Director of Public Prosecutions v Briggs
[2022] VCC 761
•26 May 2022
| IN THE COUNTY COURT OF VICTORIA CRIMINAL DIVISION | Revised Not Restricted |
Case No. CR-19-01524
Indictment No. J12561335
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ROBERT BRIGGS |
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JUDGE: | His Honour Judge Smallwood | |
WHERE HELD: | Melbourne (sitting at Bairnsdale) | |
DATE OF HEARING: | 23 May 2022 | |
DATE OF SENTENCE: | 26 May 2022 | |
CASE MAY BE CITED AS: | DPP v Briggs | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 761 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr D Cordy | Solicitor for the Office of Public Prosecutions |
| For the Offender | Mr C Morgan | Robert Stary Lawyers Pty Ltd |
HIS HONOUR:
1 Robert James Briggs, you have pleaded guilty in the ultimate to one charge of attempted aggravated burglary and one charge of make threat to kill. Those crimes carry maximum penalties of 20 years and 10 years respectively. You ultimately pleaded guilty and are to get the benefit of that. You are 54 years of age. I suspect that remorse is somewhat problematic but I will give you the benefit of the doubt. You clearly get the utilitarian benefit of that plea of guilty and particularly in these times of Warboyes, that benefit must be one of significance and observable. You do have a significant criminal history which goes back quite some time.
2 Some years ago, indeed in around 1995 to 1997, you were convicted and sentenced for serious injury charges and in the ultimate a murder charge. As I understand it, you did the full 20 years of that sentence and were then ultimately released. Other than this matter, you have nothing of significance in my view since. As I will describing the offending in a moment, it has to be regarded as serious, it calls for the application obviously of general and specific deterrence, denunciation and appropriate punishment. Because of the threat to kill charge, you will be sentenced as a serious violent offender, where community protection becomes the principal sentencing purpose.
3 The Crown do not seek a disproportionate sentence. I am aware that sentences, if of imprisonment, must be cumulative unless otherwise ordered. A summary of the offending is that you had been effectively in dispute with your brother and he was living on the Maroondah Highway in Buxton. You were living in Lilydale. As I have said, there was a dispute between you. The relationship had deteriorated to a certain extent and I do not need to go through the details of all that. Your brother had become cautious of you for fairly obvious reasons, bearing in mind your past history, but in any event, in September 2018, your brother, who had not been well, went to Melbourne to attend the
Food Services Expo.
4 He was then picked up by another man and went to Lilydale Station. While he was on the train, your brother received a call from you and you said that you wanted to visit him. He said that he had arranged a lift home. You eventually got angry and started to abuse him over the phone. There was then a number of attempts by you to contact him. He was dropped off at his home at about 8.40 pm. He was concerned about his safety and the man who dropped him off questioned that. He said he would be all right and he would lock all the doors in case you turned up.
5 He locked himself inside the house and phoned your other brother, Ronald, to tell him that you were in an aggressive mood but he did not answer. He left a voicemail. At approximately 9 pm, you arrived and got out of your car and came to the house with a beer in your hand. Your brother was standing in the kitchen and could see you approaching through the glass door. You were yelling, 'I'm going to kill you, you bastard', while attempting to open the back door. You started kicking at the door, trying to get into the house. He tried to call Triple 0 but got the number wrong. You yelled, 'Don't try and call the coppers. You'll be dead before they get here'.
6 They are part and parcel of charges of attempted aggravated burglary and also threat to kill. You then went to the front veranda, tried to open the door and picked up a piece of firewood and tried to get into the locked side security door. You then went back to the office window. You continued to threaten to kill him if did not come out and said you would burn down the house with him inside. You then threw a piece of firewood through a broken window. He told you that if you did not leave he would shoot you. He thought that would be enough for you to leave. However, you kept going. He armed himself with a .303 and loaded it. He told you to, 'Fuck off or I'll shoot you'. You tried to get through the broken window again so he shot you.
7 You fell back onto the balcony. He, sensibly, grabbed the remaining shells, put them on a kitchen bench with the rifle and he unloaded the rifle, but he left the breech open so the firearm could not be used by you. He then called Triple 0. A number of calls were made. Eventually you were taken by air ambulance to the Alfred Hospital for medical treatment. You suffered a shattered femur and injury to your genitals. I will not go through the investigative aspects of it. The ultimate is that you have pleaded guilty. You denied it initially, but as I have said, you certainly get the utilitarian benefit of that plea of guilty.
8 I have before me a victim impact statement from your brother which says the very stressful time that he has had since this incident occurred some three and a half years ago. He said it has affected him emotionally and socially. He is anxious at times. He is afraid of retribution and does not feel safe. I have taken those matters very much into account in the sentence that I intend to impose. I take into account that the matter is now three and a half years old but some of that is because you were pleading not guilty obviously, but a significant part of it is also because of the restrictions that have been in place through COVID and as I have said, there is an extended period of time where you have not offended and that gives me a degree of confidence, as it does your psychologist, in terms of your potential rehabilitation.
9 The situation now is that, after discussion, and very sensible discussion if I might say so, between your counsel, the learned prosecutor and myself at the last occasion, there is now an intervention order in place which offers him some protection. At least it that, if you do approach him, police can arrest you immediately. There is no need for any other actions. The extra curial punishment in your situation is in my view high. I will be going through that again in a moment. They are all the factors that you have to be sentenced for. I will not go through your criminal record in detail. The defence proposition was a Community Corrections Order.
