Director of Public Prosecutions v Brooks
[2024] VCC 1160
•2 August 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-23-00783
CR-23-00784
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| CODY BROOKS SHANE KELLY |
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JUDGE: | HER HONOUR JUDGE BLAIR | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 27 June 2024 | |
DATE OF SENTENCE: | 2 August 2024 | |
CASE MAY BE CITED AS: | DPP v Brooks & Anor | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1160 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentence
Catchwords: Aggravated home invasion – intent to steal – intent to assault – threat to inflict serious injury – cause injury intentionally – common law assault – prohibited person possess imitation firearm – possess drug of dependence – possess prohibited weapon – co-accused – sentence indication – plea of guilty – Verdins – Bugmy – Category 1 offence – special reasons found for offender Brooks
Legislation Cited: Firearms Act 1996 (Vic) s 3(1); Sentencing Act 1991 (Vic)
Cases Cited:R v Verdins [2007] VSCA 102; Bugmy v The Queen [2013] 249 CLR 571;
Sentence: Brooks: head sentence of 4 years and 4 months with a non-parole period of 2 years 10 months; 592 days reckoned as served by way of pre-sentence detention
Kelly: head sentence of 4 years 11 months with a non-parole period of 3 years 3 months; 582 days reckoned as served by way of pre-sentence detention
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms C. Richardson | Office of Public Prosecutions |
| For the Accused Brooks For the Accused Kelly | Mr C. Hooper Ms A. Hughes at Plea | Emma Turnbull Lawyers Vassis & Co. Solicitors |
HER HONOUR:
1Cody Brooks and Shane Kelly on 15 December 2023 you each made application for a sentence indication.
2Cody Brooks, you sought an indication with respect to one charge each of common law assault, cause injury intentionally, aggravated home invasion (intent to steal), two charges of prohibited person possess imitation firearm, and one charge of possess methylamphetamine.
3As part of the sentence indication there were three summary related offences filed against you, Charge 6 possess a prohibited weapon being knuckledusters, Charge 9 possess a prohibited weapon being a taser, and Charge 11 possess cartridge ammunition without a licence.
4Shane Kelly, you sought an indication with respect to one charge each of prohibited person possess firearm, cause injury intentionally, aggravated home invasion (intent to assault), threat to inflict serious injury and three charges of common law assault. As part of the sentence indication there were three summary related offences of drive whilst disqualified filed against you, that is Charges 7, 8 and 9.
5Your sentence indication applications were not opposed and were subsequently granted. After consideration of the very thorough oral and written submissions made by your respective counsel, on 18 December 2023 I indicated for you Mr Brooks I would impose a total effective sentence of no more than five years with a three year three month non-parole period. For you, Mr Kelly I indicated I would impose a total effective sentence of no more than five years and two months with a three year and five month non-parole period.
6On 21 December 2023 each of you accepted the sentence indication and your matters were adjourned for a plea of guilty. You were each arraigned on 27 June 2024 and pleaded guilty to the charges on indictment C2215892.1, that related to you and that were subject of the sentence indication. Each of you consented to this court dealing with the summary related offences filed and pleaded guilty to the same.
Circumstances of offending
7The agreed factual basis of your offending is contained in the Summary of Prosecution Opening for Plea dated 17 April 2024. This document was tendered at the plea hearing. What follows is a summary of the offending for which you are to be sentenced.
8Mr Kelly and Mr Brooks, you have known each other for some time and you were both associates of co-offender WH. The three of you had spent time together in the days leading up to the offending.
9According to CCTV footage, at 6.45 pm on 1 December 2022 you, Mr Brooks and WH arrived at Mr Kelly's home in Melton. A couple of hours later WH left Mr Kelly's home in a small hatchback driven by another male. Not long after, the vehicle returned followed by a stolen Lexus which was driven by WH.
10As the Lexus approached the driveway, you, Mr Kelly, left your home carrying a large black bag. You got into a black Mercedes Benz AMG sedan. You drove away in the vehicle followed by Mr Brooks and WH, who were in the Lexus.
11Further CCTV depicted that at about 11.30 pm, the two vehicles drove past the home of Lashae Morgan located in California Gully. At the time of the offending, Ms Morgan was in a relationship with Travis Hearps.
12The vehicles slowed and almost stopped as they approached Ms Morgan's home and you, Mr Brooks, appeared to point in the direction of the house. Shortly after, the Mercedes was parked and both of you entered the Lexus with WH.
13At approximately 11.50 pm, Travis Hearps returned to his home in Long Gully. Inside the home at the time were Ms Morgan, a friend Emma Mitting and Mr Hearps' 14 year old son, Jack. Mr Hearps pulled into the driveway and got out of his Nissan Navara utility. The Lexus pulled into the driveway behind him.
14Both of you and WH got out of the Lexus. WH was holding a 12-gauge double barrel shotgun at this time. Hearps described the shotgun as an old hammer action pull back with a dark brown handle. Charge 1 – Prohibited person possess firearm (Kelly). You, Mr Kelly, got out of the driver's seat of the Lexus and you Mr Brooks were the third person to get out of the Lexus.
15Hearps heard someone yell 'That you Travis?' and he responded 'Yes, and who's that?' Hearps began to walk towards the front door of the house and was confronted by both of you and WH. WH said to him 'You've been setup ya dog'.
16WH swung the shotgun and hit Hearps to the left side of his head near the temple which caused his head to bleed. Charge 2 – Intentionally cause injury (Brooks and Kelly). Both of you, Mr Brooks, and you, Mr Kelly, also began hitting Hearps. Charge 3 – Common law assault (Brooks). You, Mr Brooks, grabbed the keys Hearps had in his hand and used them in an attempt to open the front door. When this did not work, you began to kick the door.
