Director of Public Prosecutions v Brown
[2018] VCC 931
•15 June 2018
guj
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR-18-00208
Indictment No: H13079495
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JOHN BROWN |
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JUDGE: | HIS HONOUR JUDGE TINNEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 12 June 2018 | |
DATE OF SENTENCE: | 15 June 2018 | |
CASE MAY BE CITED AS: | DPP v Brown | |
MEDIUM NEUTRAL CITATION: | VCC [2018] 931 | |
REASONS FOR SENTENCE
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Subject:aggravated burglary, theft, summary offence; committing indictable offence on bail; 49 years old, lengthy criminal record.
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APPEARANCES: | Counsel Solicitors | ||
| For the DPP | Mr D. Ms Roodenburg OPP | ||
| For the Accused | Mr S Lindner Ann Valos Criminal Law |
HIS HONOUR:
John Brown you have pleaded guilty to one charge of aggravated burglary and also one charge of theft. Those offences are punishable by a maximum of 25 and 10 years' imprisonment respectively. You have also pleaded guilty to committing an indictable offence on bail. That is punishable by a three month maximum term.
You have a lengthy criminal history with many relevant past matters for a variety of offences, many of them serious. There are countless burglaries as well as one aggravated burglary and one attempted aggravated burglary. Also various assault and causing injury offences. There is also a 15 year sentence imposed in 1993 for the crime of murder.
This matter was opened to me on Tuesday of this week by Ms Roodenburg who appeared on behalf of the Director of Public Prosecutions. A written opening, dated
15 May 2018, was marked as Exhibit A on the plea. Your counsel Mr Lindner told me it was an agreed statement of facts.
As a result, I regard it as unnecessary in these reasons to go into the full details of your offending. Exhibit A sets out the factual basis. I will not go beyond that agreed material. Though he made submissions as to where this offending fell on the spectrum of offence seriousness, it was still serious offending as was conceded by your counsel. You entered residential premises as a trespasser with intent to steal. The matters making it an aggravated burglary were the carriage on your person of an offensive weapon being a knife and the presence of a person within the premises and your recklessness in that regard. It was 12 .30 pm and the lone female occupant was home cleaning a walk in wardrobe upstairs. It was Cup day. She had the music up at full volume. You broke a window entered the premises and went upstairs and it was there that she received a shock as she came within a metre of you when she came out of the wardrobe she was cleaning. She screamed, she says you also screamed and you then left the premises. I want to make plain there was no production of or brandishing of the weapon by you or any verbal threat at all. You just left. You stole some keys from the kitchen, hence charge 2 on the indictment. Your victim rang 000 and was distraught when police arrived a short time later. You matched the description she had given over the 000 call and you were quickly arrested. You had the keys, a knife, a bloody wrist and a pretty bad attitude. When asked if you knew why you were being arrested you said “because I broke into that bitch's house”. The less said about the later police interview the better. It is in no way an aggravating feature, I make that very clear. However I am afraid cannot ignore it given the claim made by your counsel as to full admissions, co-operation, remorse and victim empathy on display in this case. You abused the police roundly. More significantly you actually seemed to blame the victim for not hearing you enter the premises saying at one point derisorily “how the fuck couldn’t the idiot hear me?” The answer got much worse, see Question 118 and 119 of the interview. Many of the answers in the interview betray a quite warped attitude to the homeowner whose home you were actually invading. See for instance Questions 115, 124, 125, 137 and 139.
