Director of Public Prosecutions v Broadford

[2016] VCC 583

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

AT MELBOURNE
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

TYSON BROADFORD (A PSEUDONYM)

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF HEARING:	2 February 2015
DATE OF SENTENCE:	10 May 2016
CASE MAY BE CITED AS:	DPP v Broadford
MEDIUM NEUTRAL CITATION:	[2016] VCC 583

REASONS FOR SENTENCE
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Subject:
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Cases Cited:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms S. Jankovic
For the Accused	Ms L. Leith

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HER HONOUR:

1Tyson Broadford[1], you have pleaded guilty before me to one charge of recklessly causing serious injury. 

[1] Tyson Broadford is a pseudonym.

2Your victim was your son, Junior Odell[2], who was born in January, 2014. 

[2] Junior Odell is a pseudonym

3At the time of your offending, Junior was eight weeks old and you were aged 20.  At the time, you were living with Juniors’ mother, Cherie Odell[3], who had previously been in a relationship with your older brother.  Three children were born of that relationship.  You began living with them both in November 2011, the relationship between them ending in April 2012.  You remained living at their house, beginning a sexual relationship with Ms Odell in about December 2012. 

[3] Cherie Odell is a pseudonym.

4On 1 March 2014, you spent the morning in bed with your son, and in the early afternoon, Ms Odell left the house to visit a neighbour.  At this time, you went to the carport and smoked two to three cones of marijuana.  You went back to the bedroom for sleep, but were disturbed by Junior’s continual crying.  Eventually you grabbed him by the back and slapped Junior twice to the back of the head with significant force, such that it caused bruising to the forehead and head, a subdural brain haemorrhage and bilateral retinal haemorrhages.  Those injuries were later described by doctors who attended on Junior as serious and "potentially life-threatening". 

5Ms Odell returned to find you holding Junior and asked you what had happened, but you did not reply.  She put Junior down to sleep and later when she fed him she noticed that the side of his face was red.  During the night, Junior would not take food nor settle, and at 5am he suffered a seizure to the right side of his body.  Ms Odell awoke you and you gave Junior a massage.  She insisted on taking the baby to hospital, which you resisted, saying the hospital would say you had hit the baby. 

6You and Ms Odell took Junior to the Monash Medical Centre at about
10am.  On the way, the two of you agreed to tell the hospital that Junior had fallen off a bed and that you had found him in the presence of Ms Odell’s three-year-old.  On 2 March, both of you made statements to police to that effect. 

7Eventually on 7 March, Ms Odell made a statement telling the truth, including that on her return home, on 1 March, her daughter had told her that you had smacked Junior. 

8The maximum penalty for recklessly causing serious injury is five years imprisonment. 

9You have no prior or subsequent criminal history. 

10In a record of interview with police, you said that you slapped Junior in the mouth twice because he was crying, not very hard, that you did not shake him, and that Junior had had a fall off the bed.  You said you had been smoking marijuana, that you had grabbed Junior on the back of the head and bum, that you had slapped him out of stress, and that you thought slapping a baby to the face would cause brain damage. 

11You were then charged.  A plea offer to recklessly cause serious injury was made on 17 July 2014, then on 7 August 2014, the committal proceeded by way of a hand-up brief and you entered a plea of guilty.

12I now turn to your personal circumstances.  You are now 23, and as I have said you were 20 at the time of the offending.  You are the third of seven children born to your parents in the Cook Islands.  They separated when you were about ten, after a great deal of matrimonial discord, and you then lived with your father. 

13You told neuropsychologist Dr Loretta Evans, whose report dated 10 February 2015 was tendered on the plea, that you struggled with most academic subjects at school, increasingly truanting in secondary school, which you left aged 16, after repeating Year 10. 

14You worked for six months as a labourer, but were then unemployed, living with relatives until you were about 18, when you emigrated to Australia to join your eldest brother.  Your mother migrated here shortly after. 

15You also told Dr Evans that you had a stressful time at home, that you often left home because of your parents' continual arguing and would hide at your grandparents' house. 

16Your employment in Australia consisted of two months working for a butcher, six months loading shipping containers, and you were unemployed thereafter, becoming reliant on your mother and her partner, although you have had work for the last couple of years in an asphalting company, which employment you began in 2015 and which I will later refer to. 

17You were living with your brother and Ms Odell when they separated and she was then aged 25 and you 20.  You became a support to her and eventually a sexual relationship developed about eight months after your brother left, that is, it occurred in about December 2012, as I have said.  Several months later she unexpectedly fell pregnant with Junior. 

18Following this offending, the Department of Human Services became involved and a care and protection application was made in the Family Division of the Children's Court.  You moved out of the house to private rental accommodation in Doveton, where you have remained ever since.  You have had no contact with Junior.  Ms Odell moved with her children to the house of her local pastor. 

