Director of Public Prosecutions v Briscoe
[2023] VCC 2173
•22 November 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT BALLARAT
CRIMINAL JURISDICTION
| THE DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TROY BRISCOE |
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JUDGE: | HIS HONOUR JUDGE SMALLWOOD |
WHERE HELD: | Melbourne |
DATE OF HEARING: | |
DATE OF SENTENCE: | 22 November 2023 |
CASE MAY BE CITED AS: | DPP v Briscoe & Anor |
MEDIUM NEUTRAL CITATION: | [2023] VCC 2173 |
REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms C. Pezzimenti | |
For the Accused | Mr R. Morgan for Ms C. Moss for |
HIS HONOUR:
1Cooper Stuckey, you have pleaded guilty to one charge of theft of a motor vehicle, two charges of burglary, one charge of theft, two charges of theft of firearms and two charges of possess a trafficable quantity of firearms. Those crimes carry maximum penalties ‑ and counsel will be able to correct me if I have got this wrong ‑ as I read it, 10 years for theft of a motor vehicle, 10 years for burglary, 10 years for theft simpliciter, and it is 10 years for theft of a firearm, or is that 15?
2MS PEZZIMENTI: Pardon?
3HIS HONOUR: It suddenly dawned on me. Is theft of a firearm 15 maximum?
4MS PEZZIMENTI: I think so. That's right, yes.
5HIS HONOUR: Well I'm working on a 10, so it won't make a difference.
6MS PEZZIMENTI: Yes, I'm pretty sure that's right.
7HIS HONOUR: All right. Yes, I think it might be, yes.
8You, Troy Briscoe, have pleaded guilty to two charges of theft, one of which was a motor vehicle, one charge of handling stolen goods, one charge of obtaining property by deception, one charge of burglary, one charge of theft of a firearm and one charge of possess a trafficable quantity of firearms. The maximum penalties I am working on are 10 years for theft, 15 for handling, 10 for obtaining property by deception, 10 for burglary, 10 for theft of a firearm and 10 for the possess trafficable quantities of firearms. You also have a summary matter, and on that matter you are convicted and discharged. Each of you, because you have pleaded guilty, will be convicted of theft of a motor vehicle, will have any licence to drive a motor vehicle cancelled and disqualified from obtaining any further licence for a period of 12 months.
9You, Mr Stuckey, are 25. You, Mr Briscoe, are 40. Each of you pleaded guilty to a settled indictment and must get the benefit of that. In the overall circumstances of all this, remorse is somewhat problematic, but I certainly give you the benefit of the doubt in respect of that. You also must get the utilitarian benefit of the plea of guilty, and this again affects both of you. It has saved a considerable amount of time in a trial and has avoided the necessity of victims having to give evidence. I am also fully aware that each of you has pleaded in the time of Worboyes and what the consequences of that are in terms of acknowledgement by the court.
10The overall offending here is very serious in my view. In the normal course of events, it calls for the application of general and specific deterrence. In each of your situations, because of your significantly deprived backgrounds, I will moderate general deterrence and the like along the lines of Bugmy, but it is not a Bugmy situation in my view in its true sense. There also must be denunciation, and there must be an appropriate punishment.
11Also, whilst I am talking about the subject of Bugmy, each of you has reached a situation where you have very significant prior convictions. Community protection has to play a very important part in the sentencing of each of you. I am aware of your priors, Mr Briscoe. Some of them have been for extreme and very nasty violence. In your situation, Mr Stuckey, you have many priors for offensive weapons. You have priors for a firearm for related offending, and it is indeed a very sorry state of affairs to have such a criminal history at the age of 25. Your history is not as bad in my view, Mr Briscoe, but you are 40, you have done multiple gaol sentences. You are described as institutionalised, and I think that is probably correct. Insofar as parity is concerned, it probably evens out in those matters, but you, of course, Mr Stuckey, are 25, and I take that into account, bearing in mind, of course, that you are charged with virtually twice the amount of offences that Mr Briscoe is.
12Each of you had co‑accused who were sentenced in the Children's Court, and I take no notice of those dispositions. As I indicated during the course of the plea, one of the real concerns I have with this is they were both teenagers. They were friends of your son, Mr Briscoe, and whilst it was put to me that you were endeavouring to look after them, to take two teenagers on a burglary of this nature, stealing firearms and after the event for them to be still in possession of one of those firearms is a very sad state of affairs. It does not give me a great deal of confidence, as I have already indicated, in your remorse or whether you have got any insight into the life you lead. But be those matters as they are, those matters are taken into account on your behalf.
