Director of Public Prosecutions v Brown

[2022] VCC 1512

IN THE COUNTY COURT OF VICTORIA

AT bendigo

CRIMINAL DIVISION

 Revised
(Not) Restricted
 Suitable for Publication

Case No. CR-21-01178

DIRECTOR OF PUBLIC PROSECUTIONS

v

DANIEL BROWN

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JUDGE:	HER HONOUR JUDGE BLAIR
WHERE HELD:	Melbourne
DATE OF HEARING:	08 September 2022
DATE OF SENTENCE:	13 September 2022
CASE MAY BE CITED AS:	DPP v Brown
MEDIUM NEUTRAL CITATION:	[2022] VCC 1512

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords:              Sentence; Intentionally Cause Injury; Contravention of Crimes Family Violence Order Intending to Cause Harm or Fear for Safety; Prohibited Person Possess a Firearm; Serious Example of Offending; Excellent Prospects of Rehabilitation

Legislation Cited:      Sentencing Act 1991 (Vic)

Cases Cited:Akoka v The Queen [2017] VSCA 217; Boulton v The Queen [2014] VSCA 342; (2014) 46 VR 308; Worboyes v The Queen [2021] VSCA 169

Sentence:                  174 Days Imprisonment and a Community Corrections Order for a Period of 18 months

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Miss S MacDougall	The Office of Public Prosecutions
For the Accused	Mr T Battersby	Cahills Barristers and Solicitors

HER HONOUR:

1Daniel Brown, you have pleaded guilty on indictment to one charge of intentionally cause injury, one charge of contravention of Crimes Family Violence Order intending to cause harm or fear for safety and one charge of prohibited person possess a firearm.

Circumstances of the offending

2The factual basis of your offending is contained in a summary of prosecution opening for plea. This document was tendered on the plea and marked as Exhibit A. I do not propose to recite that document in full rather what follows is a summary of the circumstances of your offending.

3The victim in this matter is Jonathon Duncan. Mr Duncan was and still is in a relationship with your sister Rebecca Brown and they have two children, 2 year old Averie and 1 year old Jaxon. The victim had treated your sister badly in the past and an Intervention Order had been made in her favour.

4In the early hours of 7 January 2021, you were at the residence of Kayla Parker. At that time, you were 'going off' as your sister, Rebecca Brown, had called you several times complaining about her poor treatment by the victim. You told Ms Parker that you were going to get a gun and you left the address in your Ute.

5You drove to the address of the victim. You were upset and angry because of the reports you had heard about the way he had been treating your sister. In attending this address, you were in breach of a Family Violence Intervention Order made against you. Your arrival at the property was witnessed by Stacey McMurtrie and your sister Rebecca. The victim was inside the house with the two children, both of whom were asleep.

6You briefly spoke with your sister, she appeared surprised at your arrival at the address. You entered the house via the side entrance.  At this time you were armed with an old school World War I or II gun that was wrapped in a sheet. The victim was seated in the lounge room area on a camping chair. You approached him and he asked, 'what the fuck are you doing here? Whilst you were standing about 2 metres from the victim, you unwrapped the firearm and said 'check this out' and 'I wonder if this still works'. You loaded a bullet into the firearm and pointed it directly at the victim. You looked down the barrel, which rested only centimetres from his face. You then struck the victim in the head with the butt of the firearm, causing a 5 cm deep laceration near his left eyebrow that immediately began to bleed.

7Your sister Rebecca was screaming in protest, trying to push you away from the victim. You left the house and were observed by the victim driving away. Once you had departed, the victim contacted various friends and relatives seeking assistance. Ms McMurtrie, who was present at the property, called her husband Nicholas Quinn, informing him that the victim had been struck by a gun and was bleeding. Mr Quinn then travelled to the victim's residence to check on his welfare. Ms McMurtrie then called Triple 0 notifying the police of the incident.

8After police attended upon the victim's address, he was transported to the Bendigo Hospital by ambulance. Once there he became nauseous and began vomiting. He required both a CT-scan of his head, and sutures to close his lacerations.

9On 7 January 2021 at approximately 12.23 pm you were arrested at your work on a construction site at the White Hills Primary School. You were transported to Bendigo police station and participated in a record of interview, during which you denied the offending.

Nature and gravity of the offending

10In determining the gravity of your offending, I have had regard to the maximum penalties for each of the offences, that is 10 years imprisonment for intentionally cause injury and prohibited person possess a firearm and 5 years' imprisonment for the contravention of intervention order. The maximum penalty of an offence is the yardstick set by Parliament and the starting point when considering objective seriousness.

11Intentionally cause injury, contravention of an intervention order and prohibited person possess firearm are all serious offences. It is the interplay of these offences in your case that makes your offending a serious example of offending of this kind. It was acknowledged by your counsel, in his written submissions and orally on the plea, that a term of imprisonment will be required to satisfy the punitive aims of sentencing.

