Director of Public Prosecutions v Brooke

[2019] VCC 726

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

AT BENDIGO
CRIMINAL JURISDICTION

CR-19-00240

DIRECTOR OF PUBLIC PROSECUTIONS

v

AARON BROOKE

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JUDGE:	HIS HONOUR JUDGE MASON
WHERE HELD:	Bendigo
DATE OF HEARING:	16 May 2019
DATE OF SENTENCE:	21 May 2019
CASE MAY BE CITED AS:	DPP v Brooke
MEDIUM NEUTRAL CITATION:	[2019] VCC 726

REASONS FOR SENTENCE

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Subject:                   Plea - sentencing

Catchwords:           Aggravated burglary - arson

Legislation Cited:    Sentencing Act 1991

Cases Cited:

Sentence:                2-year Community Correction Order

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. O'Doherty	Office of Public Prosecutions
For the Accused	Mr N. Rolfe	Cahills Lawyers

HIS HONOUR: 

1Aaron Brooke, you have pleaded guilty to one charge of aggravated burglary and one charge of arson. 

-    Aggravated burglary carries a maximum penalty of 25 years' imprisonment. 

-    Arson carries a maximum penalty of 15 years' imprisonment. 

2You were born on 23 September 1983 and are now 35 years old.  You were that age at the time of the offending in October last year. 

3You do have a short criminal record to which I will refer shortly.

4The circumstances of the offending are as follows. 

5On Monday, 29 October 2018 you obtained a bottle of vodka, sat on the bank of the Campaspe River and consumed most of it.  Whilst doing this you became quite agitated about the “ice” problem in Echuca and how it was impacting on some of your friends. 

6You had knowledge of some people in the area dealing the drug and you decided to take matters into your own hands and deal with these people.  One such person was thought by you to reside in a block of units in Crossen Street, Echuca.  You received information via text message that this person lived at a specific unit in Crossen Street. 

7You were observed by other occupants of the units going to the door of that unit, yelling abuse while standing at the front door and then entering the unit. 

8The unit was occupied at the time by the victim, 17-year-old Mr Taylor Batchellor, who was home alone and in the shower.  Mr Batchellor heard the front door open and shut and then he heard someone yelling outside his unit.  He was extremely frightened and waited in the shower until he heard the door close and everything went quiet.  It was this conduct which constitutes Charge 1 of aggravated burglary.

9As to Charge 2 of arson: when Mr Batchellor emerged from the shower he found that papers and other items on the coffee table in his lounge room had been set on fire.  He used a towel to extinguish the flames and he then called the police. 

10A short time later police were called to another disturbance a short distance away.  The circumstances were similar, whereby a person at the front door was yelling abuse.  The police attended and you were arrested. 

11You were conveyed to the Echuca police station.  After receiving medical attention you participated in a record of interview and stated, amongst other things, that:

·    you entered the premises thinking that it belonged to a drug dealer who had stolen money and a phone off your friend;

·    your intention when you entered the unit was to scare the person inside whom you believed to be a drug dealer; and

·    prior to leaving the unit you tried to set it on fire by setting fire to paper on the coffee table.

12You were charged and remanded on 29 October 2018 and granted bail on
5 December 2018.  So you have in fact done 38 days of pre-sentence detention in prison.

13You pleaded guilty to the charges at the first committal mention on
6 February 2019.  The prosecution concedes that the plea was entered at the earliest opportunity. 

14I now turn to your personal circumstances. 

15As I noted earlier, you are 35 years old and you were that age at the time of the offending last year. 

16You have a minor criminal record, which comprises one appearance in the Echuca Magistrates' Court in September 2004 when, at the age of just under 20 and for the offences of theft and obtaining property by deception, you were put on what was in effect a good behaviour bond for 12 months without conviction.  I note that you did not breach that bond. 

17You have a caring family with two older sisters and you live at home now with your parents.

