Director of Public Prosecutions v Brown
[2024] VCC 622
•10 May 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-23-01950
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BRENTON MICHAEL BROWN |
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JUDGE: | HARPER | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 30 April 2024 | |
DATE OF SENTENCE: | 10 May 2024 | |
CASE MAY BE CITED AS: | DPP v Brown | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 622 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Dangerous driving causing death, fail to stop, fail to render assistance and related summary offences
Legislation Cited: Sentencing Act 1991 (Vic)
Cases Cited:Bugmy v The Queen [2013] HCA 37 (2 October 2013), DPP v Neethling [2009] VSCA 116, R v Whyte [2002] NSWCCA343; 55 NSWLR 252, DPP v Oates [2007] VSCA 59; 47 MVR 483, Neskovski v the Queen [2022] VSCA 86; Gray v The Queen [2021] VSCA 322, DPP v O’Connor [2017] VCC 1495, DPP v Gilbert [2024] VCC 347
Sentence: TES: 5 years 7 months with a non-parole period of 3 years 6 months
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr. B. Nibbs | Ms. A. Hogan, Solicitor for Public Prosecutions |
| For the Accused | Mr. J. Miller | Stephen Peterson Lawyers |
HER HONOUR:
1Brenton Brown, you have pleaded guilty to one charge of dangerous driving causing the death of Carol-Anne Jones, together with one charge each of failing to stop and failing to render assistance to Ms. Jones. You also pleaded guilty to three related summary offences, being commit an indictable offence while on bail, drive whilst disqualified and drive an unregistered motor vehicle. You have agreed to have those summary matters dealt with in this court.
2The maximum penalty for dangerous driving causing death is 10 years imprisonment. This is a Category 2 offence, the meaning of which I shall return to later. The maximum penalty for failing to stop and failing to render assistance is 10 years imprisonment in each case.
3The maximum penalty for committing an indictable offence while on bail is 3 months imprisonment, for driving whilst disqualified it is 2 years imprisonment and for driving an unregistered vehicle (subsequent offence) the maximum penalty is 50 penalty units.
4The impact of your offending is far reaching and will necessarily result in a term of imprisonment.
Circumstances of offending
5The circumstances of your offending were outlined in the Prosecution Summary for Plea dated 30 January 2024. I will summarise those facts here.
6Ms. Carol-Anne Jones was 59 years of age and lived in Moe. At about 4.30pm on 2 May, 2023 she was driving her blue Hyundai Accent hatch along Purvis Road in Tanjil South.
7At that time, you were driving a Nissan Patrol in the opposite direction. Purvis Rd is a two-lane road with a 100km/h speed limit.
8Ms. Jones was travelling at no more than 54km/h. You were travelling at no more than 94km/h.
9You entered a slight left curve and crossed over a solid double line onto the incorrect side of the road. You collided with the front right side of the Hyundai which rotated in a clockwise motion and stopped at the intersection of Lakeview Place.
10The Nissan Patrol in which you were travelling continued 50m east along Purvis Road, onto a grass verge and into a wire fence.
11You got out of the vehicle and ran west, past the Hyundai and through a property owned by Douglas Prestige.
12There was a suggestion by you to psychologist Ms. Carla Lechner that you disconnected the battery of Ms. Jones car before you left the scene. This has not been confirmed.
13Mr. Prestige asked you what you were doing but you told him to shut up and continued running.
14You called the owner of the Nissan Patrol, Mr. Ingram, who immediately called 000 to report his car as stolen.
15You ran to the home of your associate Timothy Gatt. You asked him to call 000 but he could not find his phone. You instead asked him to drive you back to the scene which he did. You searched the Nissan Patrol for your identification cards before getting back into Mr. Gatt’s car and asking him to drop you at the Newborough shops.
16At no stage immediately after the collision or on your return to the scene did you try to assist Ms. Jones, despite her being obviously trapped in her vehicle. Fortunately, passers-by came to her aid.
