Director of Public Prosecutions v Briffa

[2019] VCC 969

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-00099

DIRECTOR OF PUBLIC PROSECUTIONS

v

JUDITH BRIFFA

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JUDGE:	HIS HONOUR JUDGE CARMODY
WHERE HELD:	Melbourne
DATE OF HEARING:	14 June 2019
DATE OF SENTENCE:	24 June 2019
CASE MAY BE CITED AS:	DPP v Briffa
MEDIUM NEUTRAL CITATION:	[2019] VCC 969

REASONS FOR SENTENCE
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Subject:  CRIMNAL LAW

Catchwords:  Aggravated Burglary – Armed Robbery – Reckless Cause Injury.

Cases Cited:DPP v Boulton [2013] VCC 972, DPP v Edwards [2012] VSCA 293.

Sentence:Total effective sentence of four and a half years’ imprisonment with a non-parole period of two years and three months’ imprisonment.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr G. Hevey (Plea) Mr A. Cecil (Sentence)	Director of Public Prosecutions
For the Accused	Mr B. Newton	James Dowsley & Associates

HIS HONOUR: 

1Judith Briffa, on 14 June 2019, at the County Court Melbourne, you pleaded guilty to the following charges on Indictment
No. C1711084.1A:

Charge 1, aggravated burglary of 54 Glenwright Avenue, Woori Yallock on 28 January 2017, this charge has a maximum penalty of 25 years' imprisonment.

Charge 2,  armed robbery of Tony Jarvis on 28 January 2017.  This charge has a maximum penalty of 25 years' imprisonment.

Charge 3, recklessly cause injury to Tony Jervis on 28 January 2017, this charge has a maximum penalty of five years' imprisonment.

2You were remanded in custody on 28 January 2017. On 17 January 2018 you were committed to stand trial for these charges on 1 October 2018.  The trial was not reached.  You resolved your trial to a plea of guilty to the three charges before this court on 26 April 2019.  On the day of your plea you had served 86 days pre-sentence detention, today you have served 96 days pre-sentence detention not including this day. 

Circumstances of your offending

3The prosecution tendered the summary of amended prosecution opening dated 6 June 2019, it was Exhibit “A” on the plea.  The background of this offending is that you have two co-accused, Martin Flowers and Dean Campbell.  Your co-accused Dean Campbell knew the victim of your crimes, your victim Tony Jervis lived at 54 Glenwright Avenue, Woori Yallock. Mr Jervis was a diagnosed schizophrenic, Mr Campbell had lived in the same street as Mr Jervis at previous times.  Mr Jervis had sold a car to a friend of Campbell's in the past.

4Your offending occurred in the following circumstances: 

·Mr Jervis was at home on the morning of Saturday 28 January 2017.  He had been unable to sleep over night and at about 6 am put his dogs outside and went back to bed for a rest. 

·At about 9 am on that day he heard footsteps outside going past his bedroom window, on the front deck of his house just outside the front door.

·The sliding glass door was blocked with a piece of wood so that no-one could enter the house through the door without breaking the glass. 

·Mr Jervis thought that whoever was outside may have left, but then heard a noise at the backdoor which sounded to him like someone was trying to break into his house.

·Mr Jervis went to the backdoor and saw that there were three people outside.  He called out to ask what they were doing and they said they wanted a bucket to get water for their dog.  Mr Jervis told them that his brother was a sergeant of police and that his home was under satellite surveillance but they told him that was not going to stop them and he was going to “get robbed…. and beaten pretty badly”.

·Mr Jervis rang 000 at 9.10 am and told the people outside that he was calling the police. 

·Mr Jervis yelled at the offenders to not to break into his house, they told him they had a knife and that he would be tortured and for him to put the phone down.

·The second call to 000 from Mr Jervis' phone connected two minutes later, during which there was banging and the words 'get out of my house' can be heard in the background. 

