Director of Public Prosecutions v Briggs
[2023] VCC 249
•15 February 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Suitable for Publication |
Case No. CR-21-01801
CR-21-01802
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TYSON BRIGGS |
CHACAIN KENNEDY
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JUDGE: | HER HONOUR JUDGE GAYNOR | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 9 February 2023 | |
DATE OF SENTENCE: | 15 February 2023 | |
CASE MAY BE CITED AS: | DPP v Briggs & Ors | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 249 | |
REASONS FOR SENTENCE
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| Subject: | CRIMINAL LAW |
| Catchwords: | Common assault – False imprisonment |
| Legislation Cited: | Crimes Act 1958 (Vic); Sentencing Act 1991 (Vic) |
| Cases Cited: | |
| Sentence: | TYSON BRIGGS: Fine in the sum of $700.00 CHACAIN KENNEDY: 612 days imprisonment |
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr Grant | Office of Public Prosecutions |
| For the Accused Briggs For the Accused Kennedy | Mr A. Pyne Ms J. Clark | Camerons Lawyers Kurnai Legal Practice |
HER HONOUR:
1 Chacain Aaron Kennedy, you have pleaded guilty to one charge of false imprisonment and two charges of common assault. Tyson Briggs, you have pleaded guilty to one charge of common assault. The facts underlying this offending are contained in the very detailed summary of prosecution opening for plea which is attached to these sentencing remarks.
2 In short compass, the offending occurred between 7 and 9 July 2020. On 6 July you met the complainant in this matter, Aaron Priest, at a location near KidsTown, a children's play centre near Mooroopna. This was because Mr Priest was selling a Kevlar vest. At the time while you, Chacain Kennedy, were trying on the vest you took off a manbag and put it on the bonnet of the car Mr Priest was driving. Mr Priest eventually drove off and you were unable to find the bag.
3 In the evening of 7 July 2020 you, Mr Kennedy, and you, Mr Briggs, and a third unknown male attended at Mr Priest's house and confronted him over the bag, you, Mr Kennedy, detaining Mr Priest at his home for a while during this discussion. Mr Priest then went with both of you and the third unknown male back to KidsTown where the bag had last been seen also driving along a bush track into some adjoining bushland. When you all arrived at the bushland location and you were still in the car you, Mr Briggs, threatened to assault Mr Priest.
4 Mr Priest and the other men then got out of the car and you, Mr Kennedy, detained Mr Priest in the bushland while the rest of you searched for the missing bag. While in the bushland area you, Mr Kennedy, got a shovel from the back of your car, gave it to Mr Priest and demanded he dig a hole so that he could be buried up to his neck until the missing bag was found. Mr Priest was in fear that he would be hurt and began to dig the hole. You, Mr Briggs, were present but the prosecution do not allege you played any role in detaining Mr Priest or forcing him to dig the hole.
5
After being at the bushland location for some time Mr Priest went with you,
Mr Kennedy, and the other men to two locations to look for the missing bag. You all arrived at the home of a person known as Kasey in the early hours of 8 July and the two of you searched for the bag there while
Mr Priest was made to wait outside in the car. You then got back into the car and Mr Priest accompanied you to the home of Craig Ferguson in Mooroopna and there you, Mr Kennedy, detained Mr Priest and discussed detaining him until the bag and its contents were located.
6
After some period of time at Mr Ferguson's house the others got back into the car and Mr Priest was dropped back to his home at about 5 am on
8 July 2020. On 9 July 2020 the two of you returned to Mr Priest's home in Shepparton where you, Mr Kennedy, showed Mr Priest a taser and discharged it to demonstrate it was operative. At that time Mr Priest was in fear that you would discharge it on him.
7
This matter was originally set down for trial and evidence and
cross-examination took place of Mr Priest in a pre-trial recording. Ultimately, discussions then took place between prosecution and defence and the matter was settled. The basis on which the charges resolved as follows.
8 In relation to you, Mr Kennedy, Charge 1, false imprisonment, to which you have pleaded guilty is a rolled-up charge, the prosecution accepting that your plea to that basis is laid on Mr Priest being detained against his will-
1) for a period of time at about 7.45 am on 7 July 2020 when you and other men attended Mr Priest's home and discussed the missing bag;
2) for a period of time at bushland near KidsTown while searching for the missing bag and when Mr Priest was forced to dig the hole and he was detained there until the early hours of 8 July 2020;
3) for a period of time while Mr Priest was forced by you, Mr Kennedy, to wait in a car outside Kasey's house;
4) for a period of time whilst a search was undertaken at Craig Ferguson's house in Mooroopna. It is not alleged that Mr Priest was forced to move before the location against his will and it is not alleged that you, Mr Kennedy, were aware that an unknown male who discharged a weapon whilst in bushland was in possession of that weapon on 7 July. It is not alleged that you, Mr Briggs, had any part in detaining Mr Priest at any of the locations.
