Director of Public Prosecutions v Brown

[2024] VCC 1453

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 23-01972

DIRECTOR OF PUBLIC PROSECUTIONS

v

JOHN BROWN

---

JUDGE:	HIS HONOUR JUDGE MCINERNEY
WHERE HELD:	Melbourne
DATE OF HEARING:	23 May 2024
DATE OF SENTENCE:	13 September 2024
CASE MAY BE CITED AS:	DPP v Brown
MEDIUM NEUTRAL CITATION:	[2024] VCC 1453

REASONS FOR SENTENCE
---

Subject:
Catchwords: Aggravated burglary; Recklessly cause injury; theft; possess amphetamine.
Legislation Cited: s 73 Drugs, Poisons and Controlled Substances Act1981 (Vic); Sentencing Act 1991 (Vic).
Cases Cited: DPP v Meyers [2014] VSCA 314; s16(3C); Veen No.2 [1988] Vol 164 CLR 465; DPP v Herrmann [2021] VSCA 160; Bugmy v The Queen [2013] HCA 37; R v Verdins [2007] VSCA 102; Brown v The Queen [2020] VSCA 2012; DPP v Dalgleish [2017] ALJR 91.
Sentence: Five years imprisonment with a non-parole period of forty months.

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms G. Overend	Office of Public Prosecutions
For the Accused	Ms R. Greensill	RLG Legal & Associates

HIS HONOUR:

1Mr Brown, who was born on 7 June 1968, and is now 56, he was 55 at the time of this offending, pleaded guilty to these two indictments on 29 May 2024. At the plea, Ms Overend appeared on behalf of the Director and appears now, and Ms Greensill appeared on behalf of Mr Brown, as she does now.

2The first indictment P12556245, being the first in time, occurred on 7 May 2023.  There are two charges to which Mr Brown has pleaded guilty, first is an aggravated burglary, which took place at 66 Cooper Street, Epping, which was a joint housing situation.  The aggravating elements are the intent to assault, the smashing in the door, and to use Mr Evans' statement, having the 'shit beaten out of him'.

3The second charge is recklessly cause injury to Jonathon Evans.  The maximum penalty imposed for the aggravated burglary is 25 years imprisonment, for the reckless cause injury it is five years imprisonment.  Mr Evans' statement I will get to further, but clearly he was scared by these circumstances, thinking that he may be killed.

4It is noted that - and again I will get to these circumstances as to Mr Brown - but to say the least he was rambling when, both crimes took place at 6 am, talking about killing grandmothers in order to get alcohol.

5The next matter indictment P11359350, occurred on 24 July 2023 and involved five charges, the first charge involved premises in Clifton Hill owned by Mr Dylan Foley. The actual charge is one of theft under s74, for which the maximum penalty is 10 years.  It involved the theft from Mr Foley's car of some sunglasses. 

6The second charge is one of aggravated burglary, committed at 25 Ramsden Street, Clifton Hill.  This occurred at approximately 3 am.  The aggravating factor was the entry into the premises with intent to steal, with a knife. Mr Brown was present at the premises for some 90 minutes whereby the second charge occurs, which is the alleged false imprisonment of Patrick Hemming, who was housesitting for the owners of the property.  Such charge of false imprisonment is a common law offence, for which the maximum penalty is one of 10 years imprisonment and/or 1200 penalty units.

7The fourth charge involves theft of property from the Cresswells, who were the owners of the property, which was removed by Mr Brown, and Charge 5, is a charge of possess amphetamine under s73 of the Drugs, Poisons and Controlled Substances Act, s73, for which the maximum penalty is one year imprisonment and 30 penalty units. He was found with that in his possession when he was intercepted at the Clifton Hill railway station, apparently by railway security officers.

8Coming back to the first indictment, being the aggravated burglary at Epping, clearly as I have said, Mr Brown was in a florid condition.  He made the comment that I have already referred to as to killing grandmothers, and made other comments about his mother.  He smashed his way into the room of Mr Evans.  As I said, Mr Evans said that he, 'Beat the shit out of him', Mr Evans being in the bed at the time of the assault. The injuries to Mr Evans are detailed at [12] of Exhibit B.  Fortunately, those injuries were not long term.  You were subsequently arrested that day at Flinders Street Station and charged on summons. 

9If I then go back to the second indictment, insofar as the first charge which occurred at 19 Clifton Avenue, that is the theft from Mr Foley's car, it is of interest that this occurred at 2.40 am, and the first circumstance which led to Mr Foley observing Mr Brown was some form of noise at the open window.

