Director of Public Prosecutions v Brown

[2018] VCC 1905

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

AT WARRNAMBOOL
CRIMINAL JURISDICTION

CR-17-02182

DIRECTOR OF PUBLIC PROSECUTIONS

v

DARREN BROWN

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Warrnambool
DATE OF HEARING:
DATE OF SENTENCE:	16 November 2018
CASE MAY BE CITED AS:	DPP v Brown
MEDIUM NEUTRAL CITATION:	[2018] VCC 1905

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr G. Hevey
For the Accused	Mr M. Thomas

HIS HONOUR:

1Darren Brown, on 1 November a jury found you guilty of one charge of recklessly causing injury.  You were acquitted of four other charges on the indictment.

2The victim of your crime was your ex-de facto partner.  She and you had been in a relationship for approximately two years.

3On 27 March 2016 the man who ran the local pizza shop dropped by your house to leave scraps for the chooks.  The victim worked part time at the pizza shop.  You both knew the pizza shop proprietor and he was invited to join you for dinner.

4During the dinner the victim became upset of how you spoke to her.  She left the table and went outside for a short while.  She returned inside and ultimately both of you saw your guest off.  Once he was gone you expressed anger towards the victim for leaving the table,  with the guest still there.  An argument erupted.

5The victim decided not to sleep with you and took her pillow to the spare bedroom.  For reasons best known to you, you followed her.  The argument continued, you grabbed her by the arms and forced her back over the bed end.  You held her down for some time before she wriggled free.  She later left the house, meeting up and staying at the house of the pizza shop proprietor.  Photographs were taken of bruising to her back and arms.

6After a week she reported what had happened to the police at Ballarat.  You were charged in relation to this incident with intentionally cause injury and recklessly cause injury.  The jury acquitted you of the more serious alternative charge of intentionally causing injury.

7You gave evidence that in essence you grabbed the arms of the victim to prevent her from continuing to assault you by kicking you.  When you let her arms go she fell back into the bed end. You denied pushing her over the bed end or holding her down.

8After consideration, in my view, the jury's verdict means that your evidence was rejected and the version given by the victim of being pushed into and over the bed end and held on the bed - mattress - was accepted by the jury beyond reasonable doubt.

9The injuries, revealed in the photographs and in the examination and in the evidence of the forensic medical officer, supported her evidence and confirm my view of the jury's verdict.  The injuries sustained by the victim were bruising to her arms and her back.

10In her victim impact statement she spoke of the physical and psychological difficulties that she has suffered.  I admitted the whole of the victim impact statement into evidence at the plea, in accordance with the new legislative regime relating to victim impact statements.  I have applied the statutory provisions no more and no less in respect to the victim impact statement.

11What can be said as to the impact of this crime was articulated by the victim in these terms,

"The impact of Darren's offending against me has had significant long-term consequences.  Since the incident I regularly suffer from headaches, migraines, teeth clenching, grinding, panic attacks, anxiety, flashbacks and difficulty sleeping."

12I have taken a number of these as exacerbations of previous difficulties that she had.  She goes on,

"My independence, strength, resilience and confidence has all been shattered by Darren's offending against me and I doubt that I'll ever be the same person I was before the incident.  I'm unable to return to work on a full time basis, given the significant mental issues I have sustained as a result of Darren's offending against me".

13While other examples of this crime come before the courts, this court and the Magistrates' Court, where injuries are perhaps more serious nonetheless the gravity of the attack on a smaller woman in her home, by a larger partner should not be underrated.  What I meant by that phrase was:  while there might be more grave examples of these crimes before the courts, this example of an attack on a smaller woman, in her home, by a larger partner, should not be understated.

14Indeed, this is, an example of the way the community and the courts are viewing domestic violence as has been expressed recently by the courts in a number of ways.  I intend to refer to those Appellate Courts decisions, in which the emergence of the court's and the communities view of domestic violence has been articulated.