18You were educated to year 12 and commenced work after leaving school.  For the past 11 years you have maintained continuous employment with the same employer.  You are currently on leave without pay pending the outcome of these proceedings.  Your employer is clearly supportive and with rehabilitation programs in place it is likely that your employment can continue. 

19You also have a four-year-old son from a failed relationship who you see on a weekly basis.

20Unfortunately, throughout your adult life you have suffered chronic alcoholism combined with some illicit drug use.  You have had many attempts at withdrawal but have had multiple relapses.  In the past you have been referred to psychiatric care and have experienced suicidal thoughts as well as an attempt in 2015. 

21Following your release on bail you immediately entered residential rehabilitation at Windana.  You detoxified whilst an inpatient for just under four weeks.

22Since then you have been medicated on Effexor, Seroquel and naltrexone and you attend Alcoholics Anonymous meetings twice weekly. 

23Arson and aggravated burglary are not surprisingly regarded by the courts as serious offending, and ordinarily would attract a sentence of immediate imprisonment and for a significant term.  Arson is particularly disturbing because of the potential for very serious consequences for property and life through the destructive spread of fire.  Vigilante conduct concerning any real or imagined drug dealer is also completely unacceptable.  In any event, the person resident was not any drug dealer that you might have imagined. 

24In the circumstance of this case I do accept, however, that the danger of the activity was limited by the nature of the fire you started and in the event very little damage had occurred.  Notwithstanding this, your entry into the premises and attempt at damage created a frightening experience for that resident. 

25In mitigation, I take into account the submissions of your counsel and, in particular:

·    your plea of guilty, both for its practical effect and as an expression of remorse;

·    your relative lack of any prior convictions nor any recent offending despite vulnerability for offending because of your alcoholism; and

·    that your offending was essentially out of character and explicable by your significant enduring struggle with your mental health problem of alcohol addiction.

26I emphasise that your addiction itself is not considered a justifiable excuse for crime, but the fact of addiction and your willingness to seriously address it can be taken into account in deciding whether to give more emphasis in sentencing to your rehabilitation than I might otherwise allow. 

27You have been assessed by Corrections Victoria as suitable for a community correction order and I intend to sentence you to such an order.

28I have decided not to include a condition of unpaid community service.  In my view, the fact of you having already served 38 days in prison as a person otherwise with no previous conviction is a sufficient punitive aspect in the circumstances, and with your return to full-time employment, unpaid community work might otherwise overwhelm you and undermine your therapeutic commitments – about which you are going to have to be vigilant to ensure that you maintain. 

29Mr Brooke, could you please now stand?

30On Charges 1 and 2 you are ordered, with conviction, to serve a community correction order for a period of two years. 

31The community correction order commences today and ends on 20 May 2021.  The corrections centre you will attend is the Echuca Community Corrections Service at 463-465 High Street, Echuca, and you must attend there within two clear working days of the commencement of the order, that is, by 4 pm this Thursday, 23 May 2019.

32All the mandatory terms of a community correction order apply and the additional conditions I impose are that:

·    you be under the supervision of a community corrections officer;

·    you undergo assessment and treatment (including testing) for drug abuse or dependency;

·    you undergo assessment and treatment (including testing) for alcohol abuse or dependency;

·    you undergo mental health assessment and treatment, including (but not limited to) mental health, psychological, neuropsychological and psychiatric, in a hospital or residential facility as directed by the regional manager; and

·    you attend for judicial monitoring on Tuesday, 20 August 2019 at 10 am. 

33Now I realise you have already had the mandatory terms of the community correction order explained to you, but I will go over them with you again now. 

34The mandatory terms are that:

·    you must not commit another offence for which you could be imprisoned during the time that the order is in force;

·    you must comply with the requirements of Regulation 17 of the Sentencing Regulations 2011 - which essentially sets out your obligations as to your attendance at the community correction centre, that is, not attending drug or alcohol affected;

·    you must report to and receive visits from a community correction officer;

·    you must report to the community corrections centre, that is the Echuca centre, within two clear working days of the order starting, and as I have already indicated, that means by this Thursday, 23 May 2019;

·    you must notify a community corrections officer of any change of address or employment within two clear working days after the change;

·    you must not leave Victoria without first getting permission to do so from a community corrections officer; and

·    you must obey all lawful instructions from and directions of community corrections officers - such directions may be given either orally or in writing. 