10Fortunately when the window was opened Mr Brown exited the property and it was the observations that were made by Mr Foley thereafter which showed that his car had been entered, I assume because it was left open, and the sunglasses had been stolen from there.

11The aggravated burglary that occurred thereafter again obviously was in the early hours of the morning.  Mr Hemming, who was minding the property for the owners, first became aware of Mr Brown when a light was turned on in the bedroom where he was sleeping.  The circumstances were such that he saw that Mr Brown had a knife, he was told to stay in his room, and that 'You'll be okay if you do what I say'.

12Mr Hemming in fact did that fortunately and for the next 90 minutes Mr Brown rummaged inside the premises before taking away two suitcases full of items.  Insofar as both of Charge 1 and the aggravated burglary, it is not unusual in Mr Brown's history that such circumstances occur at night, and involve an intrusion which appears to be somewhat random and opportunistic, whereby certainly in regard to Mr Foley's property, the window was unlocked, but fortunately because Mr Foley's observations did not develop beyond that, and insofar as the premises in Ramsden Street, the entry was obtained by breaking of a leadlight window.  He was, as I have said, arrested at approximately 5 am near the Clifton Hill railway station where he was in possession in his jacket of the methylamphetamine.

13The prosecution's submissions in regard to both indictments set out in Exhibit C call for a period of gaol and a non-parole period. In this sentence, given that the crimes on the second indictment were committed while Mr Brown was on bail, I am required to comply, if I can, with the provisions of s16(3C) of the Sentencing Act.

14As to the victim impact statements tendered, the Cresswell's, obviously and appropriately, found it very distressing to return from their holiday to find that their privacy had been breached.  During the 90 minutes that Mr Brown was in the premises he had rifled the whole premises.  The photos show almost every drawer in the home pulled out. Ms Cresswell talks of hypervigilance since those circumstances and the impact on her, and the anxiety that has been caused to her.  All of that seems to me to be totally understandable. Equally in the statement made by Mr Foley, he talks insofar as the circumstances surrounding the theft of the glasses, of feeling somewhat unsafe and violated, and Mr Hemming indicates he felt trapped in the room.  I will talk about that charge in due course.

15We then come to the particular subjective circumstances about Mr Brown.  One of the most dramatic of course is Mr Brown is before this Court whereby in the last 35 years he has been in gaol for 25 of those.  His history unfortunately goes back to when he was aged 18.  In quick summary there are some 21 burglary offences, four aggravated burglary and numerous theft charges.

16The bail matter comes about from the fact that he was put on bail, for the Henley offences, which are yet to be finalized.  I assume he is yet to face breaches of that CCO but will no doubt be dealt with in due course.

17I was invited by counsel to read the three sentences which have been imposed by him in the superior Courts, that is the two sentences in the County Court, and the one sentence imposed on him by Mr Justice Hampel in 1993.  In order to try to fully understand Mr Brown, I took that opportunity.

18The sentence of Justice Hampel was passed in May 1993.  It involved the death of an 83-year-old gentleman called Crabbe, and Mr Brown had pleaded guilty to the murder.  As a result, he was sentenced to 15 years gaol with a minimum of 11 and a half years.  Before the Court was psychiatric evidence and psychological evidence from Mr Joblin and Dr Walton.

19In that evidence, as referred to by Justice Hampel in the remarks, what was noted was the difficult social life that Mr Brown had lived, the difficult life in the family, his limited education, limited employment and what His Honour described as a nomadic existence, leading to the statement of His Honour at p35 of the sentencing remarks, indicating that all of such background has led to a build-up of resentment and anger. It being the background to the tragic reaction and circumstances which led to the death in that matter.  It was noted by His Honour that Mr Brown had limited resources to cope with stresses, or with such stresses in an appropriate perceived manner, which was Dr Walton's opinion.

20The finding at that stage by His Honour was that Mr Brown was not mentally ill or psychotic, but was assessed with a personality disorder.  His Honour assessed a lower degree of culpability for this killing on what was then common law principles.  It is noted that the sentence was passed before the Court of Criminal Appeal handed down Tsiaras [1996] 1 VR 398, and subsequent to that Verdins, by the current Court of Appeal [2007], VSCA 102.

21In passing the sentence His Honour referred to the horrific circumstances as he saw them, and the circumstances, such that they would be described now as Mr Brown being in a very florid state, similar it seems to me to his state in the assault upon Mr Evans.  However, as I have said, he was not found to be psychotic in any way at that time on the evidence before the Court.

