Director of Public Prosecutions v Brooks

[2017] VCC 1236

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

AT BAIRNSDALE
CRIMINAL JURISDICTION

CR 16-01775

DIRECTOR OF PUBLIC PROSECUTIONS

v

TERRENCE BROOKS

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JUDGE:	HIS HONOUR JUDGE STUART
WHERE HELD:	Bairnsdale
DATE OF HEARING:
DATE OF SENTENCE:	29 August 2017
CASE MAY BE CITED AS:	DPP v Brooks
MEDIUM NEUTRAL CITATION:	[2017] VCC 1236

EX TEMPORE REASONS FOR SENTENCE
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Subject:
Catchwords:
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Cases Cited:
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APPEARANCES:	Counsel	Solicitors
For the Office of Public Prosecutions	Mr P. Triandos
For the Accused	Mr D. Cronin

HIS HONOUR:

1Terrence Brooks, you have pleaded guilty to one charge of attempted theft, which carries with it a maximum penalty of five years imprisonment, one charge of attempted armed robbery, which carries with it a maximum penalty of twenty years imprisonment, and one further charge of theft, which carries with it a maximum penalty of ten years imprisonment.  In addition, you have pleaded guilty to two charges of assaulting a police officer, Summary Charges 4 and 5, that each carry with them a maximum penalty of six months imprisonment and two Summary Charges, 6 and 7, of committing an indictable offence whilst on bail, which carries with it a maximum penalty of three months' imprisonment.

2The circumstances surrounding your offending are set out in the prosecution opening for plea, which I rely upon for my sentencing remarks.  At the time of this offending, you were 39 years of age and now are 40.  On 2 July 2016, at approximately 8.10 pm, you attended the Bairnsdale RSL.  You played the pokies before walking through the kitchen and gaining entry to the staff area at the rear.  You began searching through various employees' bags and placed a number of items into your shirt pocket, including a wallet and cash.

3The manager of the RSL, Mr Jason Henry, walked into the staff room and found you searching through employees’ bags.  He confronted you and told you to hand over all the items that you had taken and you complied with this request.  He then escorted you out of the RSL and told you never to return.  In the end, no items were stolen from the premises.  That is the subject of Charge 1, attempted theft.

4Charge 2 and 3 occurred shortly thereafter.  Having left the Bairnsdale RSL, you attended at the APCO Service Station in Bairnsdale a short time later, at 8.50 pm.  This service station is approximately 300 metres from the Bairnsdale RSL.  You selected a pair of sunglasses valued at $30.00 from the stand near the counter and placed them into your pocket.  You then selected a pair of sewing scissors with an approximate size of 12 centimetres from the tip of the blade to the rear of the handle and continued to walk around the stall whilst removing the scissors from the packaging.

5You then walked to the front counter of the service station and requested two potato cakes and handed the attendant $2.  Whilst the attendant was retrieving the potato cakes, you took the scissors from your pocket and pointed them at him.  You said to him, "I am not joking, give me all the money from the register".  The attendent refused and informed you that he would go to the kitchen and get a knife if you did not put the scissors down.  That incident is the subject of the attempted armed robbery.

6You stood there for a moment, staring at him, before attempting to take the EFTPOS machine and a motor pass card.  You attempted to cut the cords of the EFTPOS machine, but dropped the scissors on counter and the attendent grabbed hold of them.  He then demanded of you that you exit the store after giving you back the $2 that you had given him for the potato cakes.  He then called 000.  You exited the store and you were followed by two customers who had witnessed the incident.  You attempted to hide behind a hedge situated to the side of the store.  One of those customers continued to watch you until you stood up and approached him in an aggressive manner.

7He responded to that by taking hold of you.  You resisted and tried to break free.  You were taken down to the ground by this gentleman, resulting in you striking your head on the concrete gutter, sustaining a small laceration to the right eyebrow.  The police attended and you were arrested and conveyed to the Bairnsdale Hospital for treatment for a laceration to your right eyebrow.  You failed to pay for the sunglasses that you had taken and that is the subject of Charge 3.

