Director of Public Prosecutions v Brown
[2023] VCC 278
•9 March 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-22-000424
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ADAM BROWN |
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JUDGE: | HIS HONOUR JUDGE WRAIGHT | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 8 March 2023 | |
DATE OF SENTENCE: | 9 March 2023 | |
CASE MAY BE CITED AS: | DPP V Brown | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 278 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentence.
Catchwords: Early plea of guilty – Causing serious injury recklessly – Theft – Serious example of offence – High moral culpability – Involved mental health profile – Post-Traumatic Stress Disorder – Borderline Personality Disorder – Substance abuse history – Relatively serious example of the offending – Evidence of remorse – Bugmy – Verdins – Delay – General and specific deterrence – Reasonable prospects of rehabilitation – COVID-19 pandemic.
Legislation Cited: Crimes Act 1958; Summary Offences Act 1966; Sentencing Act 1991.
Cases Cited:Worboyes v The Queen [2021] VSCA 169; Bugmy v The Queen (2013) 249 CLR 571; The Queen v Verdins (2007) 16 VR 269;
Sentence: Imprisonment for a period of 4 years and 9 months with a non-parole period of 2 years and 9 months.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms F. Holmes | Office of Public Prosecutions |
| For the Accused | Ms E. Fargher | SLKQ Lawyers |
HIS HONOUR:
1Adam Brown, you have pleaded guilty to one charge of causing serious injury recklessly contrary to s 17 of the Crimes Act 1958, which carries a maximum penalty of 15 years imprisonment (Charge 1).
2You have also pleaded guilty to one charge of the related summary offence of trespass contrary to s 9 of the Summary Offences Act 1966 which carries a maximum penalty of 1800 penalty units or 6 months imprisonment (Summary Charge 1).
3You have also admitted your prior criminal history.
Circumstances of offending
4A prosecution opening was tendered on the plea and may be summarised as follows:
5You were 47 years of age at the time of the offending and resided at a property in Boronia.
6The victim, Mr Raymond Smith, was 85 years old at the time of your offending and had resided in a unit next door to your home in Boronia for the previous 12 years. There are four units on the block. Units 1 and 2 are within a typical residential house structure and separated by an internal wall. Units 3 and 4 are standalone bungalow style buildings. Mr Smith resided in Unit 1. There is also a garage located on the unit block that is rented solely by the victim. The victim rents a small space within the garage to the occupant of Unit 3, Mr Jeffrey Stelzer.
7You had previously resided at Unit 4 in this block, for approximately 12 to 18 months, but relocated some six to seven weeks prior to the offending, moving next door. John Bellman, who was 70 years of age at the time of your offending, was the sole occupant of that property and was letting you stay there rent free.
8Two weeks before the offending, you stored some of your property inside the victim’s garage without his consent. Mr Smith removed your belongings soon after but you were unaware of this until the day of your offending.
9On 24 December 2021, you consumed a bottle of whisky throughout the day.
10At approximately 5:30 PM, you went next door to the block of units. Mr Stelzer heard you yell his name and met you outside. He had a brief conversation with you and said to you “[b]y the way, your stuff is outside”, referring to the property you had stored in the victim’s garage. You walked towards the victim’s house and began yelling his name and banging on the door. The front door to the victim’s house was open, the wire screen door was closed but unlocked.
11You entered the victim’s house and yelled at the victim for three to five minutes before violently attacking him. The victim collapsed to the ground and you walked away leaving him in a semi-conscious state lying in a pool of his own blood. The victim recalls putting his hands up against his face to protect himself. He cannot recall specific details about the assault and was unaware why he was assaulted in his own home.
12Upon hearing the altercation, Mr Stelzer approached the property as he was concerned for the victim’s welfare. He observed you leaving and when asked what happened, you said that you hit the victim in self-defence. Mr Stelzer entered the premises and saw the victim lying on the floor between the couch and the cabinet, with his face covered in blood. He called Triple 000.
13At 5:46 PM, you also called emergency services using the name ‘Adam Adams’, downplaying your involvement and the extent of the injuries you caused, also stating that the victim’s injuries were self-inflicted.