22The next sentence that I was asked to look at was one passed by His Honour Judge Duckett in this Court in 2007.  By that time Mr Brown was aged 38.  It involved an attempted aggravated burglary and a theft of a radio from a car.  Again, as I have said, in relation to two of the offences that I am dealing with, it was a random attempt, which occurred at 5 pm at night, and Mr Brown left when the owner confronted him, he left without any issues.

23His Honour did not seem to dwell particularly long on Mr Brown's condition and simply noted in his sentencing remarks that Mr Brown had led a constant life of anti-social behaviour.  He was sentenced to 32 months' gaol. The final matter involved Judge Tinney, who is a member of this Court, who in June of 2018, when Mr Brown was 49, imposed a aggregate sentence of four years with a minimum of three years for the aggravated burglary and theft.

24This was again a random entry into a house that occurred at 12.30 pm on Cup Day.  The female in the house was unaware of Mr Brown until she found him in the house, and again he had entered the house through a broken window, or by breaking a window.  Fortunately, again, when detected he left the premises.  His Honour in his sentence concentrated on discussion in DPP v Meyers [2014] VSCA 314, as to how one classifies such aggravated burglaries.

25Mr Brown, I want to assure you that you are not here to - and nor is the Court interested in resentencing you in regard to those crimes.  All it is trying to do, as was recommended to me by your counsel, is to appreciate your background.  Insofar as that background is concerned, and in particular those prior offences, I refer to the decision of the High Court in Veen No.2 [1988] Vol 164 CLR 465, in particular at p477 where the Court said:

'The first is that the antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed, but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence.'

26They went on to talk about the illumination that such a history provides in determining questions of retribution, deterrence, and protection of society. I also refer to Berichon v The Queen [2013] VSCA 319, where they referred to prior history being relevant as an indicator of moral culpability, prospects of rehabilitation, consideration of dangerous propensities and the community's need for protection, and the increased importance for specific deterrence as being what they described as animating factors in the sentencing process.

27Insofar as I had mentioned the fact that he was placed on a CCO at Frankston Magistrates' Court, which was the sentence of 20 January 2023, while those matters are not before this Court, what is of relevance of course is that he had been released from gaol on that date.  The offending in this matter that I am dealing with first occurred in May of 2023, and then subsequently in June of 2023.

28One matter that was not tendered, but I was asked to look at, was the breach report as to the community correction order, which is dated 6 April 2023, but was not tendered.  The importance of that of course is to get some understanding of Mr Brown's condition, and it was noted in that report that on 22 March 2023 he had been arrested and sectioned under the Mental Health Authority, he was taken to hospital but released that day. Further earlier in that month when on a hospital admission, he had been noticed to be aggressive.

29A disposal order and forfeiture order was sought.  As at the plea date the presentence detention was 332 days, which I understand is now agreed at 447.  The prosecution put that it was also necessary for me to make a declaration under s6AAA.

30Coming then to the submissions, the prosecution, as I have said, detailed in Exhibit C and orally submitted that the only appropriate sentence in this circumstance is one of imprisonment and non-parole, [1]. The defence, while noting that submission, and the seriousness of these charges, in Exhibit 1 and orally, Ms Greensill asked the Court to impose a just but not crushing sentence as set out in [11] of that submission.

31I come then to the objective culpability of the crimes.  Given the animation and illumination of his priors, both of the aggravated burglaries here must be assessed as instances of high objective culpability.  The Clifton Hill crimes, Charges 1 and 2, are instances of crimes committed in the early morning, as I have already said, which are random and opportunistic, coming about from in Charge 1 the open car door, and in Charge 2, entering through the broken leadlight window.

32As I have indicated, I think during the plea, as to Charge 3, albeit the charge is  technically made out, I consider such crime to be of low order.  Although no doubt Mr Hemming was particularly scared by the circumstances, and the production of the knife being involved in the aggravated burglary charge, he was told to wait in his room.  He wisely took that as the safest course to do and indeed as a result of carrying out those instructions over the next 90 minutes saved himself from any injury risk.

33I come then to the plea of Ms Greensill, in particular set out in Exhibit 1B, the submission of 20 May.  Ms Greensill, as part of the plea, tendered the report of Mr Healey which we labelled Exhibit 2, and that's the psychologist report of Mr Healey dated 2 April 2024.

