Director of Public Prosecutions v Brooks

[2020] VCC 1185

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-19-01980

DIRECTOR OF PUBLIC PROSECUTIONS

v

CODY BROOKS

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JUDGE:	HER HONOUR JUDGE FOX
WHERE HELD:	Melbourne
DATE OF HEARING:	22 May 2020, 31 July 2020
DATE OF SENTENCE:	4 August 2020
CASE MAY BE CITED AS:	DPP v BROOKS
MEDIUM NEUTRAL CITATION:	[2020] VCC 1185

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. Brown	Office of Public Prosecutions
For the Accused	Mr N. Rolfe

HER HONOUR:

1Cody Brooks, you have pleaded guilty to six charges: two charges of being a prohibited person in possession of a firearm, one charge of aggravated carjacking, one charge of theft, one charge of dangerous driving whilst being pursued by police and one charge of handling stolen goods.

2The maximum penalty for being a prohibited person in possession of a firearm is 10 years; imprisonment.  The maximum penalty for theft is also 10 years’ imprisonment.  he maximum penalty for dangerous driving whilst being pursued by police is three years’ imprisonment and the maximum penalty for handling stolen goods is 15 years’ imprisonment.

3The maximum penalty for aggravated carjacking is 25 years’ imprisonment. It is a Category 1 offence, meaning I must impose a sentence of imprisonment. This offence has a mandatory minimum non-parole period of three years’ imprisonment for adult offenders, unless 'special reasons' exist within the meaning of s.10A of the Sentencing Act.  Your counsel concedes that no special reasons exist in your case.  Further, the term of the sentence must be at least six months more than the non-parole period.

4A summary of prosecution opening was read on the plea and marked Exhibit A.  I will briefly summarise your offending.

5At the time you were 22 years old and the victim of the carjacking,
Stephen Sedgley, was known to you.  On 25 March 2019, you requested a lift from Mr Sedgley via Facebook Messenger and he agreed.  This was around 7.45 am. 

6At about 12.25 pm, you sent a message to another contact, stating you needed a car and asking who he did not like so you could 'roll' that person.  You stated you would roll anyone, you had planned it and knew how you would do it.

7At about 2 pm, you were picked up by Mr Sedgley.  He was driving his Holden Commodore which at that stage had no plates.  His girlfriend was in the front passenger seat and an associate was in the rear passenger seat.  You got in behind Mr Sedgley.  You told him to drive to a playground because you had to meet a male.  Mr Sedgley did this, but no one was present.  You waited about two minutes and then said the people you were meeting were at Crusoe Reservoir car park.

8Mr Sedgley drove there and parked facing the exit.  He became suspicious because no one else was there.  You then stated, 'this is how it is going to be' before spraying pepper spray into the vehicle.  You produced a knife described as a big hunting knife and held it to Mr Sedgley’s throat.  He had the hood of his windcheater up over his head so the knife did not make contact with his skin, although he could feel it pressing against him.  You told everyone to get out of the car.  They complied and the keys were left in the ignition.  You then got into the driver’s seat and drove away towards Kangaroo Flat.

9At approximately 3 pm, you drove the vehicle to a Woolworths petrol station, filled the vehicle with unleaded petrol and drove away without paying.  This is the charge of theft.

10On 27 March 2019 at about 2.30 pm, police observed the stolen vehicle and took up a position behind it.  You were driving.  You drove into an undercover supermarket car park followed by police, and then came out and turned left onto Myers Street in Bendigo.  Police activated their flashing lights and you accelerated heavily through a red light, driving dangerously through heavy traffic along Myers Street.  There was no further attempt by police to intercept you.

11On Friday 29 March 2019, police attended at an address in Kennington and located you in the backyard.  You told police the stolen vehicle was in the garage, where it was located with stolen registration plates attached.  The knife believed to be used in the aggravated carjacking was found in a bedroom in the house.

12Police seized and examined your mobile phone.  They found a photograph taken on 21 February 2019 of you holding a double barrel shotgun, and a photograph taken of you on 24 February 2019 holding a sawn-off rifle.  These photographs form the basis of Charges 1 and 2.