19You began drinking beer at the age of 16 and told Dr Evans that for about four to five years, you drank 20 stubbies every weekend, but had stopped drinking alcohol after about Christmas of 2013, and it was not felt that alcohol abuse was an issue in your case.  However it was quite clear that cannabis abuse was.  You had been smoking bongs since age 16, and from then to the time of the assessment, you estimated you smoked about four cones every day.  You stopped smoking after the March 1 offending and you did not present as affected by cannabis at the time the assessment was made on 6 February 2015. 

20Neuropsychological testing by Dr Evans revealed cognitive deficits which were developmental in nature.  You were described as coming from a stressful, dysfunctional environment, in a way that I have described and you also had
a distant relationship with your father, so had insufficient male modelling and presented as immature.  Dr Evans believed you may have suffered some
post-traumatic stress disorder and presented with a high degree of anxiety and depression.  She also believed you had some sort of verbal learning disorder.  She found you excessively dependent on your mother, who was then assisting you with your rent. 

21It was her opinion you had poor social functioning, high reliance on others to guide your behaviour, stating:

"It is my opinion Mr Broadford demonstrates cognitive difficulties, together with behavioural difficulties that may have contributed to the offending." 

22However she believed the fact that you were under the influence of cannabis at the time was a primary contribution to your offending.  She stated:

"It is important to consider individuals with a verbal learning disorder have a great propensity for inappropriate behaviour from psychological and emotional distress, associated with increasing frustration that is secondary to poor communication and self-expression."

23In my view that has particular application to your offending on this occasion, which was a response by you to a crying baby.  She opined that you are most likely to struggle with environmental stressors or rapidly changing situations and react with immature and inappropriate behaviours and reactions.  However she also found you presented as pro-social, had a basic understanding about the negative impact of your offending and would respond positively to a regime of strict rules and guidelines around appropriate reactions.  She believed you would suffer significant psychological distress if imprisoned and that you accepted that your actions were wrong and appeared remorseful for your behaviour.

24Importantly, she stated: 

"Based on Mr Broadford’s presentation and responses during interview, it is my opinion that the likelihood of re-offending is low, if he successfully completes therapy and is provided with appropriate coping strategies." 

25The plea in this matter was first heard on 2 February 2015.  In the almost year since your offending, you had made considerable gains.  In 2014, you undertook a course in anger management with the Salvation Army's Positive Lifestyle counselling program and also completed the whole of their Positive Lifestyle program.  You also attended the Casey Youth Fitness program, set up by Detective Senior Constable Michael Harris to assist in the rehabilitation of offenders in the Casey, Cardinia and greater Dandenong areas.  You attended there regularly for ten months, before obtaining work with an asphalting business, which work you have continued to maintain.

26I adjourned this matter for 12 months to determine the long-term nature of the injuries to Junior and to give you an opportunity to continue your progress.  You have continued in your employment.  I received a reference from the asphalting business, which noted that you had been employed there since October 2014.  You were described as a valuable part of the asphalt lay team.  It is noted that you resigned because you had some difficulty in getting to work for
4am starts, but that problem has been resolved.  Your employer said you had described feeling at the time that you were, "letting the team down".  You now have a bicycle which you ride to the train station, which appears to have resolved your employment difficulties. 

27You have also recently joined the Keysborough Learning Centre, seeking to participate in the Keysmen Shed Group.  In a written reference dated 22 April 2016, you were described by the general manager Neil Cooper, as a "very keen and enthusiastic contributor to community projects", with a faultless attitude, mixing in well with the other men. 

28You continue to live at the house with your sister and her partner.  Both are in their 20s and both are working.  Your mother lived with you there for two years before moving out.  The Department of Human Services ceased involvement with Ms Odell and her children in mid-2015. 

29Medically, Junior appears to have progressed well.  He has been left with a very mild hemiplegia, which affects one calf.  The injuries he suffered did not have as profound an effect as expected, but it will be four to five years before there is any final prognosis regarding them, and it is believed there will be an ongoing effect. 

30You have undergone sporadic urine testing, always with a negative result and I am satisfied that you no longer abuse or even use cannabis. 

31The offending was, of course, extremely serious; it was horrendous and heinous, and Junior will always suffer to some extent the effects, however mildly, of your terrible assault upon him.  However, it is now two years and two months since that offending and you have continued to make considerable strides.  You have not re-offended.  You have taken up and held a job for the longest period in your life.  You have stopped using cannabis.  You have made no attempt to push your way into Junior’s life.  You were only 20 at the time of offending; immature, dysfunctional, unemployed and addicted to cannabis.  All those problems in your life seem to have been resolved with the passing of time.

32In my view, this is a case which has seen a profound change in you, such that issues such as community protection and specific deterrence are now not principles of importance in the sentencing exercise before me. 

