Director of Public Prosecutions v Briffa

[2019] VCC 1898

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 19-00295

DIRECTOR OF PUBLIC PROSECUTIONS

v

ALEX BRIFFA

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JUDGE:	HIS HONOUR JUDGE COISH
WHERE HELD:	Melbourne
DATE OF HEARING:	13 June 2019, 26 August 2019, 8 November 2019
DATE OF SENTENCE:	15 November 2019
CASE MAY BE CITED AS:	DPP v Briffa
MEDIUM NEUTRAL CITATION:	[2019] VCC 1898

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Malik	Office of Public Prosecutions
For the Accused	Mr L. Barker	Haines & Polites Lawyers

HIS HONOUR: 

1Alex Briffa, you have pleaded guilty to one charge of conduct endangering persons; six charges of theft; one charge of causing injury recklessly; one charge of burglary; one charge of damaging property; one charge of dangerous or negligent driving while pursued by police; two charges of handling stolen goods; one charge of possession of a drug of dependence, and related summary offences: Summary Offence 25, drive a motor vehicle  without being the holder of a driver licence; 28, possess ammunition without authority; 29, possess ammunition without authority, and 30, possession of articles for use in connection with a burglary.

2These offences carry the following maximum penalties: reckless conduct endangering person, five years' imprisonment; theft, 10 years' imprisonment;  causing injury recklessly, five years' imprisonment; burglary, 10 years' imprisonment; criminal damage, 10 years' imprisonment; dangerous/negligent driving while pursued by police, three years' imprisonment; handling stolen goods, 15 years' imprisonment; possessing a drug of dependence, one year's imprisonment or 30 penalty units (no trafficking purpose); driving a motor vehicle while unlicensed, six months' imprisonment or 60 penalty units; possessing ammunition without authority, 40 penalty units; going equipped to steal, two years' imprisonment or 240 penalty units.

3It is unnecessary for me to recount the facts of the matter in detail as they are on transcript and contained in Exhibit 1, summary of prosecution opening for plea.  That opening was accepted by you through your counsel.  I proceed to sentence you on the basis of the facts as opened by the prosecutor which I shall now summarise.

4Your offending relates to six incidents occurring between 18 May 2018 and 10 June 2018.  The first incident was on 18 May 2018.  The victim and his wife had parked the victim's motor vehicle in the long-term car park at Melbourne Airport.  The victim's wife's BMW had been left in the garage of their Berwick home.  You were found asleep in the driver's seat of that BMW in the long-term car park. 

5AFP Officer Cochrane investigated and tried to rouse you but when you opened your eyes you revved the engine of the BMW, reversed into the motor vehicle parked at the rear of the BMW, then drove forward into a Wilsons Security motor vehicle.  You pushed this motor vehicle out of the way, and in so doing placed AFP Officer Cochrane in danger of serious injury.  You then drove away at speed through the long-term car park, Charge 1.

6The second incident was on 23 May 2018.  You were driving the stolen BMW.  It had been fitted with stolen registration plates.  You attended at a BP service station in Calder Park, filled the BMW with $65.76 worth of petrol, and drove off without paying for the petrol, Charge 2.

7The third incident was on 26 May 2018.  You drove the stolen BMW to a medical centre in Hillside.  A Nissan 200SX coupe was parked nearby.  You put your arm through the window of this motor vehicle, breaking the glass.  You entered the motor vehicle, started it, revved the engine loudly and began reversing when the owner of the motor vehicle intervened.  He ran to his motor vehicle and dived through the driver's side window. 

8A struggle ensued during which you stabbed the owner with a screwdriver to the legs and arms whilst trying to drive away.  The motor vehicle stalled and the owner demanded you get out of his motor vehicle.  You did so and then escaped in the stolen BMW which was driven by people you knew.  As a result of the stab wounds the owner suffered eight stab marks to his legs and five stab marks to his arms, Charge 4.

9The fourth incident was on 27 May 2017.  At approximately 3.13 am you broke into the workshop of a Volksrepair store in Airport West, Charge 5, and you stole an A4 Audi, Charge 7, and a VW Transporter, Charge 6.  You drove the Audi through the factory roller door, damaging that motor vehicle, Charge 8.  Later that morning police discovered the stolen BMW and Audi engulfed in flames at a site in Plumpton.