13You were interviewed at the Bendigo police station.  You initially made no comment, then admitted to using the pepper spray and knife and stealing the car.  You gave a very different account to the victim, and claimed you had seen a male who you feared following the car, panicked and told the victim to drive away quickly.  You said eventually you got away from the male, but the victim then wanted you out of his car, and you panicked and produced the pepper spray and knife.  You admitted you did see police and drove to get away, but claim you did not see the police lights flashing or the red light.  You said the firearms in the photograph belong to an associate.  You admitted knowing the number plates were stolen.

14You were on a Community Correction Order at the time of your offending, having been placed on that order by the Bendigo Magistrates’ Court on 6 December 2018, for trafficking drugs and dealing property suspected to be the proceeds of crime.  You were sentenced to 42 days gaol, followed by a nine month Community Correction Order.

15Apparently you deny sending the initial Facebook messages, claiming an ex-girlfriend of yours did it and she had stolen your phone.  I note you had your phone when arrested, and consider it implausible that your ex-girlfriend sent a message about 'rolling' someone to get a car, and you just happened to do exactly that a couple of hours later.

16You also maintain the explanation you gave in the record of interview as to the circumstances of the carjacking.  I indicated on the plea that I would treat the prosecution opening as the factual basis for your offending and I will sentence you on that basis. 

17I do accept that shortly prior to this, you had been assaulted by a person called Berzikot, and this, together with your drug use, may have made you more paranoid and fearful than usual.  I also accept that you may have been carrying the pepper spray and knife because you perceived you needed protection, and not solely for the purposes of committing this offence.

18I accept the prosecution submission that with respect to the offence of aggravated carjacking, there are a number of aggravating features: there was some pre-planning.  You discharged the pepper spray and not only produced the knife, but held the knife to the victim’s throat and you were also on a Community Correction Order at the time.  However, the offending did occur in daylight, was of short duration, the victim knew you, he was not physically injured and he was not alone at the time.  The offence was not committed in company.  I do not find your offending to be at the low end; nor do I find that the objective gravity is high. 

19In relation to the firearms, I find this to be a relatively minor example of this offence.  There is no evidence that you were in more than fleeting possession for the purpose of the photographs.  I accept your explanation that the weapons are not yours.

20The offence of dangerous driving occurred on a busy street in the middle of the day, and placed other road users at risk.  Accelerating through a red light is a very dangerous thing to do.  I accept the offending was of short duration, but that was in large part because the police did not pursue you further.

21You have a number of prior convictions, largely from South Australia.  There were five appearances in the Children’s Court when you were aged between about 15 and 17, all dealt with by way of bonds or fines.  On 7 November 2014, you received four months detention in the Adelaide Children’s Court for the aggravated offence of committing theft using force.  You were 18 at this time. On 31 March 2015, you were sentenced to two years one month’ imprisonment in the District Court of South Australia, for aggravated attempted theft using force, and also sentenced for aggravated assault and failing to comply with bail. On 18 August 2016, you were imprisoned, again in South Australia, for four months for assault.

22You have a single prior conviction in Victoria, being the matter I have already referred to that saw you placed on the Community Correction Order.

23Three reports were tendered on your behalf: a psychological report of
Ms Cidoni dated 3 March 2020, an addendum report of Ms Cidoni dated
16 March 2020 and a psychiatric report of Dr Nina Zimmerman, dated 21 July 2020.  I will come to these reports in a moment.

24I turn now to your background and personal circumstances.

25You were born in Rockhampton, Queensland and you are the only child of your parents’ union.  Your parents moved to Adelaide when you were about two years old, and separated much later when you were about 20 years old.  Your background is fairly described as one of considerable trauma and disadvantage.  You were exposed to severe domestic violence, drug use and physical abuse.  Your parents moved frequently because they could not pay the rent and neighbours frequently called police in relation to disturbances at your home.  You were regularly assaulted by your father when you were young, and your mother would also hit you.  Your father also assaulted your mother, and police would attend on a regular basis.  Both your parents used drugs openly in front of you and your father would 'pimp' out your mother in order to get money for drugs.  I am told your father has been to prison on several occasions and was once arrested for assaulting you.

