Director of Public Prosecutions v Brockdorff

[2023] VCC 957

IN THE COUNTY COURT OF VICTORIA

AT Melbourne

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-22-00710

DIRECTOR OF PUBLIC PROSECUTIONS

v

RICKY BROCKDORFF

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JUDGE:	Her Honour Judge Davis
WHERE HELD:	Melbourne
DATES OF HEARINGS:	28 February, 8, 14 March, 8, and 23 June 2023
DATE OF SENTENCE:	27 June 2023
CASE MAY BE CITED AS:	DPP v Brockdorff
MEDIUM NEUTRAL CITATION:	[2023] VCC 957

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords:              Causing Serious Injury Recklessly (1 charge); Using a Firearm Contrary to a Firearm Prohibition Order (1 charge); Prohibited Person Possess a Firearm (1 charge); Handling Stolen Goods (1 charge); Possess Explosive Substance Without Excuse (1 charge); Possessing an Imitation Firearm Contrary to a Firearm Prohibition Order (1 charge); Common Assault (3 charges); Possessing a Firearm Contrary to a Firearm Prohibition Order (1 charge); Possessing a Firearm Related Item Contrary to a Firearm Prohibition Order (1 charge).

Legislation Cited:      Sentencing Act 1991 (Vic)

Cases Cited:Salapura [2018] VSCA 255; DPP v Buchanan [2019] VCC 771; Sutton [2016] VCC 616; Kobert [2017] VCC 1571; Wasame [2017] VCC 191; Worboyes v The Queen [2021] VSCA 169; R v Verdins & Ors [2007] VSCA 102.

Sentence:                  Term of imprisonment of eight years and four months (700 days reckoned as time served); non-parole period of five years and four months.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr M Fisher	Office of Public Prosecutions
For the Accused	Mr M Sturges	Stary Norton Halphen

HER HONOUR:

1Ricky Brockdorff, after receiving a further sentence indication on 8 June 2023,[1] you pleaded guilty on 23 June 2023 to one charge of Causing Serious Injury Recklessly (Charge 1), which has a maximum penalty of 15 years’ imprisonment; one charge of Using a Firearm Contrary to a Firearm Prohibition Order (Charge 2), and one charge of Prohibited Person Possess a Firearm (Charge 3), both of which have a maximum penalty of 10 years’ imprisonment; one charge of Handling Stolen Goods (Charge 4), which has a maximum penalty of 15 years’ imprisonment; one charge of Possess Explosive Substance Without Excuse (Charge 5), which has a maximum penalty of 5 years’ imprisonment; one charge of Possessing an Imitation Firearm Contrary to a Firearm Prohibition Order (Charge 6), which has a maximum penalty of 10 years’ imprisonment; three charges of Common Assault (Charges 7, 8, and 9), each of which has a maximum penalty of 5 years’ imprisonment; one charge of Possessing a Firearm Contrary to a Firearm Prohibition Order (Charge 10), one charge of Possessing a Firearm Related Item Contrary to a Firearm Prohibition Order (Charge 11), both of which have a maximum penalty of 10 years’ imprisonment; and a summary offence of Unlicensed Driving (Summary Charge 7), which has a maximum penalty of 6 months’ imprisonment.[2]

[1] The sentence indication was to the effect that, upon a plea of guilty to the plea indictment, you would be sentenced to a maximum term of imprisonment of 8 years and four months.

[2] Indictment No: M11571672.1.

2In sentencing you, I have taken into account all of the material relied upon by counsel, which includes the written and oral submissions made in the two sentence indication hearings, the Summary of Prosecution Opening for Plea, as well as the additional material tendered during the plea hearing (the second psychological report of Alison Mynard dated 18 April 2023 and the Victim Impact Statement of JM dated 21 June 2023). Your offending was outlined in the Summary of Prosecution Opening for Plea dated 14 June 2023 and I sentence you on the basis of the facts set out in that document, which may be briefly summarised as follows.