You have been in custody since the day of arrest on 7 November 2017. Incidentally that day was your birthday. You were on bail at the time, having been charged with a burglary and going equipped to steal and theft. Those later two offences occurred on or around the 4 November 2017. You were bailed on that day just three days prior to committing the offences for which I must pass sentence. The various outstanding matters are listed for consolidated guilty plea at Broadmeadows Magistrates' Court on 5 July
In Mitigation
Mr Lindner conducted a plea on your behalf and relied upon a number of matters in mitigation. The matters raised in mitigation principally were:
· Your guilty plea;
· The early stage of that plea;
· The presence of some remorse;
· Your counsel relied upon reports from a psychiatrist, a psychologist, a neuropsychologist and two letters from your case manager at the Salvation army and argued that a number of principles from the case of Verdins had an application here;
Your counsel took me to your personal background which was also detailed in these various reports and made submissions as to the level of seriousness of the offending. He correctly abandoned the written submission that a sentence equivalent to the period of pre-sentence detention was open to the Court. He argued that it was open to impose a sentence not a great deal longer than the time you had served which would then permit the fixing of a non-parole period by the Court. He submitted that such an outcome was open to the Court.
Prosecution
Ms Roodenburg, who appeared on behalf of the Director of Public Prosecutions had prepared detailed written submissions and made some oral submissions as well. I see no need to repeat those submissions in full. The Prosecution took me to the case of Meyers and conceded that the aggravated burglary was not at the highest level, indeed conceded that it fell at the lower level. They submitted that you had a highly relevant criminal history. You had entered premises with a knife and the entry was forced with a window being smashed. There was significant impact. The prosecution conceded that the Verdins factors had a role to play in increasing your custodial burden and in moderating the weight to be given to general deterrence but challenged any great if any reduction to moral culpability. Specific deterrence they argued was still important here. They submitted unsurprisingly that community protection had a sizeable role to play given the past history, your poor prospects of rehabilitation and the actual conditions being relied upon in the Verdins submissions. A prison term was warranted with one requiring the fixing of a non-parole period they argued.
Victim impact
There is a victim impact statement marked as Exhibit B on the plea. The sentiments expressed by your 32 year old female victim in that document dated 12 June 2018 explain eloquently why aggravated burglary is viewed as seriously as it is. Many statements have been made by the Courts as to the way aggravated burglary can impact upon the feelings of safety and well-being of the occupant/homeowner. Well those sentiments are all on display in your victim’s impact statement. She has been seriously affected by your crime. You have entered her house as a trespasser. She received a shock on the day, that is as clear as day. She doesn’t feel the same way about herself or her home. She no longer feels safe and carries her mobile phone in her own home. She no longer enjoys being at home alone. Your trespass upon her home has made her feel the sense of insecurity she felt in the Yugoslavia that she fled when she was ten years of age. She feels unsafe, violated and scared and you have done this Mr Brown. No-one else. Your crime has had a sizeable impact upon her and that continues. I take into account that impact as I am required to.
Background
10 I turn now to your background though I am not going to restate all that I was told. It is set out in some level of detail in the written plea outline submissions filed on the plea (Exhibit 1) as well as in the various reports filed on the plea. Additionally your counsel made some brief oral submissions. I have no reason to doubt the material provided as to your family background and I do accept it. It a bit hard to get a true sense of your family background as you are said by at least one of the experts not necessarily to be a reliable historian. It is, on any view, a sad background in the sense that you have spent a very large amount of your adult life in prison. You turn 50 in November of this year and at the time of the offending were living in a flat in Essendon with support provided by the Salvation Army. You were born in 1968. You were a member of a blended family. You had a sister who died of a drug overdose in 1990. You have five other siblings and three half siblings but have lost contact with your entire family. Going back further in time, you attended school but obviously had significant difficulties there. You left and had no particular skills. You have had only sporadic employment. You have had long term issues with a variety of drugs and alcohol. Additionally, you have had longstanding mental health issues. It is clear from the reports that you have never functioned at a high level. As I understand it, your father and mother are dead. Sadly, your closest ties in the community of recent times are those provided by the Salvation Army Flagstaff support services. There are two thoughtful letters from your case manager Ms Chamali Sirisena which I do take into account.