9
Charges 2 and 3 on the indictment which are charges of common law assault represent your conduct, Mr Kennedy, at the bushland location when you gave the shovel to Mr Priest and told him he was going to be buried up to his neck until the missing bag was found. And Charge 3 relates to your conduct,
Mr Kennedy, when you discharged the taser at Mr Priest's home on
9 July 2020.
10 You, Mr Briggs, pleaded guilty to one charge of common law assault and that represents your conduct when you were with Mr Priest in the car before getting out in the bushland area where you threatened Mr Priest with the application of force. That plea was accepted on the basis that the prosecution accept that you don't fall to be sentenced for what happened in the house or after Mr Priest left the car and went into the bush.
11 I should have added that whilst in bushland the unknown male produced what Mr Priest thought was a semi-automatic 9 mm handgun which he pointed in the air and pulled the trigger and this caused Mr Priest extreme fear. It is not alleged either of you knew about this weapon or had any part in it being produced or fired.
12 The maximum penalty for false imprisonment is five years imprisonment.
13 I now turn to the personal circumstances of each of you beginning with you, Chacain Kennedy. You are now 22 years of age. You were 19 at the time of this offending. You had a difficult background. You are the second of six children born to your parents who separated when you were about eight. You grew up in the Robinvale and Echuca areas and you were educated to Year 11 finishing school in Robinvale; however, you while growing up, you saw a lot of violence between your parents and your extended family. You saw injuries being inflicted with bottles and fence palings. On one occasion you saw your father smash a bottle of alcohol over your mother's head.
14 Your mother also had difficulties with alcohol. You grew up in a family where there was financial hardship. You experienced water and power being cut off and you stole to get food. You began using drugs from a very early age, cannabis from Age 11 and ice soon after. When you were 14 or 15 you were the victim of a home invasion in which you received a broken jaw, there was delayed treatment which included lengthy surgery and recovery and you simply dealt with this by increasing your use of drugs.
15
You have a five-year-old daughter from a long-term relationship which ended after you were gaoled but you remain on amicable terms with her mother. You have regular telephone contact with her and are anxious to return to regular contact with her mother on your release. Your mother now lives and works in Bendigo. She has turned her life around. She moved there about
four years ago in order to get away from problems in the Robinvale and Echuca area. She has a full-time job as a cleaner. She is very concerned to assist you in re-establishing contact with your daughter and she is hopeful she can find work for you once you are released.
16 You have spent most of your time in Port Phillip Prison. You have been a bin billet whilst there but have been unable to access educational programs largely – which are restricted largely due to the imposition over a long period of time of COVID conditions arising from the pandemic. As I have said, you intend to live with your mother and you would hope to complete a hairdressing course which you began whilst in Malmsbury.
17 You have a troubling prior criminal history. At the time you committed these offences you were on youth justice parole which was cancelled as a result of this offending. You were returned to custody on 13 July 2020 and that parole was cancelled. The service of that parole expired on 13 June 2021 and you have been held in custody since amassing a PSD of 612 days.
18 Turning to your prior criminal history, you first appeared before the Echuca Children's Court in 2012 of wilfully damaging property. You continued in 2013 and 2014 and 2015 to be dealt with by the Echuca and Shepparton courts for offending such as intentionally destroying property, attempting to commit an indictable offence, theft, dealing with proceeds of crime, burglary, contravening condition of bail, handling stolen goods, recklessly causing injury, going equipped to steal, possession cartridge ammunition without a licence, possessing a controlled weapon without a licence. In March 2015 you were placed on a 12-month supervision order which you subsequently breached.
19 In December 2018, you appeared before the Mildura Children's Court on charges intentionally causing injury, recklessly causing injury, aggravated burglary, theft, burglary, intentionally damaging property, robbery, attempted armed robbery, making a threat to kill, theft of a motor vehicle, dealing with property suspected of being the proceeds of crime, theft, shoplift, unlawful assault, driving offences, possess housekeeping implements and so forth. And in relation to that offending you were ordered to undergo detention in a youth justice centre.
20 On 19 February 2019 you appeared before the Mildura County Court on charges of intentionally causing injury, burglary, theft, attempted burglary, attempted theft, aggravated burglary, trafficking in a drug of dependence and armed robbery and you were sentenced to an aggregate term of 13 months in a youth justice centre.
21 So your prior convictions are concerning involving as they do violence and dishonesty and give an indication of the drug problems that you have experienced for many years. Importantly, it would seem whilst you have been in custody you have refrained from drug use and you informed the court you have been tested on about 15 occasions for drug use and those screens have always come up clean.
