Director of Public Prosecutions v Brooks
[2018] VCC 1802
•15 November 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-18-01606
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| KHOREE BROOKS |
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JUDGE: | HER HONOUR JUDGE LAWSON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1 November 2018 | |
DATE OF SENTENCE: | 15 November 2018 | |
CASE MAY BE CITED AS: | DPP v Brooks | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 1802 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW – SENTENCING
Catchwords: Armed robbery – attempted armed robbery – part of a series that were committed over a short period of time – aggregate sentence imposed
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr P. Teo (For Plea) Ms G. Hersch | John Cain, Solicitor for the Director of Public Prosecutions |
| For the Accused | Ms E. Ramsay (For Plea) Ms D. Dempsey | Victoria Legal Aid Dandenong |
HER HONOUR:
1 Khoree Brooks, you pleaded guilty before me to three charges of armed robbery and one charge of attempted armed robbery. Those charges are all serious and that is evidenced by the maximum penalty prescribed by Parliament, that is, 25 years’ imprisonment for armed robbery and 20 years’ imprisonment for attempted armed robbery.
2 I will now proceed to sentence you on the basis of the summary of the prosecution opening that was read at the plea hearing and is marked Exhibit 1.
3 At the time of the offending, you were aged 29 and you are currently that age.
4 In brief, the charges relate to offending at four separate locations over two consecutive days, namely 15 and 16 May 2018. Charge 1, armed robbery, relates to you attending the Subway store located in Mount Alexander Road, Essendon at approximately 9.15am on 15 May 2018. You entered the store having parked your vehicle a short distance away. You were wearing a black Adidas hooded jumper, black tracksuit pants and white runners. You had a cap underneath the hooded jumper with the hood over the cap. You had your face covered and you were wearing gloves.
5 Whilst in the store, you approached Manish Rai, who is the owner of the franchise. He was working behind the counter. As you approached the counter, you produced a silver-bladed black handled large knife, 30 to 40 centimetres in length. You demanded that he put money into your bag that you had placed onto the counter. He complied immediately with your demand and placed $200 worth of notes and coins into the bag following which you left the store.
6 The only other person present in the restaurant was a female who was Mr Rai’s partner and she was seated at one of the nearby tables studying.
7 Charge 2, armed robbery, occurred on the same day and concerns you driving to the St Albans area and parking nearby in Willarton Street, St Albans. At about 10.05am you entered Le’s Furlong Pharmacy which is located in Willarton Street, wearing the same clothing as you had worn earlier that day when you committed the armed robbery on the Subway store. On that occasion, your face was covered by the hood and collar of your black jumper.
8 Cynthia Gatt, the pharmacist assistant, and Thi Nguyen, pharmacist, were both working.
9 You approached the counter and asked Gatt to come over and she was soon joined by Nguyen. You produced a machete which you held to the side and put a bag on the counter and demanded that the till be opened and its contents placed into the bag. They both complied with your request and about $300 worth of notes and coins was placed into the bag, following which you left. The offending was captured on CCTV.
10 Charge 3, attempted armed robbery, concerns you attending the Foodworks supermarket in Braybrook, on the following day, Wednesday 16 May 2018 at approximately 3.00pm.
11 Sunita Beniwal was working behind the register. You entered the store and approached her. You were wearing a red and black cap, dark blue pants, a black jacket and dark coloured round glasses and you were carrying a bag.
12 Prior to entering, you were seen walking past the store on at least two occasions.
13 You approached Ms Beniwal and asked for some cigarettes and then you said you did not want cigarettes but wanted money. You put a bag onto the counter, opened it and produced a large carving knife. You told her to put all the money in the bag. As you did this, you were holding the knife in your right hand and using the knife to point where the money was kept.
14 Beniwal started yelling out for her husband and son and as she did so, you grabbed the bag and fled. The offending was captured on CCTV.
15 The final charge, armed robbery, concerns you entering the Australia Post shop located in Barkly Street, Braybrook on 16 May 2018. You entered at about 3.30pm and at that time Tony Tran, Helen Tran and Tram Vu were working together in the shop. You walked up to the sales counter where Tony Tran was standing and Helen Tran was adjacent to him. There were no customers present. You produced a large knife, approximately 30 to 40 centimetres in length, and placed the bag on the counter, again, demanding money. Tran opened the till and put approximately $1,000 cash into your bag. You then told Helen Tran to put money from her till into the bag which she did. You then closed the bag and fled. The offending was captured on CCTV.
16 On 16 May 2018 at about 6.40pm, you were arrested by police and searched. They found a bag inside of which was located $1,012.95 in Australian currency. You were taken to the Sunshine Police Station where you took part in a formal record of interview and made full admissions to all the offending.
17 You told investigators that you were looking for ways to make easy money to deal with your legal matters to help you gain access to your daughter. You said that you would look for businesses that would have something worthwhile or easy access to because you did not want cause conflict and you would not hurt anyone or scare anyone. You said the sort of businesses you were looking for were like newsagencies that offer gambling, a post office or a corner milk bar. You said you were unaware of how much money you had stolen but that most of it was still in the bag and that you had spent some of it on food, basic living expenses and petrol.