12The incident occurred at the victim's residential address, a place where he was entitled to feel safe. This was also a place from which you had been excluded by court order. Not only did you attend the premises in contravention of an intervention order, but you armed yourself with a firearm, you brandished this to your victim, loaded a bullet and used the butt of the firearm to assault him. Your counsel submitted that your motivation for offending was altruistic, that is, to protect your sister. He argued that this put your offending in context and whilst I agree with this submission, Mr Brown, your offending is also an example of taking the law into your own hands. It was for the police to take the appropriate action with regards to your sister's situation, not you.

13As I indicated during your plea your actions in attending the victim's property and pointing a loaded gun within centimetres from the victim's face, whilst angry, under the influence of ice and whilst out of control were incredibly dangerous and could have resulted in tragedy. There is no doubt that this would have been a very frightening experience for your victim. Of course, I must sentence you only for what occurred and not what could have happened.

Victim Impact

14A Victim Impact Statement was received from Mr Duncan[1] and read to the court by the prosecutor Miss MacDougall. It was short and to the point. Simply put, your offending has had a significant impact upon your victim. It has undermined his sense of safety; he had trouble sleeping and was jumpy and hypervigilant especially at night. At the time of writing his Victim Impact Statement on 22 March 2022, he was still having trouble with headaches that impacted his ability to concentrate on his work and other responsibilities.

[1]Exhibit B on the Plea.

15I take into account the impact of your offending on your victim in sentencing you.

Personal Circumstances

16Mr Brown you are now 31 years old. You were born and raised here in Bendigo. Both your mother and father attended court to show their support for you on your plea and I note that your mum is here again today for sentence. Your father works as a train driver. Your mother worked in retail but now helps to care for her grandchildren. You are the younger of two children, having an older sister, Rebecca. Your childhood was stable and by all accounts was what might be described as 'normal'. Your parents, in a testimonial written to the court described you as a 'hands on child', who gave both primary and secondary schooling 'a red hot go'[2]. In your teen years you represented Bendigo in baseball.

[2]Exhibit 4 on the Plea.

17From a relatively young age you decided that you wanted a career as a builder. You sought out and obtained work experience with a well-regarded local building firm. You thrived during this experience, so much so that you were invited to apply for an apprenticeship with them, your application was successful. During Years 11 and 12 at Bendigo Secondary College, you undertook a building apprenticeship, which you subsequently completed when you left school.

18In 2011, when you were 21 years old, you were involved in a serious motor vehicle accident that resulted in you suffering a severe fracture to your leg. Your injuries prevented you from working for a two-year period. It was during this period of inactivity that your relationship with methylamphetamine changed to an addiction that would prove to be deeply destructive.

19Around two years later, in 2013, you met Trineete Miller, with whom you began a romantic relationship. Ms Miller was already mother to a son, Mason, now 11 years old, and you adopted the role of stepfather. In 2016, Ms Miller gave birth to your daughter Aleah who is now 6 years old. Although you had managed to abstain from the use of methylamphetamine in the early portion of your relationship, you eventually relapsed. Your drug usage caused significant difficulties and ultimately was a primary factor that led to the breakdown of your relationship with Ms Miller in 2019. In the wake of your separation from Ms Miller you were using methylamphetamine in substantial quantities daily.

20In April 2018 you had your first appearance before the courts. You pleaded guilty to charges of burglary and possession of ecstasy. The court sentenced you to a 12-month without conviction Community Correction Order with therapeutic conditions. Clearly, your drug use was the cause of your offending on that occasion. I was told you successfully completed this order. However, in October 2019 you were back in court having contravened a Crimes Family Violence Order where you had phoned Ms Miller in a manner contrary to that allowed. You were again punished without conviction, this time by imposition of a fine.

21Although you did not come to the attention of authorities throughout the latter months of 2019 and 2020, I understand that your drug use continued. Your ability to function was compromised to the extent that Ms Miller stopped you having contact with your children. It was whilst you were in this state that the current offending before the court occurred. You were arrested at your workplace the day following the incident, you were interviewed, charged, and remanded in custody. In this sense there have been very dire, very direct, and immediate consequences. You spent 174 days in custody, from 7 January until 30 June 2021 and this was during the height of the pandemic. I accept that the conditions in custody were harsh. You were subject to quarantines, lockdowns, reduced availability of programs, and the absence of visits. On 30 June 2021 you were released from custody to participate in an inpatient rehabilitation treatment at The Cottage.

