Director of Public Prosecutions v Brown

[2019] VCC 1969

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

AT LATROBE VALLEY
CRIMINAL JURISDICTION

CR-19-02087

DIRECTOR OF PUBLIC PROSECUTIONS

v

JOSHUA BROWN

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JUDGE:	HIS HONOUR JUDGE CARMODY
WHERE HELD:	Latrobe Valley
DATE OF HEARING:	27 November 2019
DATE OF SENTENCE:	27 November 2019
CASE MAY BE CITED AS:	DPP v Brown
MEDIUM NEUTRAL CITATION:	[2019] VCC 1969

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:  Aggravated burglary - Criminal damage – Theft – Blackmail – drug of dependence – unlawful assault.

Legislation Cited: s. 145 Criminal Procedure Act 2009

Sentence:Total effective sentence of six years and four months’ imprisonment. I fix a non-parole period of four years and three months’ imprisonment.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr B. Brown	Director of Public Prosecution
For the Accused	Mr D. Newton	Stephen Peterson Lawyers

HIS HONOUR:

1Joshua Matthew Brown, on 26 November 2019, that is today, at the Latrobe Valley County Court, you have pleaded guilty to the following charges on indictment No.K11511828:

Charge 1, a charge of aggravated burglary; this charge has a maximum penalty of 25 years' imprisonment. 

Charge 2, criminal damage; this charge has a maximum penalty of 10 years' imprisonment. 

Charge 3, a charge of theft; this charge has a maximum penalty of 10 years' imprisonment. 

Charge 4, blackmail; this charge has a maximum penalty of 15 years' imprisonment.

2You consented to two related summary charges being heard at the time of your plea. These charges were transferred to this court pursuant to s.145 of the Criminal Procedure Act.  You have pleaded guilty to the following related summary charges;

Summary charge 4, unlawful assault charge has a maximum penalty of three months' imprisonment; and

Summary charge 6, using a drug of dependence, in your case methylamphetamine; this charge has a maximum penalty of one year imprisonment.

3You have spent 26 days of pre-sentence detention prior to the date of your plea.

4You have admitted five prior Children's Court appearances between 26 September 2012 and 21 September 2015.  The offending included driving offences, dishonesty offences, drug offences and criminal damage charges.

5On 2 December 2016, you were convicted of an attempted armed robbery and theft at the Latrobe Valley County Court.  Since that appearance, you have had five previous court appearances at Latrobe Valley Magistrates' Court.  These court appearances were for burglary, family violence, theft, threats of violence and criminal damage, assault with a weapon and drug offences.  At the time of these offences, you were serving two community corrections orders for assault with a weapon, wilful damage to property, violence and other threats to cause injury.

6For a young man who has just turned 22 years old, you have amassed a significant criminal history.

Circumstances of your offending

7In the summary of the prosecution opening dated 4 November 2019.  This was read out by the learned prosecutor and it is Exhibit “A” on the plea.

8At the time of the offences, you were 21 years old.  You are now 22.  The victims of your offending, Paul Madden and Natasha Vujanic, were friends and resided together in a permanent shack at the Drouin Caravan Park.  Paul Madden was aged 42 years old at the time of the offending and Natasha Vujanic was aged 37 years old. Madden was an acquaintance of yours through family friends, however, you had not seen each other for approximately one year. 

9In the early hours of 12 June 2019, you were driven to Paul Madden's residence by an unknown offender; as far as the courts are concerned unknown.  You had heard allegations that Mr Madden was selling drugs to teenagers and intended to attend Madden's address in order to steal drugs from him.

10You forced entry into the premises by kicking the side door with your foot causing damage to the door.  That is the charge of aggravated burglary.  The unidentified offender had picked up a small axe located nearby the bungalow prior to entering the premises.  The prosecution does not allege that you were aware that the co-offender was armed at the point of entry.

11At approximately 12.45 am, Mr Madden was asleep in his bed when he was woken by his dog barking.  Mr Madden then noticed two males at the end of his bed shining a torch in his face.  You identified yourself as ‘Joshy’ and Mr Madden recognised you as Joshua Maxwell.  At some point in the bedroom, you became aware that your co-offender was then in possession of the small axe.

12Mr Madden was struck in the leg by one of you and was questioned about allegations involving a 14-year old girl.  Mr Madden then denied any knowledge of these allegations.  You and your co-accused then asked Mr Madden where the money was and after stating that he did not have any money, he was struck a couple more times on the leg.  That was the summary charge of unlawful assault.  Police later observed scratches and welts on Madden's leg.

13During the offending, damage was caused to property within the premises which was a television located in Mr Madden's bedroom.  That is Charge 2 of criminal damage of property.

