Director of Public Prosecutions v Briggs

[2021] VCC 345

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-21-00360

DIRECTOR OF PUBLIC PROSECUTIONS

v

JAMES ANTHONY BRIGGS

‑‑‑

JUDGE:	TODD
WHERE HELD:	Melbourne
DATE OF HEARING:	26 March 2021
DATE OF SENTENCE:	13 April 2021
CASE MAY BE CITED AS:	DPP v BRIGGS
MEDIUM NEUTRAL CITATION:	[2021] VCC 345

REASONS FOR SENTENCE
‑‑‑

Subject:  CRIMINAL,

Catchwords:          Plea of guilty – three charges stalk another person – one charge causing injury recklessly – two charges criminal damage (intent damage/destroy) – one charge reckless conduct endangering life -related summary offences - circumstances of COVID-19 pandemic

Legislation Cited:         Crimes Act 1958 ; Sentencing Act 1991, Mental Health Act, VSCA 26, Crimes Mental Impairment (Unfitness to be Tried) Act 1997,

Cases Cited:R v Storey [1998] 1 VR 359 2014, Navaratnam v The Queen [2021],  R v Verdins & Ors [2007] VSCA 102

Sentence:  6 months imprisonment and a 1 month adjourned undertaking on the summary charges

‑‑‑

APPEARANCES:	Counsel	Solicitors
For the DPP	Ms S. Locke	Office of Public Prosecutions
For the Accused	Mr J. McGarvie	Stary Norton Halphen

HER HONOUR:

Introduction

1James Anthony Briggs, you have pleaded guilty to three charges of stalking, one charge of recklessly causing injury and two charges of causing damage to property at two separate addresses.

2You have also pleaded guilty to reckless conduct endangering life in relation to your niece Amelia.

3With the exception of recklessly causing injury, the maximum penalty for each of those charges is 10 years imprisonment.  The maximum penalty for recklessly causing injury is 5 years imprisonment.

4You also pleaded guilty to the summary charges of failing to stop after an accident, with a maximum of 5 penalty units or 14 days imprisonment; failing to report an accident to police, the maximum penalty for which, being a subsequent offence on account of the previous charge, is 10 penalty units or imprisonment of not less than 14 days and not more than 1 month; to driving while your licence was suspended, the maximum penalty for which is 240 penalty units or 2 years imprisonment) and to committing an indictable offence while on bail (the maximum penalty for which is 30 penalty units or three months imprisonment.

Circumstances of the offending

5The Prosecution Opening sets out the circumstances of your offending.  It was amended to reflect the fact established that each of the indictable offences were committed while you were on bail.  It was tendered on the Plea and became Exhibit A.  It is attached to and forms part of these reasons.  I will summarise just some of the facts giving rise to your offending here.

Charge 1: Stalking Natalie Briggs

6Between 6 February 2020 and 31 May 2020 you sent more than 300 text messages to your sister Natalie from three different mobile numbers.  The content of those messages was disturbing and had sexual content.

7Natalie tried to stop the messages by blocking your number.  You responded by using a different number to send more messages.  Natalie felt conflicted and tried to tolerate your messages; she knew your mental health was declining and she wanted your family to help you in any way it could.  

8The last text message Natalie received from you was on 31 May 2020, and it read:

"If I don't get sexual attention today from somebody you people start dieing that's what the nymphfen orders are". 

9You then called your sister shortly after sending this message and aggressively yelled at her:

"Get your prostitute cousin to call me, if I don't get sex something is going to happen."

10Natalie became frightened of you.  She contacted your parents and sisters to warn them.  

Charge 2: Stalking Gabrielle Theoclitou

11On 28 April 2020 you sent your other sister, Gabrielle Theoclitou numerous text messages.  In them, you called Gabrielle a 'paedophile', a 'drug trafficker', 'molester', and a 'whore' amongst other things.  There were 10 - 20 messages of this kind per day.  Gabrielle felt sick and frightened when she got them.

