Director of Public Prosecutions v Brooke

[2020] VCC 569

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 19-02116

DIRECTOR OF PUBLIC PROSECUTIONS

v

RODNEY BROOKE

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JUDGE:	HIS HONOUR JUDGE STUART
WHERE HELD:	Melbourne
DATE OF HEARING:	1 May 2020
DATE OF SENTENCE:	4 May 2020
CASE MAY BE CITED AS:	DPP v Brooke
MEDIUM NEUTRAL CITATION:	[2020] VCC 569

EX TEMPORE REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Grant	Mr N. Cescato
For the Accused	Ms K Ballard	Ms J. Pisasale

HIS HONOUR:

1Rodney David Brooke, you pleaded guilty to one charge of discharging a firearm at a premises contrary to the provisions of the Firearms Act 1996, which is
Charge 5, a charge that David John McGlone was also involved in.  That charge carries with it a maximum penalty of 15 years' imprisonment.  You are also charged with being a prohibited person possessing an imitation firearm contrary to the Control of Weapons Act 1990, which is Charge 7.  That charge carries with it a maximum penalty of 10 years' imprisonment.  In addition, you have pleaded guilty to two summary charges, Charge 2, possessing cartridge ammunition, which carries with it a maximum penalty of fines up to 40 penalty units, and Charge 4, committing an indictable offence whilst on bail, which carries with it a maximum penalty of three months' imprisonment.

2The circumstances surrounding this offending are set out in Exhibit 1, the amended summary of prosecution opening on the plea.  At the time of the offence you were 48 years of age and are now.  You are living in Craigieburn.  You are an associate of the co-accused in relation to this matter, David McGlone.  He, at the time of the offending, was 28 years of age and is now 29.

3You, Mr McGlone and others were identified and arrested as part of a larger investigation into the activities of a Matthew Bruce, who at the time was a Sergeant at Arms of the Melbourne Chapter of the Rebels Outlaw Motorcycle Club.

4Your offending is discrete and therefore in those circumstances I was prepared to hear your plea in advance of the pleas in relation to the other six accused, which I will hear in due course.

5Turning to the circumstances surrounding your offending, on 15 February 2019, a series of intercepted telephone conversations and SMS message exchanges occurred between Mr Bruce and Mr McGlone, with Bruce asking Mr McGlone if he still has ‘Shotty shells’ and indicated that Mr McGlone would be doing 'the other thing' tonight.  Immediately after this telephone call Mr Bruce's twin sister, Sarah Bruce, called Mr McGlone and Mr McGlone called back.  Each call lasted for about one minute. 

6At 11.26 pm that evening Mr Bruce called Mr McGlone and asked Mr McGlone how far from Sarah Bruce's house he was, to which Matthew Bruce then sent a text message to his partner, Ms Shields, asking her to pick up 'the big thing'.  This, of course, is a reference to the shotgun which was used in the drive by shooting, which had been sold to Mr Bruce by Mr Condon.

7Shortly after, at 11.37 pm, Matthew Bruce called Ms Shields again and outlined a plan for a drive by shooting.  He told her that he would pick up Mr McGlone and show him which house to shoot at.  Mr Bruce stated further that Mr McGlone will get the gun and do the drive by shooting straight away.

8At 11.45 pm Ms Shields drove the Holden Commodore, registration FEARD, towards Balmer Grange.  Three minutes later at 11.48 pm Mr Bruce asked Mr McGlone to give him further instructions.  Mr McGlone told Mr Bruce that he was at the Kmart with Sarah Bruce, Mr Bruce's twin sister.  Mr Bruce told Mr McGlone he would show him the house that he wants Mr McGlone to shoot up.  He also told Mr McGlone that he was to go to his house to pick up the gun.  Four minutes after this telephone call Mr McGlone called Mr Brooke and they spoke for 42 seconds.  At 11.55 pm Ms Shields arrived at Balmer Grange, driving the Holden Commodore with the registration, FEARD, and collected the Adler shotgun and ammunition as requested by her partner.

9At 1.14 am, on 16 February 2019, Ms Shields called Mr Bruce and Mr Bruce told her he had just shown Mr McGlone the house that is to be shot up.  In order to avoid detection by police in relation to the Commodore, Mr Bruce used a hire car to show Mr McGlone the target address.  A tracking device was in fact installed in the car at the time.

