Director of Public Prosecutions v Briggs

[2018] VCC 1805

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18‑00854

DIRECTOR OF PUBLIC PROSECUTIONS

v

THEODORE LESLIE BRIGGS

---

JUDGE:	HER HONOUR JUDGE HANNAN
WHERE HELD:	Melbourne
DATE OF HEARING:	9 November 2018
DATE OF SENTENCE:	9 November 2018
CASE MAY BE CITED AS:	DPP v Briggs
MEDIUM NEUTRAL CITATION:	[2018] VCC 1805

REASONS FOR SENTENCE
---

Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms Julia Gibby	Office of Public Prosecutions
For the Offender	Ms Sam Poulter	Victorian Aboriginal Legal Service

1HER HONOUR:  Theodore Leslie Briggs, you have pleaded guilty to two charges of failing without reasonable excuse to comply with a condition of a supervision order.  Charge 1 relates to breach of a restrictive condition and Charge 3 is a rolled up charge in relation to the breach of further conditions of the order. The maximum penalty for each offence upon summary disposition is two years imprisonment. The circumstances which found your offending are set out in the prosecution opening which was tendered as Exhibit 1 upon the plea.

2In essence, on 12 November 2017, you and a co-offender returned to the victim's unit from a walk at Corella Place.  You and the co-offender asked the victim when he would be getting his next round of medication, more specifically Lyrica.  The victim told you he did not have any and would get some again on either 13 or 17 November.  Your co-offender, whom I have been told is an older male relative of yours, became angry with the victim calling him a liar.  He threatened to cave his head in.  You then punched the victim to the chin.  The victim went into his unit and you and the co-offender left. 

3A few days later, on 17 November, you left a voice message on the victim's phone saying, "One thing, pick the fuck up, you're going to get popped, cunt.  Pick up, cunt."  That afternoon you rang the victim and told him to go to your co-offender's unit.  He refused.  You rang back a short time later and your co-offender spoke to the victim, telling him that if he did not come to the unit to talk he would, "kick the crap out of him" and that he would not make it to Sunday. About five minutes later you attended the victim's unit and said, "It will be worse if you don't go over there". 

4As a result of you and your co-offender's conduct, the victim reported the matter to staff at Corella Place and arrangements were made for a statement to be taken at Ararat police station.

5On 19 April 2018, you pleaded guilty to a total of five charges. One of those charges was a charge of extortion and threat to kill but the dates of the offending is substantially wider than the dates of the breach offence. The conduct relied upon in this proceeding is confined to your conduct between 16 October and 17 November 2017 because the restrictive condition was not imposed until 16 October.  On that date, condition 3.2 was made a restrictive condition which prohibited you from committing a violent offence in Victoria, which includes extortion with a threat to kill. 

6As regards Charge 3, you have pleaded guilty to a rolled up charge of breaching conditions between 3 September 2015 and 16 October 2017. Specifically condition 6.9 and 4.6.1, by obtaining drugs unlawfully. That conduct relates to unlawfully obtaining Lyrica from the victim of the first charge at Corella Place on a number of occasions. 

7By way of background, on 3 September 2015, at this court, a supervision order was imposed for period of three years.  That included condition 6.9 prohibiting you from obtaining drugs unlawfully. 

8On 16 October 2017 that supervision order was reviewed and renewed by this court and condition 4.6.1, a prohibition on obtaining drugs unlawfully, was imposed together with condition 3.2, which was declared to be the restrictive condition and prohibited the commission of a violet offence as defined for the purposes of the Act. 

9It is common ground that this is the third time you have breached a supervision order. On 13 August 2015 you were convicted and sentenced to 133 days imprisonment for breaching a supervision order in circumstances where you returned positive samples for amphetamine and methylamphetamine and had accessed pornographic websites. 

10On 2 August 2016 you were convicted of failing to comply with a supervision order and sentenced to eight months imprisonment. That offending involved you failing to attend supervision on a number of occasions; failing to attend counselling on a number of occasions; failing to comply with curfew conditions on three occasions; failing to submit for urine analysis on two occasions; returning positive samples on five occasions; accessing Facebook without consent; and finally on 4 July 2016 removing your electronic monitoring device and exiting Corella Place unaccompanied. 

11You have in addition, for the purposes of these proceedings, admitted the contents of a criminal record.  Significantly, for my purposes, in February of 2010 at age 17 you were convicted in the Shepparton Children's Court of aggravated burglary, resisting police and four charges of rape.  You were ordered to be detained in a youth justice centre for a period of 33 months.  That offending involved you entering the home of a female victim who was present with her six children whilst you were intoxicated. You then raped the victim anally and orally whilst threatening to kill her armed with a knife. 