18 It is evident from the answers that you provided to police when interviewed that you had thought through what sort of businesses you would target. In particular, you targeted businesses that were likely to handle large sums of cash and you further thought through about trying to obscure your facial features. You told police, when committing all of the offending, that you were wearing a ski mask that could be zipped up to the nose and that you did this to avoid being identified. You therefore had knowledge that there was the likelihood that there would be CCTV surveillance prior to entering each of the stores and you took these steps to avoid identification.
19 Following arrest, you were remanded in custody and you are currently being held at Marngoneet Prison.
20 No Victim Impact Statements have been filed, although the prosecutor did inform the Court that Ms Gatt, the pharmacist assistant, had not been able to return to work.
21 Notwithstanding that there are no Victim Impact Statements, I am satisfied your demands for money, whilst using either a knife or machete to make your demands, would have caused each of the victims to be fearful of your actions. They were all vulnerable to your demands.
22 Deterrence both general and specific and denunciation looms large in this sentencing exercise.
23 There have been numerous occasions over the decades where superior courts in this State have expressed a need for those factors to be emphasised in crimes of this nature.
24 Such offending is considered serious and calls for condign punishment in order to deter other would-be armed robbers.
25 Armed robbery and attempted armed robbery are both crimes which are often perpetrated usually upon defenceless members of the community who are merely going about their daily business at work, often in circumstances of isolation or relative isolation, and the crime is one that does have the potential for real and lasting impacts on its victims.
26 Ms Ramsay on your behalf acknowledged that this was very serious offending and that general deterrence was a primary sentencing consideration.
27 She submitted to the court your conduct was outside your usual offending behaviour.
28 However, as was noted in the plea hearing I have had regard to your admitted prior criminal history.
29 You do have a lengthy criminal history that spans a period from 12 June 2007 until 26 February 2015. It is accepted that you do not have any convictions for crimes of this nature but nonetheless there have been occasions in the past where you have been dealt with for the courts in respect to offences involving violence against the person. You have convictions recorded for unlawful assault, breaching intervention orders on multiple occasions, recklessly causing serious injury, recklessly cause injury and other charges such as driving offences, damaging property and the like.
30 Ms Ramsay emphasised the difficulties you have suffered insofar as your upbringing is concerned and she relied on the details of your background that are described in the report of Warren Simmons, consultant psychologist. His reports dated 23 August 2018 and 29 October 2018.
31 I accept that your childhood was one of significant dysfunction and exposure to violence at the hands of your father. Your parents separated when you were young, when you were approximately 10 and that was in the context of your father being violent towards your mother. Following separation there were periods of real instability. It is reported that you lived in approximately 30 different places in your childhood. You are the only child of your parents relationship but your mother has had other children, namely a son and a daughter.
32 Your father had an issue with drinking heavily and most of his violence was alcohol related. Although he was described as being vicious even when sober and many people were fearful of him. At times you were left in the care of your father and on occasion you too were exposed to violence from him. As a consequence of your disrupted childhood, you attended more than a dozen schools and eventually you left school having only completed Year 9. You began to work with your father working as a plasterer but that employment ceased due to a falling out between you.
33 You do have a good work history working as a removalist over the years and you estimate that you have been engaged in such work for about half of the time since you have left school.
34 Both your parents were heavy cannabis users and you began using that drug at age 14 and at age 25 you were introduced to methamphetamine. At its peak you were using 1.7 grams of methamphetamine a day. You ceased using in 2014 when you met your partner, Julie, with whom you have a daughter, Rosie-Lee, who was born in January 2015. You remained abstinent from methamphetamine but you were still using cannabis on occasion.
35 For reasons that were not fully disclosed you lost custody of Rosie-Lee shortly after her first birthday and you have not been able to regain custody. You travelled with your partner Julie to Queensland where you addressed your drug issues and undertook drug and alcohol counselling and also some counselling for anger management.
36 Because of difficulties you experienced obtaining employment in Queensland, you relocated to Sydney. There you did well and you had a managing role in a removalist company where you were working and responsible for six other colleagues. That employment stopped when you were intercepted by police. They discovered that you had outstanding warrants in Victoria. Rather than face up to your responsibilities, you took off before police could execute the warrant and returned to Victoria with Julie where you were living a fairly peripatetic lifestyle prior to your arrest for these offences.
37 You express a strong desire to be able to reconnect with your daughter upon your eventual release. She is currently being cared for in the Geelong area by your partner's mother. You remain in contact with both your partner Julie and her mother; however, there are no formal proceedings on foot relating to your daughter.
38 Mr Brooks, you told Mr Simmons, that the context of the offending was that you had taken some GHB and you had been using methamphetamine for about 2 ½ weeks before offending. You did not remember much of the offending until you “straightened up”. You were remorseful for your actions and wished now that you could take back what you had done and that you would like to apologise to each of those victims involved. You recognise that your behaviour would have likely had a significant impact upon each of the victims.