14An ambulance attended and transported the victim to Maroondah Hospital’s Emergency Department. Due to his injuries and age, the victim was then transported to the Alfred Hospital for further treatment. He was discharged on 7 January 2022.
15As a result of being assaulted by you, the victim sustained serious injuries including:
(a) Bone fractures:
(i)complicated multi-fragmented (comminuted) nasal bone fractures including fracture of the septum;
(ii)minimally displaced complex (comminuted) fracture involving the right eye socket;
(iii)left rib fractures (ribs 7, 10, and 11); and
(iv)spinal fracture L, C1, TP, and C4/5.
(b) Soft tissue injuries including abdominal organ injury:
(i)free fluid around the splenic tip, later determined to be a ruptured kidney cyst;
(ii)small laceration on the nose; and
(iii)multiple degloving type skin wounds to the forearms.
16Maxillofacial surgical and neurosurgical teams as well as ophthalmologists were involved in his care.
17Medical records are attached to the brief. Dr Schreiber from the Victorian Institute of Forensic Medicine also provided an opinion as to the level of injury.
18The victim suffers ongoing symptoms as described by Dr Ta, notably:
(a) numbness to the right side of face;
(b) dribbling;
(c) auditory problems;
(d) running nose;
(e) weakness in the hands;
(f) aching ribs and left knee; and
(g) loss of sense of equilibrium.
19You presented yourself to police at the scene and at approximately 6:00 PM, you were arrested and transported to Knox Police Station. You were deemed unfit for interview by the Police Forensic Medical Officer. Non-intimate forensic samples were taken from your feet and hands and you were remanded in custody.
Nature and gravity of the offending
20The inherent gravity of the offence of recklessly causing serious injury is reflected in its maximum penalty of 15 years’ imprisonment. While the offence is a broad one that can be committed in a wide variety of circumstances in my view, in this instance, your conduct represents a relatively serious example.
21On your own admission you had consumed a bottle of whiskey and were heavily intoxicated. You entered the victims home as a trespasser, which is the subject of the related summary charge. You then embarked on an unprovoked attack on the victim, a vulnerable 85 year old man, inflicting serious injury as described above, leaving him on the floor in a semiconscious state. His injuries required specialist treatment and he remained in hospital for two weeks. While you were intoxicated, you nonetheless had the presence of mind to deflect blame to the victim by stating to Mr Stelzer that you had hit the victim in self-defence and further, that the injuries suffered by the victim were self-inflicted.
22Your conduct can only be described as atrocious, frightening and violent behaviour, seemingly triggered by the fact that your belongings were moved out of the victim’s garage.
23In my view your moral culpability is high.
Victim impact
24In his victim impact statement, Mr Smith sates that at the time of the assault he thought he was going to die as he lay on the floor following the assault.
25Mr Smith states that he has been left in constant pain as a result of the injuries you inflicted on him. He has a number of ongoing health issues; he is embarrassed that his nose constantly runs and he uses a mobile chair because walking is now too exhausting. His left hand is damaged and he finds it hard to grip objects. He struggles doing up the buttons on his shirt as he has lost dexterity in his hand. Since the crime, he no longer socialises, he has lost his taste and his love of cooking and struggles to sleep. He feels that he is only alive because he protected his head with his hands as you assaulted him.
26I take the contents of the victim impact statement into account.
Personal circumstances
27You are now 49 years old.
28A psychological report authored by forensic psychologist Dr Laura Flemming, dated 23 July 2022, was tendered on the plea. This report provides a comprehensive overview of your personal and psychological history which I have taken into account.
29You have a younger brother and a maternal half-sister. You have paternal half-siblings who you are not in contact with. You lived in Perth until you were five years old until your parents separated. You resided with your mother and had little contact with your father thereafter, but reconnected with him when you were 16 years of age.
30Your mother, brother and you returned to Melbourne and your mother remarried. From the age of six, your stepfather sexually abused you, exposed you to violent pornography videos, perpetrated family violence against your family and you and provided you with illicit substances. You report he threatened you with a shotgun and forced you to take amphetamines twice weekly. When you disclosed this behaviour to your mother, she did not help. Your mother then re-partnered to a man who was physically and mentally abusive to you and your family and used illicit substances daily. You felt angry that your mother did not protect you from this abuse.
