Director of Public Prosecutions v Brooks
[2023] VCC 1353
•28 July 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT GEELONG
CRIMINAL DIVISION
CR-22-01997
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JESSE BROOKS |
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JUDGE: | HIS HONOUR JUDGE M. P. BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 28 July 2023 | |
CASE MAY BE CITED AS: | DPP v Brooks | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1353 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr D. Brown | |
| For the Accused | Mr J. Lavery |
HIS HONOUR:
1 Jesse Brooks, on indictment no.10262133 you are to be sentenced for one charge of aggravated burglary and one charge of intentionally causing injury. The respective maximum sentences are 25 years' and 10 years' imprisonment. You will also be sentenced for the summary offence of committing an indictable offence on bail. The applicable maximum is three months' imprisonment.
2 You pleaded guilty before me on 19 July 2023. When interviewed by police on 8 February 2022, you denied the offending. I was told that you were assisted in interview by an independent person. This is consistent with the effects upon you of intellectual disability and acquired brain injury. I shall return to this. There was a committal hearing in October 2022, and you were committed for trial. The trial came before me in these Geelong County Court sittings. The matter resolved to a plea on 19 July. You were arraigned and, as stated, pleaded guilty to these offences.
3 You receive the benefit of your plea of guilty. It accepts responsibility, expresses remorse and has assisted the interests of justice. That utilitarian benefit is the greater in the circumstances of still ongoing impacts of the COVID‑19 pandemic and its restrictions upon the criminal justice system. I accept that the timing of your plea should be considered in the light of your disability.
4 At your plea hearing, which ran on 24 July, Mr Brown for the Crown tendered a written summary of prosecution opening and the victim impact statement of Adam Przybulkiewicz. Mr Lavery for you tendered your letter to the court; and today the letter of NDIS support coordinator Orian Heol was tendered. He also provided the psychological report of Thomas Goodwin, dated 15 February 2023. It is not a report made for court purposes and was not tendered. It is agreed that I can and should treat it as expert evidence before me. Mr Lavery also provided an outline of defence submissions on the plea, which focus heavily on the report.
5 The circumstances of your offending are set out in the tendered Crown summary, which is Exhibit A. My own summary may therefore be shorter. It is also informed by matters put on your behalf, not challenged by the Crown.
6 At the time of offending, 19 January 2022, you were 25 years of age. Your victim, Adam Przybulkiewicz, 46, lived in Coxon Parade, North Geelong. At about 9.15 pm conflict broke out in the street there between neighbours and particularly the female companion of Mr Przybulkiewicz. They went inside his home. You do not seem to be involved at this stage. Police were called, but all had calmed. However, later at 9.45 pm you and another went to the home of Mr Przybulkiewicz and committed these offences. Your motive and grievance is not known. You were using and I will accept were affected by drugs, perhaps also alcohol.
7 You entered by breaking a window, armed with a steel pole. Inside you forced, breaking through, a bedroom door behind which Mr Przybulkiewicz and his companion were seeking refuge. You abused and then badly assaulted him with the pole, striking him repeatedly to the head, neck, and shoulder. Your victim felt his life threatened. You did threaten to kill him. You stopped and left.
8 Paragraph 21 and 23 of the Crown opening state as follows his injuries and treatment at the Geelong Hospital.
“The victim suffered a number of injuries as a result of the alleged offending, including two lacerations to the head, a laceration to the forehead, a bleeding nose, a haematoma, swelling, and stab wound to the right lateral forearm, bruising to the left forearm with swelling, swollen and bruised ankles, and two scalp haematomas.”
9
“As a result of the injuries to his right forearm, scalp, and forehead, the victim was taken to the operating theatre to have his wounds cleaned and repaired by the plastic surgery team. During the procedure the victim received the following medical treatment for his injuries: three sutures to the right forearm, four sutures to the forehead, diathermy to stop bleeding and repair of the galea and skin.”
10 There is reference to what seems a minor stab wound to the arm. The main attack was by the steel pole. However, investigation uncovered a kitchen knife at the unit which contained your DNA.