22Unfortunately, you only remained at The Cottage for six weeks. Your bail was varied so you could return to Bendigo. A further relapse into drug use occurred and you reoffended. You were charged with two offences of burglary, two offences of shop theft, theft of a motor vehicle and committing an indictable offence whilst on bail. You were again remanded into custody in October of 2021. After 40 days in gaol, you were again released on bail this time with the condition that you comply with the CISP program. In February 2022 you did a seven-day detox and then went on to successfully complete eight weeks as an inpatient in the Bridge Program. Upon discharge from this program, you participated in the Building Bridges Therapeutic Day Rehabilitation Program until 20 May 2022.

23The burglaries and other charges that saw you remanded, were dealt with on 6 July 2022 at Bendigo Magistrates' Court. You were sentenced to an 18-month Community Correction Order. An email from Julian Oxlade from Corrections was tendered on your plea[3]. Mr Oxlade confirmed that you are performing very well on this order.

[3]Exhibit 2 on the Plea.

24Your counsel called you to give evidence at the plea hearing. Mr Brown I was very impressed with the way that you spoke and the efforts you have made towards rehabilitation. You gave evidence that you still have contact with Sherilee from the Salvation Army. You describe Sherilee as your 'go to person', she is someone you can call in a time of crisis or a time of need. You have engaged well with your GP, Dr David Giddley and psychologist Matthew Jones. Further to this you are in your fifth week of a 20 week 'Making Amends Course' which is designed to assist you with anger and other issues. You have also been compliant with anti-depressant medication. You have resisted a return to work in favour of your rehabilitation and you are contemplating a change of career given the risk of relapse if you return to the building industry. It was apparent to me from having heard you speak that you have not only embraced change, but you have developed positive insights and are deeply committed to living a clean and a productive life. In my view this type of progress should be allowed to continue uninterrupted.

25Proof of your positive changes has been demonstrated by an improvement in your relationships with your family and the fact that you are once again entrusted with the care of Mason and Aleah. I was told you have been taking Mason to football and Aleah to swimming lessons and dancing. I accept that your children are a strong motivation for your desire to reform. I was also told that you intend to commence mediation with Ms Miller after these court proceedings and there is some prospect that you may recommence your relationship and reunite as a family.

Matters in mitigation

26Your counsel in a persuasive and thorough plea has submitted that I should impose a combination of imprisonment and a Community Correction Order by way of disposition. Mr Battersby argued that I should not return you to custody but rather I should accept that the amount of time you have already served, being 174 days, should satisfy the custodial component. Further he contended that having been bailed you did not get the benefit of any emergency management days that would have been credited to you because of the harsh conditions you endured in custody.

27In addition to your time in custody, Mr Battersby relied on the fact that you have also spent 15 weeks in inpatient treatment. Necessarily, this time had restrictive and punitive aspects in addition to its rehabilitative focus. It was submitted that I should take this time into account pursuant to the principles in Akoka v The Queen[4]. Although this time does not represent or equate with pre-sentence detention, I agree it is time that should be taken into account as part of the instinctive synthesis of sentencing and also as a means to encourage others in your position to participate in such programs.

[4]Akoka v The Queen [2017] VSCA 217.

Rehabilitation

28It is my view that you have excellent prospects for rehabilitation. You have insight into your offending. Importantly, you are currently abstinent from illicit substance abuse. You are thoroughly engaged in therapy from a variety of sources and have allowed yourself the time to focus on your recovery. A very positive report was received from Corrections in relation to the CCO imposed in July of this year. Your family are very supportive and you have the added motivation of your children and the potential of reunification with Ms Miller. Your strong work history and skills will also stand you in good stead when you decide to re-join the workforce. These factors all combine to fortify my view that you are a very strong candidate for reform and not someone who should be returned to gaol.

Plea of guilty

29I was told that you made an offer to plead guilty to the charges now before the court prior to committal, but this offer was rejected by the prosecution. In these circumstances, I accept that your plea of guilty was an early one. Your plea has saved the court time, you have avoided the witnesses giving evidence a second time and as such you have facilitated the course of justice. Your plea of guilty demonstrates that you have accepted responsibility for your offending. Further, your counsel submitted a plea of guilty during the pandemic should attract a more pronounced amelioration of sentence than at another time due to the enormous backlog in cases before the courts.[5]

[5]Worboyes v The Queen [2021] VSCA 169.

30I agree with these submissions and have given you a significant discount for your plea of guilty.

Sentencing principles

31I consider that the relevant sentencing principles that must be applied in this case are general deterrence, denunciation and just punishment. In my view specific deterrence plays little or no role in the sentencing matrix, given the fact that you have served a period of imprisonment on remand almost immediately after the offending before the court. Further, I am of the view that community protection in your case can best be achieved by fostering your rehabilitation.

32Other sentencing principles that I must apply are parsimony and proportionality. That is, I must do no more than is necessary to punish you. I consider that a sentence of imprisonment over and above what you have already served is not required and in the circumstances of your case the sentencing factors of general deterrence, just punishment and denunciation can be addressed by the imposition of a Community Correction Order. In coming to this conclusion I am mindful of the guidance given by the Court of Appeal in Boulton v The Queen[6], that is, a Community Correction Order may be suitable even in cases of relatively serious offences which might previously have attracted a medium term of imprisonment.