35Do you understand and agree to those conditions, Mr Brooke?

36OFFENDER:  Yes, I do, Your Honour.

37HIS HONOUR:  If you get sick or if exceptional circumstances arise, the order may be suspended for a period of time, and if your circumstances materially alter you may apply for a variation or cancellation of the order.  In either case you must notify the Echuca Community Corrections centre, and I recommend that you obtain legal advice if either of those things happen. 

38However, I must warn you that if you breach any conditions of this order you are to be brought back to court, and that will be before me.  One of the options then open to me is to cancel this community correction order and re-sentence you on the original charges.  I may also sentence you for the breach offence itself, which carries a maximum penalty of up to three months' imprisonment. 

39So, Mr Brooke, do you understand the consequences of breaching your community corrections order?

40OFFENDER:  Yes, I do, Your Honour.

41HIS HONOUR:  I will ask you to sign that order shortly. 

42Pursuant to s.6AAA of the Sentencing Act, but for your plea of guilty the total effective sentence that would have been imposed is two years' imprisonment with a minimum period of 18 months to be served before eligibility for parole. 

43At the plea hearing the Crown sought a forensic order which you did not oppose, and I will make that order today for the reasons noted on the order, namely, the seriousness of the offending warrants the making of the order, the order is by consent and the granting of the order is in the public interest.

44I must inform you that if at the time of the request you do not consent to the taking of a mouth scraping under the supervision of an authorised member of the police force, then the sample to be taken will be a blood sample and police may use reasonable force to enable that procedure to be conducted.  Do you understand that, Mr Brooke?

45OFFENDER:  Yes, I do, Your Honour.

46HIS HONOUR:  All right, well the order can be passed to Mr Brooke now for his signature if he agrees, thanks.  You can leave the dock.  Mr Rolfe, could you assist your client with this please? 

47MR ROLFE:  Yes, Your Honour.

48HIS HONOUR:  All right, well the order will be printed shortly. 

49As to the judicial monitoring, it will be in Melbourne, so what will need to be arranged is a video link with Echuca for that process to take place ‑ ‑ ‑

50MR ROLFE:  Yes, Your Honour.

51HIS HONOUR:  ‑ ‑ ‑ and that will be done. 

52While the correction order is being printed out, Mr Brooke, could you stand for a moment? 

53I am ordering judicial monitoring.  Judicial monitoring means that after a certain period you come back before me for the purposes of reviewing what you are doing.  And I do that for two reasons.  One is so that I keep a track on what is happening and whether there are any issues that might be developing that might be leading you towards breaching your order and which might be circumvented if we have the chance to have a discussion to keep very much at the forefront of your mind to be complying fully and completely with the order.

54The second is to ensure that Corrections are making sure that you get the courses available to you and you are attending and I get to know that that is happening, because sometimes I see that these things, particularly with offenders who do not have a long history of criminal offending and otherwise appear to be persons that are a low risk of reoffending, not getting the particular attention that they otherwise ought to be getting. 

55And in a case such as yours where you have this chronic issue with alcohol, if you do not take advantage of every opportunity you have to get the assistance that you are going to need, you are likely to fall back into your addiction and then you are likely, or you become vulnerable, to committing offences, which is obviously against the community's interest.  So, I am doing that to monitor you and to monitor the course that you are undertaking.

56Now, you need to maintain regular commitment to Alcoholics Anonymous and you need to maintain regular commitment to any mental health service that you are given and I sincerely hope that you get a recommendation to regular attendance with a qualified psychologist to help you with other issues in your life which might be feeding your addiction.

57OFFENDER:   All right, thanks, Your Honour.

58HIS HONOUR:  All right.  Well there is another matter I have to deal with in a moment and I will leave the Bench now while some papers are prepared.

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