39 Mr Simmons makes the point that your childhood difficulties would have left you vulnerable to substance abuse, identifying drugs as a way of escaping from the world and that you may also have used drugs as a form of self-medication for your symptoms of Post-Traumatic Stress Disorder.
40 He said there is clear evidence that you are still experiencing symptoms of Post-Traumatic Stress Disorder. He said whilst there was some evidence of antisocial and borderline personality traits, it is not clear that you meet the criteria for that disorder. Rather, he says that your behaviour is probably explained by the diagnosis of substance use disorder which has contributed to a great deal of your offending over the years.
41 He recommends referral for treatment of your Post-Traumatic Stress Disorder to assist you to deal with your trauma from your childhood and also to better control your symptoms as well as referral for drug and alcohol counselling to assist you with relapse prevention strategies when you return to the community.
42 You have undertaken multiple programs in custody, some of which have been aimed at addressing your drug dependency.
43 In sentencing you, I have had regard to all the matters put in mitigation.
44 I accept that you entered a plea of guilty at the earliest opportunity. Your plea is one of real utility. You spared the State the expense and inconvenience of a trial and importantly you spare the victims the trauma of having to come along to court to give evidence. You have therefore facilitated justice and your sentence will be discounted accordingly.
45 I have had regard to your full cooperation at the time of your arrest. You made full admissions. You are entitled to the full benefit of a plea of guilty and I am also satisfied that your plea is evidence of genuine remorse.
46 I have had regard to the impact of your background on your offending and accept that to an extent that your criminal responsibility can be reduced by your family background and circumstances of hardship, depravation and violence. Nonetheless, these are serious offences that do call for denunciation. You have prior convictions, some of which are for violent offences, such that specific and general deterrence and community protection are still important sentencing factors which must be emphasised and therefore the significance of your personal circumstances are correspondingly reduced.
47 Having regard to your post offence conduct, your cooperation with the police and the evidence of programs that you have completed in prison, I do accept that you are now taking some positive steps to address your underlying offending behaviour and that you now understand the link between drug use and your offending.
48 In the future, you will need to be abstinent from all drugs in order to make good your rehabilitation prospects.
49 Overall, I consider you do have good rehabilitation prospects.
50 Ms Ramsay sought on your behalf a combination sentence. She submitted that such an order would enhance your prospects of rehabilitation through directing you to programs that would support you when you are returned to the community.
51 However, as was discussed in the plea hearing, I consider the fact that you are being sentenced for three armed robberies and one attempted armed robbery occurring within a short timeframe in the context of being a person who has serious antecedents and prior convictions for crimes of violence, I do not consider that is a sentencing option that is available to the court. I consider that your offending is deserving of an immediate custodial term with a non-parole period to be fixed.
52 I have, however, had regard to your positive efforts made since you have been in custody and I will fix a non-parole period that is shorter than it would otherwise have been because of your efforts towards and/or prospects of rehabilitation.
53 I consider that an aggregate term of imprisonment is appropriate given that the charges are of a similar nature and proximate in time such that it would be an artificial exercise to impose individual sentences and then by means of modest orders for cumulation arrive at a total effective sentence proportionate to the total criminality. What that means is I am imposing one term of imprisonment with respect to all charges on the indictment.
54 Could you please stand now, Mr Brooks?
55 I will announce the formal Court orders.
56 In relation to the four charges on the indictment you will be convicted and sentenced to an aggregate term of imprisonment of 4 years and 6 months and I fix a non-parole period of 24 months.
57 I've got a PSD of 183 days?
58 MS HERSCH: That's correct, Your Honour
59 HER HONOUR: Yes. I declare pre‑sentence detention of 183 days and direct that that be entered into the records of the Court.
60 I make the forfeiture order sought.
61 And I make the order sought pursuant to s464ZF of the Crimes Act. Having regard to the seriousness of the circumstances of the offending, I consider such an order is warranted. I note the order is by consent and the granting of the order is in the public interest.
62 That last order means, Mr Brooks, that you will be asked to provide a forensic sample and whilst you are in custody, there will be an occasion where you are given a cotton bud to put into your mouth to scrape on the side of the mouth. And provided that you do that, you comply with the order. But I have to inform you that if you don't consent to that taking of a mouth scraping under supervision of an authorised member of police, then that sample can be taken by way of a blood sample and police may use reasonable force to enable that forensic procedure to be conducted. But hopefully that won't be an issue. No. All right, thank you. Is that all?
63 MS HERSCH: Your Honour, I should just quickly note that the 464 order is perhaps unnecessary considering that a sample was taken during the course of the record of interview.
64 HER HONOUR: Sorry?
65 MS HERSCH: There was a sample taken during the course of the record of interview.
66 HER HONOUR: So, is there a retention?
67 MS HERSCH: There's a retention that's automatic on these charges.
68 HER HONOUR: And that's automatic.
69 MS HERSCH: Yes.
70 HER HONOUR: All right, well that order won't be made then.
71 MS HERSCH: May it please - - -
72 HER HONOUR: Thanks for that. I wasn't told that at the time of the initial plea hearing. There's the forfeiture order. So, that completes that matter. We can now formally adjourn the court. Thank you.
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