[6]Boulton v The Queen [2014] VSCA 342; (2014) 46 VR 308.

Disposition

33Mr Brown, if you could stand now. In relation to the charge of prohibited person possess a firearm, you are convicted and sentenced to a term of 174 days imprisonment and I reckon that this amount of time has been served by way of pre-sentence detention.

34In relation to the charges of intentionally cause injury and contravene intervention order, I have had you assessed for a Community Correction Order and you have been assessed as suitable for such an Order. I therefore order you be placed on a Community Correction Order for a period of 18 months from today. The conditions of this Community Correction Order include that you must perform

(a)   100 hours of unpaid community work over that 18 month period;

(b)   Submit for assessment and treatment for mental health;

(c)   Submit for assessment and treatment for drug abuse; and

(d)   Participate in programs to reduce reoffending;

(e)   You are also to attend for supervision.

Although judicial monitoring was not recommended by the assessing Corrections officer I am going to make this a condition of the order. Mr Brown I am very interested to ensure your progress towards reformation and whilst I am confident that you will be compliant with the order I have imposed, I see the judicial monitoring as an added incentive for you to do well. The date you will be required to attend court for this purpose is 10 March 2023 at 11 am.  And that will actually be on the order and we can do that via video link.  So you can appear – usually what happens is, people will appear with their Corrections Officer and they will link in and we will have a chat about how you are going.  And it is probably very likely that I will only do this on one occasion,  I  want to share in your success.  I am  confident that you will do well.  So do not let me down.

ACCUSED:  Thank you, Your Honour.

35HER HONOUR:  So with regard to the community work I will offset the 100 hours of community work against the treatment. So that means if you engage in counselling, any hours that you do will be taken away from the community work. So if you were to do 100 hours of counselling, that will satisfy the requirement to do any community work.

36ACCUSED:  Yes, okay.

37HER HONOUR:  All right, and that is an added incentive.

38ACCUSED:  Thank you.

39HER HONOUR:  So in addition to the conditions that I have imposed, there are standard conditions that you must comply with.  The first and foremost of these is that you are not to commit another offence punishable by imprisonment for the period of the Order, which is 18 months.  You need to report within two working days to your nearest Corrections office, which I understand is Bendigo and you can probably just pop in there now after court, because you will get a copy of the Order and you can take it in and so you can tick that off.

40You are required to advise your supervising Corrections Office of any change of address where you are living or working within two clear working days.  And it is a term of all Community Correction Orders that you must submit to visits as directed and obey the instructions and directions of the Corrections officer and you cannot leave the State of Victoria without prior permission.

41Mr Brown, if you reoffend you will breach the Correction Order, if you do not comply with the conditions you will breach the Correction Order, and if you do that you will come back before me and you might be resentenced in relation to these original charges.

42I should also make it clear that it is my intention that this Order will run concurrently with the Community Corrections Order that you are already undertaking. So the net effect is it might add something like two months or so to the end, plus you have got the added condition of programs to prevent reoffending, and you have got the community work component of it.

43ACCUSED:  Thank you.

44HER HONOUR:  So I can only place you on a Correction Order if you agree – so do you understand what is involved in the Order?

45ACCUSED:  Yes, I do, Your Honour.

46HER HONOUR:  Yes, I take it that you do, given you are doing one.  And do you consent to such an order?

47ACCUSED:  Yes, I do, Your Honour.

48HER HONOUR:  Yes, great, all right. 

49Pursuant to s6AAA of the Sentencing Act1991[7] I indicate that if you had not pleaded guilty to these charges and had been found guilty by a jury, I would have sentenced you to a total effective sentence of imprisonment of eighteen months imprisonment with a non-parole period of nine months.

[7]Sentencing Act 1991 (Vic) s6AAA.

50So, is there anything further that I have missed?

51MISS MacDOUGALL:  No, Your Honour.

52HER HONOUR:  All right. 

53MR BATTERSBY:  Not from me, Your Honour.  As the court pleases.

54HER HONOUR:  All right, great.  I have got a Community Correction Order that has been drawn up and I will get – I assume Ms Temperley is here – so I will get her to perhaps get you to sign that Order and then I will sign it and we will distribute copies and that will be the end of the matter.

55Mr Battersby, thank you very much for your very thorough and helpful submissions.

56MR BATTERSBY:  Thank you very much, Your Honour.

57HER HONOUR:  All right, thank you.

58MR BATTERSBY:  As the Court pleases.

59HER HONOUR:  All right, well I wish you all the very best and I hope that this is all behind you now, so good luck and I will see you in March.

60ACCUSED:  No worries, thank you, Your Honour.

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