12This offending occurred shortly after you had been released on parole as a result of sentences imposed in 2009 for charges including aggravated burglary and recklessly causing injury.

13On 24 July of 2012 you were sentenced in the Melbourne Magistrates' Court to 13 months imprisonment, with a non-parole period of six months, in relation to two charges of burglary and one of theft.  You ultimately breached parole in relation to that matter and it was cancelled.

14On 13 December 2012 at this court you were sentenced to be imprisoned for two years and six months, with a non-parole period of 20 months, in relation to charges of aggravated burglary, theft, obtaining property by deception and two charges of criminal damage.  That offending involved you breaking into the home of a female victim, stealing her bank card, and the victim awaking to find you in her bedroom armed with a knife.  Before leaving you cut an internal telephone line rendering it inoperable.

15On 25 October 2016, you were convicted of unlawful assault, theft, committing an indictable offence whilst on bail and being a prohibited person in possession of a firearm.  You were sentenced to be imprisoned for seven months.  That offending occurred whilst you were in the company of other persons.  At a location you assaulted another resident at Corella Place and on 4 July you absconded, committing further offences. 

16On 15 January 2016 you were convicted of possession of cannabis and other drug offences, together with burglary, theft and handling stolen goods. You were sentenced to be imprisoned for two months.  That offending also related to conduct at Corella Place. 

17As regards your criminal offending which forms part of the basis of these breach proceedings, on 19 April 2017 you were sentenced to 14 months imprisonment, with 153 days reckoned as served.  Your release date is currently 16 January 2019.  There is thus no pre-sentence detention in relation to this matter. 

18Your personal circumstances are set in the report of Dr Dion Gee dated 8 September 2018.  You were 25 at the date of the offending, you are now 26.  You are properly described as youthful, albeit not a young offender. 

19Whilst undergoing your current sentence it seems that you have actively engaged with Koori programs and you report enjoying engagement with these services and your role in NAIDOC week.  You are a young aboriginal man and if this is a way forward it should be pursued, including on your return to Corella Place.

20As indicated to your counsel during the course of the plea, I have no difficulty in finding that your childhood and adolescence have been marred by significant deprivation and disadvantage.  Those factors continue to operate in your functioning and I have acted on the basis that they should be given weight in this sentencing process.  I do not propose to repeat that history in the context of these remarks but I have noted the matters as set out in the report of Dr Gee. 

21Dr Gee concludes that your early development was characterised by extensive adversity, including parental alcohol and substance abuse; exposure to domestic violence; neglect within the home; ineffectual parenting; instability of environment; periods of abandonment, rejection and loss; ineffectual education and poor academic attainment; difficulties with adaptive self-regulation; bullying; racism; minimal pro social networks; exposure to alcohol and illicit substances at an early age; and periods in youth detention.

22He further opines that these factors transitioned through your adolescence into early adulthood, where you were similarly deprived of adaptive and pro social experiences.  He directly links these factors with the development of numerous antisocial attitudes and beliefs, low self-esteem, instability and other factors. 

23Dr Gee says you do not meet the formal diagnostic criteria for ADHD, and the information does not suggest that you were labouring under symptoms of any major mental illness. He does, however, identify ingrained, enduring and pervasive features that underpin your emotional, cognitive and interpersonal difficulties.  He says your chronic character pathology is suggestive of a mix of personality disorder, with borderline melancholic, paranoid, narcissistic and antisocial personality features, together with habitual pathology underpinning your maladaptive ways of thinking, feeling, behaving and inability to function productively.  He says you appear to have succumbed to an emerging depressive illness with anxious and somatic features, which overlays the enduring trauma pathology which has now become embedded within your personality structure.  He says your substance abuse is in part to medicate the re-emergence of traumatic experiences. 

24He says you have struggled to formulate an identity outside substance abuse and crime. 

25As regards your mental functioning, Dr Gee is of the opinion that you do not currently demonstrate psychopathology suggestive of a major mental illness, acquired brain injury, autism spectrum disorder or neurological impairment, nor enduring symptomology indicative of neurodevelopmental disorder.  That said, he does opine that you demonstrate impairments of mental functioning emerging from within your personality dysfunction, polysubstance dependence and possible learning disorder.

26He opines that he would not see incarceration as weighing more heavily upon you than a person of normal mental health, although he certainly opines that the risk of further engraining your current dysfunction and social dislocation, and increasing your sense of institutionalisation in a relatively young man, continues to exist. 

27Totality is properly given weight in the sentence I will impose this day. The delay occasioned by the breach needing to be transferred to this court subsequent to the criminal matters being disposed of in the Magistrates' Court now means that you have served 12 months of a 14 month sentence imposed as regards the breach offending, and you have lost the opportunity for concurrency which would have been arguable if the matter had proceeded in a more timely fashion. 