15I turn first to what was said in 2001, in the New South Wales Court of Criminal Appeal in R v Edigarov, [2001] NSWCCA 436 where the Chief Justice at Common Law, Wood J said the following,

"Violent attacks in domestic settings must be treated with real seriousness.  Regrettably, that form of conduct involves aggression by men who are physically stronger than their victims and who are often in a position economically, or otherwise, to enforce their silence and their acceptance of such conduct.  In truth such conduct is brutal, cowardly and inexcusable, and the Courts have a duty to ensure that it is adequately punished, and that sentences are handed out which have a strong element of personal and general deterrence".

16In 2014, the Court of Appeal in Victoria in Pasinis v The Queen, [2014] VSCA 97 said the following,

"Historically perpetrators of family violence were rarely prosecuted.  Even when offenders were convicted of such offences, they often received lenient sentences.  Fortunately the criminal law now gives greater recognition to the devastating effects of family violence.  This makes both specific and general deterrence very important factors in sentencing men who assault their partner".

17In 2013, the High Court in Munda v Western Australia [2013] HCA 38 recognised the role of courts in dealing with domestic violence and gave appellant authority or approval to significant weight being attached to specific and general deterrence, denunciation and protection of the community.

18The High Court, again, took the same approach in the important sentencing decision of The Queen v Kilic [2016] HCA 48 That case involved a single incident of very serious violence by a man against a previous partner.  In the course of that case before the High Court what was analysed was the role of current sentencing practice and the sentencing task of a judge in Victoria.  The court said, at paragraph 21, the following,

" The requirement of currency recognises that sentencing practices for a particular offence or type of offence may change over time reflecting changes in community attitudes to some forms of offending.  For example, current sentencing practices with respect to sexual offences may be seen to depart from past practices by reason, inter alia, of changes in understanding of the long-term harm done to the victim.  So, too, may current sentencing practices for offences involving domestic violence depart from past sentencing practices for this category of offence because of changes in societal attitudes to domestic relations".

19Finally, in a comprehensive analysis of the topic was undertaken by the Victorian Court of Appeal in late 2017, in the important case of Kalala v The Queen 2017 VSCA 223 This was a case which involvement incitement to murder  a domestic partner.  The Chief Justice was the sentencing judge.  On appeal the Court of Appeal said that the Chief Justice, emphasised the importance of general deterrence and denunciation in her sentencing remarks.

20The Court of Appeal went on,

"It is well recognised that the prevalence of a particular type of crime may be a relevant sentencing consideration.  In 2016 the Royal Commission into Family Violence reported that, although it was not clear whether the incidence of family violence was increasing, there had been a marked increase in the reporting of it.  This is reflected in family violence incidence data for Victoria."

21The court went on,

"The Crime Statistics report that, between January 2012 and December 2016, Victoria Police identified 340,926 'family incident related' offences.  In 2016, such offences represented 16.6 per cent of offences, an increase from 11 per cent in 2012".

22The court went on to say that,

"The trial courts of this State are [that is referring to the County Court and the Supreme Court, but here I also add in the Magistrates' Court] [are] imposing sentences for family violence offences with increasing frequency.  This Court [being the Court of Appeal in Victoria] has repeatedly emphasised the need to condemn family violence, in line with community expectations.  In Filiz v The Queen, the Court acknowledged the 'shameful truth that family violence is a leading cause of illness, disability and death among Victorian women aged between 15 and 44".

23Finally, after referring to the decision I have already spoken of, that is Pasinis, the Court of Appeal concluded,

"Sentencing law has long recognised the prevalence of violence by men against women in (or after) domestic relationships, and the importance of general deterrence in such circumstances".

24There was nothing put forward that is said to diminish your moral culpability.  You knew what you were doing was wrong and probably would cause injury, but you went ahead.  This violent behaviour stands in contrast to your previous character and how others view you.

25I will turn now to your person circumstances.

26A very substantial amount of helpful evidence was gathered and tendered by your lawyers. I will not refer to or summarise all of it. What can be distilled from that material are important matters that are relevant to just who you are and what you have contributed to your community, your character, including matters that enliven s.6(c) of the Sentencing Act.