Charge 1 - Aggravated Burglary; Charge 2 – Armed Robbery

5Mr Jervis held a mattress against the door but the intruders, that is two men and one woman, which was you, pushed past him and gained entry to the house.  It is the prosecution's case that Dean Campbell and Martin Flowers were the two men and you Ms Briffa was the woman.

6One of the men had a mini crowbar or jemmy bar which they had used to force the door and lashed out with it at Mr Jervis.  His phone was taken, Mr Campbell pushed Mr Jervis towards his bedroom, holding him by the chain which was around Mr Jervis' neck, it was a gold chain.

7Mr Campbell then told Mr Jervis that he was getting done over because he had been ripped off over a car, Mr Jervis denied this allegation.  Mr Campbell has then attempted to remove the gold chain from Mr Jervis' neck but it was so solid that it did not break and resulted in choking Mr Jervis to the point he could not breathe. Mr Jervis begged Mr Campbell to let him breathe a bit and Mr Campbell demanded to know where the jewellery was located.

8You and your co-accused then told Mr Jervis to hand over the money and the jewellery.  Mr Jervis told you he had no money and the only jewellery he had was what he was wearing.  Mr Jervis then says he saw Mr Flowers take the rings on the bedroom dressing table and put them in his pocket.

Charge 3- Recklessly Cause Injury to Mr Jarvis

9Your male co-offenders punched Mr Jervis repeatedly.  Mr Flowers went to the kitchen and retrieved a knife which he handed to Mr Campbell. Mr Campbell has then pushed the knife into Mr Jervis' throat.  Mr Jervis struggled but Mr Campbell came really close to him and slowly pressed the knife against his throat.

10Mr Jervis thought that he was going to be killed.  He managed to get possession of the knife but then Mr Flowers hit him over the head with the mini crowbar a number of times causing injury to Mr Jervis' head.  Mr Flowers has then struck Mr Jervis over the heard with pots and pans and other personal items.

11Consequently Mr Jervis sustained cuts to his head which bled profusely leaving him to be covered in blood.  You were observed by Mr Jervis to be walking around the house looking for valuables and telling him to do as they said or he, Mr Jervis, would get hurt worse.      You did not personally strike Mr Jervis but went through his property while the others were assaulting him. 

12A neighbour heard noises which sounded like someone was hitting the wall with a piece of wood or steel bar.  He looked out the window and saw a man walking across the front of the house banging the wall, he then saw a woman emerge from the backyard of the house carrying a red, white and blue stripped bag, he observed the woman had dark hair and dark clothing and was wearing ugg boots.

13It is the prosecution's case and you have pleaded to it, that the female present at the house during the incident and observed by various neighbours in the vicinity was you.

14At about 10.45 am police officers, Leading Senior Constable Rust and Pryor intercepted a silver Holden Commodore station-wagon, registered number RZY028.  When they first observed the vehicle the vehicle was being driven by Mr Flowers and you were the passenger.  The police stopped the vehicle by which time you and Mr Flowers had changed position so that you were seated in the driver's seat.

15On searching the vehicle, the police located amongst other things a pair of ugg boots and a black hoodie.  The ugg boots had a quantity of blood on their exterior, the boots were later tested for DNA and expert evidence established that the DNA from the interior of the boots was your DNA while the blood on the exterior of the boots was Mr Jervis'.

16You were present in Mr Jervis' house during the incident and the presence of Mr Jervis' blood on your ugg boots occurred as you moved about the house while Jervis was being attacked and losing blood as a result of that attack. 

17Police located a pair of black and grey gloves in the kitchen of Mr Jervis' house.  There was no blood on the gloves but they were tested for DNA, the evidence shows that the inside of the right glove was tested and that the three DNA profiles found two of the profiles belonged to Mr Jervis and you.

18In the car you were arrested in, a search for other items belonging to
 Mr Jervis were located.  There was a brief record of interview, no allegations were put to you. 