17Ms. Jones was treated at the scene and taken to the Latrobe Valley Hospital before being transported by helicopter to the Alfred Hospital. She died on 18 May, 2023 due to complications of multiple injuries sustained in the collision caused by your conduct.
18The registration of the Nissan Patrol you were driving had been cancelled on 20 January, 2022. The vehicle was unregistered at the time of the collision.
19Your licence had been disqualified for a period of 12 months on 29 September, 2022 and at the time of the collision you were unlicensed.
20You were also on bail as you had, on 10 March 2023, been bailed to appear at the Latrobe Valley Magistrates Court on 1 June, 2023.
Victim Impact
21Carol-Anne Jones was a much-loved sister, daughter and friend. Five victim impact statements were read to the court, eloquently detailing the profound impact of your offending on her loved ones.
22Amanda Lawrie-Jones read her statement and that of her parents to the court. She detailed the ‘what-ifs’ that play on her mind, including “what if he stayed at the scene and called for help, would she have lived?” Ms. Lawrie-Jones was extremely close to her sister Carol-Anne. They shared a love of arts, fashion and fine dining and were planning a trip to Paris to celebrate Ms. Jones’ 60th birthday in 2024. Ms. Lawrie-Jones misses the email contact and the phone calls. She suffers from an autoimmune condition and states “I have lost 2 legs from part of my own body, losing Carol-Anne is a million times harder and something I will never, ever get over.”
23Jennifer Hams, another sister of Ms. Jones, wrote that “my enjoyment in life is diminished as I no longer have her to talk to and share my feelings of frustration and anger along with the sharing of the happy and fun times that we used to have a drink and chat about.” The responsibility of caring for her elderly parents now falls to Ms. Hams and her sister, where Ms. Jones used to assist them. Ms. Hams feels that “this world will never be a safe place again never knowing if someone will take another loved one from me.”
24Isobel and John Jones provided a victim impact statement describing the loss of their daughter. Mr. Jones recently passed away. Ms. Jones was a great support, both physically and emotionally, to both her parents. Mrs. Jones “continues to wear Carol-Anne’s perfumes, as this is a loving reminder that we cannot ever forget her and that we need to make sure the memory of her is always with us.” Mr. Jones lost interest in his beloved garden after the death of his daughter. Both Mr. and Mrs. Jones struggle with significant days such as birthdays and Christmas as they are “sad and lost in not having her at the table to enjoy this with the rest of the family.”
25Ms. Jones’ childhood friend Maria Durkin told of their lifelong friendship. She and Ms. Jones were both to celebrate their 60th birthdays in 2024 but they were unable to share the milestone. She is now regularly reminded of her loss and the things they can no longer share.
26I received a statement and photographs from Jamie De Agnoi on behalf of a group of Ms. Jones friends. The group met at work and detailed their memories of trips together. Ms. De Agnoi states that Ms. Jones was their “rock, her sense of humour and eagerness to travel and share experiences with us has been unfairly taken away from us, leaving many emotions from deep sadness to anger.” Their “group will never be the same and has forever changed.”
27Nothing this court can say or do can in any way adequately address the loss felt by Ms. Jones’ family and friends. They have been forever impacted and will continue to miss her terribly as a result of your offending.
28I must however, take care not to let the significant impact of your offending overwhelm the sentencing exercise.
Gravity of the offending
29The gravity of your offending is clear, your driving has caused the death of Carol-Anne Jones.
30You were in breach of bail, unlicenced and driving an unregistered motor vehicle, all of which are aggravating features of your offending.
31I consider your offending in charge 1 to fall at or just below the mid-range of seriousness, as was conceded by your counsel. Your vehicle was in the oncoming lane of traffic but there is no evidence of how long or for what distance you had been there. You have provided no explanation for your conduct.