8Whilst at the hospital awaiting treatment you were observed to be highly intoxicated.  You were aggressive and verbally abusive towards hospital staff and police.  You became increasingly aggressive and as a result were secured by two police officers.  Whilst they attempted to secure you, you continually spat at them, hitting them on the arms and legs.  That is the subject of summary Charges 4 and 5, assaulting a police officer.  At the time of the commission of the indictable offences you had been subject to an undertaking of bail for two charges of being drunk in a public place and two charges of theft, thus the further Summary Charges 6 and 7, committing an indictable offence whilst on bail.

9You subsequently refused treatment and were conveyed to the Bairnsdale Police Station where you were placed into a holding cell.  Whilst in custody, you continued to be verbally abusive to police members and you repeatedly head butted the cell door.  You were subsequently interviewed but made a no comment interview saying you could not recall the incidents.  You stated that you probably did spit at that police officer's feet "Because he was hurting me".

10On both occasions, your endeavours to obtain items and monies were thwarted, first by the appearance of the manager at the RSL who confronted you, and again by the attendant at the service station.  There are some odd aspects to your behaviour, including you trying to steal the EFTPOS machine by attempting to cut the electrical cords.  What possible purpose you had with such a machine is unknown to anybody and perhaps even yourself. 

11Whilst there is a farcical aspect to your conduct, the offending that you engaged in, in particular in relation to the attempted armed robbery, was most serious.  It is only that the attendant had the guts to stare you down and hold his stance that that attempt of armed robbery was thwarted.  Plainly, you had been drinking to a very considerable extent prior to this offending.  Your obstreperous behaviour towards the police officers is unfortunately all too common in your criminal history.  Leaving aside some matters that you were dealt with in the Perth Petty Sessions Court, which include I note, one charge of resist arrest, you have been dealt with in the Magistrates' Court in this state on no less than twenty-eight occasions.

12You have been charged and dealt with in that regard on those twenty-eight occasions for 112 criminal offences.  On my count, 34 of those offences being offences of violence, including damage to property and 15 offences of dishonesty.  On no less than eight separate occasions, you have been dealt with in the Magistrates' Court of this state for assaulting or resisting police officers.  This seems to be part of your pro forma behaviour.  It is disgraceful.  Police officers have an important function to serve in our community and they do not need to have to put up with your violence towards them.  Your behaviour on this particular evening, in spitting at the police officers on that particular occasion, is disgraceful.

13Initially, you were dealt with for the offending by way of fines and community orders.  You have received no less than six community orders of which you have been breached on three separate occasions.  In addition, you have received no fewer than three wholly suspended sentences of sixty days, one month and twenty-one days.  You have been breached on those suspended sentences on no less than four occasions.  The frustration of the courts in dealing with you over this period of time is reflected in the seven further occasions where you were dealt with by way of imprisonment imprisonment for three months, one month, one month, twenty-eight days, one year, another year and nineteen days.  Your criminal history reveals that you typically get drunk in public, steal from shops and cause criminal damage.  When police officers arrive you typically respond by resisting them and assaulting them. 

14In the ordinary course of events I would not even consider a further Community Corrections Order as being appropriate, given your background where there are some unusual features to you, and how you have responded to your lengthy period of imprisonment thus far. 

15You have been in custody since 2 July 2016, when you were arrested.  Thus you have spent some fourteen months in custody.  This of course has been a very significant period of time whilst you have been in custody and the longest period of time by far.

16During that time you have reflected on what you have done and where you want to be at this stage in your life, now a 40 year old man.  I have been much assisted by the two reports that have been tendered.  I turn to those reports.  Firstly, the psychological report of David Ball.  He had difficulty in administering any psychometric personal instruments at his disposal, due to your insufficient literacy and numeracy.  Nonetheless, he considered that you had a full scale IQ of 78, which is relatively low, a matter which I will come to later on in my sentencing remarks.  He set out your personal history, which I will not endeavour to summarise other than to make reference to a number of matters.  It would appear that you came from a family background where there was no significant illness and no domestic violence, substance abuse or criminality amongst your family members.  It appears that you and your elder brother were shown appropriate affectionate and appropriate boundaries were set. 

17It has been suggested that as a result of a medical condition you had to have a testicle removed and that caused you concerns.  In some way, it is said to have prompted you to commence your drinking of alcohol from the age of 13.  It is fair to say that in the ensuing years you developed an alcohol dependency and it is plain that you are indeed an alcoholic.  You reported to Mr Ball that you would consume up to six litres of cask wine daily. 