17Ms Morgan and Ms Mitting had observed the Lexus pull into the driveway on CCTV footage from inside the home. After she heard yelling and banging, Ms Morgan went to the front door. Upon opening the door, she saw WH running at her with the shotgun. Ms Morgan slammed the door shut and locked it. WH kicked the door. Charge 5 - Aggravated Home Invasion (intent to steal - Brooks), Charge 6 - Aggravated Home Invasion (intent to assault - Kelly).
18The door was eventually opened, both of you and WH entered the home. At this time WH was holding the shotgun and you, Mr Kelly were holding a pole. Ms Mitting recognised you, Mr Brooks. Mr Hearps followed both of you and WH, inside the house and became aware that WH was there for Ms Morgan.
19You, Mr Brooks, asked where the DVR camera box to the CCTV cameras was. Hearps told you it was behind the couch in the lounge room and you took the box.
20Mr Hearps, son Jack was dragged from his bed and told to sit down in the lounge. Ms Mitting, Ms Morgan and Travis Hearps were also present in the lounge. Both of you together with WH ransacked the house and made demands for money.
21WH pointed the shotgun at Hearps and said 'I should blow your head off, doesn't matter now, I'm fucked anyway.' You, Mr Kelly, told WH 'Shoot him in the leg.' Charge 6 – Threat to inflict serious injury (Kelly)
22You, Mr Brooks, grabbed a set of keys to Hearps' cars and Ms Morgan's phone. Each of the victim's phones were collected. Ms Mitting recalls you, Mr Kelly, saying 'Don't worry, no one is going to hurt you, you won't get hurt.'
23WH pointed the gun at Ms Morgan and said 'You know I would never fucking hurt you'. He then said 'If you lag on me, I will blow your fucking head off' and 'I told you this was coming, I don't give a fuck, you know I fucking love you. I'll kill this cunt. You know I will, I don't give a fuck about going back to gaol.' WH said to Jack 'Don't be scared buddy, you'll be right'. WH then pointed the gun at everyone and said 'Nobody ring the police, if you are going to call the police let me know and I'll blow your head off'. Common law assault (Kelly) – Charges 7,8,9
24Ms Morgan told both of you and WH to get out. Ms Mitting recalls you, Mr Kelly, saying 'Come on, let's get out of here before the cops come'. She observed you, Mr Brooks, holding all their car keys and phones. She said to you 'I've got nothing to do with this, can I have my keys and phone?'. You responded 'You won't lag will ya'. Ms Mitting took the keys but you kept her phone.
25Both of you and WH walked around the house before leaving without further incident. Ms Mitting followed you outside.
26WH attempted to open Hearps' Nissan with the keys and asked Ms Mitting which was the right key. She told him probably none of them. Ms Mitting was then able to obtain her phone from you, Mr Brooks.
27Ms Mitting observed WH with the shotgun and he fired a shot at Hearps' Nissan. At this time, both you, Mr Brooks, and you, Mr Kelly, were in the Lexus. WH then entered the Lexus and you drove away from the property.
28Taken from the property were a 'Swann' brand CCTV hard drive and a set of keys including a house key. At 12.01 am, Ms Morgan contacted Triple 0 to report the incident.
29CCTV footage shows that at 2.30 am you, Mr Kelly, arrived back at your Melton home in the Mercedes followed by WH and Mr Brooks in the Lexus. Approximately two hours later, WH walked out of the property to the Lexus and retrieved a large black bag identical to the one you, Mr Kelly, carried into the Mercedes at the start of the night. Shortly after, you, Mr Kelly, left the direction of the house holding a sawn-off shot gun which fits the description of the gun used in the offending. You, Mr Brooks, and WH stood around Mr Kelly as he appeared to try and resolve an issue with the gun. At around 4.25 am, you, Mr Brooks, left in the Lexus with WH. You, Mr Kelly, returned into the house with the gun.
30Police arrived at the Long Gully address soon after Ms Morgan's Triple 0 call. Items were collected and the scene was photographed including Mr Hearps' injuries.
31WH was arrested on 2 December 2022 at his home in Pascoe Vale. A search warrant was executed and a black extendable baton seized. The Lexus was located outside the property and police checks confirmed both the registration plates and the car were stolen.
32On 8 December 2022 a search warrant was executed at your address, Mr Kelly. A CCTV hard drive and Apple iPhone were seized. CCTV footage from the property showed that you regularly drove the Mercedes despite having a disqualified licence. Related summary Charges 7-9 – Drive whilst disqualified (Kelly)
33Mr Brooks, you were arrested on 19 December 2022 at an address in Bundoora. At the time of the arrest, you were in possession of knuckle dusters. Related summary Charge 6 – Possess prohibited weapon (knuckledusters) (Brooks) Police executed a search warrant at your residence. During the search police seized: a Samsung mobile phone; a revolver style handgun; a Glock 18 gel blaster imitation handgun; a black handheld conducted energy device (taser); two bags containing methylamphetamine; and a .22 calibre round of ammunition.
34Mr Brooks, you were interviewed at Melbourne West police station. In the interview you said that you attended the house on the night of the offending and that you were going to buy drugs. You said you did not know anyone at the home and you were unaware of what was going to happen until it was unfolding. You denied going inside or taking the CCTV DVR system. You also denied knowing there was a shotgun until you got out of the car.
35On 29 December 2022, you, Mr Kelly, were arrested by members of the Special Operations Group in the carpark of the McDonald's on Western Highway, Stawell. Search warrants were obtained for an address associated with you in Ararat and the Mercedes was seized. No record of interview was obtained.
36Mr Brooks and Mr Kelly you both fit within the definition of a prohibited person as defined in s3(1) of the Firearms Act1996 due to being sentenced to a term of imprisonment of less than five years in duration within five years of the present offending.[1]
[1] Firearms Act 1996 (Vic) s 3(1).