11 I see very little point conducting an audit of your past criminal history in these reasons. It is a very sizeable history and is obviously highly relevant to my task with past sentences for burglary (close to 30), aggravated burglary, attempted aggravated burglary, assaults, causing of injury and murder. The actual sentencing remarks for the murder (Justice Hampel) and also the attempted aggravated burglary (Judge Duckett) are before me and marked as Exhibit D. There are well over 20 appearances before courts. The offences for which I must pass sentence occurred whilst you were on bail. Courts have tried to deter you over the decades. I will try again. It is plain that you choose to commit burglaries. You must be deterred, punished and I must strive to protect the community from you. You really cannot expect any leniency when you come to a court. You are no teenager. You are a middle aged, seasoned offender. I do not accept the submission that no or little weight needs to be given to specific deterrence.
Guilty plea
12 I turn then to the matters raised in mitigation. You have pleaded guilty and at the earliest stage and that is important. I must reward you for that stance. You have facilitated the course of justice. You have taken responsibility for your crimes at the earliest stage. Witnesses have been spared the experience of coming to court to give evidence. That clearly would have been a distressing experience for your victim. She has been spared that experience. The community has been saved the time, cost and effort associated with a contested hearing, either in this court or in the Magistrates' Court. I take those matters into account in mitigation. I do not, by the way, accept that you were particularly co-operative with the police. The interview does not bear that out at all. You made some admissions but in a pretty belligerent way. Still I take into account the extent of your co-operation with the police.
Remorse
Your barrister submits that you have some level of remorse. A guilty plea is often but not always indicative of some remorse. He points to that guilty plea and also to your leaving the scene when you saw the occupant and to what he says are full spontaneous admissions on arrest. He suggests you displayed victim empathy. Leaving the scene of the burglary is pretty understandable. You wished not to be caught. That is pretty simple. I am not satisfied that was indicative of remorse though I am relieved that you quit the scene without escalating this offending. You did not make full admissions at all, you were belligerent with the police and such admissions as you did make hardly suggested any level of empathy for your victim. Quite the opposite. As I said, in the later police interview, you were abusive of her and blamed her the homeowner for not hearing you the trespasser. It betrays a strange mindset and no doubt relates to the compromised ability to feel remorse referred to in the expert report of Mr Healey.
I am not satisfied on the balance of probabilities that you have any significant genuine remorse for these crimes at all. I am however prepared to find at least some limited remorse implied from the early guilty plea.
Rehabilitation
As to your prospects of rehabilitation, your counsel was arguing that they are low-to-guarded. I fear that is an optimistic view. Even as he made that submission he was suggesting that no or little weight should be given to specific deterrence as it had not worked and seemingly you could not or would be deterred. That you hadn’t been in the past.
You are close to 50. You have been committing serious crimes for three decades. You have been sent to prison time after time. You have long term issues with drugs as well as long term serious mental health issues. Your interview with the police displays, as I have said, a warped and disturbing attitude to other people’s property. I am not going to say you have no prospects at all, that is too bleak and awful a statement. There is at least some extremely modest glimmer of hope from the reports of your case manager. They stand by you and will do so upon your ultimate release. That is at least something. They were however also providing support at the time of these offences. I believe that your prospects of rehabilitation are very poor indeed. Your risk of re-offence is high.
Expert reports
I am not going to descend in these reasons to a close examination of the various reports placed before me. I have read them all since the plea. Your conduct in entering this house was for easily understandable reasons; financial gain. I do not believe there is any direct connection between the conditions spoken of in the reports and your decision to offend. You burgle houses and always have. You know it is wrong. You know you shouldn’t do it. You are though undoubtedly functioning at a very low level. It appears from the reports that you were probably always functioning at a very low level with a baseline of borderline to low average intelligence and that has been further impacted by an acquired brain injury, probably brought about by drug and alcohol abuse. You have suffered from paranoid schizophrenia for many years though all these issues are compounded by your choice to use drugs and alcohol. I am certainly prepared to find that there is an increased custodial burden flowing from those various conditions. The 5th limb of Verdins has an application. However there is no basis to significantly reduce your moral culpability. Dr Walton is talking of the generality of your conditions on page 5 of his report. The general sense of the combined conditions compromising your ability to consistently exercise proper social judgment and to consider the long term consequences of your actions. He states that you are a recidivist and that this is not entirely explicable on the basis of the conditions referred to. It would be easy enough to conclude that there is no realistic connection between the conditions and your offending. However I am not reaching that view. You suffer from what is described as the ‘quadruple jeopardy’ of the schizophrenia, low-ish intelligence, acquired brain injury and poly-substance abuse. In the circumstances, I will give the first limb some very modest weight.