11 The victim impact statement of Adam Przybulkiewicz states the substantial effects of this savage attack upon him. He suffers ongoing physical problems, for example, neck pain. There are other physical symptoms, such as affected eyesight, which are likely part of the emotional or psychological impact of the offending. Similarly are issues with memory. He has lost his sense of safety. There are problems with sleep. He has lost confidence. He states that employment and employment capacity have been affected. There is fear, loss of trust, and feelings of paranoia. I am not complete. As said, there is substantial victim impact. This must be taken into account in my sentence of you.
12 You are now 27 years of age and await this sentence in remand custody. You are part of a supportive family. Your parents live in Bannockburn, near Geelong. You have an older brother who, unlike you, lives a functional, prosocial life.
13 Your developing years were affected by a number of things. Poor motor skills, speech and language delays were early features. You needed teacher aides and specialist intervention at school. You have not really advanced beyond late primary school level and gradually stopped going to school at all. There had been a recommendation for a specialist school. Testing throughout childhood placed you at very low to extremely low intellectual capacity. This has become combined during adolescence with epilepsy symptoms, the mental health condition of schizophrenia, the damaging effects of drug use, including overdose, and concussions by assaults and road accidents. Particularly in 2017 there was an event of near drowning caused by epileptic seizure. It is likely that you suffered through prolonged loss of consciousness on hypoxic brain injury.
14 The neuropsychological assessment provided to me gives an ultimate diagnosis of already low intellectual function combined with or exacerbated by brain injury. The resultant assessment, by 21 years, is that of extremely low intellectual capacity, (an IQ score of 69), and further effects of brain injury. You now qualify for NDIS assistance, and you are registered as such. You are permanently cognitively disabled. Mr Lavery made the point on your behalf that, given a substantial criminal history, you have not yet been sentenced recognising or relative to that disability. Employment has been sporadic.
15 Unsurprisingly you began abusing drugs and alcohol early. The neuropsychological report of Thomas Goodwin describes multiple drug use from age 12, beginning with cannabis and moving to amphetamines, methylamphetamine, alcohol, benzodiazepines, heroin, and cocaine. You have overdosed an estimated four times. There have been hospitalisations related to drug abuse and episodes of drug‑induced psychosis. Episodes of schizophrenia were first noted in 2015. Your current medications include Seroquel, Avanza, Epilim and methadone. You have developed other diagnosed mental health conditions of anxiety and depression.
16 As stated, you have a substantial criminal record. Between January 2013, when you were 16 and appearing in the Children's Court, and May 2022 there are multiple appearances. There is a range of offending, including offences of dishonesty, violence, and drug related. I bear in mind the duplication that can exist in the present form of criminal history; for example, caused by appeal and/or breach proceedings on community orders.
17 You have had one significant relationship. There are two young sons to that. The relationship with their mother has been and is problematic. I note some family violence offending in your criminal history. Presently your children live with their maternal grandparents. However, your parents have regular access with them.
18 This was a serious example of serious crimes. It was a brutal attack, out of the blue without sensible reason, of a man badly hurt and frightened at night in his home. There was a weapon. There has been serious victim impact. You have a relevant and significant prior history. The objectively viewed circumstances make important sentencing considerations and purposes of moral culpability, deterrence, the need to condemn your offending and proportionately punish it. Community protection is relevant and important. There must be a sentence which at least includes a significant period of imprisonment.
19 However, there are also in your case important moderating factors, mainly personal to you. They include the following.
20 (1) Your plea of guilty, as earlier raised by me. I also find that you have developed over your time in remand a level of genuine and to some extent insightful remorse. I refer, for example, to your letter to the court.
21 (2) Your personal history and circumstances. This particularly includes the evidence of your cognitive disability. That you were substance dependent and affected when you committed these crimes is not in the immediate or direct sense a mitigating factor. However, in your case, I bear in mind that you became victim to drug and alcohol abuse when very young and particularly vulnerable, given your circumstances and low intellectual function.