10The fifth incident was on 7 June 2018.  On this date you stole a Ford Ranger from the Undera Football Club, Charge 9.  You also stole $70.85 worth of petrol, Charge 10.  The sixth and final incident was on 10 June 2018.  At approximately 1 am you were driving a Holden Commodore on the Northern Highway near Runnymede when you were not the holder of a driver's licence, Summary Charge 25.

11Police activated their red and blue flashing lights and pursued your motor vehicle.  You were observed moving around in your seat and the motor vehicle  moved between the centre of the road and the right-hand lane.  Police also observed a tyre and tyre parts and other motor vehicle parts fall away from your motor vehicle.  The engine revved loudly and sparks came from the rear right-hand wheel.  As police overtook your motor vehicle it drifted into the right-hand lane narrowly missing the police vehicle. 

12A short time later you stopped the Commodore, but when police approached the motor vehicle you appeared to be sleeping.  You could not be aroused.  You were eventually conveyed to Bendigo Hospital by ambulance.  You were found in possession of a drug of dependence, methylamphetamine, Charge 14.  The Holden Commodore was displaying stolen New South Wales registration plates, Charge 12.

13Police seized a large range of items from the motor vehicle, Charge 13.  These items are described in paragraph 29 of the prosecution opening.  Also located in the vehicle were four shotgun cartridges, Summary Charge 28, one packet of .22 rounds, Summary Charge 29, a balaclava, gloves, pinch bar, screwdriver and baseball bat, Summary Charge 30.  You were arrested and made a no comment record of interview on 12 June 2018.  You have been in custody since your arrest on 12 June 2018. 

14I state to you that I have taken into account the following matters in mitigation of sentence.  You have pleaded guilty. You are entitled to have that fact taken into account in your favour and I do so.  The community has by your plea been spared the time and cost of a trial.  Witnesses have been spared the ordeal of giving evidence upon your trial.  You pleaded guilty after a contested committal and following a number of directions hearings.  In all the circumstances this was a relatively early stage.  I accept on all the material before me that you are genuinely remorseful. 

15I have been told something of your personal circumstances.  You are 26 years of age, having been born on 25 September 1992.  You are single with no dependants, although you have had a long-term relationship and your partner has two children from a previous relationship.  You had a dysfunctional and difficult childhood characterised by gross disadvantage.  Your parents' relationship was fraught and they separated when you were about 13 years of age.  Their relationship was marked by drug use and domestic violence.  Your father was a violent drug user.  His violent behaviour was directed to you, your mother, and other family members. 

16You attended Deer Park Primary School but school was very difficult for you.  You only had one year of secondary education and you undertook Year 7 at the Moorabbin Special School.  You left school when you were about 14.  You have had little regular employment.  In your early teenage years you commenced using illicit drugs; you have been a prolific long-term drug user.

17I am satisfied having regard to your grossly disadvantaged background that I ought give full weight to your deprived background in accordance with the principles enunciated in Bugmy's case.  At the plea hearing I agreed with your counsel's submission that it was appropriate that you be assessed by a neuropsychologist, and accordingly I ordered such an assessment.  Dr Matt Treeby, neuropsychologist, assessed you on 12 September 2019 and he has provided a very detailed and helpful report.  I accept his opinions and his assessment of you, in particular that you have longstanding cognitive limitations.  I quote, paragraph 54:

'Mr Briffa's mild intellectual disability can be considered idiopathic and is of unclear origin.  While Mr Briffa clearly has longstanding cognitive limitations, I note that he began using cannabis and alcohol at the age of 14 and commenced methamphetamine use upon turning 17.  His early initiation of substance use may have compromised his brain and psychosocial development from middle adolescence to some extent.  His exposure to childhood trauma during his formative years may also have compromised his early morale development and socialisation'.

18Dr Treeby also makes the following relevant comments, and I quote from 57:

Mr Briffa's cognitive impairments, including marked executive dysfunction, can partly explain his history of offending behaviour, some of which appears to be poorly planned, unsophisticated and impulsive in nature.  His ability to comprehend and understand the wrongfulness or consequences of some of his actions can be considered questionable given his intellectual disability.  He presents with poor problem-solving skills, has marked concreteness in his thought processes and has severe difficulties with consequential thinking and impulse control.  Given the severity of his cognitive impairment his ability to make reasoned and appropriate judgments in some situations can be considered doubtful.  His impairments would have been evident at the time of his most recent alleged offending behaviour and he will continue to experience such impairments going forward (that is they can be regarded as permanent).  During times in which he substance-affected or distressed his ability to control his emotions and behaviour would be even more compromised.