Victim impact
37The court received victim impact statements from Ms Morgan and Ms Mitting and these were marked as Exhibits A and B on the plea.
38Ms Morgan described that the offending has left her 'emotionally, physically and mentally devastated'. Her sense of security and safety has been shattered. Ms Morgan finds it hard to leave her home and does not sleep. This has impacted her children. Additionally, other family members and close friends have been affected as they witness the pain and suffering she has endured. Ms Morgan has been left feeling violated, powerless and constantly on edge.
39In her statement, Ms Mitting said that your offending 'completely rattled our world'. She described being in a good position in her life and says that this incident has caused her significant setbacks. She was unable to continue her studies and she has felt constantly fearful and hypervigilant which has affected her daily routine and sleep.
40These statements make clear the extent of the fear your offending inflicted on the victims and its ongoing effects which have pervaded multiple aspects of their lives. I take into account the impact of your offending on the victims in sentencing you.
Nature and gravity of offending
41Each of the offences to which you have pleaded guilty are serious, particularly, the offence of aggravated home invasion. Not only is this offence punishable by a maximum of 25 years' imprisonment, but Parliament has seen fit to define aggravated home invasion as a Category 1 offence. For Category 1 offences, s 5(2G) of the Sentencing Act provides that you must receive a term of imprisonment (other than a sentence of imprisonment imposed in combination with a community corrections order).[2] Further, pursuant to s 10AC of the Sentencing Act,[3] the Court must impose a statutory minimum non-parole period of three years for aggravated home invasion, unless a special reason exists pursuant to s 10A of the Act.[4]
[2]Sentencing Act 1991 (Vic) s 5(2G).
[3] Ibid at s10AC.
[4] Ibid at s10A.
42The particular circumstances of your offending represent a serious example of offending of this nature. Each of you agreed, for different reasons, to 'run through' a property when approached to do so by WH. You have then driven a considerable distance to bring into effect your offending. At the time you, Mr Kelly, had a pole with you and were aware that WH was armed with a loaded sawn-off shotgun. You, Mr Brooks, became aware of the existence of the gun upon exiting the Lexus at the Long Gully property and nonetheless continued to be involved in the offending.
43Upon arrival at the property, whilst outside, you were both present when WH assaulted Mr Hearps in the side of his head with the butt of the gun. You both assaulted Mr Hearps after he had been hit in this way by WH.
44The three of you forcefully entered the property where there were two women and a 14-year-old boy present. The adults were threatened and assaulted by WH whilst you were inside the home. At times WH pointed the shotgun at different victims. At one stage Mr Kelly you reassured those present that they would not be hurt and at another time you told WH to shoot Mr Hearps in the leg. The three of you ransacked the house and stole various items. WH fired a blank at Mr Hearps’ Ute as you left.
45In terms of roles, clearly WH was the principal offender. It was his idea to attend Bendigo and offend in this way. It was WH who recruited each of you to assist and WH who possessed the shotgun for the duration of the offending. Further it was WH who used the shotgun to cause injury to Mr Hearps and to threaten and terrify all of those present at the home. Although you were not the principal offenders you were complicit with him through your attendance, and your presence on the night would have made the whole ordeal even more frightening for the victims. I consider this to be very serious offending.
46Further, I accept that there is some difference as between each of your roles. Mr Brooks you were not aware of the firearm until it was produced at the scene and your intention at the time of entry was to steal and not to assault. I consider these to be distinguishing features that warrant a finding that your role was somewhat lesser than the role of Mr Kelly.
Personal circumstances – Shane Kelly
47I turn now to your personal circumstances. Shane Kelly, you are currently 52 years old and you were 50 at the time of the offending.
48You are the second of four children in your family and grew up in the Braybrook area. There is little that is positive to report about your childhood home life. Your father was an alcoholic who was physically abusive towards the family. At times you bore the brunt of the abuse to try and defend your mother. Sometimes you and your siblings would flee the home due to the violence only to return a short time later.
49Distracted by what was happening at home, you struggled with both your behaviour and your ability to learn and concentrate at school. You describe yourself as a 'class clown' who frequently got into trouble for which you often received 'the strap'. You left school part way through Year 7. As a consequence of leaving school early and the difficulties you endured, you still struggle to read and write.
50Following your early departure from high school, you followed your ambition to become a jockey by working at Flemington Racecourse as a stable hand and track worker. This continued for a couple of years however your goal to become licenced as a jockey was never realised due to your criminal history which had begun to accumulate. Aside from a few years of ad hoc employment as a tyre fitter, you have had no consistent employment since 1989, primarily relying upon government Jobseeker benefits. You believe you have spent more time in gaol than in the community as a result of becoming caught up in the cycle of drug use and criminal offending.
51You began smoking cannabis at age 15 which became a daily habit. This was followed not long after by the use of other drugs such as speed, heroin and ice, the latter two also becoming a daily habit. As a teenager you abused alcohol which you believe prompted a lot of your early offending.
52As a consequence of being in trouble with the law, from a young age you spent periods of time at Turana Youth Training Centre. At that time Turana was a government run home for children placed into State care. Initially you felt a sense of relief when you went there because it took you away from home and the abuse inflicted by your father upon you and your family. Instead, you found yourself in yet another environment where you were unsafe and vulnerable. You report experiencing repeated physical abuse at Turana, for which two workers were subsequently charged. The psychological report prepared by Carla Ferrari which was tendered at your plea sets out the devastating effects of what you experienced at the hands of people entrusted to care for you.
53In addition, you were threatened and physically abused to deter you from reporting what had occurred. To deal with your trauma you turned to drug use and drinking to block out what had happened which led to further criminal offending. Eventually you reported these ordeals to the authorities and in recent years received a compensation payout as a victim of institutional abuse. You are yet to properly grapple with the psychological consequences of these extremely damaging experiences.