12Around midday on 3 June 2020 you drove to Gabrielle's place where you threw two rocks at her house; the second went through a front window, one of her children's bedrooms, leaving shattered glass all over the floor.

13You then with drove away, sending Gabrielle a further two more unpleasant text messages.

14The house had CCTV, which recorded your offending. 

Charge 3: Stalking Brooke Briggs

15From February 2020 onwards, you sent a number of bizarre text messages to your sister Brooke.  These messages referred to Brooke as a 'whore' and referred to her leaving her children with paedophiles while she “sucked and fucked all night”.

3 June 2020

16At around midday on 3 June 2020 you drove to Brooke's home.  You pulled up outside her address and threw a rock, breaking the front bedroom window.  You drove away.

17Brooke sent you a text message, asking if you had been at her house, you replied with several cryptic, harassing text messages, including images of yourself.

Charge 4: recklessly causing injury to John Briggs and Charge 5: criminal damage

18On several occasions on the same day you went your parents' home in Deer Park.  You drove there, requested cigarettes from your father John Briggs and then left.  You did this a number of times.

19Your father John, received a phone call from Gabrielle around midday; she told him you had thrown a brick through a window at her place.  He was also told about what you had done at Brooke's house.   

20Later that day, around 3 pm you arrived at your father's home and he confronted you about the rocks you had thrown at your sisters' houses.  He asked you to leave.

21You returned to your car, grabbed several rocks and threw two of them at your father.  The first hit him in the leg, and the second hit him in the forearm, breaking the skin.  This gives rise to Charge 4: recklessly causing injury.

22You then threw a third rock; it broke the front window behind him. This gives rise to Charge 5: criminal damage.

23You then left, in your car, as your father phoned triple zero.

Charge 6: damage property, Charge 7: reckless conduct endangering life, Charge 10: fail to stop after accident, and Charge 11: fail to report accident to Police

24At around 4.30pm the same day you drove to your sister Natalie's home.  Natalie was not at home, but your brother-in-law Craig McSwain and their three children Amelia, George and Ayden were there.

25Amelia was playing outside with her friends; the rest of the family were inside.

26Craig McSwain heard a loud noise and ran to the front room.  He saw the back of your car against the wall of his front bedroom window; you had reversed into the house.  There was significant damage to the house and the car as a result.

27Craig ran out the front of the house and saw Amelia playing on the nature strip opposite her house.  You accelerated in Amelia's direction. You missed her by about a metre.  You drove away.  These events give rise to charges of criminal damage, reckless conduct endangering life, failing to stop after an accident and failing to report an accident to Police.

28From about 5.35pm Police searched for you through the city.  At one stage you were seen heading towards your parents' home in Deer Park but appeared to drive away when you saw a Police car there.

29At the time of these events your licence was suspended by reason of your having failed to comply with the conditions of a medical review of your licence.  That gives rise to the Summary Charge of driving while your licence was suspended.

30Further, you were on bail at the time of the commission of these offences and that gives rise to the Summary Charge of committing an indictable offence while on bail.

Arrest and interview

31You were finally apprehended at about 6.20pm on Spencer Street in West Melbourne.  You were taken into custody, and a Forensic Medical Officer found you unfit to be interviewed.  You were charged and remanded.

Prior Criminal History

32I now address your prior criminal history.  You have been to court twice before. The charges were for the contravention of family violence orders and for criminal damage.  Both cases were in 2018 and resulted in either a without conviction fine or a without conviction adjournment.  

33I am aware you have subsequent charges that are listed in the Magistrates' Court.  The status of those matters is unknown to me and I do not have regard to them.

Procedural History

34You were remanded on 3 June 2020.  Leave to cross-examine witnesses was granted at a committal mention on 27 August 2020.  A committal was listed but in the intervening period your lawyers had subpoenaed your medical records and you had been assessed by Dr Fiona Best, a psychiatrist.  Armed with this material, you and your lawyers quickly resolved your case and no witnesses were cross-examined.

