Director of Public Prosecutions v Brooks

[2018] VCC 1102

IN THE COUNTY COURT OF VICTORIA Revised
Unrestricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

BEVERLEY BROOKS

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JUDGE:	HER HONOUR JUDGE RIDDELL
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	17 July 2018
CASE MAY BE CITED AS:	DPP v Brooks
MEDIUM NEUTRAL CITATION:	[2018] VCC 1102

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms A. Upton
For the Accused	Ms C. Hollingworth

HIS HONOUR:

1Beverley Anne Brooks, you have pleaded guilty to one charge of false imprisonment, one charge of common law assault and one charge of armed robbery.  The circumstances of that offending were outlined in the summary of prosecution opening which was tendered on the plea.

2In summary those facts are as follows.

3The victim, aged 31, was a friend of yours.  On Friday, 17 November 2017 at approximately 5 pm, you and he exchanged a number of text messages in relation to him paying you for sexual services.  During those messages, you requested that he attend a residential address in Mitcham.  You sent a text to him saying, "I swear it's only my girlfriend here".

4At approximately 7.30 pm, the victim attended at that address.  You invited him inside.  You invited him to take a seat in the lounge and then proceeded to stand over him, verbally abusing him for disrespecting you.

5During that verbal altercation, your co-accused, Mr Shane Cokacar entered the room.  Mr Cokacar is 20 years of age and despite his young years has numerous prior convictions dating back to 2011.  He was residing at the residential address.  Mr Cokacar, when he entered the room, was dressed in a white jump suit and was wearing black rubber gloves and sunglasses.

6At this time, you locked the front door.  The victim tried to open the door but Mr Cokacar locked it again.  Mr Cokacar then proceeded to punch the victim to the face.  He then used grey duct tape to secure the victim's hands behind his back and cover his mouth.  You took the duct tape off the victim's mouth.

7Your co-accused repeatedly punched the victim to the head and threatened to kill him and to “cut his dick off”.  He also overheard the two of you speaking with Mr Cokacar talking about burning him and taking him to the forest.

8You called your ex-partner, Casey Jennison. Mr Jennison is believed to dislike the victim who previously asked Mr Jennison's girlfriend for sexual favours.  You spoke with Mr Jennison and told him what was occurring.  You placed your phone on loud speaker and started yelling at the victim to say sorry for asking Jennison's girlfriend for sexual favours.

9Mr Cokacar again started hitting the victim over the head, this time with the back of a meat cleaver and telling him to say sorry.  The victim was crying, terrified and kept saying sorry before the call ended.

10Those events constitute the common assault.

11You stated to your co-accused that you should go to the bank and take the victim's money.  Your co-accused held the meat cleaver to the victim's back and forced him into his own car, a blue Holden commodore.  Mr Cokacar sat in the back seat with the victim while you drove to a bank in Whitehorse Road, Mitcham.

12Mr Cokacar held the meat cleaver to the victim's face and you made demands for the bank card and his pin.  The victim complied with this request fearing for his life.  You then entered the Mitcham ANZ Bank branch and used the victim's card to withdraw $700.  You then drove back to the residential address where your co-accused again punched the victim at random times.

13Your victim begged you both to let him go and you in fact convinced your co-accused to let the victim go on the condition that he not report the matter to the police.  You cut the duct tape from the victim's wrists.  Your co-accused then took the victim's Apple iPhone 7 plus and forced him to remove his white T-shirt which was bloodstained.

14Your co-accused took the victim's driver’s licence and you photographed that on your mobile phone.  The victim then returned to his home where he was driven to Box Hill hospital by his girlfriend and her mother as a result of his injuries.  The matter was then report to the police.

15As a result of the incident, the victim sustained a cracked lip lining requiring plastic surgery and four stitches, numbness and some nerve damage to his right crown tooth which still requires dental work, as well as two black eyes and bruising around his body.

16You were arrested on Saturday 18 November 2017 at the residential address.  Your co-accused was also present.

17Used grey duct tape was located on the floor of the dining and kitchen area.  Various areas were swabbed for possible bloodstaining and your co-accused's runners and T-shirt were seized for forensic examination in relation to what appeared to be blood.  The results of those tests are unknown at this stage.

18The record of text messages between yourself and the victim forms part of the deposition material.  A photograph of the victim's licence was downloaded from your phone.  CCTV footage from the Mitcham ANZ Bank and Commonwealth Bank was obtained.