54After your time in youth detention you soon graduated to adult gaol. When you were just 17, you spent time in the notorious H Division at Pentridge Prison where you were exposed to hardened career criminal figures such as Peter Gibbs and Mark 'Chopper' Reid. You remember being 'terrified' at sharing a cell with a triple murderer and you experienced abuse during your time there. Around this time, your mother passed away from a brain tumour, a distressing event made more difficult by your witness of her health decline.
55Mr Kelly one of the sole sources of stability in your life has been your wife, Joan. You have been married for around 30 years. You have two children together and sadly a son who was stillborn. Your father is now aged in his 80s, he remarried following the death of your mother. Your younger brother passed away about
eight years ago from a heroin overdose. Of your two surviving siblings you currently only have a relationship with your younger sister.56You have a criminal history which extends back to your teen years. The vast majority of this lengthy history relates to relevant priors for driving and drug possession offences. You have overwhelmingly been incarcerated for your offending, with the exception of a community correction order imposed in 2015 which had several therapeutic conditions. This order was breached and then cancelled and you have not been granted a further opportunity to complete such an order. Your prior convictions for more serious offending such as aggravated burglary, armed robbery and intentionally cause serious injury are mostly dated.
57Since your arrest you have predominately been held at Port Phillip Prison where you have spent time in a protection unit which has been an isolating experience. You have been able to work as a laundry billet and have contact with your family, both in person and by phone or zoom. At your plea hearing, your counsel explained that your relationship with your wife is currently strained due to your incarceration. Being away from your family has been very stressful, particularly in light of both your own health difficulties and those of your wife. Joan has received treatment for cancer in recent years and your daughter and grandchild have been forced to move into the family home for other reasons.
58Your health issues have required management in custody including medication for your heart and joint pain. You are also receiving buprenorphine and a high dose (150 milligrams) of the anti-depressant, amitriptyline, to treat your diagnosis of Major Depressive Disorder. I will return to your psychological history in more detail shortly.
Personal circumstances – Cody Brooks
59Cody Brooks, you were 26 years old at the time of the offending and you are currently 28.
60You were born in Rockhampton, Queensland, and eventually moved with your family to South Australia.
61As a child you both witnessed and experienced protracted and severe family violence perpetrated by both your parents. Your mother and father were heavy drug users and engaged in criminal activity. You were exposed to your parents' drug use and you were allowed to use drugs and drink alcohol yourself from a young age. Such was the level of their addiction, your father would encourage your mother to engage in sex work to pay for drugs. Very often there was not enough food or other necessities in the home. Your childhood was characterised by poverty and neglect.
62Your parents often could not pay rent or owed debts to people and so you moved frequently adding to your instability. You have lived in several states across the country. Police received frequent call outs to your home including on at least one occasion when called by yourself. Despite your plea to be placed in an alternative and safe environment the police left you with your parents.
63Eventually when you were 12 years of age you were removed from the family home and made a ward of the state. You spent a year in foster care before you were placed back with your parents and the same abuse and neglect continued.
64Due to constantly moving home, you estimate you attended at least 10 different schools. At school you struggled academically and socially. You were bullied because you came to school with visible bruising, the result of the savage abuse primarily inflicted by your father in the family home. You left school permanently in Year 9.
65At age 16 you left your parents' home and never returned. By this time, you had been using drugs for several years and had graduated to the use of other substances including MDMA, heroin, GHB, and benzodiazepines. Your parents eventually separated and you have not had contact with them since about 2014. You understand that they continue to abuse drugs and both of them are currently in gaol.
66From around the age of 16 you have spent much of your life in and out of custody due to drug use and offending. When not incarcerated, you experienced housing instability and at times chronic homelessness. Upon your many and inevitable releases into the community, you have struggled to obtain supports sufficient to keep you from re-entering the cycle of drug use, offending and incarceration. You are yet to experience independent living having spent most of your life on the streets, in custody or in halfway houses.
67Aside from a brief period working in a nightclub, you have no other employment history.
68You have had only a few close intimate relationships. The first was with a woman during your teens. You believe you may have fathered a son with this woman and you have spoken to this child a few times, but you have not met him in person. Around 2018, you were in a relationship and living with a partner whom you originally met through your work at the nightclub. She was also involved in drug use and had serious mental health issues. The breakdown of this relationship was extremely difficult for you and precipitated a relapse into more drug use and offending.
69Your main source of family support in your life was from your maternal grandparents who reside in Queensland. You were closest to your grandmother and would speak with her on a daily basis up until she passed away recently. Her death occurred during your present period on remand. This was a significant loss for you and no doubt you were distressed at not being able to attend her funeral.
70You have a criminal history in Victoria and South Australia, the latter dating back to matters imposed in the Children's Court. Your history includes a number of relevant priors for violence, drug and dishonesty offending. You have predominately served terms of imprisonment, but you received a Community Correction Order in 2018 which included several therapeutic conditions. This was breached and you have not had a subsequent opportunity to complete such an order.
71You are currently held in a protection unit within the Metropolitan Remand Centre due to having been assaulted and due to safety concerns flowing from your negative association with WH who is well connected in the prison environment. You feel anxious for your safety, particularly post-sentence, and you report that there has been little opportunity to complete education or programs due to the nature of your unit.
72You also have a complex mental health presentation which I will detail shortly. As a child you were diagnosed with ADHD. Recent testing reveal that you continue to suffer symptoms consistent with such a diagnosis. You are not currently medicated for this condition due to your custodial situation. You have also been receiving methadone since February this year.
Mental Health – Mr Brooks
73For the purposes of your sentence indication hearing, you were assessed by psychologist, Gina Cidoni, who produced a report dated 7 December 2023.