Nature and gravity of the offending

35I will now address the nature and gravity of the offending.  From early February 2020, you sent your sisters large numbers of very disturbing messages.  For a time at least it seemed as though, out of care and affection for you, they tried to put up with them.  They sometimes replied with messages urging you to seek your doctors' help.  Your counsel referred to some of these replies on your plea.

36Your behaviour escalated into really terrifying conduct when you attacked your family's homes and ultimately your family.  You injured your father.  You endangered your niece.  You frightened and distressed your family.

37It is clear that you did these things because you had, as the result of your mental illness, developed long-standing delusions that your family were conspiring against you, or attempting to harm you.  I will return to the legal significance of that later.  It was put on your behalf that your illness in fact reduces not just the moral culpability of your offending but its objective gravity by obscuring, to an extent, the relevant intent.

38It is, by now, well understood that violence committed within a family has, in many cases, special significance in a sentence.  I accept that in your case your violence is to be understood as a manifestation of a severe and untreated delusional system.  Understanding it this way takes away what in other circumstances might be aggravating features sometimes grouped together under the term 'family violence'.

39The Prosecutor submitted that although fuelled by mental illness, the gravity of the offending will still be seen as malicious acts perpetrated by one family member against another.  The Prosecutor made significant concessions in relation to the reduction of moral culpability, but urged a separate consideration of the assessment of the objective gravity of the offending.  I note that you have previously committed offending against your family and that this occasion manifested more seriously because of the use of your car.

40Your various acts, driven as they were by an internal logic still manifested, objectively, as one brother, or son, doing frightening and violent things to his family.  The messages had a really relentless aspect to them.  What you did was frightening.  The law recognises that the lines between the circumstances of the offending and the circumstances of the offender may not always be easily drawn, I refer to the case of R v Storey at 365. [1]  Levels of recklessness may be reduced because reasoning in decision making is impaired, I refer to the case Navaratnam v The Queen. [2] Perhaps it is artificial to try to detach an assessment of the gravity of this offending from an assessment of its moral culpability in the very particular circumstances of your case.

[1]R v Storey[1998] 1 VR 359, 365.

[2]Navaratnam v The Queen [2021] VSCA 26, [29].

41I pause here to make a note that, during the hearing, I was assisted by the clarification of, and the Prosecution's concession about, the event where you drove your car in the direction of, but not at, your niece Amelia.  I have understood that and I do not sentence you on the basis that you drove towards her, but were driving close to her.

42You were on bail at the time of committing these offences.  I am obliged to take that into account, particularly in relation to specific deterrence.

Impact on Victims

43I take into account the effect on the victims of your offending.  Your family have suffered in two ways simultaneously.  Your sisters had the degrading and frightening offending committed against them but they have also had to bear the burden of the conflict between their responsibility to and affection for you against their fear of you.  It is not easy when the person you are trying to help is dangerous to you.  I take into account the effect on your family.  It was submitted on your plea that your case was an example of the “catastrophe of mental illness”.  That catastrophe is both within you and all around you.

Personal circumstances

44I now address your personal circumstances.  You are now 32 years old.  You were adopted by John and Kay Briggs at a very young age and have been a part of this family ever since.  You came into the family at a time when they grieved for their eldest daughter who had died in a transport accident.  School was behaviourally and socially very difficult for you.  You were bullied and assaulted there.  You had difficult relationships with your classmates, you changed schools more than once and ultimately permanently left at age 14.

45To your credit you found work in stone masonry, tiling and other trades very consistently for approximately the next five to six years.  You met your partner Nicole.  But by 2010 your mental health deteriorated, and from that time your ability to form relationships and hold down work has been conditioned by your mental illness.  I note that the relationship with Nicole ended for independent reasons.

46It was put on your plea, and not contradicted, that you had some history of illicit drug use, however, such drug use neither underpins your illness or was operating on you on the days of your offending.