18In addition, you had used other narcotic drugs and in particular, amphetamines and sadly, methylamphetamines, or ice.  Because of concerns about you having an acquired brain injury, it was Mr Ball's recommendation that you be undergo a neuropsychological assessment and to that end, Dr Linda Borg, conducted a neuropsychological assessment of you.  It is plain from both reports that there have been considerable consequences flowing from your alcohol and in particular, other drug abuse, including paranoia and depression and anxiety.  You, however, did indicate feelings of remorse to both Mr Ball and Dr Borg.  In relation to the latter, she quotes:

"Mr Brooks' identified feeling remorse for his actions, stating 'To put myself in their shoes and feel how they would feel is not too good.  I'm sorry that they got caught up in my problems'.  He also described feeling regret, yet acknowledged that his recent period of incarceration had been the turning point for him.  Mr Brooks stated, 'If a lot of these bad things hadn’t happened, I would'nt have hanged.  It helped me change.  That's the truth, it's been an eye opener'.  Finally, when asked to provide his response to his actions, Mr Brooks said, 'I'm totally embarrassed but I wasn't in the right frame of mind.  I don't know how I could've dealt with it at the time.  I was delusional.  I'm really sorry and ashamed… I didn't mean to hurt anyone'.  Responses to questioning revealed Mr Brooks appeared to demonstrate remorse and was able to give consideration to the wrongfulness of his actions".

19As a result of what is recent testing conducted by Dr Borg, on 26 June 21017, she was of the view that:

"Based on reports of education and occupational history, crystalized intelligence was estimated to be within the Average range". 

20A very different scenario to that that Mr Ball, psychologist, considered to be the case, when he prepared his report dated 21 December 2016.  You have given evidence before me that you have substantially improved in terms of your physical appearance and your physical well-being.  From my observation of you this is plain to see.  Not only am I satisfied that you have done all that you could to improve your lot whilst being imprisoned, I am further satisfied that that imprisonment and your abstinence from alcohol and drugs which you have said you would be able to obtain had you wished, whilst in custody, has improved your intellectual functioning, and thus, the discrepancy in your intellectual functioning as reported by Mr Ball, as contrasted more recently with Dr Borg's assessment, explains that change.  Indeed, Dr Borg's opinion is stated as follows:

"With consideration to:

1) extensive history of alcohol and poly-drug abuse from an early age; 2) cognitive defects, limited primarily to memory and aspects of executive functioning, including planning; and 3) persistent impairment to cognition despite relative abstinence from alcohol and drugs; it is considered that the primary contributor to Mr Books’ presentation is a substance-related brain injury (more likely secondary to chronic alcohol abuse), which is deemed mild in   nature.  Additional contributions from potential closed head injury or cumulative concussive events cannot be completely discounted given the lack of formal medical investigations relating to these incidents - although the influence of such factors is considered minimal in comparison to the history of extensive alcohol and substance abuse".

21As to the difference in abilities, she earlier noted: 

"In comparison to Mr Brooks' screening assessment from 2016, his perceptual abilities had improved to the Average range as opposed to Borderline capacities noted previously [i.e. by Mr Ball].  Given that no formal assessment of motivation or mood were undertaken in his previous assessment, it is difficult to determine whether his performance in 2016 was impacted by these factors.  In the current assessment, formal measurement of both effort and mood was completed without any overt difficulty.  As such, the current assessment is considered an accurate reflection of ability under the above conditions".

22You wrote a letter addressed to the Judge in my case which became
Exhibit TB4.  It is a revealing letter.  In it, in part, you write the following:

"For years I have battled with addiction mainly to alcohol but drugs as well.  I have previously felt that there was no hope for me and that I could not stop using substances to block out the shameful things I have done in the past.  So it became a vicious circle because when I felt relief from pain I ended up doing more shameful things and having to block more out.  Rehab, detox, counselling did not work but now I know why.  I need God's forgiveness".

23You continue on in that frame, during the course of your letter, stating as follows:

"The next part felt like nothing short of a miracle as my tears pretty much instantly dried up and I felt a great sense of relief like all the pain was healed in that moment.  And that is what happened.  I have so much faith now, I believe in God and I have received the Holy Spirit.  I have changed.  I do not crave the foolish things I craved in the past and I don't live in the past anymore".