19You admitted your involvement in this incident.  You stated to police that you were present and arranged for the victim to attend the address but you did not realise the co-accused was going to assault and threaten him.  Your co-accused, Mr Cokacar, has denied any knowledge or involvement in this incident.

20It was conceded by your counsel that having received a number of what you considered degrading text messages from the victim and having conveyed those to Mr Cokacar you put in place a plan to get the victim to your residence for the purpose of a confrontation.

21False imprisonment, assault and armed robbery are serious offences requiring denunciation, just punishment and general deterrence.  This is a relatively serious example of such offences.

22They involved a planned confrontation where the victim was locked inside the house, application of duct tape to the victim's hands and mouth, actual violence by way of the repeated and unpredictable assaults upon him, the threat of further violence including by way of the brandishing the meat cleaver, along with what must have been terrifying threats of burning, cutting off parts of his body and disposing of him in the bush.

23Those threats do not have to have been intended to be carried out for their impact to be real on the victim.  Removal of the victim in the car to the bank with ongoing assaults and the presence of the meat cleaver as well as the theft of his money and property demonstrate the seriousness of these events.

24I am not surprised to read in his victim impact statement that the victim suffers flashbacks, is traumatised in particular regarding the threats made to him, is unable to sleep, socially paranoid looking over his shoulder and does not trust people.  He says he is unable to concentrate and has been engaged with a psychologist to deal with the trauma, anxiety, fear and depression.

25He has also suffered financially including having to take time off work, having lost money and property stolen by you, having spent money on medical expenses and security and counselling expenses.  He describes this event as "the scariest moment of my life".

26Fortunately for you, I note that although you expected a confrontation, you did not anticipate the extent of your co-accused’s violence.  Further, you encouraged him to desist and to allow the victim to leave.

27Your matter resolved early when you indicated your plea of guilty in the Magistrates' Court at a committal case conference on 14 February 2018.  It was then adjourned to this court for the purpose of a plea on 14 June 2018.  On that date, you indicated a preparedness to cooperate with the authorities by way of a provision of a statement outlining the involvement of your co-accused in these offences.

28The matter was adjourned to enable the informant to take such statement from you so that your level of cooperation could be assessed as part of your plea and in relation to sentence.

29Cooperation with authorities is an important sentencing consideration.  As a matter of significant public policy, the law has always encouraged those jointly involved in criminal behaviour to betray the confidence of the other by providing for a discount for that cooperation at the time of sentencing.

30It is further conceded by the prosecution that in your case, your cooperation against Mr Cokacar will be a critical part of the case against him.  Mr Cokacar has denied presence or involvement of these offences.  He has given exculpatory explanations for the location of the victim's iPhone and $1,170 in cash inside his satchel bag.

31In the days following this instant, the victim identified Mr Cokacar as a result of information received from third parties and in particular he identified him when he was shown a Facebook image.  In that image however Mr Cokacar is depicted with you.

32The residential address in Mitcham was apparently frequented by numerous people for the purpose of drug use.  Therefore, even though Mr Cokacar's name is on the lease, this does not eliminate others from having been involved in this offending.  In particular, it is anticipated there will be a challenge to the admissibility of the identification made through Facebook.

33Subject to forensic results it is likely therefore that your evidence is the only direct evidence of his involvement in these offences.

34You have now sworn on oath as to the truth of your statement and attached diagrams, and you have given an undertaking to give evidence at the contested committal in August in relation to Mr Cokacar and further to give evidence at any trial.  No doubt that will be a stressful and testing experience.

35That cooperation also comes with an attendant risk of being targeted by him directly or by others within the criminal justice system who become aware of your assistance to the prosecution.  Such risk was in effect recognised by the prosecution who did not oppose the application by your counsel to have such details suppressed.

36I am further satisfied that in your case such cooperation is a reflection of genuine remorse at your involvement in offending in this way against a former friend.  Genuine remorse also entitles you to a discount in sentence.

37You are a person with a limited prior criminal history.  Indeed, your one appearance in the Magistrates' Court was in May 2017 for resisting and hindering police and resulted in a non-conviction disposition and a requirement that you continue treatment.  That treatment related to your drug use which largely explains, though does not excuse the descent into behaviour before me.

38I have received a letter from Dr Leila Baswa, consultant psychiatrist with Eastern Health, dated 23 March 2018.  Dr Baswa confirms that between 16 and 21 February 2015, you were under her care as an in-patient in the psychiatric unit of Maroondah Hospital.