Victim Impact Statement

19Your victim in this offending was Tony Jervis.  Mr Jervis filed a victim impact statement dated 26 November 2018, this was Exhibit “D” on the plea.  The victim impact statement was read in open court.  Further, the prosecutor tendered photographs of Mr Jervis in his injured and bloodied state, that was Exhibit “C”. 

20The photographs showed lacerations to his scalp and his neck where the attempts were made to rip the gold chain from his neck by your co-offenders.  I accept you did not take part in the physical bashing of Mr Jervis, you did however tell Jervis to do what the assaulters told him or Jervis would get hurt in a more serious way.  You were compliant with this assault on Mr Jervis.

21Mr Jervis was a 48 year old man who lived alone at the address.  He had been diagnosed with schizophrenia, he gave his statement to police via VARE arrangements, he was a disability pensioner.  You and your co-accused attacked a vulnerable person in his own home and did so in numbers and with a weapon, being a small jemmy bar.

22In his victim impact statement he states he was frightened and anxious and still worries his attackers will come back.  He stated he had 12 separate cuts to his head, his cuts required stitches.  He  had lost nearly two litres of blood, he had a migraine headache for three months.  His only pride and joy in his life was his jewellery which was stolen from him in this robbery. He says the loss was approximately $33,000.

23The effect on Mr Jervis is that he still has trouble going out in public even some two years later.  The physical, mental and financial impact of your offending against Mr Jervis cannot be overstated.  Photographs five to 13 in the deposition displays the state you and your co-accused left him in on that day, as I have said he was vulnerable, disadvantaged and outnumbered.  You should be truly ashamed of your cowardly behaviour in pursuit of a quick and easy dollar.

Personal Circumstances

24You were 45 years old at the time of these offences, you are now 47 years old. 

25You have a criminal record dating back to 1989.  You had 12 court appearances between 1989 and February 1994, these court appearances were predominantly drug offences involving cannabis, heroin and amphetamine.  There were dishonesty and other offending which no doubt was perpetrated in order to pay for your drug use and addition in that period. You then had a period of a 20 and a half years where you had no contact with the criminal justice system.  In 2014 you were before the Ringwood Magistrates' Court on driving charges.  In 2017 there was a further driving offence at the Ringwood Magistrates' Court.

26Your final court appearance was on 5 December 2018, for burglary and theft.  This court appearances was for offending prior to these charges but the court hearing was after this offending.  This last court appearance is not a prior conviction but is a relevant factor to properly assess your circumstances at the time of these offences.  Of significance you have no prior criminal history for violent offending. 

27Your parents separated when you were eight years old.  You originally lived with your mother in Blackburn South.  You attended Blackburn South High School.  In that time you started mixing with students older than yourself and other people older than yourself, you commenced using cannabis and heroin at a young age. 

28During year eight you moved to live with your father who was then in Noble Park.  You left school in year nine.  Your drug addiction to heroin was well established by this time.

29You moved into a defacto relationship with Peter Fruhwirth.  In 1994, your first child was born. In 2002, your second child was born.  He now lives with your brother.  Your eldest child Belinda is pregnant with your first grandchild due to be born in July this year.

30In 2006, you commenced a relationship with Mark Lambe.  In 2007, your twin daughters Jessica and Bianca were born.  Your youngest child Jacob was born in 2010.  Due to the violence in the relationship with Mr Lambe, you separated and initially the three children lived with you.  You then later re-entered an association with the drug culture.  The DHHS intervened and your three children now live with Mr Lambe.

31Your daughter Bianca fractured her femur in 2015.  She has subsequently been diagnosed with perthes disease, your daughter requires the use of a wheelchair and walking sticks to mobilise.  Your role has been to drive Bianca to physiotherapy and doctors' appointments. Mr Lambe does not have a licence.  Your mother still assists in the care of your three young children and I refer to Exhibit “3” on the plea for that. 