74In her report, Ms Cidoni notes she had assessed you on a prior occasion in 2020 in relation to different offending. In her view, your current mental health presentation and criminogenic risk factors are largely the same as her previous assessment.
75In her December 2023 report, Ms Cidoni opined that you met the diagnostic criteria for Major Depressive Disorder, Generalised Anxiety Disorder, Post Traumatic Stress Disorder (‘PTSD’), Attention Deficit Hyperactivity Disorder (‘ADHD’) and Borderline Personality Disorder. You also have a history of several substance use disorders which are in enforced remission whilst you are in custody.
76Ms Cidoni further notes that during the 2020 assessment she conducted testing in relation to your intellectual functioning which established it to be in the borderline range in relation to verbal comprehension and working memory. In the 2023 report, Ms Cidoni explained that this has multifaceted detrimental impacts to areas of your day-to-day functioning including decision making, social interactions and logical and abstract thinking. You have in the past self-harmed by cutting and you have attempted suicide at least once in your teenage years.
77In Ms Cidoni's view, your traumatic childhood experiences have had profound implications for your mental health and behaviour which are reflected in your clinical presentation. Each of your diagnosed conditions interact and compound to significantly impact your day-to-day functioning. Ms Cidoni concluded that your long history of substance use is both self-medication and a manifestation of the turmoil caused by your experiences of abuse and neglect. This use however ultimately only serves to worsen the symptoms of your conditions.
78Ms Cidoni considered that your diagnoses of borderline personality disorder, PTSD and ADHD would make gaol significantly more onerous for you. With your conditions, the prison environment would be more likely to intensify emotional dysregulation and trigger PTSD symptoms adding to emotional distress. Further, you would find it more difficult to adhere to routines, comply with rules and avoid conflict with staff and inmates. Ms Cidoni noted that you have been assaulted in custody notwithstanding currently being within the protection unit.
79She assessed you again on 15 February 2024 and produced a supplementary report dated 1 March 2024. In that report she reiterated her opinions stated in the December 2023 report including that incarceration would 'profoundly' impact your mental health conditions and their combined effect would lead to exacerbated distress in that environment and significantly magnify the burden you already face in the custodial setting.
80Ms Cidoni's conclusion across both reports is that you are unlikely to be able to receive the support you require to reduce the negative effects of these conditions in custody such as ADHD medication, trauma informed care or psychotherapy. The absence of such care, she said, is particularly detrimental leading to an increase in impulsivity, hyperactivity and difficulties with concentration. Such symptoms challenge your ability to adhere to custodial rules and regulations and increase the potential of conflict and further isolation. Ms Cidoni opines that such isolation is a critical factor that serves to intensify your existing depression and anxiety symptoms. This, she says, is particularly detrimental for individuals with borderline personality disorder who suffer from emotional dysregulation and unstable interpersonal relationships. Further, Ms Cidoni considered that your symptoms of PTSD are likely to be triggered by potential reminders of past trauma and the constant threat of new traumatic experiences.
81I accept the opinions of Ms Cidoni.
Category 1 offending
82
As I have previously mentioned, the charge of aggravated home invasion is a
Category 1 offence that has a statutory minimum non-parole period. This means that s 10AC of the Sentencing Act operates and I must impose a minimum
non-parole period of three years,[5] unless I make a finding that a special reason exists pursuant to s 10A of the Sentencing Act.[6]
[5]Sentencing Act 1991 (Vic) s 10AC.
[6] Ibid s 10A.
83Your counsel, Mr Hooper, relied upon s 10A(2)(c)(ii) of the Sentencing Act which reads 'the offender proves on the balance of probabilities that he or she has impaired mental functioning that would result in the offender being subject to substantially and materially greater than the ordinary burden or risks of imprisonment'.[7] Alternatively, your counsel relied on s 10A(2)(e) of the Act which reads 'there are substantial and compelling circumstances that are exceptional and rare that justify doing so'.[8]
[7] Ibid s 10A(2)(c)(ii).
[8] Ibid s 10A(2)(e).
84In determining whether any or both of these subsections have application, I must regard general deterrence and denunciation of your offending conduct as having greater importance than the other sentencing purposes set out in s 5(1) of the Sentencing Act.[9] Further, I must give less weight to your personal circumstances than the nature and gravity of the offence and I must not have regard to your early guilty plea, your prospects of rehabilitation or parity with other offenders.
[9] Ibid s 5(1).
85Ms Richardson on behalf of the prosecution submitted there was nothing in either of the reports that provided special reasons that would allow the court to make a finding pursuant to either subsection relied upon by your counsel. Ms Richardson submitted that in her first report Ms Cidoni used hypothetical language when discussing these issues and noted that it was telling that this was not relied upon by your counsel at the sentence indication hearing to provide a basis for the finding now sought. In relation to the more recent report Ms Richardson submitted that Ms Cidoni had assessed you on each occasion whilst you were in custody and although she used firmer language in her second report, she made no observation of a decline in your clinical presentation and in fact you appeared less stressed and agitated and were described as being subdued.
86Additionally, Ms Richardson submitted that the test for substantial and compelling circumstances that were exceptional and rare was a bar almost impossible to satisfy and such a standard has not been reached in your case. Further, she submitted that although Ms Cidoni spoke of your compromised intellectual functioning, she made no comment upon how such compromise impacted the wrongfulness of your actions. Ms Richardson did however, concede that limbs 5 and 6 of Verdins were enlivened in your case.[10]
[10] R v Verdins [2007] VSCA 102.
