal abuse, this grew into a quite savage attack upon her.

8Paragraphs 12 and 13 of the Crown opening state: "The accused punched the complainant to the head, face and body many times, with both left and right clenched fists.  He also kneed the complainant to the face and bit her at the back of the neck, right ear and left hand."  I stop to say that your counsel this morning has indicated that you deny the bite to the left hand.  You will be sentenced on the basis that you did not do that.  I return to the quotation: " ...the complainant suffered visible bruising to her face, eyes, forehead, hands, wrists, left hip and the rear of her neck, and emotional or psychological injury.  Photos were taken by police showing these injuries."  I have viewed those photographs.

9You committed the offence of stalking  over the period of 10 to 14 May.  After the assault of 9 May, Carolee Lewis left the home.  Over the following five days you made phone calls and sent over 600 text messages to her.  You were attempting to get her to come back to you.  You told the police in interview of your jealousy and fear of losing her.  The calls and text messages seem to have run to extremes of distress, pleas for her return, insult and threat.  You threatened to kill yourself.

10There is no victim impact statement.  Carolee Lewis was offered the opportunity to make one.  Mr Kennedy told me that she lives in Queensland, that you have had  no contact with her and that the relationship is over. 

11You are a 49 year old man, presently in remand custody awaiting this sentence.

12Mr Kennedy described a badly dysfunctional early life.  You were born in New South Wales and have two brothers and a sister;  you are the eldest.  Your father was violent.  After he left the army he became a member of a so-called outlaw motorcycle club.  He introduced you to criminal behaviour in your teenage years.  I was told that he forced the rest of the family out of the home when you were 14.  At one point he hospitalised your younger brother.

13You left school at year 10.  Since, I was told,  you have worked consistently. That has featured working in the motor vehicle industry, as a labourer, landscaper, in a wrecking yard and more recently on a chicken farm.  You have three children by your first and long term partner.  They are aged 13 to 28 and you have a good relationship with them.  You have one child, a three-year old daughter,  with Carolee Lewis.  She is with your brother and subject to child protection involvement.

14You began using drugs in teenage.  Into adulthood that has developed and endured.  You have used amphetamine, heroin and ice amphetamine in recent years.  You take methadone in prison.  There have been unsuccessful attempts at rehabilitation.

15Psychometric testing by psychologist Gina Cidoni was, I quote her report,  "indicative of borderline capacity, with a full scale IQ of 79."  She further states as follows: "Geoffrey Brien presented with borderline intellectual capacity. Retention and concentration can be poor with slower response rates, disorganisation, naivety, and reduced common sense in situations.  His mental health is compromised, most likely from illicit drug use that commenced in his teens and continued until remand, with abuse of meth amphetamine, since age 40.  He seems to have schizotypal personality traits, also depression, anxiety and maladaptive coping with trauma in his life."

16You have an extensive criminal history with court appearances from 1985.  There are driving offences, offences of dishonesty, drug offences and some offences of violence.  In 1998 you were sentenced to prison for manslaughter, Mr Kennedy stated as an aider and abettor.

17There was  further imprisonment in 2010 for manufacture of a prohibited drug.

18You were fined in 2015 for common assault and placed on a bond for breaching an intervention order in 1996. 

19This was a serious and brutal assault.  Your phone and text messages included threat and degrading insults.  You caused significant injury.  Within an extensive criminal history, there are some, although not many, offences of violence;  one, however, particularly serious.  I bear in mind that it is now almost 20 years old.

20Such circumstances make relevant sentencing consideration of deterrence, denunciation, your moral culpability and the need for proportionate punishment. There must be a sentence of imprisonment.

21I also take into account the following factors, which should go to reduce the length of sentence. 

22(1)     Your  plea of guilty. 

23(2)  Your personal history and circumstances.  I would find that the circumstances of your damaged childhood, played a strong role in the development of your drug dependence. 

24(3)     Your poor psychological health and intellectual capacity.  I accept as put by Mr Kennedy that prison has been and will continue to be hard for you.

25Having considered what I see to be the relevant matters, I sentence you as follows.  Stand up please. Stand up.

26On Charge 1, causing injury intentionally, you are sentenced to 16 months' imprisonment.  On Charge 2, stalking, you are sentenced to six months' imprisonment.  I direct that two months of the sentence on Charge - no, I withdraw that for the moment.

27On the two summary offences of contravening family violence intervention orders,  I sentence you to two weeks' imprisonment, on each.  I refer in that regard to the earlier exchange today between myself and counsel.

28As to cumulation, I direct that two months of the sentence on Charge 2, be served cumulatively upon the sentence, for Charge 1.  That is a total effective sentence of 18 months.  I set a minimum term of 12 months before eligibility for parole.  I declare to be set off against that, a pre-sentence detention of 274 days.  Had you not pleaded guilty, I would have sentenced you to a head term of two and a half years with a minimum term of two years; twice the term - or the minimum term I have set today.

29Are there other matters that need - take a seat please.

30Mr O'DOHERTY:  Yes, there are two orders we seek, dispose, disposable order, Your Honour.

31HIS HONOUR:  I'll sign those.  There's no forensics sample order?

32Mr O'DOHERTY:  There is, he's not on the database, Your Honour.

33HIS HONOUR:  You made that enquiry ‑ ‑ ‑

34Mr O'DOHERTY:  Right, the enquiries been made, yes.

35HIS HONOUR:  I suppose the conviction for manslaughter was a long time ago and in New South Wales.

36Mr O'DOHERTY:  Queensland, Your Honour.

37HIS HONOUR:  Queensland was it?  And the quite substantial sentence for drug manufacture was in New South Wales was it?  Or Queensland.

38Mr O'DOHERTY:  Yes.

39HIS HONOUR:  It wasn't in Victoria?

40Mr O'DOHERTY:  No, it wasn't in Victoria, no.

41HIS HONOUR:  Yes, all right.  Mr Kennedy indicated consent to this yesterday, I just wanted the enquiry made.  You can remain seated for the moment, though I just want to tell you this: that I am making an order that you supply a sample of saliva.  That will be arranged in prison.  I am doing it because of the seriousness of the circumstances of this offending and your prior history.  Mr Kennedy indicated that you did not oppose it yesterday.  It will be done by putting a cotton swab inside your mouth, I have not seen it done, but it does not sound difficult if you cooperate in that; that is the end of it.  If you do not, a blood sample may be taken by injection with reasonable force used to achieve that.  I will sign that now.

42I am also making a disposal order, that is in respect in of what?  The phone?  Well that is justifiable.  I have signed those orders and I will hand them back.

43That is a correct sentence is it, I heard that your exchange may misinterpret - six months is the least - is the smallest period of parole I can direct, is that right? 

44MR O'DOHERTY:  Yes.

45HIS HONOUR:  I don't think this man will manage parole very well, but I hope he does.  All right, that is my sentence; Mr Brien can be taken into custody now.  That can be marked, unfortunately I've treated the psychological report handed up to me as a working copy.  Do you have it?  Do you have an unmarked?

46MR O'DOHERTY:  It's marked but it won't show up when I copy it.  It's just got some ‑ ‑ ‑

47HIS HONOUR:  All right if you could do that I'd appreciate it.

48MR O'DOHERTY:  I'll do that and I'll put it on the file now.

‑ ‑ ‑