27Those matters also go to your prospects, both in terms of your rehabilitation and your ongoing economic and social wellbeing and employment prospects. In that sense, that evidence goes to whether I should exercise my discretion not to record a conviction, as permitted by s.8 of the Sentencing Act.

28Your counsel's principal submission was that any penalty I impose ought be without conviction.  The prosecution submitted that a conviction ought be recorded and not to do so would mean imposing a sentence that was not just and appropriate and would not adequately express the important sentencing purposes of denunciation and general deterrence.

29You, Mr Brown, are now 54 years old.  You were raised in Kerang.  You left school to join the Air Force at the age of 16.  You obtained qualifications as an aircraft technician.  You had an exemplary career in the RAAF, until leaving in about 1990 to join Victoria Police.  You reached the rank of Sergeant in the RAAF and you remained a RAAF reservist.

30You joined Victoria Police in 1990.  You have since then worked as a uniform police officer in a number of regional towns.  In 2013 you were promoted to the level of sergeant and given the responsibility of being the officer in charge of the Casterton Police Station.  You have had periods of Acting Senior Sergeant in the larger towns in the west of this state.

31You have had an exemplary police career as established by the material held on your file and by testimonials tendered.  Among or in addition to your ordinary police duties you have focused on community policing, doing much to engage with and inform the community of the importance of an integrated police presence in local communities.  This work and your police career are very much to your credit.

32As the courts well know, working as a police officer does involve stress being placed on a person's mental equilibrium.  Police officers see things, such as road trauma, that cannot be unseen and that is your experience.

33I do not need to detail all the trauma that police like you encounter day upon day.  It takes its toll and I do not overlook that.  I speak here generally as no particular problem with you mental stability was raised.  In a sense, I am acknowledging that in dealing with you, a police officer for 26 years, it goes without saying that your solid work history has been in a tough job.

34Up until 9 November 2018, that is the day the plea was heard in the County Court, you have been a sergeant at Casterton.  I have been informed that Victoria Police have commenced internal proceedings and have suspended you as a police officer.  It is certain that there will be proceedings or a procedure, pursuant to s.136 of the relevant Act.

35That Act, or that section, allows the Chief Commissioner to punish you up to a penalty of dismissal.  That outcome is a very real risk for you.  Thus, I will turn shortly to the issue of extra-curial punishment.  But before doing that, I need to speak of other aspects of your life that are relevant to your good character.

36You are a contributor, being involved for many years in community organisations, such as Rotary.  You have held senior roles in the local Rotary groups that you have been a member of.  You have been and are involved, again, at senior levels of responsibility in the local RSL, Masonic Lodge, the car enthusiast club, your political party.  There have been others as well.

37It has been observed that local communities and local community groups are the threads that keep local communities vibrant and welcoming.  Your role and engagement into your community is to your credit.

38Those that you have come across in those organisations took time to write to the court about you.  They did so knowing the jury's verdict.  They continue to support you and see the conduct as out of character.  There are many letters and I have read them all.  I will refer to just one in detail, but it reflects the views and the themes of them all.

39Mr Walter Walsh, who is known you for about six years through the community and in Rotary, wrote the following,

"In his capacity as a Rotarian I have found Darren to be an honest and open person whose integrity is undoubted.  The very nature of a Rotarian demands the highest levels of honesty, kindness, empathy and integrity.  Darren fulfils these expectations. Darren currently is the president of the Rotary club at Casterton, an honorary role that he carries with dignity, humour and charity.  Darren leads a club which raises funds locally, involves thousands of dollars annually to distribute and support local, national and international causes.  Unlike many Rotary club this Rotary club is expanding under his leadership. The club is highly regarded as an example to many Rotary clubs.  It is operating with (indistinct) sufficiency, creativity and humour under Darren's presidency; his second term as president".

40He writes that,

"In all my dealings and interactions with Darren Brown I've found him to be a fine example of a balanced person and a leader who operates with clarity, humour and compassion.  He's rarely critical and shows appreciation where appropriate.  I've never seen any negative examples of vocalised or physical emotions expressed or heard such behaviour".

