Director of Public Prosecutions v Brown

[2022] VCC 1513

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT LATROBE VALLEY

CRIMINAL JURISDICTION

CR 21-01352

DIRECTOR OF PUBLIC PROSECUTIONS

v

PAUL BROWN

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Latrobe Valley
DATE OF HEARING:
DATE OF SENTENCE:	7 September 2022
CASE MAY BE CITED AS:	DPP v Brown
MEDIUM NEUTRAL CITATION:	[2022] VCC 1513

REASONS FOR SENTENCE

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Subject:

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Legislation Cited:

Cases Cited:

Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	MR D. O'DOHERTY	Office of Public Prosecutions
For the Offender	MR S. PETERSON	Stephen Peterson Lawyers

1Paul Anthony Brown, you have pleaded guilty to one charge of theft of firearms; one charge of theft and one charge, possess a trafficable quantity of unregistered firearms.

2You are now 50 years of age.  You pleaded guilty to a settled indictment and must get the benefit of that.  I accept in your situation; remorse has been appropriately displayed both by your plea and by admissions made to police.  You must also get the utilitarian benefit of that plea of guilty which is of particular significance in these times of Warboyes.  I also accept that you spent something like 159 days in custody during COVID and that comes into play as well.

3As I understand it, since this offending, there has been nothing since and that is very much to your credit.  You do have a significant criminal history and because of your age and the circumstances over the last couple of years it is of some real significance that you have been able to remain offence free.

4There is one summary matter here on which I will simply convict and discharge.

5A summary of the offending is that you and a Mr Casey met in December 2020 and the pair of you went to the Maffra Knackery in Knackery Road, Valencia Creek in the early hours of the morning.  The vehicle was driven past the knackery at 1.34 am and driven past it again at 1.37 am.  It then stopped.  There were two people in the vehicle, as I understand it.  And the Crown opening says that one of the parties exited the vehicle while the other drove off and the party that exited the vehicle entered the knackery.  Once inside, gained access to two vehicles which had been left unlocked and stole two firearms.  One was a Marlin MA-25MN rifle and the second was a     rifle.  A wallet containing an ANZ bank card in the name of Daniel Wiltshire was also stolen.  That gives rise to the charge of theft.

6In your record of interview, you said it was you that remained in the vehicle and it was Mr Casey who actually went into the premises, and I will have to sentence you, I think, on that basis as I certainly could not make any findings otherwise.  Whose idea it was or who knew about the knackery, I do not know.

7It is important to also note that this is a situation which is concerning where two firearms have been left totally unrestrained, I suppose, is the word, in unlocked vehicles in a facility which would clearly have access to firearms because of the very nature of it.  That in itself is concerning.

8The ANZ bank card that was taken, there was an attempt to use it but that, as I understand it, failed.

9In any event, the person that took the guns returned to the vehicle and drove away.  I do not need to go through the technical matters.  Your phone was obviously being used in the area at that time and police were ultimately able to arrest you.  You gave the version that I have described a moment ago.  And as I understand it, one of the firearms has been discovered, if I can put it that way.  And the other remains, apparently, at large.

10It is a situation where it is an unusual theft of firearms.  In fact, it is the theft of the firearms which really gives rise to the charge of trafficable quantity and I regard it as being one and the same, effectively, in this situation.

11Most of these circumstances that I have come across in rural areas involve targeting and the breaking into sheds, the dismantling of gun cases and the like.  This is a very different situation where the rifles were easily obtained and as I said before it is of some concern.  It is certainly my view, not quite to the level of the burglaries and criminal damage and other matters.

12In any event, it still remains serious.  Calls for the application of general and specific deterrents as well as denunciation and appropriate punishment.

13Insofar as parity is concerned, Mr Casey, for matters very similar to yours, received a sentence of two years with a minimum term of 15 months.  I am not sure what his priors were or any of the material put on his behalf but I certainly take that into account.

14The situation is that in the normal course of events, this would call for a significant gaol period with a minimum term.  However, it seems to me that yours is a very different situation and I am quite impressed, I must say, by your conduct since this all occurred.

15Before I go into matters personal to you, I will start off with your initial history because the sentence I am going to impose, some people might regard as lenient.  I do not think it is.