22 The prosecution submit that I should deal with you by way of a term of imprisonment but concede that the period of time you have spent in custody which relates to this offending is a sufficient response to that offending. I propose to deal with you on an aggregate basis, in sentencing you because in my view the offending all arises out of the one course of conduct over three days. I, therefore, sentence you 612 days imprisonment and I order that this sentence has been served by way of pre-sentenced detention. Pursuant to s6AAA I declare that had you not pleaded guilty I would have sentence you to a term of imprisonment of three years and order to be served a minimum term of two years.
23
I now turn to you, Tyson Briggs. You are now 28 years of age and were 25 at the time of this offending. You are a Yorta Yorta man who was born in Shepparton where your father, Ronnie, worked as a cultural liaison officer on Victorian Government Road building projects and is a supervisor on the
CISP program. Your father is a respected member of the Shepparton community and your mother, Karen Briggs, worked in home duties before later working for Aboriginal Housing Victoria and she is also a respected community member. Both your parents are now retired and care for their grandchildren.
24 You were what is described as a talented child who was raised in Shepparton to the age of 7 when your family moved to Healesville to be closer to other family members who had founded the Worawa Aboriginal College which is a wonderful college for young Aboriginal women. You attended the Badger Creek Primary School where your grades were excellent and you are also an excellent sportsman. Unfortunately, you experienced significant racism whilst being schooled in Healesville.
25 You went on, however, to obtain scholarships to Melbourne Grammar (which you attended for a year) then you obtained a second scholarship this time to St Patrick's College in Ballarat obtaining each of these scholarships because of your academic prowess and your ability at sport, specifically football, although you were also a talented boxer and basketballer. When you were 17 you were selected to play for the Richmond Under 18 Indigenous Football Club and you later helped established and played for the Hawthorn Under 21 Indigenous Football Team. You also played for the Casey Scorpions football club at which time your partner fell pregnant and your daughter was born during pre-season in 2016 and you moved back to Shepparton to have your baby on country.
26 You had a difficult time however, you had problems with substance abuse and this difficulty is reflected in your prior criminal history. In July 2017 you were placed on an undertaking to be of good behaviour without conviction on charges of intentionally damaging property, unlawful assault, contravening a family violence intervention order and aggravated assault of a female. You completed that undertaking successfully.
27 Again, on 23 September 2019 you were placed on a second adjourned undertaking on a charge of criminal damage which, again, you successfully completed. You underwent counselling at Dardi Munwurro as a condition of the 2017 adjourned undertaking and then you obtained a certificate in community service. After that you worked and played football in Shepparton captaining the Rumbalara Football Club and later captained the senior squad of the Ardmona Football Club. You worked for a company called 3rd Party Containers and still work for that company. However, during the pandemic your work dried up as did your sporting commitments and you told your counsel that enforced idleness during that period led to you becoming involved with other people who were offending and this is how you were caught up in this offending.
28 Whilst on bail in relation to these matters you've made significant changes completing a CISP program and attending a gym. You stopped using substances which you had taken up, again, during the period of offending. You got work again with 3rd Party Containers and you are now the second in charge at their Shepparton site. You live in your own house and you are a mentor at a gym to two young boxers. They are extremely promising. One of them is ranked second in Australia in his weight division, the other is ranked fifth in Victoria. You have established a solid relationship with a new partner and you have little baby girl, a second child, who was born a week ago.
29
I received a very impressive reference from solicitor, Luke Slater. He practises in the Goulburn Valley and is an active member of the
Goulburn Valley Boxing Academy based in Mooroopna where he trains, competes and coaches adults and junior boxers. Mr Slater writes that he met you at the boxing gym late last year. He pointed out that the gym is located in Mooroopna which is a very disadvantaged area with a large indigenous community but substance abuse is rife, education levels are low and unemployment is high. He pointed out that the town was badly hit by the flooding last year and that most of the boxers at the gym were young Koori men seeking a hobby, discipline and guidance.
30 He notes that you started training at the gym following the floods in
October 2022 and assisted with cleaning up the mess and getting the gym back up and running. It had been forced to close because of the flooding.
Mr Slater wrote, 'for the past couple of months I have observed Tyson becoming increasingly involved with mentoring the young kids at our gym'. He says there are a couple with real potential. I have referred to both of those. And Mr Slater writes that you have been transporting these young men backwards and forwards to the gym and providing which he describes at 'valuable input and encouragement'.
31 He wrote,
'It is obvious that his presence and connection to the kids provides them with motivation and enthusiasm to make better choices on a day-to-day level. Tyson has shared his experiences with us as a group and reflected on the bad choices he was making a while back. He seems motivated to stay on the right path and assists others who might be slipping down the wrong track'.
32 Mr Slater also writes,
'It has been a powerful thing to observe a Koori bloke in his mid-20s making a proper effort to trend away from the criminal justice system and at that the same time have a positive influence on young and vulnerable Koori kids'.