19Fifty-eight:

I additionally note that Mr Briffa has a history of polysubstance misuse and indeed his decision-making, impulse control and problem-solving abilities are likely to be even more impaired during times he is substance affected.  It would appear this was the case at the time of this alleged offending.  At interview, Mr Briffa commented that he was likely affected by various substances which he identified as cannabis, methamphetamine, GHB, and psilocybin.  He said that he had no recollection of the offending itself and I note that he was hospitalised and required admission to intensive care after he was taken into custody following what medical records describe as a polysubstance overdose.

20At paragraph 61 Dr Treeby states:

My impression is that Mr Briffa's intellectual disability and substance use problems cannot entirely account for his historical or recent offending.  I note he has a history of difficulties with conforming to social norms with respect to lawful behaviour dating back to 2010 and it would appear he has also some Cluster B (antisocial) personality traits.

21Dealing with the effect of incarceration upon you, Dr Treeby commented at 64:

My impression is that Mr Briffa's intellectual disability, relatively young age and immaturity together render him to be vulnerable within the custodial setting.  I note reports that he has experienced a number of assaults while in custody and therefore is held in protection.  He would be easily misled by others and it follows that he would benefit from close monitoring to ensure that he is not preyed upon, taken advantage of, or further socialized towards criminality while incarcerated.  He will also be at increased risk of institutionalization due to his cognitive limitations.

22Your extensive history of drug use has been described in detail in Dr Treeby's report.  You were significantly drug-affected at the time of all of this offending.  This is, of course, very relevant.  I am, however, satisfied, having regard to
Dr Treeby's opinions to which I have referred, that it is appropriate to sensibly apply the Principles 1, 3, 4 and 5 enunciated in Verdins case.  I am satisfied that you have been using your time in custody in a constructive manner.  A number of certificates of courses you have completed were tendered on your behalf.  I assess your prospects of rehabilitation as being cloudy as much will depend upon your ability to remain drug-free upon your eventual release from custody.

23Against these matters in mitigation, however, your actions were very serious indeed.  This has been well described by your counsel who stated in the outline of plea submissions:

Alex Briffa's spree of offending is quite spellbinding.  It is a lawless rampage, extending over a relatively  short period.

24At paragraph 2 of the submission:

By any reckoning, the charges to which Mr Briffa pleaded guilty are confronting and dangerous.  There can be no justification for such repeatedly antisocial behaviour.  If nothing else, this matter is a stark reminder of the perils of drug use, particularly methylamphetamine (ice) use.

25Three:

Clearly this is offending of a kind that the law views dimly.

26Your offending not only placed police and members of the public in danger, you have engaged in numerous serious offences over a relatively short time frame when in a drug-affected state. 

27You have admitted before me numerous prior convictions.  There are approximately nine court appearances between 9 August 2010 and 11 May 2016 involving convictions for a vast array of offences.  The nature of some of these prior convictions, particularly offences of burglary, theft, other dishonesty offences, offences of violence, drug offences and motor vehicle offences is highly relevant to my task of sentencing you today.

28In the past you have been detained in a youth training centre and sentenced to terms of imprisonment.  The pre-sentence detention is agreed at 503 days.  On 27 September 2018 at Sunshine Magistrates Court you were convicted and sentenced to a total effective sentence of 178 days with 178 declared pre-sentence detention.  This related to offending in 2017 or earlier.  You had been in custody for that offending from 28 September 2017 to 6 March 2018 (160 days).

29As well as the matters to which I have referred, I must also take into account the need for general and specific deterrence, although I have sensibly moderated the weight to be attached to these factors in accordance with Verdins principles.  Specific deterrence remains relevant having regard to your extensive criminal history and the number of offences you have committed.  general deterrence is also of considerable importance in a case such as this.

30I am called upon by the Sentencing Act to manifest the community's denunciation of your conduct and generally to impose a just punishment.  Your counsel submitted that I ought impose a combined sentence of imprisonment and a community corrections order.  It was submitted on behalf of the prosecution that such a combined sentence was not within range; rather, this offending required the imposition of a total effective sentence and non-parole period.