87In my view, given the particular circumstances of your case and the unchallenged evidence of Ms Cidoni that I have detailed, I am satisfied on the balance of probabilities that you have impaired mental functioning that would result in you being subject to substantially and materially greater than the ordinary burden or risks of imprisonment. I do not accept the arguments of Ms Richardson that a clinical decline would have been apparent to Ms Cidoni. The two assessments and subsequent reports were in the order of three months apart and were conducted in circumstances where you gave your best. It was apparent that you have had difficulties in custody with you reportedly being assaulted and consequently moved to the protection unit within the gaol. The fact that you remain unmedicated for ADHD and without appropriate treatment and care for your mental health issues further supports my finding. To avoid doubt I have found that in your circumstances you have impaired mental functioning within the meaning of s 10A of the Sentencing Act.[11]
[11] Sentencing Act 1991 (Vic) s 10A.
88As a result, I find that I am not required to fix a minimum mandatory non-parole period of three years imprisonment as required by s 10AC.[12] However, this finding does not alter the status of the offence of aggravated home invasion as a category 1 offence and as such I must still sentence you to a term of imprisonment, other than a term of imprisonment in combination with a CCO, for this offence.
[12] Ibid s 10AC.
89Having made such a finding it follows that I am satisfied that the lesser test involved in the application of Verdins limbs 5 and 6 is also met therefore enlivening those principles of Verdins in your case.[13]
[13] R v Verdins [2007] VSCA 102.
90Given my findings pursuant to this subsection I do not intend to consider whether there are substantial and compelling circumstances that are exceptional and rare.
Application of Verdins principles
91Mr Kelly, your counsel did not rely on special reasons to avoid the operation of the minimum mandatory non-parole period provisions. However, Ms Hughes did submit that the principles enunciated in Verdins had application in your case.[14] Following sentence indication, your legal team obtained a psychological report prepared by psychologist, Carla Lechner. Ms Lechner assessed you on 12 March 2024 and prepared a report dated 18 March 2024.
[14] Ibid.
92In that report, Ms Lechner opined that your experiences of domestic and institutional abuse have detrimentally affected your development across a range of areas.
93Ms Lechner concluded you met the diagnostic criteria for stimulant, cannabis and opioid use disorder, Complex PTSD and Major Depressive Disorder. The former two drug related disorders were considered to be in remission due to the custodial environment and the opioid disorder is currently managed by buprenorphine.
94Ms Lechner considered that you have lived with Complex PTSD symptoms for much of your life and present with 'all hallmark symptoms' including hypervigilance, flashbacks and emotional and behavioural dysregulation.
95Ms Lechner performed a range of psychometric testing which indicated you were experiencing 'severe' psychological distress and depression in the 'extreme' range. Elsewhere in her report she noted that you had a history of suicidal ideation, self-harm and suicide attempts. Whilst you had some insight into your mental state and triggers, overall she considered that your capacity to manage internal and environmental stressors was very limited. In the absence of other strategies, you repeatedly turned to drug use to soothe these symptoms which in turn led to offending.
96Ms Lechner anticipated that your mental health will worsen in custody, in particular the PTSD symptoms due to the inherently threatening nature of the prison environment. Your cognition and ability to manage your mood and anxiety were also compromised by the extent of your current depression.
97Based on Ms Lechner's findings, your counsel submitted that limbs 1, 5 and 6 of Verdins were enlivened.[15] In relation to limb 1 it was submitted that there was a link between your PTSD and compromised decision making and therefore your moral culpability ought to be reduced. In relation to limbs 5 and 6 it was submitted that gaol will be more burdensome for you as a result of your poor mental health and diagnoses and further that your mental health is likely to decline in custody.
[15] Ibid.
98Ms Richardson on behalf of the prosecution submitted that Verdins could not be established on the basis of the evidence of Ms Lechner as there was an insufficient nexus or connection to indicate the mental impairment was in operation at the time of the offending, sufficient for moral culpability to be reduced. Further, Ms Richardson submitted that Ms Lechner did not opine that imprisonment will weigh more heavily upon you or that your mental health will decline such that limbs 5 and 6 are enlivened.
99In my view, based on the evidence of Ms Lechner it is clear that you, Mr Kelly, suffer from significant and debilitating mental health issues in the form of complex PTSD and major depressive disorder. These are longstanding diagnoses of relatively significant severity. They are present now at the time of your sentencing and were present at the time of your offending. I consider, on the balance of probabilities, that there is an indirect connection between your mental health conditions that would enliven limb 3 of Verdins such that I should moderate the application of general deterrence to some degree.[16] Although, the evidence of Ms Lechner may not support a finding in relation to limb 5 of Verdins on balance I find that limb 6 of Verdins is enlivened. Additionally given my view that you suffer from significant and debilitating mental health issues, I also take this into account in a general way in sentencing you.
[16] Ibid.
Application of Bugmy principles
100Both of your counsel submitted that the principles of Bugmy clearly applied in each of your respective cases and are a significant mitigatory factor that I should take into account. [17] In this regard, the reports of Ms Cidoni and Ms Lechner were relied upon.
[17]Bugmy v The Queen [2013] 249 CLR 571.
101In making an assessment of your respective moral culpability or degree of blameworthiness to be attached to each of you for your offending conduct, it is necessary to closely examine your respective personal circumstances and background to explore factors which may explain the offending conduct. To the extent that the offending conduct is due to factors beyond your control the harshness of the moral judgement is likely to be moderated.[18]
[18] R v Hermann [2021] VSCA 160 at [14].
102An examination of each of your respective backgrounds reveals that both of you suffered significant childhood neglect, deprivation and abuse. Both of you were witness to and victims of significant domestic violence. Both of you were abused in different ways and to different degrees and both of you suffered disrupted living situations in your early years.
103I accept that there is both a foundation and a nexus between your respective experiences of significant childhood deprivation and the current offending. In my view, both limbs of Bugmy have application in your respective cases. That is the more general expression that: [19]
The circumstance that an offender has been raised in a community surrounded by alcohol abuse and violence may mitigate the sentence because his or her moral culpability is likely to be less than the culpability of an offender whose formative years have not been marred in that way.