32You commenced a relationship with Mark Flowers your co-accused.  You had experimented with methamphetamine in the couple of months leading up to this offending.  You told Mr Cummins that you never got the taste for methylamphetamine, that it is reported in Exhibit “2”, in the report of
Mr Jeffrey Cummins, dated 3 June 2019.

33You have attended drug rehabilitation therapy of substance use recovery in the years of 2017 and 2018, that was Exhibit “3”.  You have been on the methadone program to the extent of 50 to 60 milligrams daily. 

34At the time of these offences you told Mr Cummins you may have been under the influence of cannabis but not any other drug.  Mr Cummins did not diagnose you as suffering from any psychiatric or psychological conditions.  He assessed you as a person who was easily influenced by other people. 
Mr Cummins assessed you as relatively psychologically vulnerable given that this is the first custodial sentence with the result that you are separated from providing care and assistance to your children.

35I note here that in the period leading up to this offending you are not residing with your children and your support then was sporadic due to your slipping back into the drug culture contacts. 

36I also note, your letter handed to me this morning. You have shown some insight into what you describe yourself as history repeating itself.  Unfortunately that is so true.  That is something you are going to have to live with whilst you serve this sentence.  When you are released from prison it is only up to you whether or not you can defeat the drug addiction that you have during the course of your life. 

Sentencing Considerations

37The basic purpose for which this court may impose a sentence of just punishment, deterrence both specific and general, rehabilitation and denunciation of your actions and the protection of the community. In sentencing you I must have regard to a range of factors such as the seriousness of your offending, your culpability for it and your personal circumstances.  

38I am also required to balance the interests of the community in denouncing your criminal conduct with the interests of the community in seeking to ensure as far as possible that you as an offender are rehabilitated and reintegrated into society.

39I am also required to take into account current sentencing practices in fixing your sentence, that enquiry is directed, particularly but not exhaustively to the kinds of sentences imposed for comparable cases and the statistics applicable to those cases at the time.  I have considered the statistics in the current sentencing practices, mindful that each case must be considered in the light of its own particular circumstances, and many of the cases would be distinguishable from your case as indeed they are from one another.

40I am mindful of the provisions of the Sentencing Act, in particular s.55C, which directs a sentencing court to consider whether a community corrections order can achieve the purpose for which this sentence is to be imposed. I have reviewed the case of Boulton in considering if a community corrections order would be appropriate in your case, and do not find it appropriate.

41Your counsel, Mr Newton, submitted in a forceful and earnest manner, that a sentence combining a community corrections order with a term of imprisonment was the appropriate disposition for the totality of your offending.  As I say your offending is too serious to include a community corrections order as part of your sentence.

42You have pleaded guilty to the charges on the indictment.  This plea of guilty which was indicated within days of your trial commencing on 29 April 2019. A committal in this case was conducted in January 2018, your victim was required to give evidence at the committal, your plea to the charges on the indictment has alleviated a need for your victim to give evidence on a second occasion. 

43Your plea also does have the utilitarian value of allowing for the orderly and effective administration of justice.  There is certainty of outcome and a resolution of the substantive issues raised by your offending. Your plea allows for the preservation of the court and police resources to deal with other matters.  Your plea vindicates the public confidence in the legal process set up to protect the community.

44Your plea is also a clear acknowledgement by you that you accept responsibility for your criminal behaviour on this occasion. Your plea also recognises you are willing to facilitate the course of justice in our community and I accept that your plea of guilty of these charges indicates and demonstrates some remorse on your behalf and I note your letter of this morning to reinforce that.

45The seriousness of the aggravated burglary charge is indicated by the following factors:

(a) Whilst you have told police you went with your co-offenders on the basis of collecting drugs from your victim, I find the intent at the point of entry to his home was to steal.

(b) The mode of entering the premises was breaking in through the doorway that your victim had attempted to barricade.

(c) Your co-offenders had a small jemmy bar with them at the time of the entry.

(d) You accompanied your two male offenders in the entry of the victim's home; and  

(e) The offence occurred in broad daylight, but you knew a person was inside the house.