10At 1.39 am Mr Bruce called Mr McGlone and asked how far away he was.  Mr McGlone said that he was waiting for you at some shops.  He then tried to call you, however you did not answer.  Mr Bruce then called Mr McGlone and Mr McGlone advised him that he had tried to call you and he would call back soon. 

11At 3.07 am Mr Bruce called Mr McGlone again and asked if he had done the drive by shooting yet, to which Mr McGlone replied that it will be done in 10 minutes. 

12At about 3.30 am the drive by shooting occurred at 1 Lady Penrhyn Drive in Harkness.  The house was occupied by Anthony Lorenzo and Rebecca Murdoch.  They were both home at the time of the shooting.

13This property is a residential address and is surrounded by other houses. 
Mr McGlone was driven by you to the property in a silver Holden Commodore sedan.  The car pulled up at the house and Mr McGlone fired one shot from the Adler shotgun at the house.  You were startled and began driving away from the house.  As you drove away Mr McGlone fired the shotgun three times further.  A total of four shots in all were fired.

14At the time Mr Lorenzo and Ms Murdoch were asleep inside the house.  Ms Murdoch was asleep on the couch in the living room that is situated at the front of the house.  One of the bullets passed through the living room window and hit the wall just above where she was laying.  She was covered in shattered glass as a result. Mr Lorenzo was asleep in the bedroom at the front of the house.  Pellets from the four shotgun cartridges fired by Mr McGlone hit the mailbox at the front window of the house, the garage doors, side fence, rubbish bin and some internal walls.  Other pellets hit the hot water service of the neighbouring house at 3 Lady Penrhyn Drive. 

15Police attended at the scene and spoke to the two occupants of that address.  They told the police that they were asleep at the time and did not witness the shooting.

16After the shooting you and Mr McGlone drove away from the property.  You got out of the car and Mr McGlone then drove to Embleton Chase and returned the shotgun to Mr Bruce and Ms Shields.  Ms Shields then drove the hire car to Balmer Grange and the shotgun was stored in the horse float on the property. 

17Whilst en route to the property a number of telephone calls were exchanged between Mr Bruce and Ms Shields.  Six minutes after the shooting Ms Shields called Mr Bruce and they had a conversation about a black BMW following Ms Shields.  At 3.40 am Mr Bruce called Ms Shields and she tells them that she is shaking and does not want the car burnt out near their house. 

18At 3.41 am Mr Bruce called Mr McGlone and instructed him to throw the spent shotgun shells down the drain, Mr McGlone saying that he had already done so.  Mr McGlone also stated that he would not burn the car out tonight.  Mr Bruce advised Mr McGlone that he would visit Ms Murdoch tomorrow. 

19At 11.34 am Mr Bruce called Ms Murdoch and told her that he had tried to come to see her at the house in Lady Penryn Drive, however, the police stopped him from doing so. 

20At the time of the shooting you were on Magistrates' Court bail for driving offences, failing an oral fluid test within three hours of driving and using a mobile phone whilst driving.  On 4 February 2019 your bail had been extended for you to appear at a further hearing at Sunshine Magistrates' Court three days later, on 19 February 2019.  This is the subject of the summary offence of committing an indictable offence whilst on bail, Charge 4.

21On 27 February 2019, you were arrested at your home in Craigieburn.  During the course of the search, among other things, four rounds of ammunition were found, which relates to Summary Charge 3, possession of cartridge ammunition without a licence.  In addition, police also located an imitation handgun.  At the time you were a prohibited person.  This is the subject of indictable Charge 7.

22You were interviewed at the City West police complex, during the course of which you made full and frank admissions to the police concerning your involvement in this drive by shooting.  In due course I will come to that record of interview.  I have read the whole of it.  It is indeed, as conceded by counsel for the prosecution, a full and frank record of interview.

23Before I turn to that interview, it is appropriate to look to other aspects of this offending.   The firearm used was, as I have stated, an Adler shotgun.  Exhibit 3 on the plea shows the lever action firearm in question.  It is plain that the firearm was able to be used to fire multiple shots in quick succession.  Exhibit 5 is a set of photographs of the premises that was shot at during the course of this drive by shooting.