26You report there was often insufficient food in the house, and you attended nine or ten different primary schools.  You were bullied because you would turn up with black eyes or swollen lips as a result of being bashed by your father.  Unsurprisingly, you struggled academically, found it hard to make friends and would get into trouble for not listening and talking in class.  You were diagnosed with ADHD as a child when you were in about Grade 4 or 5 and commenced on medication, but this later ceased.

27You recall running away from home when you were about 12, after being bashed by your father.  The Department of Health and Human Services became involved and you lived with your grandparents in Queensland for about 10 months.  Your mother then came up to visit and took you back to Adelaide, promising you that things would be different.  However, the physical abuse continued and you ran away again when you were 16.  You lived with a foster family for a couple of months when you were in Year 9 or 10.

28You attended three different secondary schools, the last one focusing on students with disadvantaged backgrounds, but you did not complete Year 10.  You said sometimes your parents did not let you go to school and on other occasions you would skip school and spend time with friends.

29Apparently, you had a son when you were 18 who you have never met, although you have spoken to him on Skype and would like to meet him one day.  You once worked as a bartender for about three months and have no other employment history.

30You began smoking cannabis around the age of 13 and would smoke cannabis every couple of days.  You began smoking ice with your parents at around the age of 12 or 14, and when you were 21, you started injecting ice.  You have also smoked heroin every couple of days from the age of 16, and used GHB, ecstasy, amphetamines and benzodiazepines.  Unfortunately, drug use is common in cases where offenders were exposed to drug use as children, and in your case, drug use was present and accepted, if not expected, by your parents.

31After being released from prison in South Australia, you later moved to Bendigo. When you arrived in Bendigo, you obtained employment at a nightclub, and formed a relationship which then ultimately broke down just prior to you being arrested for drug trafficking.  You had been living in Bendigo for about nine months when you were arrested for trafficking, which you had been doing to support your own drug habit.  This resulted in the 42 day sentence and Community Correction Order.  You repeatedly failed to engage with your Community Correction Order, in part because you were homeless and using drugs at the time.

32I turn now to issues of your mental health.

33Your counsel did not rely on any of the principles in Verdins, save for principle five.  That is not to say that the material in the reports and your mental health is not relevant when sentencing you.

34The main reason for your offending appears to be your drug abuse combined with your lifestyle at the time.  You were homeless, had no family support, had broken up with your girlfriend and were using ice every day as well as GHB, MDMA and heroin.  You reported to Ms Cidoni that you were robbed and knocked unconscious in February 2019, after being hit in the head with a shotgun. 

35Ms Cidoni appears to have done part, but not all of an IQ assessment.  You obtained scores of between 69 and 78 on the parts that were administered.  
She notes that your distress at the time of testing may have impacted your scores; that is produced a lower result than you are actually capable of if you were settled and not distressed.

36According to Ms Cidoni, you present with symptoms of a number of conditions, including depression, borderline personality disorder, post-traumatic stress disorder and severe anxiety, but as I understood her report, you were not formally diagnosed with any particular condition.  Her addendum report ignores your drug use and I found it of no assistance. 

37Since being in custody, you have experienced suicidal thoughts and have been prescribed antidepressants, which have helped somewhat, but you are still depressed.  I accept this makes prison more difficult for you than for a person without depression or mental health issues.  You feel lonely in prison, have no one to ring or write to because your family do not want anything to do with you and have been picked on because you are young.  You have been working in the nuts and bolts industry in prison.  You reported that at one point you were in protection because you were severely bashed in mainstream by a friend of the man who robbed you in February 2019.  There was also an incident in Ararat prison, where you attacked a man who you say had threatened to kill you.

38I accept the opinion of Dr Zimmerman that as a result of your upbringing, you have a personality characterised by a disturbed self-identity, instability and impulsivity.  This will make prison more difficult for you, particularly as you have difficulty managing your emotions and tend to act impulsively.  You are also likely to be vulnerable in adult custody due to your personality style and young age.

39I accept that you grew up in a terribly disadvantaged environment, characterised by domestic violence, criminal behaviour and drug use.  You moved frequently and unsurprisingly struggled at school.  You had no positive role models, security or stability.  Your parents were physically abusive and terribly neglectful, and you were using ice with them as a young teenager.  I find the principles in Bugmy are engaged in your case.  Your disadvantaged background is relevant when sentencing you, and it is understood by the courts that the impact of disadvantage, does not diminish over time.  In any event, you are still a young man and very much the product of your upbringing.

