Director of Public Prosecutions v Briggs, Theo
[2012] VCC 2083
•13 December 2012
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-12-01552
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| THEO BRIGGS |
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JUDGE: | HIS HONOUR JUDGE GUCCIARDO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 13 December 2012 | |
CASE MAY BE CITED AS: | DPP v Briggs, Theo | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 2083 | |
REASONS FOR SENTENCE
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Subject: Sentence
Catchwords: Aggravated Burglary- youthful offender with intellectual disability with extensive prior history for Burglaries, aggravated burglaries and Rape- Verdins considerations to moderate specific deterrence-community protection and general deterrence- prospects of rehabilitation guarded but undertaking substantial rehabilitative efforts-plea.
Legislation Cited:
Cases Cited: Verdins
Sentence:30 months with a npp of 20 months
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms N. Smith | |
| For the Accused | Ms J. Clark |
HIS HONOUR:
1 Theo Briggs, on 25 March 2012, at four in the morning, you broke into a private address in Reservoir. You had forced open a window in the rear spare bedroom, having broken the screen and the lock.
2 The complainant, to whom I shall refer to as "M", awoke to find you in her bedroom. She had an intellectual disability and was cognitively impaired and her accommodation was supported Outreach accommodation. She did not know you. At that time you held a knife and she screamed. You went to the lounge room and took a bankcard from her purse, as well as prescription medicine from the table. Before leaving, you cut an internal telephone line and rendered the phone inoperable. This behaviour amounted to the offences of aggravated burglary, criminal damage to the phone and the window, and theft. The complainant left the premises and went next door. The person lying in bed there, whom I shall refer to as "R" was also cognitively impaired, he lives in similar accommodation. The complainant knocked on his window and he opened the door. The person inside, R, noted that the person was looking emotionally distraught.
3 At about 11.30 that morning, you attempted to access money from M's account at an ATM in Reservoir. You tried six times to get $200 and then the machine took the card. This was the attempt to obtain property by deception. You were identified by fingerprint analysis from prints you left on the windowsill of M's home.
4 You were arrested on 13 April 2012. When you were interviewed you told police that you had entered M's home to get money. You had found a screwdriver at the scene and kept it with you inside "just in case there was someone there." You denied cutting the phone line. You admitted the theft, the attempts to get funds from the card. You wanted money for your drug addiction, you said. You were hoping the occupant, M, would not wake up and added that you knew there was someone home and that it was a dangerous situation. You thought the person in bed was a man. You said, "I've got a history of fucking burgs and that's all I've ever done."
5 The court received a victim impact statement from M, which was exhibited. She understandably wrote that she feels unsafe in her own home. She is scared and stressed. The entry was a frightening experience for her and this made her hyper vigilant. She has trouble sleeping and required counselling from a psychiatric nurse for a month, which was a difficult commitment for her.
6 The consequences of your behaviour will probably remain with her for a long time and will impact on her health and sense of security. Leaving aside the inconvenience created by the loss of her card and damage to the property . The loss of the feeling of safety in your own home is the most significant impact of aggravated burglary. It is an invasion of a private home and the law considers this offence a very serious one indeed, carrying, as it does, a maximum of 25 years' imprisonment. This behaviour is one for which the community looks to the court for protection. The court must not only denounce such conduct but seek to deter others, who may be like minded, from such behaviour.
7 General deterrence ordinarily would play a significant role in the sentence, as would the aspect of stern punishment.
8 It is the presence of the victim in the house which is the aggravating factor and I take into account your behaviour in the house. It is not alleged that you threatened M with the knife, though you had it with you once you got inside. You only took a card and you did not damage the property beyond the entry point. However, this was a domestic property, entered at night and I take into account the fear struck in M, which comes from the violation of her right to enjoy her home in safety. Although you had no disguise or gloves, you deliberately cut the phone line to hinder any complaint, and this is a relevant matter to take into account.
9 Each of the other offences carry ten years maximum and are closely connected to the major offence and committed to facilitate entry and prevent police involvement, or committed as a consequence of the entry and the theft of the car.