39You were 20 years old, living with your partner and two-year-old son.  You had taken an overdose of prescription medication along with alcohol.  You were placed on an assessment order and mechanically restrained at the hospital.  You reported to Dr Baswa a downward spiral for approximately a year with anxiety and panic attacks.  You had previously seen a psychologist and been placed on prescription medication by your general practitioner.

40Your family expressed their growing concern about your increasing use of medications and your deteriorating mental health state.  Your family history is outlined in that report and is also reflected in the report of Dr Aaron Cunningham, forensic psychologist, as well as in numerous testimonials written by family members.

41You were born in the Philippines and migrated with your Australian father and Filipino mother to Australia at six months of age.  Your father left your family home and Australia when you were five years old and you have had almost nothing to do with him.

42Your mother was often absent working shift work and that relationship had its own difficulties as she is described as a strict disciplinarian.  Nurturing was not at the forefront of her mothering.

43Fortunately, you have had very supportive grandparents who cared for you.  You finished school at Year 11 when you became pregnant.  It is to your credit that after your baby was born and when he was one and a half years old, you returned to studies completing a Diploma in Childcare.

44To my mind, that shows some real intelligence and strength of character.  It is not easy to study when you have a young baby, let alone when you are young yourself.  I encourage you to look back at yourself when you undertook that study and draw on that inner determination.

45Completion of your Diploma and your work in childcare thereafter are positive factors when I consider your prospects of rehabilitation.  I have also read of your work for 18 to 24 months in the field of disability, supporting mentally and physically challenged individuals, as well as your particular kindness to your cousin who has autism.

46Your ongoing family support is another important factor in your potential for rehabilitation.  Your mother, grandparents and a parade of aunties and uncles have been present throughout these proceedings.  I have a read a number of testimonials from those persons as well as your stepfather.

47They all write of a happy girl, full of life and fun, diligent and respectful and with a kind and good heart.  They talk also of their collective dismay when they recognised your descent into drug use.

48Dr Cunningham opines that you do present with a borderline personality disorder and that given your father's abandonment of you as a child, the breakdown of your own relationship approximately three years ago led to a maladaptive reaction and significant emotional instability.  That relationship itself was attended by violence and drug use.  In the context of that instability and psychological vulnerability, you resorted to increasing drug abuse once the relationship broke down.

49Your family testimonials talk of your remorse about these events as well as your descent to drug use.  They talk of your completion of drug courses and counselling in custody and of your determination not to reoffend in any way.  I note in particular your grandmother's words, namely, "We sense a determination on her part to drop her past associations and concentrate on developing a better future for her and her son".

50Your efforts to rehabilitate yourself in custody have been significant.  You have participated in an intensive residential drug program offered by Caraniche at the Dame Phyllis Frost Centre.  This is quite a unique program offering as the name suggests intensive support and psychoeducation not only about drugs but about the reasons for your use of those substances.

51You commenced that engagement on 21 December 2017 and you are one of only ten participants.  You have had over 46 urine screens as part of that program all of which have been clean.  Having completed the first cycle of the program, you agreed to the second cycle.  You appreciate the need for ongoing professional support once released to fully overcome your past addiction.

52Indeed, Dr Cunningham says that during your incarceration, your involvement in the rehabilitation program has assisted you to gain insight into your emotional difficulties and your need for further treatment.  He states that your bipolar disorder as a result of trauma and abuse in your childhood environment, your mental health treatment in the community should be long-term.  He says you are motivated to engage with treatment.

53I have also now received an assessment from the Department of Justice Community Corrections.  That assessment confirms your insight, your remorse in relation to feelings for your victim of these offences and also your motivation to improve your life and become a better person by participating in programs to overcome your past substance abuse.

54I understand from your counsel that you now have a desire to pursue a career in social work and I encourage you to do so.  The world of social work benefits from people who have themselves walked a difficult path and have been rehabilitated.

55Lastly, I note you have a child, a son to live for and give a life to.  He is clearly a motivating factor for you in particular given your own lack of relationship with your father and difficulties in the relationship with your mother.  He needs you and there is a lot that you and only you as his mother can offer him.

56In all those circumstances, I consider specific deterrence does not loom large here.  Given your young age, you have a past history of employment, you have the support and love of your family, the motivation of your son and you have made positive efforts in custody to address your drug addiction.  In my view your prospects of rehabilitation are good.

57In light of those matters, I accept your counsel's submission that this offending can be appropriately dealt with by imposition of a combination sentence which sees your immediate release from custody and your commencement of a community correction order.

58As I said, I have now received an assessment report attesting to your suitability for such a correction order.