14You left the premises and you admit that at some point after leaving the premises, you had smoked approximately three or four points of ice which is the related summary charge of using a drug of dependence.  It was put by your counsel that you had stolen that ice from Mr Madden.

15Your victim, Mr Madden, was in fear and immediately after the incident phoned his friend, Natasha Vujanic, who was at a nearby ATM and informed her of what had just occurred. 

16After you and your co-offender had left the premises, Mr Madden noticed that various belongings of his were missing including a cashbox containing approximately $500 and a wallet containing $100 and cards and a brown male Staffordshire Bull Terrier Rottweiler puppy known as Dargo.  That was the charge of theft.

17After the police had left the premises, Ms Vujanic sent a Facebook message to you requesting the return of Dargo.  At about 4 am, Ms Vujanic received a phone call from you stating to Vujanic that you had been to her place earlier that night.  You then said words to the effect,

'You are in my game now.  You do what I say and you'll get your puppy back.  Give me $1,500 and I will give you the dog back.'

18Approximately 20 minutes later, you then called back threatening Ms Vujanic with requests for money to be sent through to your bank account for the return of the dog.  This conversation was actually recorded by Ms Vujanic.  After the conversation, you then sent a text message to Ms Vujanic stating the following:

'I've already gone back to Moe.  You missed me by a mile.  If you want ya puppy back, then you do as I ask you and will get it back straight away.  No good arguing with me.  Lol.  It ain't gonna get you anywhere.  Ring me when you wanna pay me the coin into my account.  The puppy will be delivered to your door.'

19After the police had arrested you, the dog was ultimately returned to its owner.

20You were arrested by police and interviewed on the same day of your offending.  Initially, you denied any knowledge about the offending.  After sometime, you later told police that it was your intention to enter the property to steal drugs based on your belief that Mr Madden was dealing drugs to minors.  You decided to take matters into your own hands stating;

'We got a tip off that Paul has been doing the wrong in town, making trouble, selling drugs to kids.'

21During the interview you made the following admissions;

(a), that you took the dog;

(b), that you knew your unidentified co-offender had a weapon when you were both in the bedroom; and

(c), that you sent the message constituting the blackmail charge, using a phone belonging to Marley Hoskins. 

22I have been told that after the interview was completed, you then told police who your co-offender was but nothing further has been prosecuted in that regard.

Victim Impact Statements

23Paul Madden filed a victim impact statement dated 1 September 2019.  It was Exhibit “B” on the plea.  Mr Madden states he has suffered anxiety and severe interference with his sleep as a result of your offending.  He is in fear of your associates returning to his residence.  He is unable to gain employment because his sleep is so disturbed he cannot concentrate.  He feels unsafe in his home and has reduced his social life because he no longer trusts people. 

24Your offending has had a significant long-lasting adverse impact on Mr Madden's life.

25Ms Natasha Vujanic also filed a victim impact statement.  It was Exhibit “C” on the plea.  Ms Vujanic set out in no uncertain terms about the change to her sleeping arrangements for herself and her three dogs as a result of your offending.  She has changed her sleeping patterns to night-time to daytime because she feels safer that way.  She suffers from severe anxiety and is undergoing counselling on a weekly basis.

Your personal circumstances

26At the time of your offending, you were 21 years old.  You are now 22.  You grew up in Labertouche on a farm.  Up to the age of 13 years old, you thought your family was Maryanne as your mother and Matthew Wells was your father.  In fact, Mr Wells is your stepfather.

27Around the age of 13, you were told by a relative for the first time that your biological father was in fact Robbie Maxwell.  You sought out and met your biological father when you were in the age of 13 to 14 years old.  Your biological father introduced you to cannabis use and then later smoking ice approximately a year after you first caught up with him.  You have been a drug abuser from the early age of 14 years.

28Your relationship with your biological father revolves around drug-taking.  At the present time, you have no contact with Mr Maxwell.  In contrast, Mr Wells, your stepfather, has been in your life since your birth.  He has treated you as his own son.  Due to your drug use and rejection of your mother and stepfather, you have until recent times had little with your family on the maternal side.  Your mother's family have conducted a transport and excavation business in the Labertouche area.  If you are drug-free, there is an opportunity for work with them upon your release from prison.

29You completed primary school at Drouin.  You commenced Year 7 at Drouin Secondary College but dropped out in that year and did not return to school.  You were struggling academically and had by that time started smoking cannabis.  You also became aware of your true parentage and, as you described it to Ms Lechner who examined you for the purpose of this and other court proceedings, “went off the rails”.