47A report prepared by Dr Fiona Best, psychiatrist, dated 12 January 2021 was tendered on your plea.  Dr Best sets out the history of your mental illness.  You were diagnosed with schizophrenia eight years ago and have from time to time been compulsorily treated under the Mental Health Act 2014.  You have had 8 previous admissions to the acute psychiatric inpatient unit at Sunshine Hospital.  Sometimes you were not compliant with medication and subject to treatment under the Mental Health Act 2014.  A Community Treatment Order imposed on 14 August 2019 expired on 26 November 2019.  You were referred for treatment under your general practitioner late in 2019 but by February 2020, just before the start of this offence period, your health was unravelling.

48During early 2020 you became increasingly unwell; you thought your mother was attempting to poison you.  You described your family as paedophiles.  You were no longer welcome to stay at the family home.  It seems that, for now at least, you are estranged from your family.

Matters in mitigation

Plea of guilty

49I turn now to the matters in mitigation.  It is a very significant matter that you entered pleas of guilty to the charges.  You have spared the community, but most particularly your family, the very difficult business of having a trial about these charges.  In the opinion of Dr Best you were “likely to [have] a defence of mental impairment available to you pursuant to the Crimes Mental Impairment (Unfitness to be Tried) Act 1997”.  It was no doubt a considered decision by you not to pursue this course.

50Your plea becomes particularly valuable in this context.  You might have been found not guilty by reason of mental impairment.  Taking that course would have required Court resources and the possible cross-examination of witnesses.  You have foregone that opportunity.  Moreover, your plea is entered at a time when Victorian courts are dealing with an enormous backlog of criminal trials, and your trial is not among them.  This must be recognised on your sentence.

Psychiatric evidence and application of Verdins principles

51I now address the psychiatric evidence and applications of the principles in Verdins.  I have taken into account the report of Dr Fiona Best, which became Exhibit 4 on your plea.  It was put on your behalf that your moral culpability for the offending was significantly reduced because your illness was so causally connected to your offending and impaired your ability to exercise appropriate judgement, your ability to make calm and rational choices, clarity of your thinking, and your ability to appreciate the wrongfulness of your conduct.  This submission flowed from Dr Best's opinion and I accept it.  I accept that your moral culpability for this offending is significantly lowered as a result of your mental illness and the delusions you laboured under at the time of your offending.

52It was also submitted on your behalf, and conceded by the Prosecution, that the role for general deterrence in your case is eliminated.

53I accept that there is a role, though perhaps limited, for specific deterrence in this sentence.  I have accepted that the seat of your offending is in your mental illness; it flows from this that deterring you specifically from offending in this way again requires your treatment.

54I also accept that the imprisonment you have already served and any future imprisonment would weigh more heavily upon you because of your mental illness.  Moreover, I also accept that the imprisonment you have already served and any future imprisonment has and would have an adverse effect on your mental health.

55A remand summary, which became Exhibit 3 on the Plea, set out your movements between various units in the prison system and the Thomas Embling Hospital during your time on remand. It is a troubling chronology. By reason of section 67 of the Mental Health Act 2014 the symptoms that, if you were in the community, would trigger compulsory treatment under that Act are not applicable to you in custody.  It seems clear that your intermittent unwillingness to accept treatment is an aspect of your mental illness.  Because the operation of the Mental Health Act 2014 cannot reach you in custody you have been moved between Thomas Embling Hospital and custodial forensic mental health units over the past months.

56When Dr Best assessed you on 25 October 2020 she found you quite unwell.  According to the content of Exhibit 1 the emails between your counsel and a social worker in the Aire Unit, as of 7 April 2021, you were currently exercising your choice not to take your medication and you were again unwell; it was contemplated you would again be moved back to Thomas Embling Hospital, or, if released, taken by ambulance to Sunshine Acute Mental Health Unit, and further material became available today to support that proposition.  

57The constellation of your fluctuating attitude to treatment and the constraints on how that treatment can be humanely delivered to you in custody has significantly increased the burden of imprisonment upon you and I find, at least intermittently, caused a further deterioration in your mental health.

