Director of Public Prosecutions v Brockley

[2015] VCC 1624

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR -15-01469

DIRECTOR OF PUBLIC PROSECUTIONS

v

LEIGH BROCKLEY

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JUDGE:	HER HONOUR JUDGE LAWSON
WHERE HELD:	Melbourne
DATE OF HEARING:	13 November 2015
DATE OF SENTENCE:	13 November 2015
CASE MAY BE CITED AS:	DPP v Brockley
MEDIUM NEUTRAL CITATION:	[2015] VCC 1624

REASONS FOR SENTENCE
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Subject: Criminal Law-Sentencing- Armed Robbery
Sentence: 4 years imprisonment- non parole period 2 years and 6 months.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr M. Roper	Vaille Anscombe Acting Solicitor for Office of Public Prosecutions
For the Accused	Ms A. Hancock	Slades & Parsons

HER HONOUR: 

1Leigh Brockley, you have pleaded guilty before me to one charge of armed robbery, that relates to you robbing your local milk bar at Rye on 14 June 2015. At that time you had with you a weapon that was described in the prosecution opening as being a sawn-off shotgun.

2The pictures from the CCTV footage confirms that you entered into the milk bar at 96 Melbourne Road, Rye. 

3Apparently it is a quite location with an adjoining industrial estate.  The particular milk bar was well-known to you.  You had been going there since you were a child and you knew the owners of the premises, as well as the person who was working at the milk bar at the time, and I will talk a little bit more about that later. 

4This is a very serious example of this serious type of offence.  Its seriousness is marked by the fact that Parliament says that maximum penalty for this offence is 25 years' imprisonment. 

5In addition you admitted your criminal record.  That is an extensive criminal record which spans the period between 26 May 1994 to 14 March 2012.  You have multiple convictions, predominantly for dishonesty offences, but there are also some for crimes of violence, including convictions for recklessly causing serious injury and recklessly causing injury or intentionally cause injury in 1994; unlawful assault in 2005; robbery, 2005; aggravated burglary, false imprisonment and intentionally cause injury in 2008.

6Over the years you have received a variety of dispositions, including a youth training centre order, community based orders, suspended sentence, a community corrections and treatment order, intensive corrections order and gaol.  Courts have tried valiantly over the years to get you to address your underlying offending behaviours, which seems, from what I have been told today, to primarily relate to your abuse of illegal drugs. 

7In the past you have breached many of the orders that were imposed.  You have breached a suspended gaol term.  You have had those terms restored.  You have breached intensive corrections orders, community based orders and also the community corrections treatment orders. 

8What I shall now do is to proceed to sentence you on the basis of the prosecution summary.  No issue is taken with that summary by your counsel, Ms Hancock. 

9What, in effect, you did on that occasion was that you disguised yourself by placing a grey plastic bag over your head and a black beanie.  You armed yourself with an imitation sawn-off shotgun and went into the milk bar where the attendant was working.  You made sure that she was alone.  Betty Beel is a lady who is well-known to you.  She has been working at the milk bar for some time.  She is in her 80s.  She was alone when you walked in the door with your double-barrel sawn off shotgun.

10You surveilled the premises earlier to ensure that no one else was present.  There is no doubt in my mind that Ms Beale would have been terrified by your actions and that is reflected in her Victim Impact Statement.  You confronted her and took cash from the premises. 

11Ms Beel, in her Victim Impact Statement says, that she ruminates and has trouble sleeping.  She wakes up in a distressed state.  She tries to make sense as to whether the dream she was having was real or not.  She finds real difficulty sleeping and has been given sleeping tablets by her doctor, which she has to use on occasion, even though she does not want to become reliant on them.  She is now very hypervigilant.  She is always looking around her environment.  She does not like people standing too close to her.  She takes more notice now of what is going on around her, which she did not do before the robbery. 

12She was not harmed physically but obviously it has had a great toll on her emotional well-being.  She also, sadly, had to give up her job, because she could no longer feel safe in that environment.  It may not seem much, giving up five hours per week as a job, but as you now know, she used that money for the little luxuries in life and indeed she says in her Victim Impact Statement, that she no longer has the luxury of putting the heating on in winter when she needs it, due to the cost.  So the impact of the offending has been quiet serious for Ms Beel.