Your counsel initially submitted that no weight at all should be given to specific deterrence. He abandoned that submission, instead submitting that it should be significantly moderated. I disagree.
I do not believe there is any reason to significantly reduce the weight to be given to general or specific deterrence. I am prepared to moderate to a degree those purposes. I want to make very plain they are far from eliminated as sentencing purposes here. It is true that you have not been deterred but that is not to say you cannot be. You need to be deterred and I believe you can be. There is nothing in your condition suggesting otherwise. Paradoxically the conditions which are relied upon as attracting the application of the Verdins principles also at the same time impede your rehabilitation and heighten your risk to the community in the future. So community protection is a powerful purpose though I must only pass proportionate sentences.
General remarks
As to the offences themselves, your counsel conceded that this was serious offending. Of course it was.
There has been discussion in the Court of Appeal about the sentencing practices for the crime of aggravated burglary and the manner of assessing the seriousness of the given offence. In the case of Meyers to which both counsel referred, a number of considerations were set out though obviously they are not exhaustive. They include the intent upon entry, the mode of entry, whether a weapon was carried, whether the offender was alone or in company, the time of the day, what the offender knew about who would be inside and whether the offender was someone of whom the victim was particularly frightened
Your counsel suggested that the offending was not in the worst category and for that matter, should be placed at the low end of the sentencing scale. He referred to the absence of a number of features of aggravation including for instance joint entry at night and the brandishing of a weapon or verbal threats being issued. This was however, on any view of it, a premeditated entry by a seasoned offender. It did not just happen. You made a selection of the residential property and then a choice as to the manner of entering that property. You had with you a weapon and were reckless as to the presence of a person within. You entered by breaking a window and continued on into the premises notwithstanding the noise coming from upstairs. By then of course the entry was complete. It is true that you did not brandish the knife and probably equally true that you got a bit of a shock when confronted. Happily the crime did not escalate as it might have. Still, you had with you a knife as you entered these premises. You had no idea who would be in these premises upon entry. The intent upon entry was an intent to steal not to assault. It was in day time, it was not in the middle of the night. Nor was it joint entry with others. So this was an unlawful entry by a single trespasser, not a joint entry and not with any intent at all to confront. Clearly it was not your intention. Your intention was to steal.
Though yours was not a confrontational aggravated burglary and there are a number of features of aggravation absent, that does not somehow transform it into anything other than the serious offence that it is. This style of aggravated burglary though clearly in my judgement not as serious as an in company confrontational type entry, is still an inherently dangerous offence. The trespasser has no concept at all of who is actually within the building and what may happen if the trespasser is disturbed in the act. The risk of escalation in this style of offending is inherent. It is hardly surprising that such entries have a significant impact upon the sense of safety and security ordinarily felt within one’s own home. We can see that immediate impact in this case and that is just the immediate impact. Your victim could hardly talk when the police arrived on the scene. She speaks now in the impact statement, over six months later, of the ways in which her life has been affected by your crime.
The penalty for aggravated burglary was increased in 1997. When introducing the amending legislation, the relevant Minister raised the prevalence of the offence and the fact that the offence undermines the sense of security people feel in their own homes. The Court of Appeal in this State has often referred to that concept including in the case to which I was referred in the prosecution sentencing submissions. Once inside you stole the property the subject of charge 2 on the indictment.