3The offending the subject of Charges 1, 2 and 3 occurred on the morning of 17 July 2021 (“the shooting incident”). You were then aged 32, and were in a relationship with the victim, JM, who was then aged 25. Prior to the incident, you had been abusing methamphetamines and cannabis and were experiencing paranoia. You and the complainant attended a party and argued. However, you then decided to go to get some food, and went to JM’s car. In the car, you were looking over your shoulder repeatedly to see if you were being approached. You were then a person prohibited from possessing firearms. You removed a sawn-off shotgun from your backpack (charge 3), pointed it at JM, and shot her at close range in the left side of the stomach (charge 2), causing serious injuries which required her to remain in hospital for 12 days and undergo five operations (charge 1). Those injuries have had long term sequelae for her which were outlined in her Victim Impact Statement which was read out in court at her request. She has been left with considerable scarring, which prevent her from sleeping on her stomach or back. She has suffered physical restrictions from that scarring. In addition, she has suffered severe depression and post-traumatic stress disorder, which interfere with her sleep, give her flashbacks and nightmares, and for which she is taking considerable prescription medication. She suffers from flashbacks and nightmares, is hypervigilant and is triggered by loud noises. She is socially isolated and has been unable to return to work due to her physical and psychological symptoms.

4After the shooting, you took JM to the foyer of the building and obtained the assistance of a security guard, who called police and paramedics. You left before they arrived, riding away on a stolen motorbike (charge 4). You were not licensed to drive a motorbike (summary charge 7).

5On 21 July 2021, police surveillance tracked the Toyota Hilux being driven by you to Seabrook, where you fled on foot. A search of the Toyota revealed, among other things, a stick of explosives (charge 5) and an imitation firearm (charge 6).

6On 26 July 2021, you and an associate, Scott Evans, were at the home of DW and her two young children. After seeing a news report that you were wanted by the police in relation to a shooting, DW went to the garage and told you to leave the premises or she would call the police. You followed her into her bedroom, stood over her, produced a firearm and threatened to kill her if she called police (charge 7 (part)). She then said she would not call police. Mr Evans told you to sleep in a car in the driveway, which you did.

7The following morning, on 27 July 2021, police arrived at the premises to arrest you. You tried to leave through the back door but retreated into the house when called by police via their PA system. Armed with a sawn-off shotgun, you then spent three hours indoors with DW and her children. At times you appeared agitated and waved the shotgun around in their presence (charge 7 (part), charge 8 and charge 9).

8At 11:55 am, Mr Evans, DW and her children ran from the house. They were crying and visibly shaken. Nearly two hours later, you came out the front door and were arrested. That afternoon, police located a sawn-off shotgun (charge 10) and an unspent shotgun shell in the house (charge 11) which you possessed while the others were in the house.

9On 9 August 2021, police extracted data from JM’s phone which revealed a voicemail message of apology from you on 17 July 2021. Prior to your arrest, you made three further calls to JM’s father asking after her health, apologizing for your conduct, calling it an accident in which JM pulled the barrel of the shotgun towards herself before it discharged.

10In your record of interview, you stated, among other things, that JM grabbed the barrel of the firearm, causing it to discharge. You denied intentionally shooting her. You admitted holding the shotgun during the standoff with police.

Relevant criminal history

11You have a lengthy criminal history, with relevant convictions for Recklessly Cause Serious Injury (in 2009 and 2014); Unlawful Assault (in 2013, 2017, 2018 and 2020); firearms offences (2020), and driving offences (2013, 2014, 2016 and 2017). You have been sentenced on a number of occasions to terms of imprisonment (straight sentences in 2014, 2018, and 2020, and combination sentences in 2013 and 2017).

Personal circumstances

12According to the reports of the assessing psychologist, Ms Alison Mynard, dated 19 February 2023 and 18 April 2023, you had a troubled childhood. You have two brothers and a sister. Your parents separated when you were an infant but your father was physically abusive towards you on access visits, which were later suspended. Your mother re-partnered when you were a baby, and you believed your stepfather, who was a cold disciplinarian, to be your real father until you were told the truth at the age of 11. When you were 14 years old, your mother and stepfather broke up and you stayed with your mother for three years. During that time you started using illicit drugs. When you were 17 years old, your mother moved out without notice and ceased contact with you. You went to live with your brother. Six years later, your mother apologised to you for abandoning you, but did not explain her actions. You remain in contact with your siblings. You lived with your mother in 2016 but did not get on with her. At times she would arrange to meet you but not turn up.

13You were diagnosed with ADHD in primary school and attended a special school for a few years. You were expelled from school in Year 7 and did not return. You started working as a bricklayer and had your own business until your remand in 2012. You also worked as a handyman. In 2015, you resumed working as a bricklayer and had others working for you. However, after you shattered your ankle in a motorcycle accident in early 2017, you became depressed, recommenced using illicit drugs and abusing pain medication. You lost your business. After your release in mid-2017, you worked as a bricklayer for a few months. You last worked in 2019 but had a further serious motorbike accident, which led to a further relapse in your mental health and substance abuse.