24In the statement of Senior Constable Ligery Pearson, who was working at the Ballistics Unit at the Victorian Police Forensic Services Centre in Macleod, in his statement, which became Exhibit 6, the following was written:

‘The areas of damage at evidence marker 4 were to the lounge room window. This damage was caused by the discharge of two separate shots from a shotgun. 1 located subsequent damage to the internal lounge room and dining area plaster walls. This damage indicated a direction of travel from east to west and slightly up.’

25Later on, in relation to further examination, the statement reads:

‘Items 1 and 7 each contained a fired plastic Winchester brand wad. This brand of wad is usually loaded into 12 gauge, Winchester brand cartridges.

Items 3 and 7 each contained a fired felt (disks) wad. This wad is compressed felt which has separated after discharge. This type of wad is usually loaded within 12 gauge Rottweil, Express brand, with 'SG' shot size cartridges.

Item 2 consisted of three lead shot fragments with heavy impact damage.

Item 4 was a lead shot fragment with heavy impact damage.

Item 5 was a piece of fired lead shot, the weight of which approximated that of SG shot.’

26SG shot, I have been told, is a reference to small grapeshot.

27Turning to the photographs of the premises in question, photograph 8 of Exhibit 5 shows the damage to the window to the immediate left of the front entry door and the brickwork in between that window and the front entry door.  It is clearly peppered with damage from the impact of those two shotgun discharges.  The extent of the damage to the window is better revealed in photograph 9, where one can clearly see no less than four entry sizeable holes in that metal window.

28Photograph 18 shows the window in question with the blind down, demonstrating the entry point of a not inconsiderable number of shots which passed through the window, through the blind and onwards, as shown in part in photograph 19 where above the couch are no less than six holes in the plaster wall.  The window, of course, was shattered.  The couch over which those shots passed from the window into the area above the couch was the same couch on which Ms Murdoch was asleep.  She had glass from the shattered window strewn over her.  Photograph 16 shows fragments of glass still in her hair.  It is fortunate indeed that she was not struck by any one or more of those shots.

29The penetrating capacity of these shots is clearly demonstrated by the damage to the garage door, the neighbour's fence and the neighbour's hot water service.  Photograph 11 is a photograph of the garage door in question with sizeable holes in that steel door.  The shot had obviously penetrated that door, continued on through the door, into the metal fence which divides this premises from its neighbour, as shown in photograph 13, continued on and caused puncture wounds into the neighbour's hot water service, as shown in photograph 16.  Thus, the penetrating capacity of the small grapeshot that appears to have been used in all four of the cartridges.

30And so I turn to parts of your record of interview.  It has been agreed between the prosecution and the defence that you only became aware of the purpose of the exercise shortly prior to the shots being fired.  I act on that basis and nothing that follows should be taken as suggesting I act otherwise than as agreed between the parties.

31In your record of interview you were asked, at Question 67, 'So tell me about the drive-by shooting.'  Shortly thereafter you said in answer to Question 69 the following:

‘But a bloke I - I - not really a friend, I've only known him for maybe a month and a half, two months … He asked me if I'd drive a car for him, and I didn't know what it was at first …And I said yes to it, and … Yeah, I was driving the ca and we pulled up at the house and wound the – wound down the window and fired a couple of shots out … And I shit myself and I took off … Got around the – oh, about couple hundred metres up the road, and I jumped out of the car and ………. Hopping in me car.’

32Later on in answers to questions 88 and following, Question:  'Yep, no worries.  So he - he contacted you.'  Answer: 'Yep.'  Question:  'Yeah. And said, "Let's go for a drive."'  Answer:  'Yep'.  Question:  'Yep.  Did he say whereabouts?'  Answer:  'No, not at first he didn't'.  Question:  'O.K., yeah. And did he say what the drive was for or ‑ ‑ ‑' Answer:  'Not at first, and then sort of when we were getting close to the place, he told me - he pulled out a - a gun.’ 

33Still later, in answers to questions 103 and following, Question:  'O.K., yep. So he - he called you up saying, "Let's go for a drive?"'  Answer:  'Yeah'.  'And how did you come to be with Dave?'  Answer:  'He met me on the side of the road.  I - I was with a friend'.