31You attended five primary schools and two secondary schools due to the family relocating and your behaviour. You struggled academically because you could not concentrate, and were held back one year as a result. You were also suspended because of your behaviour. You rejected support that was offered as you did not want others to discover what was happening at home. You left school altogether in Year 10.
32You have had a consistent employment history, including in retail and telemarketing. You obtained a full-time role at BP but left this position in 2009 when you had a seizure which caused a spinal injury. This injury requires surgery, which you are yet to have. You supported yourself financially with the Disability Support Pension. You report this injury as the commencement of a downward spiral.
33Shortly after your injury, you lived with family but left due to family violence. While homeless you stayed with friends and lived in short-term accommodation but were evicted for having syringes. You eventually obtained stable accommodation in a small unit, which your mother also moved into when she left her partner. You did not cope with this arrangement and turned to substance use. You lost your accommodation and your mother applied for a Family Violence Intervention Order (‘FVIO’) against you.
34You have had several relationships, with your first relationship ending due to your abuse of alcohol. Subsequent relationships ended due to your own mental health concerns.
35You have had an involved medical and substance use history. You used amphetamines as a child and began smoking cannabis and drinking alcohol in your adolescence. You have suffered from epileptic seizures throughout your life, with one episode resulting in a spinal injury as noted above. You used opioids to treat the chronic pain which you eventually became addicted to. You report that your seizures have increased whilst in custody.
36As a result of your injury and the subsequent chronic pain, you have developed depression. You have had a number of voluntary and involuntary admissions into mental health facilities after experiencing heightened delusions. You were diagnosed with a number of conditions including drug induced psychosis, delusional disorder and schizophrenia. You have been prescribed a number of antianxiety, antipsychotic and oxycodone-type medications throughout your life, to treat these conditions. You entered a detoxification unit in Box Hill about eight years ago as a result of your excessive opioid use. You have sought help from therapists in the past but stopped because you do not like talking about your trauma. You have a history of suicide attempts and have made threats to do so when medication was not provided.
37Ms Fleming opines that your extensive traumatic history created a pattern of instability, isolation, maladjustment and emotional disturbance. In her opinion, your symptoms are consistent with Post-Traumatic Stress Disorder (’PTSD’) and Borderline Personality Disorder (‘BPD’), which causes impulsive and reckless behaviour, emotional dysregulation, and impaired insight, decision-making and judgement. Your complex psychiatric profile is further complicated by your history of polysubstance and alcohol abuse, and your spinal injury. In her opinion, imprisonment without intensive treatment and support would exacerbate your psychiatric conditions and make you highly vulnerable.
38You have a prior criminal history which is not extensive but does contain some relevant matters including, most recently in 2019, an unlawful assault which you detailed to Ms Fleming. It had similarities to this matter in that involved an assault on a neighbour while you were intoxicated.
39Your mother, who wrote a reference on your behalf, said that you are a good and decent person. She said that your spinal injury changed you from a highly paid and sought after employee working in finance, to being disabled and dependant on pain medication. She said that after your diagnosis of BPD you just ‘gave up’. John Bellman who also wrote a reference on your behalf, said that your offending took him by surprise because you were not a violent person. He said he would provide you with accommodation upon your release from prison.
40You provided a letter to the Court offering an apology to the victim, accepting that your behaviour is completely unacceptable.
Sentencing Considerations
41I take into account your plea of guilty. Your plea is not an early plea however it has avoided the time and expense of a trial and most importantly, your plea has avoided the need for the victim to be required to give evidence and relive the event. Your plea therefore demonstrates a willingness by you to facilitate the course of justice.
42Your plea of guilty carries additional weight which must be reflected in a further amelioration in sentence, as the plea has been entered in circumstances where the pandemic has resulted a substantial backlog of cases in the criminal justice system.[1]
[1] Worboyes v The Queen [2021] VSCA 169, at [39].