14You have had two significant personal relationships. The first lasted eight years from the age of 14 and produced a daughter, who is now nine years old. There was substantial family violence within that relationship as well as breaches of intervention orders. You no longer have contact with your daughter. The second relationship was between 2016 and 2018, and you admitted being violent and aggressive with that partner.

15Your drug use commenced at age 14, with regular cannabis smoking to the point of addiction. You started using methamphetamines and amphetamines at age 19. You would become very aggressive when coming down from them. Prior to your latest offending, you were addicted to methamphetamines which at times kept you up for weeks at a time; had been using GHB to excess, and had been using ecstasy, cocaine, as well as abusing oxycontin, Lyrica and Avanza.

16You told Ms Mynard you had a history of self-harming by banging your head or cutting your wrists or throat, and many attempts at suicide by hanging or shooting, including an attempt at suicide in August 2022 while in custody. You had been extremely emotionally dysregulated. Your grandparents died in 2012 and 2013 and while in custody you have grieved that loss. You lost a close friend to suicide in 2014.

17In relation to the offending, you told Ms Mynard that you were paranoid at the time of the shooting incident, and became more paranoid after that. You told Ms Mynard that you did not want drugs or guns around your daughter.

18Ms Mynard concluded that at the time of offending, you were psychotic, with severe symptoms of paranoia and delusional thinking. This led you to believe that people were out to get you, and to act impulsively.[3] You denied intending to shoot JM, but accepted that you were responsible for your actions because your mental state was unstable and you put her at risk just by being there.  She also considered that being drug intoxicated at the time contributed to your offending because it made you less inhibited, more impulsive, clouded your thinking, impaired your judgment and ability to reason verbally.[4]

[3] Report of Ms Alison Mynard dated 19 February 2023 [78].

[4] Ibid [84].

19Ms Mynard opined that this psychosis and the offending occurred against the background of a history of trauma, longstanding anxiety and depression (for which you had been self-medicating with cannabis, GHB and methamphetamine),  a Borderline Personality Disorder (characterised by emotional dysregulation, unstable relationships, instability of identity, paranoia and distrust of others, and impulsivity) as well as a longstanding diagnosis of ADHD (which also involved impulsivity and a tendency to act without thinking about the consequences of your actions).[5] In addition, you suffered from borderline (“very low”) cognitive functioning (which was possibly exacerbated by a number of head injuries suffered over the years), characterised by difficulty analysing information and solving problems,[6] and by a tendency to jump to conclusions. Ms Mynard conceded that it was difficult to separate the effects of your drug use on your offending, but opined that if you had not been substance and drug affected at the time of the offending you would have been less likely to be suffering from paranoia and therefore less likely to have committed the offences.[7] However, she noted that your early childhood traumas led you to fear that people were not to be trusted and were out to get you, and this contributed to your paranoia at the time of the shooting incident.[8]

[5] Ibid [82].

[6] Ibid [85].

[7] Ibid [24]

[8] Report of Ms Alison Mynard dated 18 April 2023 [32].

20Ms Mynard opined that since the offending you have developed Post-Traumatic Stress Disorder symptoms relating to the shooting of the victim.

21In relation to your time on remand, which will be 700 days not including today, Ms Mynard noted that you have spent a year or so in the isolation cell at Barwon Prison, in 23-hour lockdown for most of the time, and handcuffed for three months (up to February 2023). You were very depressed and suicidal, and attempted suicide in August 2022. For some months prior to late 2022, you had four hours per day out of your cell. You resumed physical training, lost weight, and felt better. Dr Radovic’s report included medication charts indicating that you have been taking anti-depressants.

22Ms Mynard noted that you had benefited from 15 months of counselling with Dr Sara Radovic in relation to your borderline personality disorder, but that now that this counselling had ceased you are at risk of psychological decline if not provided with therapeutic support. Ms Mynard recommended a number of therapeutic strategies: ongoing therapy to address your BPD issues; cognitive behavioural therapy to address your depressive and anxiety symptoms; addiction counselling, and trauma focused treatment. She noted that you have good work skills and a good support network. With the right treatment, she considered that you could improve your functioning and resilience and reduce your risk of offending.