Prospects of rehabilitation

58I now address your prospects for rehabilitation.  It was put very simply on your behalf that your prospects for rehabilitation turn “entirely on the successful treatment of your mental illness”.  I accept that it is probably as simple and as difficult as that.  I would extend the proposition to say that protection of the community too can realistically only be secured in the long-term by the successful treatment of your mental illness.

59Having regard to the content of Exhibit 1, and I should add, the further materials tendered today, I understand that upon your release from prison Forensicare would cause you to be transported to Sunshine Hospital on an inpatient assessment order under the Mental Health Act 2014. 

Current sentencing practices

60I have had regard to current sentencing practices for similar offending; no case is quite like yours but I have considered the general sentencing landscape.

Relevant sentencing principles

61I will now turn to the relevant sentencing principles.  I have already considered the roles of general and specific deterrence.  Given the reduction in your moral culpability the role for just punishment is significantly reduced, but there are still reasons that some punishment must be applied.  Through this sentence the courts denounce what you did: whatever you believe about how you have been wronged by your family and whatever your capacity to appreciate the source of those feelings, it is never acceptable to seek out and harm or threaten any member of the community, no matter what you think they have done to you, but particularly your family.  I regard the protection of the community as an important feature of this sentence; the balancing of this with other principles has not been simple.

Impact of COVID-19 pandemic

62Further, I take into account the effect of the health measures taken by the authorities in relation to the COVID-19 pandemic.  You were in custody from June 2020, a period when all prisoners were subject to limitations in visiting rights and access to facilities in gaol.  

63During your time in jail you have been very unwell, and unable to have visitors.  In any event, your family it seems are still too hurt by what you did to offer their support.  No one has visited you for the whole time.  Your mental health has intermittently deteriorated.  It is difficult to imagine a more lonely experience, and I have taken that into account.

64This sentencing exercise has been particularly difficult.  I gave anxious consideration to extending the sentencing orders in your case by means of a Community Corrections Order.  I asked that you be assessed for such an order.  While it is not determinative, you were assessed as unsuitable.  I decided against that after plenty of careful consideration.  I have tried to balance the need for your rehabilitation and the protection of the community that is so closely tied to it, as well as the principle of parsimony.

Disposition

65On Charges 1, 2 and 3: stalking in relation to Natalie, Gabrielle and Brooke, you are convicted and sentenced to 2 months imprisonment on each of those three charges.

66On Charge 4: recklessly causing injury, you are convicted and sentenced to 2 months imprisonment.

67On Charges 5 and 6: criminal damage, you are convicted and sentenced to 1 month imprisonment on each charge.

68On Charge 7: reckless conduct endangering life, you convicted and sentenced to 2 months imprisonment.

69The sentence on Charge 7 is the base sentence.  I order that 1 month of the sentence on Charges 1, 2, 3 and 4 be served cumulatively on the sentence on Charge 7 and upon one another, resulting in a total effective sentence on the indictable matters of 6 months' imprisonment.

70On the summary charges of failing to stop, failing to report, driving while suspended, and committing an indictable offence on bail; you are convicted and I adjourn those matters for 1 month on your undertaking to be of good behaviour and on the condition that you appear at court in 1 months time and provide to the court evidence of your recent engagement with your area mental health service.

Pre-sentence detention

71As at today, the date of sentence, I note that you have served 314 days in custody. I note but do not declare that period of time under this sentence but rather declare 6 months of it pursuant to s.18 of the Sentencing Act.

s.6AAA Sentencing Act

72In relation to s.6AAA of the Sentencing Act, this is a particularly difficult and artificial exercise in this case. Pursuant to s.6AAA of the Sentencing Act I indicate that had you not pleaded guilty, but had been found guilty having attempted but failed to achieve a verdict of not guilty by reason of mental impairment, I would have sentenced you to 18 months imprisonment with a non-parole period of 11 months.

Ancillary Orders

73The disposal order is made as sought, and I make an order against your licence for six months. 

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