13A summary of the offending is contained within two summaries, and I have to go into a little bit of detail, but I will try not to repeat myself. On
10 November 2022, a Ms Cooper was asleep in her family home in Sebastopol, and her Mitsubishi Pajero was parked in her garage. At that time, she was woken by the sound of the Pajero being stolen. She got out of bed and observed a wagon collide with the fence as it was being out of the property. At 6 am, you, Mr Briscoe, were captured on CCTV cameras parking in the fuel bay of a service station. You, Mr Briscoe, got out of the Pajero and entered the store, and after purchasing some items, you returned to Pajero and drove off. At that time, you, Mr Cooper, and the two co‑offenders were also in the wagon. So that gives rise to that.14So far as the charges of burglary, theft of firearms and the possession of a trafficable quantity of firearms, at 10.50 am on that day, the four of you attended the residential premises of Nick Rousch in Pruntys Road in Newlyn North in the stolen Pajero. He was absent from that residence at the time and received security alerts on his mobile phone regarding your presence there. You, Mr Briscoe, are depicted entering the front door of the residence, which was forced open by damaging a glass panel. Once you gained entry, jewellery and other items were stolen. You, Mr Stuckey, and a co‑accused are depicted driving to the rear of the residence where you get out of the vehicle, and you subsequently return to the Pajero and use it to ram the sheds on the property, causing extensive damage. Once access was gained to the shed, a large quantity of power tools and other items were loaded into the Pajero. He estimated the value of all that at around about $7,000. The items stolen from the shed included firearms which were stored in a gun safe. You broke into the gun safe and stole a 12‑gauge shotgun, two .22‑caliber rifles and a 223 rifle with a scope. At around about 11.15 am, all four of you were captured by CCTV cameras leaving the residence in the Pajero, but of those four firearms, two remain at large within the community, that being the 12‑gauge shotgun and the Ruger 223 with the scope and the cover.
15This matter relates to you, Mr Stuckey. A few days later, on 14 November 2022, at about 3 am, you broke into a machinery shed by forcing the door open with a jemmy bar in Colac‑Ballarat Road, Enfield. The owner of the property, a Mr Parrott, was asleep at the time and woke up to hear his dog barking. The dog often barked at kangaroos, so he took little notice of that, but the dog was near the shed. In the morning, when he went to his machinery shed to get his tools to go to work, he noticed that some items had been disturbed. He then noticed that the locks on his gun safe and ammunition safe had been cut and a quantity of ammunition and the following firearms had been stolen: a Beretta 12‑gauge shotgun, a Lithgow 303 British rifle, an Anschutz .22‑caliber rifle and a Norica air rifle. The 12‑gauge shotgun and the air rifle remain at large within the community. You, Mr Stuckey, were arrested. You told police when asked that you had a firearm in your car, and another firearm was recovered that you apparently gave the information about. You were taken to
Ballarat Police Station, where you in fact made no comment, which of course you were perfectly entitled to do. I am not going to go into the details of the co‑accused.16The victim impact statements of Ms Cooper and the Rousch family, it is clear from those victim impact statements, and no one is being sentenced for aggravated burglary, but the theft of the Pajero, the keys were taken clearly from inside the house. There is no evidence here as to which one of the four of you or how many of you took those keys. If all four of you went in, of course it was a home invasion. In any event, the victim impact statement goes on to point out how the keys to the car, the central locking device and the garage remote was taken from inside and never found. Obviously the remote device was used to open the garage roller door. They did not describe how, but when the vehicle was found, it had been trashed. It was a declared a write‑off, and their loss was substantial. Their loss involved was something over $10,000.
17They are both ‑ that is, Mr and Ms Cooper ‑ old age pensioners with negligible savings, and the only funds to cover it was to add to their home mortgage. They are both in their late 70s, and they pointed out that this debt will never be paid off in their lifetime, and their emotional impact on them, whilst it has abated a bit, is 'constantly with us'. Clearly they were victims, and I do not know whether either of you knew who they were or not, but very vulnerable people who in their old age were entitled to peace and security, and just for the simple theft of the car and the violence that was involved in smashing the sheds and the like, you two and your co‑accused have effectively destroyed that.
18The other victim impact of Mr and Ms Rousch:
19'The violation of our privacy is immense. It was so distressing to see every drawer in our home, in particular the walk‑in robe and study, where our possessions were strewn across the room and unnerving to have the perpetrators touching my underwear, swimwear, clothes and many, many possessions. I am upset with how much the accused stole and the precious and sentimental items are irreplaceable. At what point ever do they think this is okay?'