43Ms Fargher, who appeared on your behalf submitted that over and above the plea of guilty, you have expressed genuine remorse. Ms Homes, who appeared on behalf of the Director of Public Prosecutions, submitted that your remorse should be approached with significant caution. This is based on the fact that at the time of the assault you say you acted in self-defence and that the victim inflicted his own injuries. As to the self-defence argument, you maintained this position when speaking to Ms Fleming some months after the assault and I was told at the plea hearing that you maintain the self-defence argument to some extent. The other evidence relied on is the letter you wrote to the court, written in November 2022. While letters such as yours, prepared on the eve of a plea hearing are naturally approached with caution, it would appear that you now have a greater appreciation of the seriousness of your conduct and ongoing impact your conduct has had on the victim. In the circumstances I accept that you have shown a degree of remorse.
44It was submitted that as a result of your childhood traumatic experiences, the principles enunciated in Bugmy v The Queen[2] should be given weight in the sentencing discretion. The prosecution accept that Bugmy principles operate to moderate your culpability to a limited extent. As noted by Ms Fleming, you suffer from PTSD which has evolved from your childhood experiences, ultimately impacting generally on your judgement. In the circumstances I accept that Bugmy principles do have application, but to a limited extent.
[2] (2013) 249 CLR 571.
45It was also submitted on your behalf that Verdins[3] principles 3, 5 and 6 have application. The prosecution accept that based on the evidence of Ms Fleming, principles 5 and 6 of Verdins do have application in this case, which I also accept. As to principle 3, it was submitted that given your psychological profile, you are not an appropriate vehicle for general deterrence. However it is difficult on the evidence to establish the required nexus between your diagnosed PTSD and personality disorder, and the offending. That said, Ms Fleming notes that your insight and judgement appear ‘chronically impaired’. The other complicating issue is that you were very intoxicated at the time and in that state, you violently reacted to a minor issue concerning your property. In my view, while the requisite connection between your impairments and the offending is somewhat tenuous, in the circumstances I accept that Verdins principle 3 is able to be given limited weight.
[3] (2007) 16 VR 269.
46I take into account your physical health and in particular your chronic back injury which causes you ongoing pain, for which you are medicated. I accept that your chronic injury will make imprisonment a greater burden for you.
47This matter has been the subject of added delay. When the matter resolved in September 2022, an application was made for the charges to be remitted to the Magistrates Court, which was granted by a Judicial Registrar of this Court. Ultimately, the Director of Public Prosecutions sought review of that decision in the Supreme Court and the matter was returned to this court via consent orders. This process added considerable delay which is not attributable to you. I accept that this delay caused additional stress for you as you waited on remand for your matter to be concluded.
48Deterrence, both general and specific, denunciation of your conduct and protection of the community are relevant sentencing considerations in this instance. You attacked an elderly man in his own home in a violent and unprovoked manner while intoxicated, causing serious injury. Your conduct must be denounced in the strongest of terms and a message must be conveyed that such conduct will be met with stern consequences.
49As to your prospects of rehabilitation, as is made clear from Ms Fleming’s report, you require specialised, intensive treatment, including support and supervision when you are released from prison. If you accept the services that are offered to you in prison and when you transition back into the community, in my view your prospects can be assessed as reasonable.
50Finally, I take into account that the time you have served on remand has been subject to restrictions and periods of isolation as a result of the pandemic, and while prisons are beginning to return to normal operations, the restrictions are ongoing.
Sentence
51Mr Brown, will you please stand.
52Adam Brown, on Charge 1, recklessly causing serious injury, you are convicted and sentenced to 4 years and 9 months imprisonment. In relation to related Summary Charge 1, trespass, you are convicted and sentenced to 1 month imprisonment to be served concurrently.
53I direct that you serve 2 years and 9 months before becoming eligible for parole.
54Pursuant to s 18 of the Sentencing Act 1991 (‘Sentencing Act’), I declare that 440 days be reckoned as the period of imprisonment already served under the sentence I have imposed. That does not include today.
55Pursuant to s 6AAA of the Sentencing Act, if not for your plea of guilty, I would have sentenced you to a period of 6 years and 6 months imprisonment with a non-parole period of 4 years.
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