34Then the Walton psychiatric report dated 3 May 2018, which obviously was tendered at the earlier sentencing hearing that I have referred to in June of 2018, being Exhibit 3, and also a psychology report from Arbias dated 29 June 2015, together with, as I have said, the Forensicare report dated 9 September 2024. (Exhibit E)

35Ms Greensill stressed the issue as to the early plea of guilty, and then came to the personal circumstances of Mr Brown, which she submitted were marked by what the psychiatrist, Walton, said in 2018 before Justice Tinney, where he described Mr Brown as having a 'quadruple jeopardy' (see p4 of the report, Exhibit 3).  That quadruple jeopardy being chronic paranoid schizophrenia, lowish intelligence, acquired brain injury, and polysubstance abuse.

36It is clear, as earlier remarked by Justice Hampel that his schooling was basic, albeit that I note that he did begin an apprenticeship.  His work history has been sporadic, last working as a truck driver in 2012.  He is a persistent cannabis user, heavy consumer of alcohol, an intravenous heroin user and regular methylamphetamine user.

37In custody fortunately he has been on methadone.  He has unfortunately long lived the life as described by Justice Hampel of being 'a nomadic existence'.  In analysing the social background as put to me I do not find that such reaches the Bugmy or Marrah standards as put, albeit that his parents apparently were both alcoholics.

38As to the aggravated burglary and assault, which occurred at Epping, and is the basis of the first indictment, he clearly appears to have been suffering from a florid episode at that time.  Such is clearly evidenced by the evidence of not only the victim, but other people who were in the home. Those circumstances, in fact are quite similar to the state that he was in when the murder offence occurred.  Hence his subjective culpability must be substantially reduced in regard to those charges. 

39As to the second indictment, I accept the submission of the Crown that clearly he does not appear to be have been similarly affected, that is not in a florid condition. His actions of desisting in regard to his presence at Clifton Avenue when disturbed by Mr Foley, being the occasion when he stole the sunglasses, and the manner in which he acted insofar as Mr Hemming was concerned at Ramsden Street I find indicate that he was acting in a quite deliberate manner where he assured Mr Hemming of his safety, despite having a knife, where he then stayed in the house for another 90 minutes and rifled through the house, as I have said, calming Mr Hemming down when he came out from the room, and was therefore quite deliberate in going around his task.

40In regard to the second indictment, and the commission of the aggravated burglary, it was clearly done to feed his dependency and provide money for his living expenses, in a mode of living which he had indulged in for many, many years.  I Find, despite the clarification of the prosecution submissions this morning, that there is no basis in regard to the second indictment whereby principle 1 of Verdins should lead to a reduction in culpability.

41Clearly principles two and five of Verdins are appropriate.  The problem of course in sentencing of Mr Brown is the balancing process, in particular in regard to the first indictment, being the reduced culpability due to his impaired mental functioning, but then to all of the offending where one has to take into account his medical condition as diagnosed, and consider the risk of reoffending in the future, and the need for the protection of the community.

42These multifaceted considerations in cases as complex as Mr Brown's were commented on by the Court of Appeal in DPP v Herrmann [2021] VSCA 160, [16] – [89].

43On any measure, given his mental condition, and criminal history, the risk of further like offending in the community is high.  Mr Healey did not opine on this risk, but I note that Mr Walton spoke of the challenges in regard to Mr Brown when released, being able to be compliant with medication and handling his mental issues.

44Given that he has been in gaol so often, the issues of institutionalisation and humane treatment of a person before the Court must be taken into account as put to me by Ms Greensill. (See Exhibit E at [ 58].}

45As I have said, in this complex sentence it is necessary to understand
Mr Brown's mental and personal issues and I refer to what was pointed out in Brown v The Queen [2020] VSCA 2012, [70]:

46'On the one hand the Court may be persuaded that the causal significance of the impairment is such as to lessen the offender's moral culpability.  On the other hand, especially if the impairment is permanent and likely to recur, the causal connection may point to a heightened need for community protection.'

47As I have said, I accept that Verdins principle 5 applies to Mr Brown.  As to principle six, the reality is that when he is in gaol his mental condition is kept under control by the fact that he has a medication regime, and he is perhaps living a far more normal existence, if that can be spoken of as being in gaol for as long as he has, but certainly five applies.

48The real problem unfortunately in his life, as has been pointed out going back to Justice Hampel, is this question of motivation to change his life, and the question of his skills both to change his life and to live in the community. In that regard I refer particularly to this question in the Forensicare report as to the ability by way of motivation, to be able to live in the community. (See [58] and [59] of the Forensicare report).