[19] Bugmy v The Queen [2013] HCA 37 at [40].
104And the more specific expression that: [20]
An offenders childhood exposure to extreme violence and alcohol abuse may explain the offenders recourse to violence when frustrated such that the offenders moral culpability of the inability to control that impulse may be substantially reduced. However the inability to control the violent response to frustration may increase the importance of protecting the community from the offender.
[20] Ibid at [44].
105Further I consider the following observation of the High Court has relevance in each of your cases that;[21]
The experience of growing up in an environment surrounded by alcohol abuse and violence may leave its mark on a person throughout life. Among other things, a background of that kind may compromise the person's capacity to mature and to learn from experience. It is a feature of the person's make-up and remains relevant to the determination of the appropriate sentence, notwithstanding that the person has a long history of offending. Because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving full weight to an offender's deprived background in every sentencing decision.
[21] Ibid at [43]-[44].
106Consideration of your profoundly traumatic childhood experiences and consequent self-medication with illicit substances has helped to put in context your prior histories. As a consequence of my findings pursuant to the principles in Bugmy, I do consider protection of the community to be an important sentencing consideration for each of you.
107To the limited extent that I have considered the principles of Verdins to be enlivened in your cases, I am mindful that there is some degree of overlap between the application of Bugmy and Verdins and I have therefore been careful to place appropriate weight on each of these mitigatory factors. It is my view that for both of you, your moral culpability ought be reduced and general deterrence should be somewhat moderated.
Onerous conditions in custody
108Both you, Mr Brooks, and you, Mr Kelly, have been in custody since December 2022. At that time the gaols were still dealing the aftermath of the COVID‑19 pandemic. As a result each of you experienced harsher than usual conditions in custody, at least in those initial stages of your remand. This took the form of quarantine, lockdowns, reduced visits and limits to programs.
Delay
109Mr Brooks, you have now been on remand for – I have 592 days.
110. And. Mr Kelly. you have been on remand for 582 days.
111. This is a significant amount of time and represents a delay where these serious charges have been hanging over your heads. I accept this has created uncertainty as to your future and no doubt caused each of you stress in the context of your mental health struggles. It is a factor that I take into account in mitigation, for both of you.
Plea of guilty
112Each of you have pleaded guilty after a contested committal and after a sentence indication. I do consider that there is utilitarian value in your pleas of guilty and that each of you has facilitated the course of justice. You have both avoided the need for victims to give evidence at trial, which would have been a harrowing experience for them. Further you have spared the court the time and expense of what would have been a relatively lengthy trial.
113I find for each of you that your plea of guilty is, in itself, indicative of a degree of remorse. Further, in your case Mr Brooks, you indicated to Ms Cidoni that you were very sad about what happened following your last release and were deeply disappointed in yourself. I accept this provides further evidence of your remorse.
114In your case, Mr Kelly, you reported to Ms Lechner that you were immensely regretful for your actions. Further, Ms Lechner observed you to be tearful when recalling the incident and expressing regret for your role in the offending. You also indicated an understanding that the experience would have been traumatising for the victims and you were horrified to find two women and a young child in the home. You told Ms Lechner you were deeply ashamed of your actions and angry with yourself for finding yourself back in prison. I accept, in light of these indications, that your remorse is profound and genuine. In addition, I accept that you have displayed an appropriate amount of insight into the impact of your offending upon the victims and I have taken this into account in your favour.
Parity
115The principles that govern parity are well established. Equal justice requires that like offences be treated alike, but also that relevant differences between offenders be capable of being treated as justifying different outcomes. As I have indicated it is my view that your co-offender WH was clearly the principal offender in this episode of offending. Each of you had differing roles. Whilst all of you have lengthy prior histories and Bugmy considerations that apply, I consider that there are important differentiating factors in each of your cases that justify a degree of disparity. This includes the assistance given to the authorities and undertaking to give evidence by WH, his participation in the sentencing conversation in Koori Court, and the finding of special reasons in relation to Mr Brooks and the different role each of you had in the offending.
Sentencing Principles
116The basic purposes for which a court may impose a sentence are punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community. In each of your cases, each of these sentencing principles are applicable although I have moderated general deterrence in light of my findings as to your decreased moral culpability pursuant to the principles in Bugmy.[22] Protection of the community is a very relevant sentencing consideration for each of you in light of your respective personal circumstances and your extensive prior histories. I consider the only appropriate sentence for each of you is one involving the imposition of a head sentence and a non-parole period.
[22] Bugmy v The Queen [2013] HCA 37
117I take into account the sentencing guidelines referred to in s5 of the Sentencing Act,[23] where relevant to your case. In particular I have had regard to the sentencing landscape for the offending before me, particularly the charge of aggravated home invasion. Ultimately the sentencing exercise requires that I balance all relevant factors and make a judgment as to the appropriate sentence in the circumstances of your particular case.
[23] Sentencing Act 1991 (Vic) s 5.
118The principles of totality, proportionality and parsimony are also very important considerations here. They require me to make sure that the total sentence is appropriate for the total criminality and I have taken these principles into account in fixing the individual sentences and the structure of the sentence I will now impose.
Disposition
119In determining the appropriate sentence in your case, I have had regard to all the matters raised at the sentence indication and plea hearings. In particular, I have had regard to the circumstances and seriousness of your offending, the matters raised in mitigation, current sentencing practices for aggravated home invasion and the victim impact statements tendered by the prosecution. Weighing up all of these matters I have come to the conclusion, as I have said, that the only sentence I can impose in each case is a term of imprisonment that provides for a head sentence and a non-parole period. In my view the best way to provide for protection of the community and the rehabilitation that you require is through the imposition of a non-parole period that allows for a lengthy period of supervision, support and treatment upon your release from custody and both of you, Mr Kelly and Mr Brooks, need such support and treatment.