13You were arrested on 18 June 2015 and what is a positive sign is that you were very co-operative with the police.  You showed them the location of the firearm.  You made full and frank admissions in your record of interview and you expressed remorse to the police. You stated that you knew and agreed that the victim must have been traumatised. 

14The context of the offending appears to be that you ran into an associate whilst collecting your methadone from the chemist, who offered you some methamphetamines, which you used in the day before and around the time of the offending.  That meant that you did not exercise any judgment on this occasion and you simply lost control, or in your own words, you said you simply had a “brain fade”. 

15

In mitigation, I accept the matters put on your behalf, insofar as the plea of guilty was entered at the first and earliest opportunity at the committal case conference and therefore the matter proceeded without the necessity of

Ms Beel having to give evidence on your trial.  There is real utility in your plea and it does reflect your co-operation with the authorities. I accept that you facilitated justice and your sentence will be discounted accordingly. 

16I also accept that your plea does evidence genuine remorse. 

17I had regard to your personal history and background and I accept that you did suffer significant disadvantage as a child. 

18I have had regard to all the material set out in Warren Simmons, the psychologist's report and also the other reports that were tendered at the plea hearing. 

19Essentially as a young child, you were brought up by your paternal grandparents and that was because your parents both had issues with alcohol and drugs.  That meant that they were not capable of caring for you.  Your father is an alcoholic and your mother was a drug user.  You only had limited contact with your mother over her lifetime.  She is now deceased, having died in about 1999 in her early 50s from a drug overdose. Your father is in his 70s and he is still alive.  You have two older siblings, a sister in her 50s and a brother in his 40s. I note that you only had limited contact with your parents growing up.    

20I accept that you have had an excellent relationship with both your grandparents over the years.  Sadly your grandfather died in 2012, at age 94.  You grandmother is still alive and she is aged 92.  From what I was told from your friend, Brian Gardiner, she has a lot of respect for you and she is quite proud of you. It is the case that she is now in frail health and having regard to her advancing years, there is a real prospect that, she may get ill and die whilst you are in custody I accept that it will impact upon your time whilst you are in custody and I have taken that into account. 

21I have had regard to your background generally.   I note that you have had little by way of formal education.  You had primary schooling at Rye Primary School and you completed Year 8 at Dromana Technical School and only attended Wantirna High School for about two weeks.  It is fair to say that you had issues at school.  You struggled and it seems that you have real problems with literacy. 

22Nonetheless, you do have an employment history having undertaken numerous jobs, including tree lopping, working at an abattoir, working at the showgrounds, working as a cook, truck driver and scaffolding, and indeed you have worked as a cook whilst you have been in custody in respect to this matter. 

23Currently you do not have any serious relationships and you have no children. 

24Your history of drug abuse is extensive.  You started using cannabis at age 14 and at around that age, you started using amphetamines intravenously.  Following your mum's death, you began using heroin. 

25Over the years you have had some attempts at drug rehabilitation.  You have had inpatient treatment at Windana in 2005 and 2008 and you have been on methadone programs since 2011. 

26There is also some history of excessive alcohol use, but that does not seem to have played a role in this offence.

27

I note in 2009 you were shot and received damage to your liver, spleen, pancreas and lung, for which you had to undergo surgical treatment and spent a week in intensive care in an induced coma. You have had real difficulties associated with post-traumatic stress disorder since that time. I accept

Mr Simmons' diagnosis that you do have ongoing symptoms of post-traumatic stress disorder following the shooting, for which you do not appear to have had any significant treatment and that that will be an ongoing issue whilst you are in custody and it will mean that your time in custody will be more difficult than otherwise if you were in normal health and I have taken that into consideration. 

28I accept what Mr Simmons says that you did not seek to justify your behaviour and you acknowledged to him that your behaviour was wrong and that it may have had a significant impact on the people involved, particularly the armed robbery.  In those circumstances, I find that you were aware of what you were doing was wrong at the time and that therefore your moral culpability is high. 

29Insofar as the gravity of the offending, I do, as I say, consider this is a very serious example of this sort of serious offence.  The objective gravity of the offending, coupled with your antecedents, does demand a substantial term of imprisonment.  You deliberately targeted a soft target, namely your local milk bar.  You personally knew the elderly attendant.  You went in armed and disguised.  You used your gun to menace the elderly attendant, accompanied by your requests and demands for money.  You acknowledge openly what you did was wrong and indeed traumatised the victim, who does suffer the ongoing effects of this incident. 