46The armed robbery charge and the recklessly cause injury charge took place once you and your co-offenders had gained entry to his home.  The seriousness of those offences indicated were indicated by the following factors:

(a) The use by your co-offenders of the jemmy bar to hit and injury your victim.

(b) The length of time you were in the house searching for valuables to steal whilst the victim was being assaulted.

(c) Your approach to him saying, to do as they, meaning your co-accused said, or he would get hurt worse; and

(d) The general beating of the victim whilst he was in the home.

47I accept that you did not actually strike or harm Mr Jervis by direct physical contact yourself.  You were complicit in what your co-accused did to a vulnerable schizophrenic disability pensioner who lived alone in his home.

48Your counsel urged upon the court that family hardship was relevant in your case, and you refer to those hardships in your letter.  The matters relied upon were that your eldest child was about to give birth to her first child and your first grandchild.  If incarcerated you would not be able to provide assistance and support to your eldest daughter.

49The other family factor was your 12 year old daughter, Bianca, required your help in transportation and attendance at doctors and physiotherapists for treatment for her perthes disease condition. 

50Neither of these matters satisfy the exceptional circumstances test set out in Edwards' case.  Your daughter will have assistance and support from Mr Lambe and your mother Ms Detez. 

51I do accept that your time in custody will be more difficult for you because you cannot be around for the joyful arrival of your first grandchild, or to support your daughter in that event, or that you will be around to assist your real daughter in her treatment and rehabilitation at a time of need for her. 

52I assess your prospects of rehabilitation as far, you have had the cloud of drug addiction hanging over your life from the young age of 12 years old.  In the past you have shown you can live in a law abiding life, unfortunately after your relationship with Mr Lambe ended, your life spun out of control and you went back to the drug culture cycle.  If you can regain control of your drug addiction then you will be able to stay away from the crime and the criminal justice system as you have done so in the past.

53I have imposed a head sentence with a non-parole period, if you successfully apply for parole then the community and your family would be best served if you are released under the supervision of the Adult Parole Board to ensure drug rehabilitation housing and support are in place for you for an extended period.

54The sentencing considerations of general deterrence, specific deterrence and just punishment, the denunciation of your offending require a term of imprisonment to be imposed on you for each of these offences.

55I accept your role is a lesser role than that of your co-offenders.  That fact only serves to moderate your sentence from a sentence that would otherwise be a just sentence. 

56I have considered the principle of totality in sentencing you, when arriving at the cumulation between the sentences in respect of each charge.  In this offending some cumulation is warranted to mark out the totality of your offending.  I have moderated accumulation so as to not impose a crushing sentence upon you.

57Would you stand please?

58On charge 1, of aggravated burglary you are convicted and sentenced to three years imprisonment.  On charge 2, of armed robbery, you are convicted and sentenced to three years' imprisonment.  And on charge 3, of recklessly cause injury, you are convicted and sentence to one year imprisonment.  I order that the base sentence is aggravated burglary of three years and accumulation is as follows:

·     One year of the sentence for the armed robbery; and

·     Six months of the sentence in the recklessly cause injury charge are to be served cumulatively upon the base sentence and one another. 

59That is a total effective sentence of four and a half years’ imprisonment and I have fixed a non-parole period of two years and three months' imprisonment.

60Pursuant to s6AAA of the Sentencing Act, But for your plea of guilty I would have sentenced you to six years with a four year non-parole period and I declare that you have served a total of 96 days pre-sentence detention.

61Is there anything further, Mr Cecil?

62MR CECIL:  No, Your Honour.

63HIS HONOUR:  All right, thank you.  Ms Briffa, the only way you are going to get out of this mess that your life has spun into is that when you are released you have got to beat this drug addiction, or you will just get on the cycle of coming back every time.  You understand that, do you not, so be strong.  So be strong in there, get off the drugs and come out.  Thank you, if you remove the prisoner.  Thanks counsel for your assistance.

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