59Given that these offences were part of a series of events, I propose to order an aggregate sentence so if you could just stand Ms Brooks.

60The sentence I impose in relation to the three charges before me is an aggregate sentence.  I impose a term of 240 days imprisonment plus a community correction order of two years duration.  I propose in that order to tailor that order to address issues of punishment plus your rehabilitation.

61As part of that order, you will be required to complete 200 hours of unpaid community work.  However, I allow that up to 100 hours can be offset by completing treatment so in other words, you are allowed to complete up to 100 hours of treatment and those hours will be subtracted from the community work.

62I propose to order supervision as part of that order and treatment and assessment for drug and alcohol use and treatment and assessment for any mental health issues.

63I also propose to bring you back before me for judicial monitoring in six months from today.

64I declare that 242 days of imprisonment is a term of presentence detention to be reckoned against this sentence.  Excuse me just for a moment.

65But for you plea of guilty in relation to these offences, the sentence I would have imposed would have been one of three and a half years imprisonment with a non-parole period of two years.

66Ms Brooks, do you agree to undertake the community correction order that I have outlined.

67OFFENDER:  Yes, Your Honour.

68HER HONOUR:  And do you understand that any breach of that order - that is by way of failing to complete the conditions of that order or by any reoffending would bring you back before me to be resentenced on these offences.

69OFFENDER:  Yes, Your Honour.

70HER HONOUR:  All right.  Have a seat.  I am going to have my associate print out that order and then you will sign that order.  Now I think Ms Upton there was a disposal order sought from memory.

71MS UPTON:  Yes, there was a disposal order sought, Your Honour.  You should have hard copies ‑ ‑ ‑

72HER HONOUR:  I do I believe.

73MS UPTON:  ‑ ‑ ‑ on the file and there was also an application for a 464ZF order.

74HER HONOUR:  Yes.  Ms Hollingworth, I do not know whether I had any indication about whether that order is opposed.

75MS HOLLINGWORTH:  I can get instructions, Your Honour ‑ ‑ ‑

76HER HONOUR:  Would you?  Thank you.

77MS HOLLINGWORTH:  ‑ ‑ ‑ and if I can approach as well when she is signing the CCO?

78HER HONOUR:  Yes.  Thank you.

79MS HOLLINGWORTH:  It is not opposed.

80HER HONOUR:  Not opposed?

81MS HOLLINGWORTH:  Not opposed.

82HER HONOUR:  Thank you.  I propose to make the s.464ZF order in the terms sought as well as the disposal order.  I will sign those while we are getting the correction order printed out.

83MS UPTON:  Perhaps while Your Honour is waiting for the orders to print out, I note that media are present in court.

84HER HONOUR:  Yes.

85MS UPTON:  I do not know whether they were the same people that were here the last time.

86HER HONOUR:  Yes.

87MS UPTON:  I am just wondering whether it might be prudent for Your Honour to perhaps remind ‑ ‑ ‑

88HER HONOUR:  Thank you.  Yes.

89MS UPTON:  ‑ ‑ ‑ the terms of the suppression order.

90HER HONOUR:  Thank you very much, Ms Upton.  So for the sake of any media present, there is a suppression order in place to prohibit any publication of the details of Ms Brooks' cooperation with the police by way of giving of the statement and her evidence to be given so that must not be reported and the end date for that is from memory either the completion of her sentence or the completion of the proceedings against her co-accused whichever is the latter.  Thank you.  Great.

91MS UPTON:  Thank you, Your Honour.

92HER HONOUR:  Thank you, Ms Upton.  That is very fair of you.  So, Ms Brooks, you have signed that order now and your signature is in effect your promise to complete to that community correction order.  You have clearly got good people around.  I have read a lot of letters from your family who all love you, who are there to support you.  It is not going to be an easy road, you know that but they are all there with you on it.

93As one of your grandparents writes, they might not be around forever so you make the most of them and I will see you on 17 December at 9.30.  That is the judicial monitoring.  I will receive a report which will tell me exactly how you are going on the correction order so I hope by then things are going really well and you are able to look forward to a nice Christmas with your family and to put this behind you and I have some confidence that you will be able to.

94I meant what I said.  You are a person who has already demonstrated some inner strength and I encourage you to draw on that as you are going forward now.  So obviously there will be a process where Ms Brooks will be taken down downstairs before she can be released.  Ms Hollingworth, I am sure you will be able to explain all of that to the family.

95I thank the family for again being present and obviously you are an important part of this young woman's future as you have been in her past so all the best.

96All right.  We will adjourn until half past ten.

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