33I accept your genuine remorse, as indicated by your pleas of guilty made at the earliest stage. I accept that you now have excellent prospects of rehabilitation.  I note that the prosecution has conceded, given your progress in the past couple of years, that a Community Corrections Order is appropriate and open as
a sentencing option. 

34I am very glad that the extensive adjournments that took place were in fact imposed in your case.  Had you been an older and more experienced man, I probably would not have taken the attitude that I did.  I note that at the time of your offending, you were a young offender for the purposes of the Sentencing Act, so that rehabilitation had a larger part to play in the sentencing exercise before the court than would otherwise have been the case.

35It does seem to me that your age, your immaturity, your unemployment, your use of cannabis, were all part of a potent mix that led to your terrible assault upon Junior back in 2014.  As I have said, I am satisfied that those characteristics of your life have now been resolved and it does seem to me that you present as a much more mature young man who has got some purpose in his life, who has learnt a terrible lesson, but who no longer presents as the sort of dangerous person, to children in particular, that you did at the time that you injured your son. 

36Taking into account all the mitigating circumstances I have referred to,
I propose placing you on a Community Corrections Order.  You have been assessed as suitable.  Notwithstanding the fact that you have managed, on all the evidence, to rid yourself of your drug habit, I am going to include an assessment and treatment for drug use.  It will probably be minimal, but it is just to ensure that the progress that you have made is continued. 

37Now I can only place you on a Community Corrections Order with your consent, Mr Broadford, so I need to outline to you the conditions that relate to
a Community Corrections Order.  They are, firstly, that you must report to the Community Corrections office within two working days of the making of this order, that is by Thursday of this week.  Whilst you are on the order, you must not commit any offence punishable by imprisonment; that does not mean you have to commit an offence for which you actually go to gaol, it just has to be an offence for which you could theoretically go to gaol.  All right? 

38You cannot leave Victoria whilst you are on the order without the permission of the Community Corrections office.  You must report to and receive visits from the Community Corrections personnel.  You must report any change of address or employment within 48 hours of that change.  You must obey all lawful directions of the Community Corrections officer. 

39I am going to order that you be placed on a Community Corrections Order for
a period of two years.  I am going to order that you undertake 150 hours of unpaid community work.  I am going to order that you report for assessment and treatment for drug use.  Are you prepared to enter that order, Sir?

40OFFENDER:  Yes, Your Honour.

41HER HONOUR:  Thank you, we will just print it out.  Thank you. 

42MS LEITH:  Thank you, Your Honour.  And if I may, just for the sake of completeness.  Your Honour had indicated on the last occasion that you wished to see a drug screen.

43HER HONOUR:  Yes.

44MS LEITH:  And Mr Broadford has undertaken that.  I have provided it to the prosecution.  It is just confirmation there's no drugs. 

45HER HONOUR:  Yes.  Thank you.  I note that I have received a drug screen, dated 6 May 2016, which has proved negative for any drug use.  Thank you very much. 

46There has been a section 464ZF application.  Look I think the seriousness of the offending does make it appropriate that I do grant the order.  I am disinclined to do that where people have no prior or subsequent criminal history, but I do think it is a little bit different in the circumstance and that I should grant the order. 

47I am going to order, Mr Broadford, that you provide a saliva sample to police.  I need to state to you that if you refuse to do this, police are entitled to use reasonable force to obtain that sample.  You need to go to a police station in order to do that within - I think it is 28 days. 

48MS JANKOVIC:  Yes, Your Honour. 

49HER HONOUR:  And you need to go to the Dandenong Police Station for that.  You will receive documentation setting that out. 

50MS LEITH:  Your Honour, may I just ask one further question? 
Mr Broadford’s passport is downstairs.

51HER HONOUR:  Yes.

52MS LEITH:  Is it as simple as just going and retrieving it?

53HER HONOUR:  Yes, it is.

54MS LEITH:  Or is an order of the court ‑ ‑ ‑

55HER HONOUR:  Yes, you'll have the order with you, so you'll be able to get that.

56MS LEITH:  Thank you, Your Honour.

57HER HONOUR:  All right, we will get you to sign this, Mr Broadford.  All right? 

58It is very important that you abide by the conditions of this order,
Mr Broadford, so even though you are working, you have to make sure you always report.  All right?  And you must always let them know what you are doing and obey their instructions, because you do not want to come back in front of me.  All right?  This was very serious offending.  I am very happy that it has ended up as well as it has, in terms of the progress that you have made, so do not wreck things by not sticking to the order, all right?  ­Good, thank you very much.

59MS LEITH:  As Your Honour pleases.   

60HER HONOUR:  Yes, I will - counsel are excused.

61MS LEITH:  Thank you, Your Honour.

62HER HONOUR:  Thank you very much.  Yes, thank you.  We will just get counsel in the next matter.  You can come out of the dock, Mr Broadford.       

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