23Dr Radovic provided a summary of the care she provided to you between September 2021 and December 2022 as part of the Mobile Forensic Mental Health Service. She noted that you were at chronic high risk of self-harm and suicide due to the history of such incidents, your impulsive temperament, history of trauma, and history of substance abuse and violence. You reported difficulty with managing your emotions, symptoms of PTSD, chronic suicidal ideation, and frequent interpersonal difficulties. Counselling focused on managing challenging emotions, suicidal thoughts and impulsive behaviour. Dr Radovic noted the childhood diagnosis of ADHD, your sensitivity to and fear of abandonment, your early exposure to antisocial peers and self-medication through substance abuse.

24Dr Radovic noted that you demonstrated significant progress during the period of counselling: improved awareness of your emotions, better coping skills to manage your distress, and a notable reduction in incidents of aggression, including threats towards staff and property damage. Your overall mood improved, you experienced less suicidal ideation, and found it easier to spend time alone as well as to set healthier boundaries with others.

25Dr Radovic noted that in terms of protective factors, you “ha[ve] many strengths”,[9] including that you seek help, engaged well in psychological therapy, demonstrated  significant benefits from the work, have good social skills, a solid work history, and good insight into your mental health issues and their impact on your behaviour. You have empathy for others. You aim to reconnect with your daughter, obtain steady work and stable housing, and start your own family.

[9] Service Summary of Dr Sara Radovic dated 4 January 2023, 347.

26Dr Radovic recommended further treatment for BPD and PTSD, as well as drug and alcohol treatment, and ongoing management of the risk of self-harm.

Defence submissions

27Your counsel acknowledged the seriousness of the offending in charge 1, but submitted that the assault charges were less serious. In relation to comparable cases of the offence of Recklessly Cause Serious Injury, counsel referred the Court to a number of cases where a firearm was used to commit the offence of Reckless Cause Serious Injury.[10] In some of those cases, a sentence of 5 years’ imprisonment was imposed for that offence. However, none of those cases involved offending by prohibited persons possessing/using firearms.

[10] Salapura [2018] VSCA 255; DPP v Buchanan [2019] VCC 771; Sutton [2016] VCC 616; Kobert [2017]

VCC 1571; Wasame [2017] VCC 191.

28In the light of the conclusions set out in Ms Mynard’s second report, your counsel withdrew reliance on limbs 1, 3 and 4 of Verdins  but submitted that limbs 5 and 6 remained apposite in the light of the diagnoses made by the experts, your suicidality in prison, and the need for ongoing psychological treatment.[11]

[11] R v Verdins & Ors [2007] VSCA 102.

29He relied on a number of matters in mitigation. Firstly, that a plea upon resolution of the matter would carry utilitarian value in sparing the victim the need to give evidence and the cost of the trial, at a time when the Court faces a lengthy backlog of cases due to the Covid-19 pandemic, and would also be an indication of some remorse for your conduct. In addition, you demonstrated remorse after the shooting by waiting for the complainant to be assisted by security and ambulance services and by making inquiries in the next few days about her wellbeing. In addition, you expressed remorse for your conduct to Ms Mynard.

30Secondly, that your personal circumstances in terms of your traumatic upbringing and your various cognitive and psychological conditions should be given due weight.

31Thirdly, that given your progress in custody in treatment with Dr Radovic, your improved insight and behaviour, as well as your compliance with a medication regime and the prospect that such treatment may continue after sentence, your prospects for rehabilitation, given your work history and supports in the community, are guarded but reasonable. You are very aware that you need to stay off illicit drugs and remain in therapy.

32Finally, it was submitted that the Court should give due weight to the principles of parsimony and totality and direct a degree of concurrency between sentences.

Prosecution submissions

33It was submitted that the objective gravity of the shooting incident is very high, and that the possession and use of firearms by a prohibited person  is also very serious. It was noted that you fled the scene of the shooting, took active steps to avoid detection, then when given the chance by police to surrender some days later, refused to do so for a number of hours, and armed yourself with a firearm which you waved around in front of DW and her two young children. It was also submitted that your moral culpability for the offending is high, particularly given that you told JM’s sister of your awareness of how serious it was for you to be caught in possession of a gun.

34It was submitted that all of the sentencing principles are applicable in this case, but denunciation, just punishment, general and specific deterrence assume great importance, particularly in the light of your extensive criminal history involving offences of drugs, firearms, and breaches of numerous court orders. It was further submitted that your prospects of rehabilitation are poor, and risk of recidivism is high. It was submitted that weight ought to be given to the protection of the community.