30After school, you have worked in abattoirs, dairy farms and as a concreter.  In the last two years, you have not worked.  You told Ms Lechner you hope to return to the concreting work upon your release from prison.

31You have fathered four children with three different women.  You have no contact whatsoever with your first and third child.  Your mother now cares for the second and fourth child.  You are back in contact with your mother and stepfather; in fact, your mother and grandmother attended upon your plea here to support you today.

32Ms Lechner prepared a report dated 29 July 2019.  It was Exhibit “1” on the plea.  This report was prepared for your breach of Community Corrections Order (“CCO”) proceedings which was heard on 6 August 2019.  You were sentenced to six months' imprisonment on that date.  At the time of these offences before the court, you were serving two concurrent community corrections orders imposed on 18 September 2018 and 7 March 2019 respectively.

33Ms Lechner has assessed you as in the borderline range for cognitive functioning.  She also states you present with symptoms of substance use disorder for cannabis and methylamphetamine.  Ms Lechner assessed you as suffering from major depressive disorder in the extreme range.  Ms Lechner's opinion is that you should be psychiatrically assessed whilst in custody and a proper medication regime to be put in place to alleviate your symptoms.  I was told that you are currently medicated on Seroquel whilst you are in custody.

34At the time of your plea, you had been in custody for a total of 168 days; 26 of those days are pre-sentence detention in respect of these charges.  On 6 August 2019, you were sentenced to six months' imprisonment for a breach of the CCO imposed on 18 September 2018.

35I note in Ms Lechner's report that you have been subjected to some extra curial punishment whilst in custody.  These assaults are said to have resulted in hospitalisation.  The dispute appears to relate to your family violence offences committed against your most recent partner, Keera, with whom you have what has been described as a poisonous drug dependent relationship.

36As a result of these assaults, you have been moved from Fulham Prison to Port Phillip Prison and then from Port Phillip Prison to Ravenhall Prison where you are now in protection.  I accept that these events make your time in custody more burdensome and take that into account when finalising your overall sentence for these offences.

Sentencing considerations

37The basic purpose for which a court may impose a sentence are just punishment, deterrence both specific and general, rehabilitation and denunciation of your actions and the protection of the community. In sentencing you, I must have regard to a range of factors such as the seriousness of your offending, your culpability for it and your personal circumstances.

38I am also required to balance the interest of the community in denouncing your criminal conduct with the interest of the community in seeking to ensure as far as possible that you as an offender are rehabilitated and reintegrated into society.

39I am also required to take into account current sentencing practices in fixing your sentence.  That enquiry is directed, particularly, but not exhaustively, to the kinds of sentences imposed in comparable case and the statistics for those sentences at the time.  I have considered the statistics and current sentencing practices, mindful that each case must be considered in the light of its own particular circumstances and many of the cases would be distinguishable from your case, as indeed, they are from one another.

40Of course, current sentencing practices are but one of the factors I am required to take into account when fixing a just sentence for your offending.

41You have pleaded guilty to this charge.  Your plea of guilty was indicated at an early stage.  Your plea does have the utilitarian value of allowing for the orderly and effective administration of justice.  There is a certainty of outcome and a resolution of the substantive issues raised by your offending.  Your plea allows for the preservation of court and police resources to deal with other matters and your plea vindicates that public confidence in the legal process set up to protect the community.

42Your plea also is a clear acknowledgment by you that you accept responsibility for your criminal behaviour on this occasion.  Your plea also recognises you are willing to facilitate the course of justice in the community and I accept that your plea of guilty to these charges indicates and demonstrates remorse on your part.

43Your plea of guilty also avoids the need for the victims of your criminality having to relive the experience in the course of giving evidence either at a committal hearing or at a trial. 

44It is noteworthy that at the time you committed these offences, you were serving two community correction orders which were imposed for the offences of assault with a weapon on 7 March 2019, at the Latrobe Valley Magistrates' Court and on 18 September 2018, for wilful damage, family violence charges and threats to injure and damage property.

45The charge of aggravated burglary is a very serious offences.  Your explanation to police was that you were going to steal drugs from your victim on the basis of a rumour that Mr Madden was dealing drugs to minors.  It is the experience of courts that the offence of aggravated burglary is frequently tied to drug offending. The seriousness of your offence of aggravated burglary is indicated by the following factors;

(a), your intention was to steal drugs when you entered the premises;

(b), you had forced entry to the premises by kicking the door in;

(c), you were in company with an unidentified or another co-offender;

(d), the offence occurred just after midnight;

(e), you knew or expected that Mr Madden would be inside the premises; and

(f), you were on two CCO orders at the time of your offending.

46The charge of theft relating to the money, which was a total amount of $600, the cards, and the Staffordshire bull terrier cross Rottweiler pup was opportunistic offending once you were inside the premises.