31I agree with this submission.  I am satisfied after engaging in the appropriate deliberation that the sentencing purposes of just punishment, denunciation, and specific and general deterrence cannot be sufficiently served by a combination sentence.  Rather, the only appropriate disposition is a sentence of imprisonment with a total effective sentence and non-parole period.

32The most serious offences are Charges 1 and 4.  I have directed a degree of cumulation between both offences to take into account the separate offending and separate incidents.  Having regard to all relevant facts and appropriate sentencing principles, I sentence you as follows.

33Charge 1, convicted and sentenced to 18 months' imprisonment.  This is the base sentence.

34Charge 2, convicted and sentenced to one month's imprisonment.

35Charge 3, convicted and sentenced to 12 months' imprisonment.

36Charge 4, convicted and sentenced to 18 months' imprisonment.

37Charge 5, convicted and sentenced to 12 months' imprisonment.

38Charge 6, convicted and sentenced to 12 months' imprisonment.

39Charge 7, convicted and sentenced to 12 months' imprisonment.

40Charge 8, convicted and sentenced to four months' imprisonment.

41Charge 9, convicted and sentenced to 12 months' imprisonment.

42Charge 10, convicted and sentenced to one month's imprisonment.

43Charge 11, convicted and sentenced to 12 months' imprisonment.

44Charge 12, convicted and sentenced to six months' imprisonment.

45Charge 13, convicted and sentenced to 12 months' imprisonment.

46Charge 14, convicted and sentenced to three months' imprisonment.

47The summary charges.  Twenty-five, convicted and sentenced to one month's imprisonment.

48Summary Charge 28, convicted and fined $250.

49Summary Charge 29, convicted and fined $250. There is a stay on payment of the fines of one month.

50Summary Charge 30, convicted and sentenced to three months' imprisonment.

51I direct that three months of the sentence imposed on Charge 3, six months of the sentence imposed on Charge 4, three months of the sentence imposed on Charge 5, three months of the sentence imposed on Charge 6, three months of the sentence imposed on Charge 7, three months of the sentence imposed on Charge 9, five months of the sentence imposed on Charge 11, one month of the sentence imposed on Charge 12, and three months of the sentence imposed on Charge 13 be served cumulatively upon the sentence imposed on Charge 1 and upon each other.  Otherwise the sentences be served concurrently.

52The total effective sentence is four years' imprisonment.  The non-parole period is the minimum term that justice requires you to serve having regard to all relevant circumstances that exist.  For that reason it cannot be fixed automatically.  All relevant factors and sentencing principles are to be taken into account.  I have to consider when you should be eligible for mitigation of confinement and in turn rehabilitation under conditional supervision.

53In all the circumstances I direct you serve a minimum term of two years and six months before becoming eligible for parole. As prescribed by s.18(4) of the Sentencing Act I declare that the period of time you have spent in custody is 503 days, which is to be reckoned as time already served under the sentence. I direct that such be noted in the records of the court. I make the disposal order and forfeiture orders sought by the prosecution. Pursuant to s.6AAA of the Sentencing Act I state that the sentence and non-parole period I would have imposed but for the plea of guilty is six years' imprisonment with a non-parole period of four years.

54Finally, in relation to Charge 11 I cancel any motor vehicle licence and disqualify you from obtaining a licence for a period of two years.  I also make an order pursuant to s.89C that I find this offence was committed while you were under the influence of a drug which contributed to the offence.

55Charges 3, 6, 7 and 9 are charges involving theft of a motor vehicle.  I have imposed sentences of imprisonment on those charges and in addition I will impose the same order dealing with cancellation of your motor vehicle licence and disqualification from obtaining such a licence for two years.  These are concurrent orders, so the overall effect is disqualification from obtaining a licence for two years.

56Is that how it ought be described?

57MR MALIK:  It sounds accurate to me, Your Honour.

58MR BARKER:  Yes, the numbers add up, Your Honour.

59HIS HONOUR:  All right.  My associate just reminded me, I formally strike out the two summary charges of Nos.14 and 33.  Does that cover everything?

60COUNSEL:  Yes, Your Honour.

61HIS HONOUR:  All right, thank you.  Thank you for your help.

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