34Later, in questions 141 and following you answer, 'Yeah, yeah. And then he asked me to drive the car'.  Question:  'O.K.'  Answer:  'Yep'.  Question:  'Yep. And what was the conversation you had with Dave once you got in the car?'  Answer:  'Can't really remember'. 

35Then further, Question 150 and following, Question:  'No worries. So how long were you in the car for? Between, like, when you got picked up and ‑ ‑ ‑'  Answer:  'Me, myself?'  Question:  'Yeah.'  Answer:  'Less than five minutes'.  Question:  'Oh, O.K.'  Answer:  'Yeah.’  Question:  'Yep.'  Answer:  'I shit myself when he fired the gun, I - - -'  'Yeah, yeah.'  '- - - I have never had a gun fired in a car like that before'. 

36Still later at Question 162 you were asked, 'In Melton, O.K. He picks you up. And whereabouts do you drive or whereabouts did he drive, sorry, ‘cause he's still driving at this stage - - -' Answer:  'Yeah'.  '- - - when he picks you up.'  Answer: ‘He just drove around the corner and then - - -' Question:  'Yep'.  Answer:  'Yeah.'  Question:  'Yep.’ Answer: ‘And then - - -' Question:  'And then what happened?'  Answer:  'And then he said to me for me to – for me to drive, and - - -' Question:  'Yep'.  Answer:  'Yeah, he just - he was giving me directions on where to go'.  Question:  'O.K., yeah. And what was he saying when all this was happening?'  Answer:  'Oh, it was - when he told me that he'll - he was gunna fire a couple of shots into a house'.  Question:  'O.K., yep'.  Answer:  'And yeah, I - I was shocked at first'.

37Question at 173, Question:  'Yep, O.K.'  Answer:  'I was just shocked and - I dunno.'  Question:  'Mm’hm.’  Answer:  'I don't even know why I done it, I should’ve just pulled the car over'.

38Question at 178, 'Do you remember what house it was?'  Answer:  'I know it was a house that has as - as we come around the bend, he said it was the first house on the corner'.

39At Question 184 you were asked, 'Yep, no worries.  So just walk me through what happened when he says - when he directs you to which house.'  Answer:  'Yeah, well, he told me to stop and - - -'  Question:  'All right'.  Answer:  '- - - he - I - the car had electric windows and he wound the windows down and he's pointed the gun out the window and fired one shot, and I frickin’ - I just shit myself and I - - -' Question:  'Mm’hm.'  Answer:  '- - - starting taking off and he told me to stop and I dunno,  I was just driving very slowly and - - -' Question:  'Mm’hm.'  Answer:  '- - - fired a couple more shots and then I just took off'.

40You described the shotgun in answer to Question 255 as ‘I think lever action'.

41At Question 289 you were asked, '…But do you know why he asked you? Why would he ask you to drive?'  Answer:  Nuh, not really, no.  Probably - that's probably the reason why he was giving me all the drugs and all that for nothin’, at that time'.  Question:  'O.K.'  Answer:  'Yeah'.  Question:  'So in the lead-up, he’d been giving you - - -'  Answer:  'Yeah'.  Question:  '- - - free ice?'  Answer:  'Yeah'.

42At Question 293 you were then asked, 'Is that the first time he'd asked for a favour of you?'  Answer:  'Yes, more or less, yeah.  I didn't even really know the bloke that well'.

43Those questions reveal your complete cooperation with the police.  You were frank, you answered without having to be prompted and gave detail to the scenario as it unfolded.  It is plain from your answers, which I accept as being truthful, that you did not know what was going to happen when you got into the car, then being driven by Mr McGlone.  The purpose was only revealed to you when the car stopped for you to take the driver's seat and the gun was produced.  That could only have been some very short period of time prior to you driving the car around the corner for Mr McGlone to use the shotgun.

44It is necessary for me to evaluate the objective seriousness of this offending and then to consider your moral culpability for that offending.  This is a new offence legislated by Parliament.  It carries with it a high maximum penalty of 15 years' imprisonment.

45Drive by shootings are inherently dangerous.  The risked safety of victims of such shooting are well illustrated in this particular instance.  This drive by shooting occurred in the early hours of the morning.  It occurred in a residential area and involved, so far as you were concerned in the shooting, at what was plainly a family home.  The weapon used was a shotgun, the shot was capable of significant penetration to windows, steel and garage doors, without stopping the shot from penetrating other items.  No less than four cartridges were fired in rapid succession to the centre of the house and the garage area.