33 Mr Slater describes you as a brilliant asset to the gym and you now hold a second-in-charge position. And, indeed, your counsel informs me that you if you keep going as you are going you're likely to have a position of even more responsibility there.
34 So your position now, Mr Briggs, is one where you are working, you are a new father, you are in a stable relationship and you are very much contributing to your community by way of your activities in the gym. It was a submission of the prosecution that whilst it was accepted that I could deal with you by way of a fine, it should be a fine to which a conviction is attached. This is because you have been given two chances in the past by the courts and this offending represents a third descent by you into criminal behaviour.
35 I have to say there is some force in the prosecution submission. I understand that you've done well, Mr Briggs, but unlike Mr Kennedy you had a strong supportive family. You have had a lot of opportunities; you have had a lot of support and you have had opportunities from the courts themselves who so far have been moved, despite worrying offending, to allow you to be dealt with in a way that doesn't affect your record in a public sense. I do accept that your offending did take place at a time when your employment had dried up, where you were no longer able to play football, where you were idle and where you fell back into substance abuse.
36 But really, Mr Briggs, you are 27 now, you are the father of two daughters, you have to take a bit more control of your circumstances. I absolutely accept that you have done well and are doing well and I am going to give you one more opportunity. It seems to me that you have a real future in the work that you do with the gym and I accept what Mr Slater has said about the importance of your work with young blokes who have not had the advantages that you have had in terms of their own family.
37 I do accept that as an Aboriginal man, you particularly as a child, were subjected to racism, and that can do a great deal to dent a person's sense of belonging, their sense of confidence and their general happiness in life and I accept that this suffering may have followed you down the track. Because of your good work in the gym, because you have turned your life around over a long period of time, I am prepared to give you one more opportunity and I do propose to deal with you by way of a fine which will, however, have a – not have a conviction attached to it.
38 I note that the plea of guilty whilst it came somewhat late, came because of the pre-trial recording of Mr Priest's evidence which allowed everyone to have a better view of the charges which had arisen from his statement and I accept that your involvement in this offending was minimal. Nevertheless, you were part of, what was in the end, a very nasty piece of offending involving Mr Priest and which lay right beyond the boundaries of the life that you were hoping to lead. I bet your parents weren't very pleased, were they Mr Briggs.
39 OFFENDER BRIGGS: Yeah.
40 HER HONOUR: They had a bit to say to you.
41 OFFENDER BRIGGS: Yeah, dad did.
42 HER HONOUR: Yes, I could imagine. All right. Look, you have done well. You have done rehabilitative work. I regard your rehabilitative prospects as positive. I am anxious to see your reform continue and if you have got the capacity to go further down the track in the sort of work you are doing to assist disadvantaged young Aboriginal men, I do not want to stand in the way of that. I am aware that you are going to be facing driving offences and cannabis use offences. You know, Mr Briggs, you are getting too old for this, are you?
43 OFFENDER BRIGGS: Yeah.
44 HER HONOUR: You are 27, you have two daughters, you have got a responsible position. You are acting as a mentor to younger Aboriginal men. You have got to give this sort of thing away, all right. Because you are going to end up with a conviction at some stage down the track, all right. This has gone on for too long.
45 So in the circumstances I am going to fine you and I am going to fine you $700 and I will you give you eight months to pay, all right. So your best bet, Mr Briggs, is to make contact with the court and come to an agreement to pay it off like a 100 bucks a month which is $25.00 a week, all right. If you run out of time to pay, if you have made some efforts to pay, the registry at the County Court will give you extra time, but if you have made no effort to pay in that eight months, then that is not going to go – they are not going to look upon that very favourably.
46 Pursuant to s6AAA, I declare that had you not pleaded guilty, I would have placed you on a community corrections order with conviction for a period of
15 months. Thank you.
47 MR GRANT: If Your Honour pleases.
48 MS CLARK: If Your Honour pleases.
49 HER HONOUR: Thank you very much, Mr Grant. And thank you for the extra work you did and the very helpful new summary, the base which summarised very well the basis on which the matters were ultimately settled, particularly that you were not – given that you were not initially involved in it, so it must have taken a lot of work and I want to recognise that and thank you for it.
50 MR GRANT: Thank you, Your Honour.
51 HER HONOUR: And I think counsel both for their helpful submissions. I reserve the right to edit the appalling grammar that has accompanied my extempore sentencing which is always the case and here is the disposal order. All right. Good luck to you, Mr Briggs, and good luck to you,
Mr Kennedy.
52 OFFENDER BRIGGS: Thank you.
53 OFFENDER KENNEDY: Thank you.
54 HER HONOUR: Yes. You get into that hairdressing, Mr Kennedy, I sense a promising future for you there. You keep up your good work, Mr Briggs. I thank everyone very much and we will stand down. Thank you.
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