30I have specifically rejected Ms Hancock's submission that the principles of Verdins apply by reason of any cognitive impairment that you may suffer.  In the past you have a keen awareness of the link between your offending and drug use and I do not consider that the principles of Verdins apply so as to reduce your moral culpability or to reduce the need for the court to emphasise general or specific deterrence. 

31

The Court’s, in this State, have for some time stressed the very serious nature of the charge of armed robbery and there is a real need in sentencing you to emphasise general and specific deterrence. On behalf of the community. 

I must denounce your conduct and also I must also consider the protection of the  community in formulating the appropriate sentence.

32I have had regard to many of the precedents that are available to the courts

and in particular the dicta of Redlich JA in DPP v Kennedy,[1] where he says,     

"The frequency with which armed robberies come before the court,                should not deflect attention from the fact that it is a particularly   serious offence because of the impact of threatened violence upon                 its victims and because the use of a weapon carries with it the risk                   of serious injury or death.  Generally they are offences of such   gravity that they call for a condign sentence."

[1] [2008] VSCA 263 p37.

33I have had regard to your prospects for rehabilitation.  I agree with Mr Roper's submission that the court should be guarded, however there is some prospect or hope for optimism here, having regard to your friend, Brian Gardiner's evidence.  He was able to tell the court that you actually did manage quite well in the three years following your release from prison, whilst you were compliant with the methadone program.  So in the future, what needs to happen upon your eventual release, you need to be properly supported in the community so that you do not relapse when offered drugs by people who have such available to them. 

34But overall, having regard to the fact that you were so co-operative with the police, that you were so frank about your involvement in this armed robbery and also your willingness to express concern for the victim, which you have again apologised for your conduct this morning, all of those factors, lead me to the conclusion that whilst your rehabilitation prospects are guarded, there is still, in your case, room for some optimism. 

35Hopefully in the future, when you are released from custody, proper supports will be put in place. I do urge the authorities to have regard to what Mr Simmons says at the end of his report when he says you have shown some evidence that you are able to remain substance free and not offend, notwithstanding the seriousness of the current offences. He says, "It is clear that substance use can very quickly become a significant issue for Mr Brockley and without ongoing support for a period of time into the future upon release, then there is likely to be further issues for Mr Brockley." 

36That message is loud and clear, so the authorities have an obligation, if they are going to protect the community from you, to ensure that when you are eventually released, that there is proper support for you in the community, that you are given the necessary treatment for your post-traumatic stress disorder and that you are supported properly in respect to helping you not relapse into using drugs, because there is such a clear link here between drugs and your offending. 

37All right, so I think I have covered everything I need to.  I will get you to stand now, Mr Brockley. 

38In relation to the one charge of armed robbery, I convict and sentence you to four years' imprisonment.  I fix a non-parole period of two years and six months'. 

39I make the following declaration, pursuant to s.6AAA of the Sentencing Act 1991, but for your plea of guilty, I would have imposed a sentence of imprisonment of six years', to serve four years'.

40I make the Disposal Order and the Compensation Orders sought. 

41Finally I make a declaration of pre-sentence detention.  I declare that you have spent 148 days in custody and I direct that the be recorded in the records of the court and that is to be taken from the sentence that I have just announced. 

42

What I did omit to say, whilst I was reading out my sentencing remarks, I have had regard to the difficult and more onerous conditions that you are currently suffering under at the Melbourne Remand Centre.  I have no control over that, but hopefully now that you are sentenced, you will be moved into another prison setting, where you can continue your work as a cook and work towards your programs, so that when you are ultimately released, you are more

law-abiding.  All right? 

43OFFENDER:  Thank you. 

44HER HONOUR:  All right.  I think I have covered everything. 

45MS HANCOCK:  Yes, Your Honour. 

46HER HONOUR:  Yes.  Thank you Ms Hancock, it was a very good plea.

47MS HANCOCK:  Thank you, Your Honour.

48HER HONOUR:  And I just hope that for the future, the authorities do take some steps to address some very real issues that Mr Brockley has, but you can help him too by assisting him with a Victims of Crime's Assistance application with respect to his post-traumatic stress disorder, so that he gets proper treatment.  All right? 

49Thank you Ms Beel for coming.  Thank you.  Thank you Mr Roper.  We can adjourn. 

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