32Charges 2 and 3 fall higher on the scale, particularly given you left the scene, returned briefly for your own purposes, and left again without rendering assistance when Ms. Jones was so clearly in need of help. You say you panicked. This may have been the case, but it is reprehensible conduct.
Moral culpability
33The aggravating features I have just outlined point to high moral culpability, particularly when combined with your prior driving history.
34I consider the principles cited in the case of Bugmy v The Queen [2013] HCA 37 (2 October 2013), to have specific application in this case. You have a background of disadvantage, limited education, exposure to drug use, mental illness and family violence, sexual assault, and early substance abuse. I will moderate the sentence accordingly as these factors render your moral culpability less than that of an offender whose formative years have not been so marred.
Plea of guilty and remorse
35You indicated an early plea of guilty to these offences and the matter proceeded without the need for a contested committal. This has significant utilitarian benefit. You have saved the court and the community the time and expense of running a trial and spared the witnesses the ordeal of giving evidence.
36In those circumstances, you have facilitated the administration of justice and you are entitled to a benefit for that.
37By your plea of guilty, you have demonstrated an acceptance of responsibility for your offending. I accept there is evidence of remorse. I understand you have written a letter of apology to Ms. Jones’ family and you have expressed appropriate insight and remorse to Ms. Lechner as detailed in her report to the court.
Personal circumstances
38I turn now to your personal circumstances.
39You are a 31 year old indigenous man, born in December 1992. You met your father only once in your teenage years, your parents having separated around the time of your birth.
40You were raised by your mother in the Latrobe Valley and have an older sister. Your mother had a number of partners, one of whom physically abused you.
41You completed part of year 7 but were bullied and ultimately left school. Your family life was in disarray, and you moved to NSW to live with your grandmother for some 18 months when you were aged 14.
42When your grandmother died you returned to Victoria but were homeless and began stealing cars and committing burglaries.
43You were twice the victim of sexual abuse as a child, once when you were very young and again when you were aged 16.
44You worked on and off in concreting and landscaping and held a job at a window company for some 8 months during a period on parole. Periods of imprisonment have been the biggest impediment to your maintaining employment.
45You have 2 children, a daughter aged 10 with your former partner, and a 3-year-old daughter with your current partner, Candy. Candy was in court to support you, as was your mother.
46You developed a significant alcohol problem when you were 11 or 12 years old but no longer drink to excess. You had a cannabis habit which developed into an ice addiction and you also used GHB, cocaine, ecstasy and LSD.
47You are now taking an anti-depressant and have regular buprenorphine injections.
48The report from Ms. Lechner opines that you have symptoms of complex PTSD, Major Depressive Disorder and Stimulant Use Disorder in early remission. She notes that upon your last release from custody you “quickly relapsed into drug use in the context of relationship difficulties. [You were] soon in the same cycle of engaging in delf-defeating behaviours characterised by heavy drug use and ill-considered decisions, such as driving without a valid licence.”
49In custody you spend your time working in industries doing powder coating. You attend art and music programs and are a participant in the Torch program.
Sentencing principles and considerations
50Mr. Brown, your offending had catastrophic consequences. You have an extensive criminal history including a large number of serious driving offences. Your driving was an accident waiting to happen. What could not be foreseen however, was your cowardly conduct in leaving the scene, returning to get your ID and leaving again, knowing, as you told Mr. Gatt, that Ms. Jones was “hurt pretty bad.” It is unfathomable that you would leave a seriously injured person trapped in a vehicle, not once but twice.
51Your extensive criminal history dates back to 2011 and includes an appalling number of driving offences, including repeated instances of dangerous driving while pursued by police, reckless conduct endangering serious injury, careless driving and driving while disqualified, together with property, drug, violence and firearm offences. You have served a number of custodial sentences, seemingly with no deterrent effect.