47The charge of criminal damage to the TV and Mr Madden's bedroom is a gratuitous piece of a further offending by you. The unlawful assault on Mr Madden is accepted by the prosecution not to involve the small tomahawk carried by your unnamed co-offender. This offence is separate from the aggravated burglary offence.

48The offence of blackmail for the return of the Staffordshire cross pup is a clear example of this offence.  You knew your victim, Ms Vujanic.  You demanded $1,500 for the safe return of the dog.  This offence was a nasty afterthought to a series of crimes.  I note by the time of the offending of blackmail, you had admitted that you were under the influence of ice which is the other related summary charge.

49I regard your prospects of rehabilitation as guarded.  You have a significant criminal history for someone so young.  You have offended across a range of drug, violence and dishonesty offences.  The rehabilitative solution of a CCO in September 2018 and March 2019 was to no avail.  I regard you as a young offender who is not yet beyond rehabilitation.

50The protective factors for your rehabilitation are that you have reconnected with your mother, step-father and your mother's family.  This reconnection to family opens up the opportunity of employment upon your release from prison.  All of this relies on your ability and your desire to have a drug-free life upon release from prison.

51Your offending is serious and calls for a substantial punishment.  I have taken into account your personal circumstances when finalising your total sentence.  I have cumulated only those parts of the individual sentences to reflect the additional criminality in those offences whilst at the same time applying the principles of totality so as not to impose a crushing sentence upon you.  I also take into account you have already been in custody as a total for 168 days.

52The principles of general and specific deterrence have significant relevance to your sentence.  Denunciation of your actions and protection of the community dictate that the only just sentence is a substantial sentence of imprisonment with a non-parole period.

53Would you stand please?

54On Charge 1, aggravated burglary, you are convicted and sentenced to five and a half years' imprisonment.

55On Charge 2, criminal damage, you are convicted and sentenced to six months' imprisonment.

56On Charge 3, charge of theft, you are convicted and sentences to six months' imprisonment.

57On Charge 4, charge of blackmail, you are convicted and sentenced to one year imprisonment.

58The cumulation on the base sentence of five and a half years is; for Charge 2, one month; for Charge 3, three months; and for Charge 4, six months.

59On the summary charge 4, the unlawful assault charge, you are convicted and sentenced to one month imprisonment.

60On the summary charge 6, charge of using a drug of dependence, you are convicted and sentenced to seven days' imprisonment.

61That is a total effective sentence of six years and four months' imprisonment.

62I fix a non-parole period of four years and three months' imprisonment.

63But for your plea of guilty, pursuant to s.6AAA of the Sentencing Act, I declare that I would have sentenced you to seven years and six months with a five-year and three-month minimum.

64I declare that you have served 26 days pre-sentence detention and I order that this sentence is to be served concurrently with all other State sentences.

65MR BROWN:  If Your Honour pleases.

66MR NEWTON:  As Your Honour pleases.

67HIS HONOUR:  Is there anything further?

68MR BROWN:  No, Your Honour.  There is no ancillary orders.

69HIS HONOUR:  Yes.  Thank you.

70So, Mr Brown, what I have done is I have given you a head sentence of six years and four months, a non-parole period of four years and three months and declared you have served 26 days of that sentence but all of this sentence is to be served concurrently with the sentence you are undergoing.  Do you understand that?

71OFFENDER:  Yep.

72HIS HONOUR:  All right.  Thank you.  You can remove the prisoner.  Thank you.

73OFFENDER:  May I have two or three words with me grandma?  I haven't seen her in about six months so ‑ ‑ ‑

74HIS HONOUR:  Sorry?

75MR NEWTON:  He has not seen her in six months, his grandma.  He is requesting two or three words.

76OFFENDER:  Just two or three minutes if I could please.

77HIS HONOUR:  All right.  I will sit here while you do it.

78OFFENDER:  Thank you.

79MR NEWTON:  She is not allowed to touch you.

80OFFENDER:  Yes.

81HIS HONOUR:  Yes.  You are allowed to get up Mrs Brown.

82VOICE (from body of the court):  Am I allowed to step ‑ ‑ ‑

83HIS HONOUR:  Yes.  Thank you.

84If you can, Mrs Brown, keep up the contact and visits.

85VOICE:  It is planned to.

86HIS HONOUR:  That is the best way to keep hold of him.

87VOICE:  Yes.

88HIS HONOUR:  Thank you, counsel, for your assistance.

89MR BROWN:  If Your Honour pleases.

90MR NEWTON:  As Your Honour pleases.

91HIS HONOUR:  Thank you.

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