41He goes on,

"I believe he is a respected member and law enforcer within our community.  I've never heard of any critical or negative feedback from people with whom I come in contact.  He has a difficult and onerous role at time and could be easily criticised unfairly by members of the local or broader community, but I've never received or heard any negative feedback.  As a Rotarian and member of the community people treat Darren with appreciation, respect and kindness.  Society needs more people of the calibre of Darren Brown".

42It concluded,

"I'm totally surprised and shocked by the verdict and find this remarkably out of character and inconsistent with the Darren Brown that I've known".

43And he said that,

"I will continue to support Darren".

44As I said during the course of the plea and have referred to already, there is a provision in the Sentencing Act - section.6 - that is rarely referred to.  It says that in determining the character of an offender a court may consider, amongst other things, and it sets out what are ordinarily referred to many times in courts,   That is the number and seriousness of previous findings of guilt, but also the general reputation of the offender.

45But what is rarely referred to, because it cannot be, but is here and I think validly so, is s.6(c) : that in determining the character of an offender I can take into account any significant contributions made by the offender to the community.

46Others who know you best, your two daughters and your current partner, also attest to your good qualities as a father and partner.  They say the following –

47Your youngest daughter, Rachel Brown, says,

"I've always admired Dad for his commitment to his community and loved ones.  Dad was an active member of local voluntary groups, such as Rotary and school council.  Dad always provided my sister and myself a loving, stable home, which I felt safe and loved.  He has instilled values in me that have shaped the person I am today. To hear that Dad was found guilty of the above mentioned offence genuinely surprises me.  He's never displayed any violent tendencies in my presence, I was shocked and devastated to hear of the verdict.  It's difficult to imagine my father in any other manner than what I have experienced:  hardworking, kind, community spirited man.  Despite these charges, I am still and will always be proud to call Darren my Dad".

48Your older daughter, Ms Jennifer Thorn, wrote,

"My childhood with Darren as my dad was loving and stable.  He and my mother ensured that my sister and I grew up with the values of integrity, honesty and the importance of family firmly implanted in us.  Qualities that I pride myself on continuing to demonstrate as an adult and will go on to teach my own sons as they grow older. Dad is always an involved parent, volunteering on our school, parents and friends committee and assisting school camps and sporting events.  I did, and still do, take pride in telling people who ask that Darren is my father, as he is a respected past citizen in the Kerang community."

49She says,

"My dad has continued to play an active role in my adult life, despite the distance between us.  He always has been a listening ear when I needed someone I can turn to for advice.  He's a loving and gentle pa to my children and I've always looked up to him and respected the type of person he is".

50She said that when she heard the news that you had been found guilty she was disappointed, shocked and deeply saddened.

51She goes on,

"This incident was extremely out of character, one ill-judged, split-second mistake that has ruined his public reputation, pride, career and almost everything he has spent his entire life striving to be.  But what it hasn't changed is the pride and respect and love that I will always have for my dad".

52You have formed a new relationship and your current partner also speaks in similar terms as to your redeeming qualities.  It is plain that you are well supported in the community.

53You are entitled to call on your previous good character in asking for a merciful penalty.  Your previous good character, your contributions to the community, your work history are important mitigatory factors and I have not just given them mere lip service because you have been found guilty of a crime of domestic violence.

54These criminal charges have been hanging over your head and, indeed, hanging over the victim for far too long. There was a delay from the report and interview of you of seven months, over half a year before charges were laid.  Why that occurred is out of the hands of the courts, but it involves the stress of not knowing whether you will face a criminal charge or not.

55Once the charges were laid the courts can and do monitor delay.  As this case went to trial, the delays of a circuit hearing came into calculations.  The delay here further mitigates.

56It is well accepted that the impact of decisions made by employers as a consequence of criminal charges being laid or proven is relevant to the ultimate punishment imposed by the court for the crime.  As referred to, Victoria Police have commenced proceedings and you have already been suspended.