120Mr Kelly, firstly for you, and I will just break down how I get to the head sentence and non-parole period that I announced earlier.
121In relation to Charge 1, prohibited person possess a firearm, you are sentenced to eight months' imprisonment.
122In relation to Charge 2, cause injury intentionally, five months' imprisonment.
123In relation to Charge 4, aggravated home invasion, four years and five months' imprisonment.
124In relation to Charge 6, threat to inflict serious injury, six months' imprisonment.
125In relation to Charge 7, 8 and 9, three months' imprisonment on each of those charges, they are the three common law assaults.
126In relation to the three summary related offences of driving whilst disqualified, two months' imprisonment on each of those charges.
127Charge 4 is the base sentence and I order that three months of the sentence imposed on Charge 1 be served cumulatively, one month of the sentence imposed on Charge 2 be served cumulatively, and two months of the sentence imposed on Charge 6 be served cumulatively. That total cumulation is six months. So when added to the four years and six months, on my calculation that means four years 11 months on top.
128Cody Brooks, in relation to the charges you face, so in relation to Charge 2, cause injury intentionally, I sentence you to five months' imprisonment.
129In relation to Charge 3, common law assault, three months' imprisonment.
130In relation to Charge 5, aggravated home invasion, four years' imprisonment.
131In relation to Charge 10, prohibited person possess imitation firearm, six months' imprisonment.
132Charge 11, prohibited person possess imitation firearm, six months' imprisonment.
133Charge 12, possess drug of dependence, two months' imprisonment.
134In relation to the summary related offences of possess a weapon, the knuckledusters, one month imprisonment.
135In relation to the summary related offence, possession of the Taser, one month imprisonment.
136In relation to the possess cartridge ammunition you are convicted and discharged.
137Charge 5 is the base sentence. I order that one month of the sentence imposed on Charge 2 be served cumulatively. One month of the sentence imposed on Charge 3 be served cumulatively. One month of the charge on Charge 10 be served cumulatively. One month of the sentence on Charge 11 be served cumulatively. So that is a total cumulation of four months. When added to the four years it should come out at a total effective sentence of four years and four months.
138As I have, said on my calculation, this equates to a head sentence for you Mr Kelly of four years and 11 months. I order that you serve three years and three months before becoming eligible for parole. I reckon that you have served 582 days by way of pre-sentence detention. Mr Brooks this equates to a head sentence for you of four years and four months. I order that you serve two years and 10 months before becoming eligible for parole. I reckon that you have served 592 days by way of pre-sentence detention.
139Pursuant to s 6AAA of the Sentencing Act but for your plea of guilty the sentence I would have imposed for you, Mr Kelly, is six years and three months with a non‑parole period of four years six months and for you Mr Brooks I would have imposed a head sentence of five years eight months with a non-parole period of three years and two months.[24]
[24] Ibid s 6AAA.
140Now as I understand, there is an ancillary order or a forfeiture order that is sought in relation to the Mercedes, which is opposed.
141MR VASSIS: And I can have discussions, defence can have discussions with the prosecution to see if that can be resolved and report back to Your Honour, and if it needs to be debated or contested at a later stage, we can move to that point then, but just seeking in the interim for that to occur.
142HER HONOUR: No problem. So in relation to Mr Brooks, I understand that there's two forfeiture orders sought and a disposal order. So forfeiture order for a revolver-style imitation handgun, an imitation firearm and a .22 calibre ammunition round.
143HER HONOUR: And a disposal order sought - - -
144: - - - for two Ziploc bags containing methylamphetamine.
145HER HONOUR: And the other forfeiture order is for the Taser and the knuckledusters.
146MS RICHARSON: Thank you, Your Honour.
147HER HONOUR: Mr Hooper, I take it they're not opposed?
148MR HOOPER: No, they're not, Your Honour.
149HER HONOUR: Yes, all right. So I will make those orders. Is there anything further?
150MR VASSIS: No, Your Honour, not from Mr Kelly's behalf.
151MS RICHARDSON: No, thank you, Your Honour. Will Your Honour send the orders regarding the further mention of the confiscation?
152HER HONOUR: Yes, we will get a date actually before we adjourn. So 9.30 on 2 September.
153MR VASSIS: As Your Honour pleases.
154HER HONOUR: That will be remote because I will be in Horsham.
155MR VASSIS: As Your Honour pleases.
156MS RICHARDSON: As Your Honour pleases.
157Thanks Mr Hooper and Mr Vassis, can you thank Ms Hughes, and Ms Richardson as well.
158MR VASSIS: I will, Your Honour.
159MS RICHARDSON: Just Your Honour mentioned in relation to the indictment, there was an error on the front page.
160HER HONOUR: Yes, yes.
161MS RICHARDSON: I am not sure how Your Honour would like to deal with that.
162HER HONOUR: It probably does need to be red pen amended, even at this late stage, because it is confusing and I mean if – I'll certainly give leave to do it. The substance of the indictment is fine.
163MS RICHARSON: Yes, Your Honour.
164HER HONOUR: It's just that that description is incorrect. So if you instructor would amend it, I will certainly give leave for that to happen and we can just upload it onto iManage so that it's lodged.
165MS RICHARDSON: Thank you, Your Honour. In the circumstances where the transcript records the indication of Your Honour, I will ask my instructor to attend to that and file it. Thank you.
166HER HONOUR: Perfect, thanks very much, Ms Richardson. So yes, thanks very much to all counsel. A high standard of submissions, both written and oral, so thanks very much.
167OFFENDER KELLY: Thank you very much, Your Honour.
168MR VASSIS: As Your Honour pleases.
169MR HOOPER: May it please the court.
170HER HONOUR: We will adjourn the court.
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