22 (3) The principles stated in Verdins and like cases play a prominent role. The evidence of neuropsychologist Thomas Goodwin makes this clear. There is a combination of the deficits and effects of intellectual disability and brain injury. I note, for example, that your acquired brain injury impacts, amongst other things, upon executive function. Mr Goodwin refers at one point to impaired inhibitory control. You recognise and state, for example, in your community corrections assessment interview difficulty in controlling your emotions. It is not contested that all so‑called Verdins limbs should affect your sentence. Your moral culpability is lessened. The purposes of deterrence and denunciation have lesser relevance. These considerations are not removed; although I find that they are in your case significantly reduced in importance. Also, you should be seen as carrying a significantly greater burden in custody. There is, I find, a likelihood of deterioration in your mental state. I was told that your strategy thus far has been to isolate.
23 (4) One cannot but be guarded about prospects for rehabilitation. However, they should not be utterly discounted at your still relatively young age and in the circumstances that your disabilities have not until now been well addressed. Mr Goodwin's report also makes clear that you will need supports. He gives detail of that, stating drug assessment and treatment to be of high importance. You are now supported by the NDIS. That began in March of this year in remand custody and will continue after release. I refer to the letter of NDIS support coordinator Orian Heol which sets out present and proposed supports of you. Thus far you have been cooperative in that.
24 Mr Lavery made the point that within a community corrections order there can be specific case management coordinating with NDIS support. You have family support and may live with your family upon release. You express a desire to redevelop your relationship with them and with your children. NDIS has funded a pre‑apprenticeship course in boiler making and metalwork. I see this as a case in which the interests of the community, and its protection, are best served by a sentence which includes the attempt to assist and rehabilitate you.
25 (5) It is now approximately 18 months since your arrest, much of which has been spent in remand during COVID‑19 and its impact and restriction upon those imprisoned. Further, although such delay is not at the long end of what it can be, some prospects for rehabilitation, for example, the neuropsychological assessment and NDIS support, have developed or come to be.
26 (6) The principle of totality applies both across the range of these charges and having some reference to the sentence you have served during this remand.
27 Ultimately I find that the combination of these factors, with the Verdins principles at the forefront, justify and require a substantially moderated sentence compared to that which might normally be imposed given the serious objective circumstances and consequences sentencing purposes.
28 I have decided that I should impose a combined sentence of imprisonment and a community corrections order. It will not mean immediate release or that in the very short term. The objectively seen circumstances of the offending still require significant punishment. However, my sentence will enable release at a foreseeable time and that release into a heavily supervised and assisted regime. Perhaps bluntly put, your release from prison after a long term of imprisonment, possibly without the support of parole, would pose in my view a serious problem and threat to the community. Your chances would likely be lost, but it would be, I fear, the community to suffer.
29
I sentence you as follows. On the indictment, on Charge 1,
18 months' imprisonment; on Charge 2, nine months' imprisonment; on the summary offence of indictable bail, one month's imprisonment. I direct that two months of the sentence for Charge 2 be served cumulatively on the sentence for
Charge 1. That is a total effective sentence of 20 months. Under s18 of the Sentencing Act I declare 417 days of pre‑sentence detention.
30 Also on each charge I impose a community corrections order of 20 months' duration. The usual terms apply. The additional terms are that there be supervision, that there be assessment and treatment for drug abuse, that there be assessment and treatment for alcohol abuse, that there be assessment and treatment for mental health, and also, in accordance with the recommendation of the community corrections assessor, Melinda Bond, that you participate in offence‑specific programs as directed. I am presuming that an anger management program will be a part of either the mental health condition or that offence‑specific condition.
31 Had you not pleaded guilty, I would have imposed a sentence of four years with a minimum term of 2 1/2 years. This is a comment, not part of my sentence. If that sentence was imposed, I should imagine that you would have great difficulty in getting parole release within that time.
32 All right, so we'll wait for the ‑ Mr Lavery, where is your client placed at the moment?
33 MR LAVERY: Sorry, Your Honour, I'm just trying to find it in my notes.
34 HIS HONOUR: No, I see the MRC is coming up on his screen. Yes, all right, he's nodding. Yes, thank you. Now I'll need to hear Mr Brooks. I've got no note of Mr Brooks being arraigned on the summary offence, but you indicated that he admitted it, didn't you, Mr ‑ yes, that's sufficient.
35 MR LAVERY: I did.
36 HIS HONOUR: My note may even be deficient. So there's no problem with the sentencing standing I don't think, is there, Mr ‑ no.