35Finally, it was submitted that Ms Mynard’s reports fall short of enlivening limbs 1, 3 and 4 of Verdins because she failed to establish a causal link between your psychological, personality and cognitive issues, and your offending. It was further submitted that self-induced intoxication was more likely to have been the cause of your offending than the other matters referred to by Ms Mynard. However, counsel did not dispute the various diagnoses made by the experts, nor the relevance of limbs 5 and 6 of Verdins.

36In oral submissions, counsel indicated that an aggregate sentence would be open in respect of charges 1, 2 and 3; and, separately, in relation to charge 10 and 11, but submitted that there ought be separate sentences for charges 7, 8 and 9 to reflect that there were three different victims.   

Analysis

37I consider the conduct the subject of charge 1 to be a serious example of this offence. Your conduct seriously injured and traumatised the victim, who has suffered long-term consequences as outlined in her powerful Victim Impact Statement. You have prior convictions for offences the subject of charges 3 and 4. I consider that the conduct the subject of charges 7, 8 and 9 are also serious examples of common assault, and would have been a terrifying experience for all three victims, especially the children.

38However, I accept the matters put in mitigation on your behalf.

39I acknowledge that you had a traumatic childhood, and have suffered from a number of conditions including ADHD, BPD, cognitive deficits, longstanding anxiety and depression. I also accept Ms Mynard’s conclusion that the proximate cause of your offending was that you were suffering from drug- induced psychosis at the time. For this reason, and in the light of your counsel’s concession in this regard, I consider that limbs 1, 3 and 4 of Verdins have no application in this case. However, I accept that due to your underlying cognitive and psychological conditions that your time in prison will weigh more heavily upon you than on those prisoners not suffering from such conditions. I note that you have been a management prisoner whilst on remand, kept largely in isolation; that you have attempted suicide once in custody; and that without resumption of therapy and treatment, your condition in prison is likely to deteriorate. I have therefore given appropriate weight to limbs 5 and 6 of Verdins.

40I consider that in the light of your commitment to therapy for your BPD over the past 15 months, and the insights gained therein as documented by Dr Radovic and Ms Mynard, and given your solid (albeit interrupted) work history, your commitment to ongoing therapy and to remaining drug free, that your prospects for rehabilitation are guarded.

41I note that in addition to the remorse inherent in your plea, you sought to arrange appropriate care for JM prior to fleeing, and followed up to check on her health in the days prior to your arrest. You expressed remorse for your offending to Ms Mynard.

42I consider that in addition to being an expression of your remorse, your plea has utilitarian value in sparing the witnesses the inconvenience and distress of a trial and that an additional discount in sentence is warranted for your plea being made at a time when the Court is experiencing a significant backlog of cases due to the Covid-19 pandemic.

43In reaching the appropriate sentence, I have also taken into account the principles of parsimony and totality.

44I sentence you as follows. Would you please stand.

45On charges 1, 2 and 3 you are sentenced to an aggregate sentence of six years’ imprisonment. This is the base sentence. On charge 4, you are sentenced to three months’ imprisonment. On summary charge 7 you are sentenced to three months’ imprisonment. On charges 5 and 6 you are sentenced to an aggregate sentence of nine months’ imprisonment. On charge 7, you are sentenced to 12 months’ imprisonment. On charge 8, you are sentenced to 12 months’ imprisonment. On charge 9, you are sentenced to 12 months’ imprisonment. On charges 10 and 11, you are sentenced to an aggregate term of 12 months’ imprisonment.

46I make the following orders for cumulation. One month of the sentence on summary charge 7; one month of the sentence on charge 4, six months of the aggregate sentence on charges 5 and 6; four months of the sentence on charge 7; four months of the sentence on charge 8; four months of the sentence on charge 9; and eight months of the aggregate sentence on charges 10 and 11 are to be served cumulatively upon the base sentence. The total effective sentence is therefore 8 years and 4 months’ imprisonment.

47I impose a non-parole period of five years and four months’ imprisonment.

48I declare that 700 days of pre-sentence detention in relation to these matters are to be deducted administratively from this sentence.

49I indicate, pursuant to s 6AAA of the Sentencing Act, that, but for your plea of guilty, I would have imposed a total effective sentence of 11 years with a non-parole period of 8 years.

50Finally, I will make the forfeiture and disposal orders sought by the prosecution.