40I find your disadvantaged background does impact your moral culpability.  Your offending and subjective culpability cannot be realistically equated with a 22 year old who committed the same offences, but had all the advantages of a stable home life, good education and supportive parents.  I also accept that general deterrence, whilst relevant, should be somewhat moderated in your case given your background.  You have endured significant childhood trauma and abuse, and a person who has had such a disadvantaged upbringing is not the most suitable vehicle for sending a message to others.

41I accept that your youth is relevant when sentencing you.  You are now 23 years old and rehabilitation remains a significant sentencing factor, even allowing for the seriousness of your crimes.  Unfortunately, your prospects of rehabilitation are somewhat poor, given your circumstances and history.  Specific deterrence and protection of the community are relevant sentencing factors.  You do understand that you need stable accommodation, employment and you need to remain drug-free in the community.  Apparently, you enjoy music and you are a keen musician, and would like to pursue music in some way when you are released.  In my view, you are going to require considerable assistance in the community once you are released, and you will need to engage with all the services offered to you if you are not to reoffend.

42You have been imprisoned during COVID 19 and I accept this has made prison more difficult.  Personal visits have ceased, although you were not receiving visits in any event.  Relevantly, prisoners have been increasingly locked down, and courses and treatment options have been significantly reduced or ceased altogether.  There is also the general anxiety that comes with being in prison at this time, and the fear of what would happen if COVID 19 spread among the prison population.

43I turn now to other matters.

44Your offending is serious, particularly on Charges 3 and 5.  Just punishment and denunciation of your conduct are relevant sentencing principles.

45You pleaded guilty at the earliest reasonable opportunity and this entitles you to a significant sentencing discount.  Your plea of guilty had practical or utilitarian value, in that it has spared the victim and witnesses from having to give evidence about what happened, and it has also saved the court and community the time and expense of a criminal trial.  It also shows you accept responsibility for your crimes.

46I also accept your plea of guilty is evidence of some remorse.  You also expressed some remorse to Dr Zimmerman and Ms Cidoni, and told Ms Cidoni you feel bad about the impact of your behaviour on the victim, who was a friend, or at least an acquaintance.

47The principle of totality has application here, given there are six charges, four of which occur over a four day period.  Some cumulation is required, but should be moderated to ensure a just sentence that reflects your overall criminality together with the matters in mitigation.

48Mr Brooks, the sentence of the court is as follows:

49On Charges 1 and 2, you are convicted and sentenced to an aggregate term of six months imprisonment.

50On Charge 3, you are convicted and sentenced to three years ten months’ imprisonment.

51On Charge 4, you are convicted and sentence to one month’ imprisonment.

52On Charge 5, you are convicted and sentenced to 10 months’ imprisonment.

53On Charge 6, you are convicted and sentenced to two months’ imprisonment.  The sentence on Charge 3 is the base sentence and I direct that four months of the sentence on Charge 5 be served cumulatively with the sentence on Charge 3.  The aggregate sentence on Charges 1 and 2, and the sentences on Charges 4 and 6 are wholly concurrent.

54This makes a total effective sentence of four years two months’ imprisonment, and I fix a non-parole period of three years’ imprisonment.

55You have already served 494 days by way of pre-sentence detention, not including today, and I declare that period be reckoned as time already served under this sentence. Any driver’s licence or permit you hold is cancelled and you are disqualified from obtaining a licence or permit for a period of 12 months from today. This is the mandatory minimum required for Charge 5, pursuant to s.89(3) of the Sentencing Act.

56I make the disposal order sought by the prosecution and I declare Mr Brooks that but for your plea of guilty, the total effective sentence of the court would have been six years three months’ imprisonment and I would have fixed a non-parole period of four years six months’.  Is there anything further from you Mr Brown?

57MR BROWN:  No, Your Honour.

58HER HONOUR:  Thank you.  Mr Rolfe?

59MR ROLFE:  No, Your Honour, thank you.

60HER HONOUR:  Thank you.  Mr Brooks that concludes my sentence.  We will adjourn now until 10.30 and disconnect the link.  Thank you.

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