20She goes on: 'The clean‑up took days, I was so overwhelmed with the amount of destruction and was in despair at where to begin'. The CCTV captured it all, and they have watched that. She said she saw a female, which would be the female co‑accused, walking around with what appeared to be a baseball bat. She wonders what would have happened if she had arrived home and been hit with that. One of you walking about with a crowbar, which is understandable when you are going to steal guns out of a gun safe. 'I worried about what would've happened there', and they just go on to describe what happened, the lack of insurance, the jewellery was too much to be covered and the distress and emotional that it has had on them as well. Burglaries and theft from properties, and it might be particularly in rural properties where, potentially at least, isolated, is serious offending indeed.
21You, Mr Briscoe, do not face the charges regarding Mr Parrott. What you do face are two charges relating to a Commonwealth Bank card in the name of Mr Prashar which had been apparently found in the street by you or somebody and was used. In this situation, it was used for a purchase of about $107 and is a handling stolen goods charge and obtaining property by deception charge.
22In the overall circumstances here, for reasons of totality, and obviously totality applied to Mr Stuckey as well, I am going to impose a sentence for each of those which will not be totally concurrent. I do not think there is any other matters so far as the offending is concerned there that I need to go into other than that after you were remanded, Mr Briscoe, you made a number of phone calls. On the 17th of 2022, you were taped speaking to Alannah Rose, and you said where you had parked the car, at the back of the Pajero, and you then said 'I've still got a 223 out there', obviously referring to the Kuger, and it's interpolated, but 'Stuckey, that's who's got all my bang‑bangs, and he [Stuckey] has got the Under Over [that being one of the shotguns], the two 22s and the 223'.
23It is quite clear to me that these burglaries were carried out for the purpose of getting money. The theft of the firearms in particular. Whether it be for drugs or whatever it be for, I don't know, but it is very serious offending indeed. I find it hard to believe that these people were not targeted for this particular purpose. It is clear that the guns were to be sold or passed on to the criminal community, and indeed, Mr Stuckey, your counsel conceded that that was the case. Your counsel, Mr Briscoe, struggled to persuade me that there is no evidence to show that it was going to be used for a criminal purpose. Upon my challenging her to come up with any single possible theoretical hypothesis consistent with innocence, she was unable to do so. I have no trouble drawing the inference beyond reasonable doubt that they were to be used for an illicit purpose. Two of the shotguns have not been recovered. I dare say they will not. Their barrels will be severely shortened by now. But that is just judicial notice of things, these sort of matters so often. As I understand it, there is no victim impact statement from Mr Parrott.
24In these particular circumstances, as I have said, it is serious. The only sentences are head sentences with non‑parole periods. I am not going to go into minutiae as to the differences between each of the charges. For reasons of totality and to avoid potentially a crushing sentence, particularly for a 25‑year‑old, I have given probably far greater concurrency than you are entitled to, but I am doing that for obvious reasons. And I am also not going to go into nit‑picking between each of the individual charges. They happened all in one incident, and accordingly there is, as I say, a very significant number of the charges are concurrent just for convenience sake if nothing else. It is the overall total effectively penalty that really matters.
25I then go to matters personal to yourselves, and, as I have already indicated, I am not going to go into great detail here. Each of you have extremely deprived backgrounds and unfortunate backgrounds. Each of you became criminals in your teens. You, Mr Briscoe, have been in and out of gaol since you were about 18 and I understand over 20 years of offending. Indeed I sentenced you to a significant period of imprisonment back in 2016. You, Mr Stuckey, unfortunately at the age of 25 have a very poor criminal history. I know you have got matters pending in the Magistrates' Court which have got nothing to do with me, and that will be a matter for a magistrate later on, but one of the things that is concerning about this is that these are thefts just to supply a drug habit. They were carried out with a great deal of gusto if I can put it that way, and a level of property violence, though you are not charged with criminal damage, which displays in my view total disrespect for the people whose property you are taking and total disrespect for how they may be affected by all this offending. So they are the matters relating to the offending, but I will then go in brief form into each of you.
26Mr Stuckey, I am not going to go through your criminal history ‑ it speaks for itself and is on the court file. You have been gaoled many a times. You had tendered on your behalf letters from the Ravenhall Correctional Centre, and I accept that in your situation in this period of incarceration you have been doing tests which have come up negative, you have been endeavouring to do courses, and I accept that you are making an effort this time in custody in Ravenhall. There is a report before me from Ms Cidoni which says your mental condition may suffer in gaol. I accept that that may well be the case, as it is the case for so many other young people in this situation. I have already indicated that I have taken those aspects of it to the very limited extent of Verdins and also the effect of Bugmy on the overall sentences.