10 I will cumulate small portions of each sentence upon the aggravated burglary.
11 It is not here alleged that you entered the property with a knife, but you took one up, upon entry. This and the cutting of the phone line, in my view, are aggravating features.
12 You have a substantial criminal history despite your age. It begins when you are 13 and you appeared in Shepparton Children's Court for a large number of offences, including burglaries and thefts, criminal damage, possessing a weapon and you were placed on probation with Juvenile Justice and a Department of Human Services plan. You breached the probation and you were placed on a Youth Supervision Order. Your have priors of aggravated burglary with a person present, theft, going equipped to steal, recklessly cause injury, assault in company, assault by kicking.
13 Upon further convictions in 2006 and another Supervision Order release, you then appeared in 2007 when you were ordered to be detained in a Youth Justice Centre for 18 months. That was for burglaries and thefts. On appeal that was reduced to 15 months.
14 In 2009, you were convicted of aggravated burglary with a person present, recklessly cause serious injury and ordered to be detained in a Youth Justice Centre for 14 months.
15 Further burglary and recklessly cause injury charges resulted in another period of 12 months.
16 In February 2010, you were convicted of aggravated burglary, again with a person present, and two counts of rape, and ordered to be detained in a Youth Justice Centre for 18 months.
17 The same month for charges of resisting arrest and assaulting police and escape from custody, you received a period of Youth Training Centre detention.
18 I was shown, as Exhibit G, the summary of the offences pertaining to the sentences of aggravated burglary and rape, which you committed soon after your period in detention expired in August 2009. On that occasion you entered a home at night. You brought a knife with you and made threats to kill the woman. You anally and orally raped her and then fell asleep, where police found you ,with your pants pulled down around your ankles, on the bed. There were many small children in that home. On that occasion you forced open a window.
19 I make clear to you that I am not punishing you again for those offences at all. However some of the aspects of that offence and the prior history generally serve to emphasise that the community's protection must be paramount as regards to you.
20 Specific deterrence must be considered in your case, given the apparent failure of more moderate penalties before. You appear to have a dangerous propensity for offending which encompasses burglaries, aggravated or otherwise, and you acknowledge that fact yourself. Whether your moral culpability and prospects of rehabilitation are also impacted upon by your criminal history, it is a significant matter in the context of your personal circumstances. .
21 The prosecution provided helpful submissions in this respect, which placed your criminality in the context of a prior history that contains seven appearances for theft and 62 other charges, many court appearances and 16 charges of aggravated burglary, eight appearances for theft and 42 charges, and two appearances for property damage for six charges, without mentioning assaults, causing injury and sexual assault offences. This offence was committed six days after being released on parole on 19 March 2012 in relation to similar offences which I have just described.
22 Despite all that, you are 20 years of age and therefore a youthful offender. You are currently in prison for another two burglaries committed in October of 2011. You were convicted and sentenced on 24 July 2012 to 13 months' imprisonment with a non parole period of six months. Your earliest release date appears to be 25 January 2013 with the sentence expiring in August 2013.
23 The Youth Parole Board, to which a period is owed by you, transferred the matter to the Adult Parole Board on 3 September 2012, at which point the Parole Board revoked your parole and you are therefore also currently serving the term of the reclaimed sentence. That period and the sentence order on
24 July 2012 are relevant for me to consider and take into account under the totality principle, and I do so. The outstanding parole expires on 7 May 2013.
24 Because you committed offences whilst on parole, ordinarily under the Sentencing Act, any period must be served cumulatively upon the period required to be served on cancellation of the parole order. However, this cumulation does not apply to a period of detention served in a Youth Training or Justice Centre and so I will not cumulate the sentence and the exceptional circumstances provisions are not called into play. In any event, the Director did not seek cumulation and submitted that the court should order a term to be served concurrently with the time owed to the Parole Board on 3 September 2012 and therefore I will fix a new head sentence and a new parole period, particularly with a view to the totality principle.