52I consider specific deterrence to be a significant sentencing consideration here. You have repeatedly broken the law in relation to driving matters and your behaviour has escalated over time from using an unsafe and unroadworthy vehicle to the charges you are to be sentenced for today. You must be deterred from driving in such a dangerous manner again.
53Community protection also looms large. With a driving history as poor as yours, other road users have been repeatedly placed at risk, a risk that has now been realised in the most tragic way. Members of the community must be protected from you and your irresponsible driving behaviour.
54Mr. Miller submitted that your prospects of rehabilitation “are not extinguished.” I consider your prospects to be poor but there remains some hope for you if you are able to abstain from drug use upon your release from custody.
55Dangerous driving causing death is a Category 2 offence, resulting in the mandatory imposition of a period of imprisonment unless an exception is established pursuant to s.5(2H) of the Sentencing Act 1991. A sentence of imprisonment is, in most cases, inevitable and your counsel did not advance any submission that an exception applied to you. He conceded a substantial term of imprisonment is warranted.
56Mr. Miller made reference to DPP v Neethling [2009] VSCA 116, R v Whyte [2002] NSWCCA343; 55 NSWLR 252, and DPP v Oates [2007] VSCA 59; 47 MVR 483 in his written submissions. I accept that many of the aggravating features referred to therein are not present here, however the offending remains serious.
57Neither party referred me to comparable cases or materials relating to current sentencing practices. There are a number of cases with similar factual scenarios, although I accept of course that each case turns on its own facts. I have considered cases including Gray v The Queen [2021] VSCA 322, DPP v O’Connor [2017] VCC 1495 and DPP v Gilbert [2024] VCC 347, noting the differences to the instant matter.
58I note also the matter of Neskovski v the Queen [2022] VSCA 86 which involved an offender returning to the scene of a collision from which he had fled, before leaving for a second time. This was a similarly serious example of the offences of failing to stop and failing to render assistance but in that case they were the only charges before the court.
59General deterrence must be given substantial weight in the sentencing exercise. Those minded to disregard the road rules must be deterred from doing so by the sentence I impose upon you.
60Just punishment and denunciation are also relevant sentencing considerations.
61You have been remanded since your arrest on these matters but have since served 2 sentences of imprisonment. You have served a total of 362 days but only 85 of those days are referable to this offending. I take the time you have spent in custody into account by way of totality.
Disposition
62On charge 1, dangerous driving causing death, you are sentenced to 4 years imprisonment.
63On charge 2, failing to stop after a motor vehicle accident, you are sentenced to 3 years imprisonment.
64On charge 3, failing to render assistance after a motor vehicle accident, you are sentenced to 3 years 6 months imprisonment.
65On related summary charge 4, commit indictable offence while on bail, you are sentenced to 1 month imprisonment.
66On related summary charge 5, drive whilst disqualified, you are sentenced to 6 months imprisonment.
67On related summary charge 6, drive unregistered motor vehicle you are sentenced to pay a fine, with conviction, in the sum of $400.
68Charge 1 will be the base sentence.
69I direct that 4 months of the sentence imposed on charge 2, 13 months of the sentence imposed on charge 3 and 2 months of the sentence imposed on summary charge 5 be served cumulatively on charge 1 and on each other.
70For the avoidance of doubt, the sentence on summary charge 4 is to be served concurrently with the other sentences imposed today.
71That makes a total effective sentence of 5 years and 7 months imprisonment.
72I direct that you serve a minimum non-parole period of 3 years and 6 months imprisonment before being eligible for release on parole.
73I declare that you have served 85 days by way of pre-sentence detention pursuant to s.18 of the Sentencing Act 1991, excluding today.
74Pursuant to s.6AAA of the Sentencing Act 1991 I declare that had you not pleaded guilty, the total effective sentence I would have imposed would have been 7 years and 6 months imprisonment with a non-parole period of 5 years.
75I direct that your licence be cancelled and disqualified for a period of 4 years from today.
76I grant the disposal application filed by the prosecution.
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