27You were educated to Year 10 at Colac Secondary College. You finished there. You, having left school, worked in roof tiling, industrial cleaning and abattoir work. You have suffered very much from the activities of your parents when you were younger. I am not going to go into the detail of that ‑ there is no point. You apparently had been suspended on many occasions from school and had difficulties with it.
28You are currently of sound physical health. You have no history of serious illness or injuries. There is evidence apparently of a major mental disorder. You have got a stimulant use disorder, which is of little assistance to you. It would appear that you have never attended counselling nor been prescribed medication despite all the times you have been before courts before. You obviously have an anger management difficulty, but why that has to play a part in these proceedings I do not know. You witnessed violence between your parents, as I have indicated, and were beaten by your father.
29You started drinking alcohol at a very young age and drank frequently from the age of 18. By 12 you were smoking cannabis, using ecstasy and amphetamine by 15 and methamphetamine by 16. You have been using that on a regular basis up until the time of this remand. You have also used GHB in that time, Xanax as well as MDMA and LSD. You gambled from the ages of 18 to 21. You have indicated to the psychologist that you hope to attend a residential rehab program. That has never occurred in the past and there has been no attempts, but that is going to be a matter between you and the parole board.
30You struck the psychologist as having poor motivation, and you seemed lethargic when talking to her. Summarising all of the material, you are of average intelligence. You do present with bipolar disorder symptoms, and I accept that that is the case. The adverse childhood I accept. I also accept that because of that childhood there is a level of post‑traumatic stress disorder and, again as best I can, take that into account. So in any event, in terms of mental history, you have post‑traumatic disorder and borderline personal traits, and you behave in accordance with those. The report goes on to say what problems that can cause. Reckless actions tells me that Verdins can apply in this situation.
31The concern here is this is not spontaneous offending just to get money. In your situation, Mr Stuckey, it is more significant than that and, I think, more planned than that. It is pretty clear from the way in which you offend and the way in which this has all been carried out that, despite your counsel's protestations to the contrary, insofar as victim impact and insight is concerned, there is probably zero. But in any event, you have pleaded guilty, you are expressing remorse, and I do give you some credit for that.
32It is clear that you do require treatment over an extended period of time. There is no more for me to say about that. There is nothing I can do about it. The prospects of your rehabilitation, I would have thought, even at the age of 25, are bleak, and the risk of you reoffending is clearly high, but I am very conscious of you being 25, and the sentence I impose, while still of real significance, will be considerably less than it would have been if you were a person of, say, Mr Briscoe's age and your offending had gone on as long as his had. As already indicated, I have dealt with the concept of parity.
33You, Mr Briscoe, are 40 years of age. You also have a criminal history of real significance. You have been in and out of gaol, as I have already indicated, since you were about 18. You are an Aboriginal man from up around Lismore. I accept in your situation you have post‑traumatic stress disorder. You have got a childhood so unfortunately typical of impoverished people. I accept that you have been diagnosed with ADHD, that you have a major depressive disorder and again the several stimulant use disorders, which do not seem to take anybody anywhere.
34Each of you has been in remand for the matter since your arrest. I accept that you have expressed remorse in regard to all this, but I am also, as your counsel's aware, aware of what you have pleaded guilty to in the past ‑ and not nice. There is no other way of describing it. Insofar as the firearms are concerned, again I am not going to distinguish between the theft and the possessing a trafficable quantity. It is clear to me that you were each going to sell those firearms, and indeed, insofar as matters personal to you are concerned, you regarded them as your own when you were talking on the Arunta call.
35I accept that you did suffer emotional, physical and sexual abuse, that you suffered neglect and deprivation and your parents were criminogenic and you were introduced to substances at a very young age. Your parents were frequently incarcerated when you were very small. You lived with grandparents between the ages of nine and 13 and then with your father for a time after that. Your father died whilst you were in custody, and I accept that as an Aboriginal person that would be very difficult and weigh heavily upon you. I do accept that. You yourself struggled at school, had all sorts of behavioural problems, lack of supervision and the like, and around mid‑teens it would seem ‑ the chronology does not go back that far ‑ that any high schooling you had seems to have always occurred in the youth justice centre. You have no work history at all. I have got little faith that there ever will be. You have spent a large period of your adult life in custody. You have been through the extraordinary experience as a young person of having to inject your parents when they were physically unable to do it.