46At least two of those shots peppered the area near the front entry in the loungeroom.  It is, as I have observed, fortunate indeed that Ms Murdoch was not in fact wounded by any one or more of those shots.

47Drive by shootings are by their nature designed to terrify and intimidate those the subject of such shootings.  This is the type of event which is not only in this case terrifying to the occupants of that particular home but disturbing for the whole of the neighbourhood.  This is offending in which it is difficult to identify the offenders. It is trite but essential to observe that people are entitled to feel safe in their own homes.

48Insofar as your role was concerned it was short lived but critical to the successful conclusion of this drive by shooting.  Your role was to drive the car the short distance from around the corner past the house.  At that point you knew the purpose of your role.  You drove slowly past the premises, but it was Mr McGlone who was in control.  He told you to stop, which afforded him a further chance to discharge the shotgun.  You then drove away to a place where you could safely alight from the car without detection. You fell in with what Mr McGlone asked you to do without protest.  You were at the time a mature man, being 48 years of age.

49You, in the previous five years, have been sentenced to a period of imprisonment of no less than 15 months' imprisonment, with a minimum non-parole period of nine months set.  As such you were a prohibited person.  In addition, you were on bail at the time of this offending in relation to driving offences and were due to appear in court no less than three days later in the Magistrates' Court on 19 February 2019.

50Turning briefly to the other indictable charge on indictment, Charge 7, which relates to the imitation pistol.  A photograph of that pistol is seen in Exhibit 4, and indeed it looks realistic enough.

51You have a lengthy criminal history.  On my count, in eight court appearances you have been dealt with for 76 charges, including three in relation to assault with a weapon, two in relation to possess prohibited or controlled weapon, 11 driving offences, including driving whilst your authorisation was suspended on one occasion, 42 dishonest offences, two offences in relation to giving false names or false report to police, nine offences in relation to bail and one offence in relation to breach of parole. You have received no less than six community corrections orders, of which you have breached three.  You have been gaoled on no less than three separate occasions, one for 78 days, another for the 15 months, which I have already referred to, and the final one for three months' imprisonment.

52None of those dispositions have stopped you from offending at a higher level by this offending and previously.

53Mr Grant has submitted that this offending is offending towards the lower end of the range of offending.  I accept that submission.

54Your personal history is set out in the outline of defence submissions on plea, prepared by your counsel, Ms Ballard, became Exhibit RB1.

55You were born in Carlton and raised in Coolaroo.  Your mother, who is very close to you, worked in age care and is now retired.  Your father was a spray painter.  Your parents separate when you were 12 or 13 years of age and your mother re-partnered.  They are still together today.

56You are the eldest of three children.  Though one of your sisters died of cancer approximately seven years ago and your other sister lives in Perth.

57You initially lived with your father after your parents separated until you were 15 years of age and then returned to continue living with your mother and her partner, Ralph.  You describe a stable childhood with no significant issues.

58After primary school you then attended Broadmeadows Technical School. You left after form four (year 10) to take up as an apprentice plasterer.  However, you did not enjoy the work and you then found employment in a box factory running a printing machine.

59You began using cannabis around 17 years of age, which became a daily habit.  In your mid 20s you moved out of the family home and obtained a heavy vehicle licence and started driving delivery trucks for various companies, including no less than 11 years working for Glen Cameron Transport.  You have demonstrated a strong work ethic, which is commendable.

60From your mid-20s until 2017 you have been in a committed relationship with your partner, Lauren.  She had a son, Shannon, with whom you have a good relationship.

61After 10 years without committing any further offending, from 2004 to 2014, you were then introduced to methamphetamine, ice.  As almost invariably occurs, always occurs, you developed an addiction to this pernicious drug.  And this of course coincided with your return to offending.  This offending did occur in the context of your addiction to ice and it would appear that you were simply returning a favour to Mr McGlone, who provided you with free ice on this evening.

62Though you have separated from your partner she continues to be supportive of you.  You have the benefit of the continuing support and love of your mother and your stepfather.