49Finally, as detailed by the High Court in DPP v Dalgleish [2017] ALJR 91, 1063 and 1072, at [49], Mr Brown is entitled to individualised justice based upon the facts as ascertained in regard to these two indictments.

50I then come to sentencing, as I have said, in this complex matter, which requires the Court to take into account all of the matters that I have detailed.  Mr Brown, I am now going to sentence you.  It is not necessary for you to do anything else, but simply listen.

51As to the attack on Mr Evans, which is set out in indictment P12356245, and in regard to the charge of aggravated burglary, a sentence of 12 months' imprisonment. In regard to the reckless injury, a sentence of 12 months' imprisonment. 

52In regard to indictment 11359350, which are the Clifton Hill offences, if I put them that way, in regard to the theft of the glasses, Charge 1, you will be sentenced to six months' imprisonment. In regard to the aggravated burglary five years' imprisonment. Insofar as that sentence is concerned I set a non-parole period of 40 months, and I indicate, despite the requirements of s16(3C), in the particularly difficult circumstances that surround Mr Brown's life, I do not intend to cumulate any of these sentences, and I make that determination on the basis of the principle of totality. In regard to Charge 3, a sentence of one year gaol.

53In regard to Charge 4, that is the thefts from the home, a sentence of 12 months' gaol, and in regard to Charge 5, the possession charge, a sentence of one month. 

54The effect of these sentences is a total effective sentence for all of the crimes on the basis that I am not cumulating any of the sentences, of five years.

55The non-parole period in regard to Charge 2 will apply, being a non-parole period of 40 months.  Insofar as the declaration required under s18 I declare 447 days as the period which has already been served by Mr Brown, which is deemed to be part of this sentence, and that declaration will be recorded in the records of the Court.

56Insofar as 6AAA is concerned, despite Parliament's wishes, in the complicated circumstances of this case, I simply cannot give an indication of what the penalty would have been, based upon one factor

57I have signed the forfeiture order and the disposal order.  The total effect of all that is really everything will run concurrently with the aggravated burglary on the second indictment, and that will be an aggregate period of five years imprisonment, for which the minimum period to be served before being eligible for parole is 40 months.

58The reality as to that is probably different, but it not a matter I can take into account.  Any queries?

59MS GREENSILL:  No, Your Honour.

60MR OVEREND:  Your Honour, could I just raise one very minor matter?  The matter that he was on bail for I have clarified that in my written submissions at paragraph 2E, just for Your Honour's written reasons.

61HIS HONOUR:  But bail charges were dropped.

62MS OVEREND:  They are still pending as far I am aware, Your Honour, in the Magistrates' Court.

63HIS HONOUR:  They were not even mentioned in the original opening, but I had them down, I only checked yesterday, because in the original they were nine and 10 I think in the original statement of summary charge, that said these matters were not to proceed.

64MS OVEREND:  No, that is correct, Your Honour, I'm talking about his pending matters in the Magistrates' Court, and it is just to clarify because Your Honour said he was on bail at the time of the second lot of offending.

65HIS HONOUR:  He was on bail because of the bail from the Epping offences.

66MS OVEREND:  No, he was on bail for the Henley offences.  That is what I am just clarifying.  It is not a big deal.

67HIS HONOUR:  Which offences?

68MS OVEREND:  Henley, so he has got a number of pending matters in the Magistrates' Court at the moment.

69HIS HONOUR:  I thought he was on bail after he had been arrested.

70MS OVEREND:  No, that is why I am clarifying it.  It is not a big deal,
Your Honour, but just for Your Honour's note.

71HIS HONOUR:  I only mentioned it because it gave the opportunity to look and take into account the behaviours that have been demonstrated as
Ms Greensill had spoken about in the contravention report where he had been obviously florid on at least two other occasions.

72MS OVEREND:  Yes, it does not take the matter very far, Your Honour, I just wanted to clarify that.

73HIS HONOUR:  I appreciate that.  Any matters, Ms Greensill?

74MS GREENSILL:  No, Your Honour.

75HIS HONOUR:  Do you want the opportunity to explain to Mr Brown or will you go and see him or do you want to do that now?

76MS GREENSILL:   I'll have another conversation with him, but I am happy to talk to him now.  No, not now.

77HIS HONOUR:  Mr Brown, all the best.  We will stand down.

‑ ‑ ‑