16You were born in Maffra.  Lived in Heyfield until you were around about the age of three.  The family relocated to Moe when you were about three and a half.  There was a family business which was a scrap metal yard.  You went on to primary school in Moe and your home environment at a young age was a very bad one.  You described your earliest memories of fear.  Remembering violence in the family home.  Your father was extremely abusive towards your mother and you still remember all the bruises and black eyes.

17He also started becoming more physical around you at school age and regularly whipped you and your brother with a belt or a strap.  The pair of you were always covered in bruises.  He would aim for the legs mostly and it would all depend on how he came home from work.

18You say, and I accept this, that you blocked out a lot of your early childhood due to that violence and it seems that your father was violent with or without drink and, however, your mother has told you that drinking was involved.

19You were close at the time to your older brother and the pair of you were 'running scared all the time'.  You managed to get through primary school.  There were no financial hardships on the family.  But the family relocated again later on into Heyfield where you went to primary school and you were, while slow at school, you certainly were not at the bottom of the class. 

20You recall that Child Protection became involved and I will not go down that path.

21You have one memory, for example, which would give rise, I would have thought, to potentially PTSD, a memory of one night waking up to hear your mother's scream.  You and your brother ran into the kitchen, your mother was naked running around the room trying to escape your father.  He was holding something, trying to get her.  She escaped his grip and ran with no clothes, up the road to get away from him.  You remember you and your brother just 'crying and screaming'.

22Your father took after her and chased her up the road.  Your mother disappeared for three years after that night and no-one saw or heard from her during that time.

23I can accept that on a small boy that would have had an absolutely devastating effect.  You were alone with your father from about the age of 10 to approximately 14, with no other family support at all and you simply went on from there.  You went to Maffra High School.  You got suspended a few times for fighting, smoking cannabis, started chroming from about 13 to 15 and stayed with friends as much as you could to keep away from home.

24Your mum returned when you were about 14 or 15 but was not living in the family home and the relationship between the family was very much fractured at that time.

25You had the somewhat unusual but dreadful experience of coming home one day and finding your father and your girlfriend sleeping together.  You had it out with your father and you never went back.  He apparently ended up having children to that girlfriend of yours after which is a fairly bizarre situation.  In any event, you moved in with your mother.

26From the ages of 17 to 23 you worked all the time but your social drug use increased.  You met your ex‑wife when you were around 21.  She was very effective in terms of calming you down.  The pair of you had a relationship where you cut off your entire family around about the age of 28 or 29.  Your first child was born when you were about 22.  The second was born in 1999 and the youngest was born in 2008.  You all did well as a family.  Owned a house in Toongabbie.  And eventually, unfortunately, you had a drug problem throughout that time and family violence started to enter into it and an IVO was obtained against you.  There was a separation.  Your behaviour and drug use continued and escalated. 

27You finally separated in 2017 and became somewhat of a loner and the family law proceedings became hostile as described in the report.  You hit rock bottom and would be using heavy drugs and while still employed, would go to work, and then disappear.  You have worked up until around about 5 years ago and you now are committed to rehabilitation.

28You still have nothing to do with your father but your mother is your biggest support and she, indeed, was in court here on your behalf the other day.

29You have instructed your solicitors, 'I wish I had done rehab 20 years ago and sought help to get through things in my mind.'

30What has happened since the offending is that you were in custody for 159 days and you then went into Odyssey House.  You initially - in Odyssey – were there for a period of 121 days.  And I think at that point you were, whatever the word they use is, 'expelled' for smoking a cigarette.  You then went back in and did another 103 days and again came out and went back in again and it was during that period of time that the matter first came on before me for your plea of guilty.

31It is a situation where the principles involved in Bugmy clearly apply to you.  You are 50 years of age with a long-term drug addiction and it would seem to me and those present at the time, that the best bet was that if you could somehow or other stay in Odyssey. 

32At that time, I told you that if you could stay at Odyssey for 6 months, I would not put you back in gaol.  In fact, you stayed in Odyssey for something around about four and a half months and then left voluntarily.  It has been clearly pointed out you are not expelled from the program.  It was a matter of your own choice.  That would have concerned me but since then you have remained drug free, you have stable accommodation with your mother.  You have opportunities for jobs available to you.  You have now, after two years, been able to get your driver's licence back and you have said to people that your head is in a 'pretty good space' at the present time.