63Whilst in custody you have been drug free.  You have obtained the responsible position as a billet whilst in custody.

64Your mother has written a letter, which became Exhibit RB2.  In it she writes,

‘from a young age Rodney has take on a supporting roll in the family without any help from his father,Rod always supported his younger siblings being 2 sisters.

Rodney was a model student and continued until he left school to start employment to help out at home.

Rodney never caused me any concerns,he continued to work and spent his free time with his sisters & family.'

65She concludes,

‘As Rodneys mother, I will always support him in any way needed,he has a supportive family who care for him and has a loving home to come out too when he’s released.’

66A close family friend, Ronda Abrahams, has also written a letter which became Exhibit RB3.  In it she refers to her son Brandon in this way,

'Rodney supported my son when he also was diagnosed with a terminal illness and was in the hospital by his side until he passed away also.  Rodney became very distant. Still doing everything for his family, but we were all concerned for him'.

67She earlier wrote in her letter,

'Rodney was a very caring young child, who over the years grew into a honest caring adult who adored his family'.

68Clearly, you are a man of some potential and have proven yourself to be so in the past.  You are close to your family, who are supportive of you. You have had the benefit of a long-term relationship with Lauren, which apparently continues.  Whether it resumes upon your release is another question.

69You also have the capacity, in the event that you return to your drug use upon release, to resume your offending, which, in the event that you do return to your drug use, is inevitable.  If you do not return to your drug use then you, a mature aged man, have potential.  Your chances of rehabilitation in that regard, despite your prior criminal history, is reasonable.  But if not, and you return to drug use, your prospects of rehabilitation, in my view, become poor or non-existent.  The choice, of course, is yours.

70It is submitted that there has been a not insignificant delay of some 14 months whilst you have awaited your fate.  I do take into account delay in that regard.

71It has also been submitted that the consequences of the pandemic, of
COVID-19, is a matter I must take into account for your period in custody has meant, among other things, a reduction by half in the time you are permitted to leave the cell.  As well as the difficulty of maintaining your relationships with those outside over the phone, which is in great demand within the prison system by other prisoners.

72I have decided to moderate the sentence to take into account that loss of privileges.  In Ms Ballard's thorough and earnest plea she has put forward that you have pleaded guilty, that the pleas are early pleas and that they have a utility in avoiding a contested hearing, as well as facilitating the administration of justice.  I accept those submissions.  Those pleas of guilty must be seen in light of your confessional record of interview.

73Thus, in combination, your confessional record of interview, the timing of your pleas of guilty, the utility of those pleas and the facilitation of the administration of justice by you pleading guilty, particularly in these times of stress on the courts, are matters that I take into account.

74It was submitted in the context of those matters that specific deterrence should not be given as much weight.  I do not agree.  You fell into this enterprise without protest.  You are a 48 year old man who had had plenty of experience with the court system.  You were on bail at the time and a prohibited person.  Specific deterrence, deterring you from further offending, is, in my view, still a matter that I should give appropriate weight to.

75General deterrence, deterring others from this type of offending is, in my view, the principal sentencing factor that I must take into account.  It must be made plain that those who engage in this type of criminal activity in our community will receive appropriate punishment, designed to deter others from repeating what occurred on this particular night and other such similar offending.

76There is also a need for there to be just punishment as well as denunciation of your conduct.  As I have already observed, everyone in our community is entitled to go to their homes and to feel safe in their homes.  Drive by shootings at residential addresses is anathema to that idea.

77Taking all these matters into account I sentence you on Charge 5, the drive by shooting, I sentence you to three years and three months imprisonment.  That is the base sentence.  On Charge 7, I sentence you to six months' imprisonment.  I direct that two months of that be served cumulatively with the base sentence.  On Summary Charge 3, I fine you $500.  On Summary Charge 4, I sentence you to be imprisoned for a period of one month, which is to be served wholly cumulatively with the other sentences.

78This produces a total effective sentence of three years and six months imprisonment.  I set a minimum non-parole period of two years and three months.

79I declare that but for your pleas of guilty I would have sentenced you to five years imprisonment and set a minimum non-parole period of three years.

80I declare that pre-sentence detention is 432 days, which will be deducted administratively.

81I will make the ancillary orders that have been sought by the prosecution.

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