57The loss of a long and loved career is no small matter. What will ultimately happen is unknown.  If you are dismissed from the police force, it may we involve having to move from the community where you are well connected in order to find other work.  What work you can find at the age of 54 is also unclear.

58Your financial circumstances will, no doubt, be diminished and the full impact, in terms of pensions, is unclear.  All this adds to your stress.

59These matters, standing alone, are factors that are relevant to the sentence that I impose.  However, they are also relevant to the central question of whether a conviction is to be recorded.

60I pause here to note that as this issue of conviction or non-conviction is a live one, it follows that the prosecution did not submit that a term of imprisonment was warranted.  I agree.  The punishment of last resort, imprisonment, would not be a just and appropriate penalty in all the circumstances here.

61What was urged by the prosecution was a community corrections order, with a program condition to assist with anger or anger management.  I am not persuaded such a program would be beneficial in all the circumstances of your role as a local police officer and your training over many years as a police officer.

62Your own counsel urged that a fine be imposed.  Such a penalty, that is a fine, can properly express denunciation and general deterrence, they being the key sentencing purposes.

63As referred to a number of times, the central submission was that no conviction be imposed.  The key proposition there being that a conviction will increase the likelihood of dismissal from the police force.  Material tendered by your counsel, obtained from the police association, as to outcomes in disciplinary proceedings reveals that convictions or non-conviction penalties can see dismissals or not.

64That said, I accept that a conviction makes your possession more tenuous.  I can and do, in this case, take into account the impact on your social and economic wellbeing and your employment, will be affected by the recording of a conviction.

65I must also, as set out in the Sentencing Act, consider the nature of the offence and here the tension lies, and it is acute, because the nature of the offence that you committed is serious.  It is an example of a crime that the community expects the courts to denounce and to do so in public and in practical ways.

66The Court of Appeal has made clear that the seriousness of an offence does not dictate the penalty or the need for a conviction and the Court of Appeal has approved non-conviction penalties in cases of very serious crimes, such as armed committed by young offenders[1].  But that case that I mention in passing and all other cases turn on their unique facts.  Individualised sentencing is what the High Court has required me to undertake[2].

[1] DPP v Candaza &Ors [2003] VSCA 91

[2] The Director of Public Prosecution v Dalgleish ( a pseudonym) [2017] HCA 41

67A key sentencing purposes, as I have said a number of times is general deterrence.  The High Court has made clear that deterrence of others is secured not so much by ever increasing severity of penalty, but by two often unappreciated concepts[3].

[3] Griffiths v The Queen ]1977] HCA 44, (1977) 137 CLR 293, per Jacobs J [34]

68First, deterrence occurs by certainty of detection.  This is achieved in the context of domestic violence by the bravery of the victims reporting and persevering in the criminal justice system, and it is achieved by the modern approach of the police and prosecution to bring perpetrators of domestic violence to the courts the face the consequences.

69The second underappreciated concept of general deterrence is that general deterrence is achieved by consistency in sentencing.  So a person who may be minded to commit, in this case, domestic violence, does not think that an overly lenient sentence is possible, because such sentences are from time to time inexplicably given out.  Sentences that do not reflect the gravity of the social evil of domestic violence, that is inconsistent sentences, undermine general deterrence.

70In my view, the imposition of a fine in this, without conviction, would undermine the important sentencing purposes of general deterrence and denunciation.  It would not sufficiently denounce the crime that you committed.

71The imposition of a conviction is punishment in and of itself, and it may or may not be causative of employment difficulties.  But in my view, it must be recorded.

72Mr Brown, can you please stand.

73For committing the crime of recklessly causing injury, you are convicted and fined $4,000.  I will allow you two months to pay that fine.

74Is there any other order required?

75MR HEVEY:  No, thank you, Your Honour.

76MR THOMAS:  Your Honour pleases.

77HIS HONOUR:  Thank you.  You can be seated, Mr Brown.  I thank counsel, again, for their considerable assistance in regard to this matter.  In dignity of the parties there is no need for Mr Brown to remain in the dock any longer than when I stand down.  I will return back to the next case shortly.

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