37 MR LAVERY: No.
38 HIS HONOUR: Mr Brown.
39 MR BROWN: No, Your Honour, but I'm just looking for my notes to see whether I've got a note of whether or not ‑ ‑ ‑
40 HIS HONOUR: Well I usually have it put in the way of an arraignment, but it's not necessary to do that with a summary offence.
41 MR BROWN: No.
42 HIS HONOUR: It can be admitted through ‑ ‑ ‑
43 MR BROWN: Yes.
44 HIS HONOUR: ‑ ‑ ‑ counsel. And the whole thrust of this was that it was admitted.
45 MR BROWN: Yes, Your Honour.
46 MR LAVERY: Yes, but I certainly have those instructions, Your Honour.
47 HIS HONOUR: Yes. Yes. I add to that that the sentence that I've imposed ‑ what is it, a month? ‑ is one that stands as a concurrent sentence. It adds nothing to his total sentence. Perhaps I didn't say this, what I'm about to say, in my sentencing reasons, but the indictable offence committed whilst on bail was the primary offending, wasn't it?
48 MR LAVERY: Yes.
49 HIS HONOUR: Yes. Well you'd always impose a concurrent sentence in that circumstance I would've thought.
50 MR LAVERY: Yes.
51 HIS HONOUR: And I note here that it's referred to in the Crown summary. Now I know you can hear and see me, but I can't hear you at the moment. I'll need to.
52 OFFENDER: Are you there? Hello?
53
HIS HONOUR: Yes, I can. All right, now when you're released from prison, the time of which is not sure, but I haven't into taken account, because I shouldn't, the possibility of lockdown reductions. I don't know where you stand in relation to that, but it's usually pretty modest or not very much. So the
community corrections order will commence upon your release.
54 OFFENDER: Yep.
55 HIS HONOUR: And these are the usual conditions: that you attend at the Geelong community corrections centre within two days of that release. They will be in contact with you.
56 OFFENDER: Yep.
57 HIS HONOUR: The other standard or usual conditions are you don't commit another offence for which you could be imprisoned ‑ ‑ ‑
58 OFFENDER: Yeah.
59 HIS HONOUR: ‑ ‑ ‑ you must comply with a regulation that you don't go to any appointment or program affected by drugs or alcohol or in possession of illegal drugs ‑ ‑ ‑
60 OFFENDER: Yep. Yeah.
61 HIS HONOUR: ‑ ‑ ‑ you've got to receive visits from community corrections ‑ ‑ ‑
62 OFFENDER: Yep.
63 HIS HONOUR: ‑ ‑ ‑ you've got to let community corrections know within two days of a change of address of job ‑ ‑ ‑
64 OFFENDER: Yeah.
65 HIS HONOUR: ‑ ‑ ‑ and you must not leave Victoria without their permission. In short, you've got to obey all of their lawful directions, do what they tell you to do. The additional or special conditions are that there be assessment and treatment for drug abuse ‑ ‑ ‑
66 OFFENDER: Yep.
67 HIS HONOUR: ‑ ‑ ‑ assessment and treatment for alcohol abuse, assessment and treatment for mental health problems, and also that you take part in programs that are particularly relevant to the offending here, which is offending of violence ‑ I should imagine there'll be an anger management part of all of that ‑ and that you be under supervision of a case manager.
68 OFFENDER: Yeah.
69 HIS HONOUR: Now do you understand all of that?
70 OFFENDER: Ah, yes. So how much more time will I be currently serving, Your Honour?
71 HIS HONOUR: I'm guessing officially about six months ‑ ‑ ‑
72 OFFENDER: Yeah.
73 HIS HONOUR: ‑ ‑ ‑ but I don't know what reductions you'll get for lockdowns. You'd know more about that than me, all right?