25 A plea was made on your behalf and reports were tendered. A declaration of eligibility was tendered, dated February 2005, in which the Disability Client Services manager indicated she was satisfied that you are intellectually disabled and she declared you eligible to receive the services under the Intellectually Disabled Persons Services Act of 1986. It was said that your mental capacity has been consistent and that declaration applies effectively for life and your status has therefore not changed since that time and is unlikely to change.
26 In 2004, Mark Lewis, a psychologist, wrote a report of his assessment of you after a referral by the Education Department to assess you for the program for students with intellectual disability. He noted you were from a Koori family, you were practically illiterate, had poor social skills and behavioural difficulties. Intellectually, you were at the lower end of the mildly disabled range with results below the one percentile. He described various tests conducted.
27 In 2007, Bernard Healey, a clinical psychologist, assessed you when you were about 15 years old. He found your thinking primarily directed at immediate gratification of your needs, whether to relieve boredom, to get money, or to get money to buy drugs. Your full scale IQ was about 67 and personality testing suggested sociopathic features.
28 It is said that you have limited intellectual resources to reason clearly. You have given yourself the excuse that ‘the poor are entitled to take from the privileged’. Mr Healey thought in 2007 that Youth Training could be used to counsel , educate and orientate you to effect and oppose negative influences which could readily manipulate you. I agree that that is probably still a problem when one encounters the proposition of your detention.
29 You were born in Shepparton and age seven your maternal grandparents took over your guardianship because of ongoing conflict between your parents. Your mother was of Aboriginal origin, although not your father. Your non Aboriginal stepfather and mother lived in Shepparton until a recent separation. You have three siblings as well as two half brothers. Whilst living in the country, you became somewhat bored and tired of your grandfather's rules. Your grandmother died in 2006 and your grandfather really could not cope with you. You began drinking alcohol which increased in those years and in 2007 you indicated to the writer of the report, Mr Healey, that you felt you had no ongoing alcohol problem although you smoked cannabis.
30 Another report was tendered from Warren Simmons, a psychologist, this dated 16 March 2009. You told him you completed Year 9 at school. You had had some work in landscaping and at an abattoir for some months. None of your relationships have had much emotional substance and when speaking to Mr Simmons you told him you would consume alcohol over the weekend but did not drink a great deal. You have used cannabis when you have had money, but you varied in your reporting as to its use. He also found your IQ at 55, though the testing may have reflected a certain lack of interest on your part.
31 At age 17, you had little insight into your offending and the consequences of your actions. Clearly you were of limited intellectual ability, which he was of the opinion would make progress very slowly. It was recognised that a custodial disposition may not have a significant deterrent effect on you. Despite the declaration I mentioned above, you had up to that point, had not any intervention by Disability Services or any involvement with other services, as far as Mr Simmons could see . It was said that without that intervention your behaviour would probably continue to get worse.
32 This morning a matter was raised which had been omitted from the plea, which went to address, in part, that particular aspect and I was told by letter from your counsel that you have had some engagement with Disability Client and Carer Support Services of the Department of Human Services, with which you are a registered client. You have a case manager in the Department of Human Services in the Hume region and there are a team of people that are currently engaged in delivering services to you whilst in custody under the multiple and complex needs initiative. That initiative provides a co-ordinated approach to giving individuals support and relate to stability in health, housing, social connection and safety. Participation in the initiative is voluntary and is administered by a number of departments and you commenced on this program after you were sentenced in the Children's Court in relation to the aggravated burglary and rape and you have been on the program for some
17 months.
33 I am told in that letter that you will remain a high priority for service delivery and that the Department of Human Services will provide services to you both in custody and upon release into the community. In terms of that particular important information, I certainly take that into account in hoping that whilst you are in reclusion those services will be able to provide you with some increased insight into your current situation and into your hopes for the future.
34 I have taken the letter that I have just mentioned, as Exhibit 5, and the reports that I recounted, into account in assessing your prospects of rehabilitation in evaluating your moral culpability and the effect and need for specific deterrence.