33You spent, therefore, 375 days of what is now euphemistically known as a Akoka time and I take that very much into account.  To remain in Odyssey for that period of time for a man of your age is a very difficult task indeed.  The persistence in the coming out then going back in again and you are continually trying over the last year or so has very much impressed me.  You have certainly, in my view, turned your life around. 

34As I say, you have got upon this sentence being put into place, you have all the protective factors that one could hope for.  You sold your house in Maffra and you have shifted back, as I said, to live with your mother who lives in Heyfield.  You have also taken the course of blocking people from your former life.  You are concerned about doing work hours on a community corrections order because it will bring you into contact with the very people that you are trying to avoid.  I am conscious of that and have moderated the number of hours in the CCO which I am going to give because of that.

35Had you assessed for a community corrections order and you have found to be acceptable.  It will be a relatively onerous community corrections order because of the seriousness of the offending but it seems to me a situation where your principles outlined in the case of (indistinct) come very much into account.  In that case, Her Honour Justice of Appeal Neave referred to the DPP v Leach.

It is particularly important that this court should not devalue or deny the right of a sentencing judge to act mercifully in a case where it seems to the judge to be an instance or an opportunity for reformation of the offender that would be grasped.  That, after all, may be a decision which rebounds very much to the benefit of the community.

36And further, is the President of the Court of Appeal as he was then, said in DPP v Tokava:

The sentencing judge should be astute to investigate whether a non-custodial disposition is to be preferred even in the case of a serious offence.  If, in the long term, the community's interests will be best served by that course, this court should seek to promote public understanding of the fact that apart from the interests of the individual whom it is sought to rehabilitate, an important interest in itself, there is a vital community interest in maximising the prospects of rehabilitation of an individual who has been convicted of a serious crime.

37It seems to me that the principles outlined in those matters very, very much apply here.  You have been able to somehow or other get through all this without using drugs over the last couple of years and without offending.  It seems to me that in this situation, to return you to prison now would not only run the risk of destroying what has been a very, very impressive rehabilitation, but would, in my view, just simply be unjust.

38If, however, you accept the CCO which I am going to impose, as part of a combination sentence, you must understand that should that CCO be breached by any offending resembling this - and that would include drug trafficking or anything along those lines - then the consequences when you are brought back for breach would be serious indeed.  I do not think I can put it any better than that.

39The prospects of rehabilitation at the moment are probably the best they have been for 20 years and the risk of you reoffending, as it stands at the moment, if you continue this rehabilitation, should be low.  All right.

40So, I had you assessed and you have been found to be acceptable.  I assume counsel has seen that report?

41MR PETERSON:  I have, Your Honour.

42MR O'DOHERTY:  Yes, Your Honour.

43HIS HONOUR:  Right.  The CCO will be for two years with conviction.  One hundred and fifty work hours.  Treatment and rehab for drugs.  Treatment and rehab for mental health.  Treatment and rehab for any other programs needed and supervision.

44I direct that any time spent on programs is to be – sorry, all time spent on programs is to be deducted from the community work component.  I am very conscious of Mr Brown's desire not to reassociate with former colleagues, if that be the appropriate expression.  I see that corrections could do community work from home and that is to be done if at all possible.  But, in any event, I do not know that I can take that any further.  So, it will be aggregate.  One hundred and fifty-nine days plus CCO in the terms I have described.  6AAA is a bit meaningless in this situation.  But say, two and a half and one and a half.

45All right, gents.  Just give me two seconds.  No, I do not think there is anything else I need to say, I do not think.  All right.  So, are you agreeable to that, Mr Brown?

46OFFENDER:  Yes, I am, Your Honour.

47HIS HONOUR:  All right.  If you just sign that for me.  All right.  That's done.  Nothing else we need to do?

48COUNSEL:  No, Your Honour.

49HIS HONOUR:  No.  All right.  Thanks.  You can come out of there, Mr Brown.  Thank you. 

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