74 OFFENDER: Yep.
75 HIS HONOUR: Now this was so bad I couldn't release you now, but it gives you something to aim for. You follow me?
76 OFFENDER: Yeah. Yeah, Your Honour.
77 HIS HONOUR: You know when you're going to get out, you know it's not years away ‑ ‑ ‑
78 OFFENDER: Yep.
79 HIS HONOUR: ‑ ‑ ‑ so you can keep up the good work and come out with a good chance of not going back.
80 OFFENDER: Yep. Yep.
81 HIS HONOUR: That's the aim of it all, isn't it? Yes, all right.
82 OFFENDER: (Indistinct).
83 HIS HONOUR: So do you agree to this order?
84 OFFENDER: I 100 per cent do, Your Honour.
85 HIS HONOUR: All right, good. Well I'll sign it and then it'll be sent to you and you'll have to sign it. Now community corrections will be in community with you ‑ ‑ ‑
86 OFFENDER: Yeah.
87 HIS HONOUR: ‑ ‑ ‑ so you'll know what to do when the time of release comes about, all right?
88 OFFENDER: All right, sounds good. All right.
89 HIS HONOUR: All right. Well you haven't been, as you've heard, dealt a very good hand, but now's your chance to turn it around, and you're going to get some help, but it's going to be down to you.
90 OFFENDER: Yep, I understand.
91 HIS HONOUR: So you've got people in your situation. You need to learn the ability to let people help you.
92 OFFENDER: Yeah.
93 HIS HONOUR: And that includes letting people know if you're starting to slip. Don't leave it too late, till you start using. Tell them.
94 OFFENDER: Yeah.
95 HIS HONOUR: They appreciate that.
96 OFFENDER: Yeah.
97 HIS HONOUR: You don't get punished for telling the truth, all right?
98 OFFENDER: All right.
99 HIS HONOUR: So do I need to do or say anything else?
100 MR BROWN: No, there was a disposal order, Your Honour, so perhaps ‑ ‑ ‑
101 HIS HONOUR: What's that, the knife, is it, or?
102 MR LAVERY: The bar.
103 MR BROWN: Well multiple things, I think, the knife included, I think.
104 HIS HONOUR: And the pole. They found a pole.
105 MR BROWN: Yes, and a T‑shirt and a few other things.
106 HIS HONOUR: All right.
107 MR LAVERY: Yes.
108 HIS HONOUR: You've got nothing to say about that?
109 MR LAVERY: No, there's no opposition to that at all, Your Honour. Your Honour, just one final matter. There was confusion about the start date, but I see it as 18 July.
110 HIS HONOUR: Yes. Yes, I'll sign that. Ms Marija will produce it to me and I'll sign it. But thanks for your assistance in this matter, Mr Lavery, and thank you for your assistance, Mr Brown.
111 MR BROWN: As Your Honour pleases.
112 HIS HONOUR: So I'll turn you off.
113 OFFENDER: Love you, (indistinct).
114 HIS HONOUR: Sorry?
115 OFFENDER: I was just saying I love you to my brother and my mum and my dad.
116 HIS HONOUR: All right. Yes. Well, I mean, that's been one lucky thing in your life, I think. You've got people who want to take care of you. All right. And you've got to let them do it too. All right.
117 OFFENDER: Yeah.
118 HIS HONOUR: Yes. Well I'll sign the disposal order. Now we'll turn both you, Mr Brooks, and you, Mr Lavery, off and I'll attend to other matters. Thank you again.
119 MR LAVERY: (Indistinct).
120 HIS HONOUR: All right.
121 OFFENDER: Love you.
122 HIS HONOUR: Yes, all right. And I think he's waving to you, not to me.
123 UNIDENTIFIED SPEAKER: Sorry, Your Honour.
124 HIS HONOUR: All right. Well good. Now what do we do now?
125 MR BROWN: Perhaps adjourn sine die.
126 HIS HONOUR: I just adjourn all of the other matters to what date?
127 UNIDENTIFIED SPEAKER: The circuits continue on 31 July.
128 MR BROWN: Yes, 31 July, yes.
129 HIS HONOUR: 31 July.
130 MR BROWN: Monday.
131 HIS HONOUR: No, Monday.
132 MR BROWN: Yes.
133 HIS HONOUR: All right, good. Well thank you for your help ‑ ‑ ‑
134 MR BROWN: No.
135 HIS HONOUR: ‑ ‑ ‑ during the circuit, it's been a pleasure, and also the excellent work of your three instructors.
136 MR BROWN: Yes, no.
137 HIS HONOUR: It's been a pleasure working with you. All right. And I also thank the people who have assisted in relation to custody too. All right.
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