10 The Crown said a combination.
11 In my view, taking all the matters I am about to mention into account and bearing in mind decisions such as Boulton, I think a Community Corrections Order is the appropriate disposition provided it is of sufficient duration and sufficient punishment and you are kept under pretty strict supervision. You are now 54 years of age. You left school at the end of
Year 8 and began an apprenticeship and completed that. You have worked for years as a truck driver and then as a garbage truck driver for six or seven years and you have also done casual labouring and building. You have children but little contact with them as I understand it.
12 You have now been in a stable relationship with a new wife for about six years and ultimately since you were released from custody it would seem, right round about, and she is on Centrelink for mental health issues. You take care of her granddaughter and I am not going to go into all the detail of that. Since you were released from prison in 2016, you have been living at Heywood and you apparently are buying a house. You had been doing work truck driving but COVID put a bit of a hole in that, though there is now a letter on file from your employer which speaks well of you and I understand you are working something in the order of 50 hours a week and that is very much to the benefit of both yourself and the community.
13 I have mentioned delay and I have mentioned the plea of guilty. The other factor going in your favour is that of extra curial punishment. What is involved is that, after being shot, you initially spent 12 days in hospital. You have had six or seven operations in total. You have had pins put in your legs, the injuries to your genitals, you cannot walk properly. You still have constant pain in the leg. You only see your GP, possibly because not much can be done and the painkillers were really affecting you, so essentially, you are wearing it, to use the vernacular. I have read all the medical reports that are on file and those medical reports certainly support what your counsel put on your behalf. As it stands, you have a number of positive factors in your favour.
14 There is a report from Ms Cokorillo, a psychologist, that says that you have been diagnosed in her view with a severe level of depression, a moderate level of anxiety and moderately severe levels of PTSD. That PTSD would appear to have come from very unpleasant experiences during your long period in custody, as well, as one would clearly understand, a certain corroboration of it by being shot from close range with a .303 rifle. I accept that limbs five and six of Verdens would be enlivened would be enlivened were you to be placed in prison. After the long period of time that you have spent in gaol, it is not easy to - as I know from personal experience in the past from a different life - not easy to rehabilitate.
15 All sorts of paranoias and the like can take over but the fact of the matter is, other than this serious incident, you have bode pretty well. Ms Corriculo is optimistic of your prospects for rehabilitation and so am I. If you are able to rehabilitate completely, obviously the risk of you offending in my view, despite your prior history, would be low indeed. I have had you assessed for a Community Corrections Order and they have found you to be suitable. In simple terms, at the present time you have a stable partnership relationship, you have steady and remunerative I would suspect work, you have stable accommodation, owning your own house or buying your own house - the CCO that I impose if you agree to it will include supervision.
16 It would include the matters referred to in the report which I will exhibit from the Department of Justice. It will be a four year CCO. It will be with conviction. It will be 300 hours of community work. There will be judicial monitoring and what I am proposing to do, Mr Morgan, unless you disagree, is I will be making an order there be judicial monitoring and I will give him six months just to see how it is all going. If he is still going well then we will in business, but I will make it judicial monitoring at 9.30 on 25 November of this year. Who knows where we will all be at that stage but I will be in Melbourne and judicial monitoring can be done by way of video link.
17 Does that cause a problem for anybody? The other conditions of that CCO will be that you, under supervision as I have indicated - you will be assessed for mental health. You will be assessed for offending boarding house programs and what that does is, it gives the Corrections a wide range of options that can be used over the years, over the next few years. Bearing in mind the amount of work that you do, I have made it lengthy - partly because of that - I have made it a lengthy CCO but I do not want a situation where the work hours are not complete and the CCO finishes. The CCO, the supervision and the like are continue for a period of years, not only to effect your rehabilitation but to give your brother some sense of protection and hopefully some sense of safety that there are people keeping an eye on you. So taking all those matters into account, that is the disposition. There is no, assuming you agree to it - do you agree that, Mr Briggs?
18 OFFENDER: Yes, Your Honour. Yes, Your Honour.
19 HIS HONOUR: That can be done orally. That will be marked on the document. There is no pre-sentence detention and I think I am bound under 6AAA - it is impossible in these situations to know what I would have done. I will simply say I would have given a combination sentence.
20 MR CORDY: As Your Honour pleases.
21 HIS HONOUR: I do not think I can make it any clearer than that.
22 MR CORDY: There are just two matters, Your Honour. In relation to the mental health assessment and I presume offending behaviour programs, is Your Honour intending that any of that be offset as a credit against the work?
23 HIS HONOUR: That is what I was about to say, yes. That is what I was about to say. I will make it that any hours spent in programs is deductible from the total work hours.
24 MR MORGAN: If Your Honour pleases.
25 HIS HONOUR: Therefore, theoretically the whole lot could go in supervision and treatment and things like that but yes, thanks, Mr Cordy, I was going to do that. I probably would have forgotten if you had not mentioned it again.
26 MR CORDY: The only other matter that I raise for Your Honour's sentencing remarks is Your Honour referred to the rifles being a .303. It's actually a .
30-30. It is fairly academic, yes.
27 It still hurt, Mr Cordy, whichever way you go.
28 MR CORDY: I was going to say, it does not make much difference to Mr Briggs I am sure.
29 HIS HONOUR: I mean when you are 10 feet away, is not it, there is not a lot of difference. Thanks, Mr Cordy. Thanks, Mr Morgan. Do you need to speak to your client, Mr Morgan? I can just arrange Mr Hanko now to do that if you want me to.
30 MR MORGAN: I can do that by mobile phone, Your Honour.
31 HIS HONOUR: Thanks, gents. Yes, thank you.
32 OFFENDER: Thank you, Your Honour.
33 HIS HONOUR: Thank you.
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