35 On the night of the offence, you told police you were intoxicated and looking for money. This was a self inflicted condition and is not a mitigation. You told police that you smoke lots of cannabis and you admitted to a lack of self control.
36 This is a difficult sentencing exercise. I accept your plea of guilty and I will accord it a discount on your sentence. It has a utilitarian value although it was made on the morning of the trial, but you had made some admissions and in the end the complainant was not cross-examined. I accept that you now regret your offences, but true remorse is always difficult to assess, particularly in a person of your intellectual capacity.
37 The prosecution submitted you had demonstrated remorse and you are entitled to leniency and I accept this submission.
38 As I stated, you are youthful offender and therefore rehabilitation and its prospects must be of significant importance even in such a serious case. It is clear that in the long term it is in the community's best interest to try to assist you to be reclaimed and rehabilitated away from a life of crime. Your prospects for rehabilitation, however, I consider to be quite guarded.
39 I do accept that your level of impaired mental functioning is a relevant factor. I accept this matter does reduce your moral culpability somewhat permitting a less severe sentence. In this sense particularly specific deterrence and punishment should be moderated.
40 Although a mentally impaired offender may suffer increased hardship by imprisonment, I must weigh up against that, that you have demonstrated that you do cope with the prison environment and have so far. However, the risks of adverse effects on your mental health appear real despite the fact that as reported you seem to be adapting reasonably well.
41 In my view your Aboriginality does not mitigate punishment, or explain or throw light of a particular nature on your circumstances and I do not see how it plays any part in the sentencing disposition. In my view your background is neither significantly deprived nor privileged.
42 More importantly, I consider your intellectual defects and youthfulness are considerations which must generally moderate my sentence.
43 It appears clear that a period of imprisonment is the only appropriate disposition and the defence did not argue for any other sentence. Verdins considerations and your age mean I will moderate your sentence appropriately to take these factors into account.
44 I declare that you have served 103 days of pre-sentence detention referable to this offending, from 13 April of this year to 24 July of this year, when you commenced serving another sentence. I will have that number noted in the records of the court. You have also served now 140 days for unrelated offences, excluding today, and these I will take into account according to totality considerations. But for you plea, I would have sentenced you to three years with a non parole period of two and a half years.
45 On Count 1, of aggravated burglary, you are convicted and sentenced to two years' imprisonment. This is the base sentence.
46 On Count 2, criminal damage, you are convicted and sentenced to five months' imprisonment.
47 On Count 3, of theft, you are convicted and sentenced to six months' imprisonment.
48 On Count 4, of criminal damage, you are convicted and sentenced to four months' imprisonment.
49 On Count 5, attempt to obtain property by deception, you are convicted and sentenced to six months' imprisonment.
50 I order that one month on Count 2, two months on Count 3, one month on Count 4, and two months on Count 5 be cumulative on Count 1. That makes for a total effective sentence of two and a half years or 30 months. I fix a non parole period of 20 months or one year and eight months.
51 Are there any other orders that I need to make? I think on the last occasion I was told that the 464ZF order had been previously been made.
52 MS SMITH: Correct, Your Honour.
53 HIS HONOUR: And that there were no compensation or disposal orders?
54 MS SMITH: That is correct, Your Honour. There are no further orders.
55 HIS HONOUR: Yes, thank you.
56 MS CLARK: If Your Honour pleases.
57 MS SMITH: Thank you, Your Honour.
58 HIS HONOUR: I do not think there are any other ancillary orders that I need to make.
59 MS CLARK: I do not believe so, Your Honour. If Your Honour pleases.
60 HIS HONOUR: I think I should say, Ms Smith, that I found your written submissions particularly helpful and that is the sort of submission that I think in the future certainly myself, but other judges, will want in pleas that are at least listed for a few days in advance and it was very helpful, thank you.
61 MS SMITH: Thank you, Your Honour.
62 HIS HONOUR: Yes. You can remove Mr Briggs. I have a callover now, so I will excuse both of you. Thank you for your assistance.
63 COUNSEL: If Your Honour pleases.
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