36You have got six children, and your drug use has gone on for a long time. It is heavy drug use. It is heroin use. There is all sorts of problems in there. I will not go through your relationships. You have six children. It was put to me that you have in recent times been in touch with your child Liam, but again I note, as I indicated earlier, the two teenagers who were with you on the aggravated burglary were friends of your son. It is a bit hard to see how that can be regarded as appropriate parenting. I note that the time last time I sentenced you you were in contact with your child Marcus. I heard no more about that. I accept that while on remand you have completed a number of programs ‑ a significant number of programs actually ‑ and that when straight you are probably doing your best to try and do something about it.
37So again bearing in mind Verdins and all those matters, I am dealing with a man who is 40 years of age who has basically never worked, spent a lot of his adult life in gaol, has ADHD, complex post‑traumatic stress disorder and a major depressive disorder. That is very unfortunate for an Aboriginal man, which is a matter that I understand from being at Koori Court for many years, but unfortunately, whilst I take Bugmy into account, there comes a time when the community is entitled to be protected from people such as yourself and Mr Stuckey. I do not know what would have happened if Ms Cooper had come downstairs. So this sort of offending can end up with absolutely profound results.
38And I have also read, and a couple of times now, the report of Ms Dawson, the psychologist, and I think I have effectively summarised the matters that are contained within that. You have told her that you are sick of the life you have led, and I dare say that is so. Whether upon your release, if the parole board ever do it, and it is going to be debatable for either of you, that is none of my business. It is going to be up to you, I am afraid, as to whether you are ever going to get through all this or not. Again in your situation, rehabilitation bleak, risk of reoffending high. I will just have to impose an appropriate sentence in all the circumstances, bearing in mind your difficulties, but the damage you did to others.
39I think it is also important to understand, and I trust these matters are reported, that like‑minded people who decide that they are going to target and steal firearms in the country and then release those firearms into the criminal community to put the whole community at danger are going to receive very serious jail sentences indeed. You cannot do it, and it has to be stopped. But on the other hand, as I have said, there is a lot of factors operating essentially in your favours.
40All right, stay seated during this, gents ‑ it might take a little while.
41Mr Stuckey, on Charge 1, 18 months; Charge 2, three years concurrent; Charge 3, two years; Charge 4, three years; Charge 5, three years concurrent; Charge 6, three years concurrent; Charge 7, three years; Charge 8, three years concurrent. As I have indicated, that might be too much concurrency, but be that as it may. I direct that three months of the sentence imposed on Charge 1, six months of the sentence imposed on Charge 3, 18 months of the sentence imposed on Charge 4 be served cumulatively upon each other and upon the sentence imposed upon Charge 7. That gives an effective head sentence of five years and three months. I direct that you serve a minimum term of three and a half years before becoming eligible for parole. Pursuant to s6AAA of the Sentencing Act, I say that but for your pleas of guilty you would have been sentenced to be imprisoned for a period of seven and a half years with a minimum term of five and a half years. Six months of Charge 3 is to be served cumulative, with three of 1 and the 18 off 4. I direct that 362 days I think it is are being noted as having been served under this sentence.
42You, Mr Briscoe, on Charge 1, 18 months; on Charge 2, six months concurrent; on Charge 3, six months concurrent; on Charge 4, three years concurrent; on Charge 5, two years; on Charge 6, three years; on Charge 7, three years. I direct that three months of the sentence imposed on Charge 1 and three months of the sentence imposed on Charge 5 be served cumulatively upon each other and upon the sentence imposed in Charge 6. In your situation, that gives you a total effective sentence of three and a half years. I direct that a minimum term of two years and four months be served before you become eligible for parole. Pursuant to s6AAA of the Sentencing Act, I say that but for your pleas of guilty you would have been sentenced to six with a four. And I think yours is 348 days' pre‑sentence detention, is that right?
43MS PEZZIMENTI: Yes.
44HIS HONOUR: Yes. All right, the loss of licence I've already declared. Are there any other orders I need to make? The disposal and forfeiture orders have already been made.
45MS PEZZIMENTI: Yes.
46HIS HONOUR: All right, so no other orders?
47MS PEZZIMENTI: No, no, no, so it's just disposal and forfeiture and the licence intervention.
48HIS HONOUR: They've all been made.
49MS PEZZIMENTI: Yes.
50HIS HONOUR: And there's no other orders floating around?
51MS PEZZIMENTI: No, no, as far as I know ‑ ‑ ‑
52HIS HONOUR: No, all right.
53MS PEZZIMENTI: ‑ ‑ ‑ that's all I've got instructions about.
54HIS HONOUR: All right, thank you. Yes, thank you, guys, they can go now. All right, 12 o'clock.
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