24Towards the latter part of your letter, you continue:

"I am so sorry to the people who were caught up in all of this as none of this was planned or with intention to harm.  But still I know it was wrong".

25A little later you continue:

"Even in prison I have led others to read the bible and go to church because I know what God has done for me.  I prayed for health and now I eat healthy, work out, I do not need medication for depression, anxiety, paranoia, etc".

26You have confirmed all these matters in your evidence before me, which was, I thought, impressive.  You stated that you were working whist in prison and as I have indicated, despite the fact that you had through your previous prison experiences the capacity to get cigarettes and drugs, you have resisted that temptation.

27It is not too hard for one to think that, given your history, what chance has this man?  The cynic may well say you have none and that as soon as you are out of custody you will revert to your old ways – stealing and being violent whilst effected by alcohol and drugs – and that that is what you has been and that is what you will be forever.  You have given evidence before me that you have however, indeed, changed.  I was impressed by your evidence, your determination to make that change and by your motivation to continue with that change through religious assistance. 

28You are now insightful, not only in terms of what you have done and your offending, but also in terms of your vulnerability to reoffend.  In particular, during the course of your evidence, I put a statement by you that Mr Ball noted in his report to you.  That statement was this:

"I'm in jail getting to know the Lord.  I am doing my rehab and feeling positive… God and Jesus have given me hope so I may be able to just have a couple drinks or none".

29The possibility that you may be able to just have a couple more drinks is one that you have disavowed.  Though you agreed you said it back then in December of last year, I suggest to you that you did not have a choice.  Your only choice is complete abstinence from alcohol and drugs.  For if you had but one drink you would be back on the rollercoaster to further alcohol and drug abuse and its direct consequences which are for you, offending.

30I am satisfied that that is your present intention.  Realistically, I must be cautious that that intention will be given effect to upon your release from custody.  You aim to remain alcohol drug free, to obtain accommodation and to reunite with your son who I think now is but 11 years old, as well as to do some work in the community on a voluntary basis.

31As with all sentencing exercises, there are competing factors.  General deterrence, that is, deterring others from like offending, is a significant sentencing factor that I take into account.  There is also the need for me to take into account deterring you from further offending.  Particularly in light of the repetitive nature of your offending in the past.  I must also ensure that the sentences that I impose take into account the need for just punishment and denunciation of your conduct.

32As I discussed with your counsel Mr Cronin, protection of the community from you also is raised in this case of the offending in question in the context of your long history of similar type of conduct.  You have, however, as I have indicated, demonstrated insight into your offending and you now fully appreciate the connection between your alcohol abuse and drug abuse and criminal misconduct. 

33You have pleaded guilty at the earliest opportunity and there is considerable utility in terms of the avoidance of a committal hearing and any trial.  I also take into account your pleas of guilty as demonstrating some further evidence of remorse, beyond that which is contained in the statements to the psychologist and neuropsychologist and your letter addressed to the presiding judge, being me.

34I have no doubt that if, upon your release, you return to any drug or alcohol use, your prospects of rehabilitation are at best poor.  If, however, you stick by your resolve to make good the rest of your life, by avoiding the use of drugs and alcohol to any degree, then your prospects of rehabilitation become considerable.  It does occur that people later in their life determine after a period of custody to change their ways.

35I know that your intention at the moment is a genuine one.  But you must prove it to yourself when you are released, otherwise the revolving door will continue to revolve, with you going in and out and in and out of gaol, for longer and longer periods of time.  It is in your interest and also in the interest of the community, that this change is encouraged and it is because of that, that I do intend to adopt the course that your counsel has suggested of combining a period of imprisonment with a community corrections order.

36The Community Corrections report states that you are suitable for a further Community Corrections Order.  But bear this in mind, if you breach this Community Corrections Order you will not be brought back before another magistrate.  You will not be brought back before another judge of this court, you will be brought back before me.  I am giving you the chance and I hope that you will take advantage of it.  You have the capacity with your new resolve, provided you are completely abstinent from the use of alcohol and drugs when you are released.

37On the charge of attempted theft, I sentence you to be imprisoned for a period of four months.  On the charge of attempted armed robbery, I sentence you to be imprisoned for a period of fourteen months.  On the charge of theft, I sentence you to be imprisoned for a period of seven days.  On the two Summary Charges 4 and 5 of assault police, I sentence you to be imprisoned for an aggregate period of two months.  On the two charges of summary offence charges of committing indictable offence whilst on bail, Charges 6 and 7, I sentence you to be imprisoned for a period of one month.