28In a more global context, in my view it is important that breaches of this nature are dealt with quickly.  The concept of action and consequence should be clear in a cohort which includes those with various deficits and patterns of concrete thinking.

29I take into account your plea of guilty and I have sentenced you on the basis that you have pleaded at the first available opportunity.  You are entitled to the full discount for an early plea.  You have saved the witnesses from giving evidence and you have saved the community the time and expense of a trial.  I accept that your plea should be used as evidence of remorse.

30While you are not a young offender, you are still a youthful offender and the community must maintain a real interest in your rehabilitation, if that is possible, as that is the community's best protection into the future.

31I think at this time your prospects of rehabilitation are guarded at best.  You appear to have made little progress.  The reality is that unless you engage in treatment and actively pursue rehabilitation you are likely to spend significant amounts of your adult life in custody.

32General and specific deterrence are relevant sentencing principles which should be given weight in the sentence I will impose this day.  I must seek to deter not only you but others who would engage in like conduct. From an individual perspective, this is your third breach of an order.  Prior terms of imprisonment have failed to dissuade you.  Specific deterrence is properly given weight.  As regards general deterrence, the serious nature of breaches must be clear to promote the effective functioning of the scheme, which has the primary purpose of protection of the community.

33Your sentence must manifest the community's denunciation of your conduct and impose just punishment. 

34It was conceded by the prosecution that due to the substantial overlap in the factual basis of the offending, concurrency is appropriate between Charges 1 and 3.

35As regards Charge 1, it is accepted that section 10AB of the Sentencing Act applies and is relevant to this matter.  That section provides that in relation to Charge 1, the court must impose a term of imprisonment of not less than 12 months unless the court finds under section 10A that special circumstances exist. 

36It was submitted on your behalf that a special reason exists and that there are substantial and compelling reasons for so doing. 

37The word compelling has been considered in light of both recent bail amendments and in gross violence offending. In Hudson, the Court of Appeal said that compelling connotes powerful circumstances of a kind wholly outside what might be described as run of the mill factors typically present.  The word substantial means, I think, important, significant, material, and is to be read as an additional requirement to the word compelling.

38I have acted on the basis that the burden is a heavy one and that this was the intention of parliament. 

39Your counsel submits that substantial and compelling reasons have been established based upon totality, delay, deprivation and disadvantage, your life circumstances and your circumstances in custody.  But as I indicated at the conclusion of her submissions, in my view they have not been made out. 

40Would you stand, please. 

41Accordingly, I convict and sentence as follows.  Charge 1, convicted and sentenced to be imprisoned for 12 months.  Charge 3, convicted and sentenced to be imprisoned for one month wholly concurrent with the sentence imposed upon Charge 1.  I direct that you serve six months before becoming eligible for parole.  I anticipate that you will have some difficulty in that regard, but that is a matter for the parole board. In my view it is important that there is some incentive for you to fully participate in programs in custody in circumstances whereupon your release you will be returned to Corella Place. 

42I direct it be entered into the records of the court that but for your plea of guilty I would have sentenced you to 15 months, with a non-parole period of nine.  Counsel is there anything further?

43MS GIBBY:  No, Your Honour.

44HER HONOUR:  Ms Poulter?

45MS POULTER:  Just the 12 months as concurrent, Your Honour.

46HER HONOUR:  It's as per the Act.

47MS POULTER:  Yes.

48HER HONOUR:  I haven't announced anything else.

49MS POULTER:  Yes.

50HER HONOUR:  Thank you.  Mr Briggs, you're now excused.  I know that was quite a long sentence and I have used a lot of material out of the psych report, which I try not to do so that I can speak directly to you, but I think it was important in this document that the full diagnosis was explained and the basis upon which I have acted.  So I hope you understand that what has happened is that I have given 12 months.  It starts today.  After six months you are eligible for parole, but you need to convince the parole board that you should be released and I suspect that unless you have fully engaged in programs in custody you will have problems doing that. 

51It really is the only way forward for you to accept treatment both in custody and when you return to Corella Place if you ever hope to be released.  All right?

52OFFENDER:  Yeah.

53HER HONOUR:  Okay.

54MS GIBBY:  Your Honour, if I might just ‑ ‑ ‑

55HER HONOUR:  Yes.

56MS GIBBY:  To address any media in the room in relation to suppression orders in place for this matter.

57HER HONOUR:  Yes, if there are any media present, they need to be aware of all suppression orders that may be in place in relation to the identity of other persons, and in relation to this matter before there is any publication.  Thanks very much.  You can speak to our media team if there is any issue.  Parties excused.  Thank you both.

58MS GIBBY:  Thank you, Your Honour.

‑ ‑ ‑