38The base sentence is the fourteen months on the attempted armed robbery.  I direct that two months on the charge of attempted theft be served cumulatively upon that sixteen months.  I direct further the two months for assaulting police, Charges 4 and 5, be further cumulated on the sixteen months, producing a total effective sentence of eighteen months' imprisonment.

39I further direct that the presentence detention of 423 days be declared as a period that you have already served, which means that you have on that part of the sentence a further six months gaol to serve.  In addition, on the three charges on the indictment, I sentence that you be released on a Community Corrections Order for a period of two years, with conditions that you be under supervision for that period of time, that you receive assessment and treatment and rehabilitation in relation to alcohol and drug use and attend treatment and rehabilitation in relation to programs directed to reduce your reoffending.

40That then means, Mr Brooks, that you have got twenty months imprisonment.  You have done fourteen.  You have got six to go.  You will then be released on a Community Corrections Order for two years with those conditions I have outlined, if you consent.  Do you consent to such an order?

41OFFENDER:  Yes I do.

42HIS HONOUR:  All right.  I declare that but for your pleas of guilty, pursuant to s.6AAA, I would have sentenced you to a sentence of thirty months imprisonment and set a minimum of twenty months imprisonment.  Now thank you Mr Brooks, you may be seated.  Gentlemen, are there any corrections to my sentencing remarks or errors in my - the sentences that I have imposed?

43MR TRIANDOS:  No, Your Honour.  There's just the forfeiture order that needs to be signed, Your Honour.

44HIS HONOUR:  Yes.  Is there anything you want to say about the forfeiture order, Mr Cronin?

45MR CRONIN:  No, Your Honour.  There's been one slight amendment to it, but it's otherwise consented to.

46HIS HONOUR:  Very well.  I am going to make a change downwards to the charge of attempted armed robbery.  The sentence will be fourteen months, which will be the base, which will produce an eighteen month sentence.  The 6AAA will remain the same.

47That means, Mr Brooks, I was thinking about a lesser sentence as I was pronouncing it.  I have determined that I am going to sentence you to the lesser period, which means that the total effective you have got is eighteen months imprisonment.  You will do another four months or thereabouts and then you will be released on the community corrections order.  All right, take a seat
Mr Brooks.  That will change everything will it Mr Brown?

48ASSOCIATE:  Yes.

49HIS HONOUR:  I thought so.  Mr Rouse, that is the forfeiture orders.  Provide that to Mr Triandos' instructor please.  How long do you think Mr Brown? 

50ASSOCIATE:  (Indistinct words).

51HIS HONOUR:  How long do you think or should I stand down?

52ASSOCIATE:  (Indistinct words).  Actually stand down for about ‑ ‑ ‑

53HIS HONOUR:  I will stand down. 

54(Short adjournment.)

55HIS HONOUR:  Is this right, Mr Brown?  Commences on 29 August.

56ASSOCIATE:  (Indistinct words).

57HIS HONOUR:  Sorry, I should have given some warning.  Apart from the usual conditions Mr Brooks, the additional conditions are that you will be under the supervision of a Community Corrections officer for a period of two years.  You undergo assessment and treatment, including testing for drug abuse and dependency, alcohol abuse and dependency as directed and that you participate in programs, courses that address factors relating to offending as directed and at - last four as I said, two years.  Are you prepared to enter into those conditions Mr Brooks?

58OFFENDER:  (Indistinct words).

59HIS HONOUR:  Yes.  Mr Cronin if you would check the document and approach the dock.  If you would also check the document please Mr Triandos.  I think it is in order.  It does not have a start date, I assume the start date will be the release date after eighteen months.

60MR CRONIN:  Thank you, Your Honour.

61HIS HONOUR:  Mr Brown.  Is Mr Keggs around?

62ASSOCIATE:  (Indistinct words).

63HIS HONOUR:  No need to worry.  All right, well Mr Brooks I do not expect to see you ever again.  I wish you well for the future.

64OFFENDER:  Thank you, Your Honour.

65HIS HONOUR:  Ten o'clock tomorrow morning please Mr Rouse.

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