Trying to categorise an offence carries the danger of such discussions being misunderstood by those who hear them take place. People might mistakenly conclude that a so called ‘low level’ offence before the Court is not somehow serious. Make no mistake, it is serious. Secondly such efforts to categorise also runs the risk of distracting from an assessment of the true seriousness of the offence before the Court. As I say, the absence of some aggravating features does not render this some minor example of the crime. This was unmistakably serious criminal conduct by a mature man, one on bail at the time and one regrettably with a highly relevant prior history. It was not offending at the very lowest level though was a long way removed from the top of offence seriousness.
Purposes
I have to consider a number of purposes of sentencing including your prospects of rehabilitation. I believe you have very poor prospects of rehabilitation and a high risk of reoffending.
I am required to impose a just and proportionate sentence in relation to your offending. You must be punished. That is obviously a very important sentencing purpose. I must also denounce your conduct and I do. That is an important matter as well.
Now I have mentioned your past criminal record. You have already been punished for the matters in your past history so do not fall to be punished a second time for that offending but I can take into account your history when making judgments as to your prospects of rehabilitation as well as the need to deter you.
There is the need for this court to seek to deter you from offending in the future. I must give that principle of specific deterrence real weight in my sentencing task and that is so despite the Verdins moderation I have already spoken of. It is a matter of degree always and I believe that specific deterrence remains an important purpose here. You can and must be deterred.
Community protection is also a powerful purpose in a case such as this. You have a high risk of re-offending. You pose something of a danger to the community. I must protect the community from you but reiterate I must only pass proportionate sentences. I cannot factor in your past criminality and then impose a sentence which is disproportionate to your offending.
General deterrence is still a significant purpose of sentencing in this case despite my Verdins moderation. It is far from eliminated. This court must send a clear message to other individuals in the community who might be minded to commit this sort of serious crime. I am referring to the aggravated burglary. Those contemplating such offending must understand that such conduct will be met with sizeable terms of imprisonment. That is because of the serious nature of aggravated burglary, a fact which has been spelt out repeatedly by our legislature and by our highest court in this State.
I must and do pay regard to current sentencing practices. It is not a controlling factor.
I have considered the Sentencing Advisory Council’s Snapshot in relation to the offence of Aggravated Burglary being snapshot number 184 of June 2016. Also the more update SACstat data held by that body. Now statistical material always has inherent limitations. I am not required to sentence according to the median or to the statistically most common sentence. The statistics say nothing as to the individual features of the offence or the offender. You for instance have highly relevant criminal history with one prior appearance for aggravated burglary and one for attempted aggravated burglary. You were on bail at the time. I must pass an appropriate sentence in your case for your crimes. I have looked also at the Judicial College of Victoria sentencing manual dealing with an overview of aggravated burglary sentences at 32.15.4.1. Other cases are not sentencing precedents.
Though not a confrontational aggravated burglary, I make that plain, it still has a 25 year maximum penalty and I must pay regard to that maximum penalty.
I have no option but to pass sizeable sentences upon you. I simply did not understand how or why your counsel had made the written submission that he made as to the pre-sentence detention being sufficient penalty. He withdrew that submission and for good reason. Such an outcome 217 days would plainly represent a totally inadequate sentence and would not pay adequate weight to any of the purposes of sentencing. Nor do I accept for one moment that it is within my discretion to impose a sentence which provides for your possible imminent release. That is because I have to pass appropriate sentences here.
Totality/cumulation
I do take into account totality of sentence. I believe I can impose total concurrency in relation to charge 2 on the indictment. The summary offence relates to committing an indictable offence on bail, the offence being the theft and the aggravated burglary laid on the indictment. Again, I believe that total concurrency is open to me. I have reviewed the sentences and the total effect of them to ensure they are commensurate with your overall criminality and are not crushing upon you.
Disposal Order
Application is made for a disposal order. It is not opposed. This relates to the disposal of the steak knife and the capsule cutter that you were in possession of. I am satisfied that the conditions exist for forfeiture as set out in the document. I have signed that order and I direct pursuant to the provisions of the Confiscation Act, the forfeiture to the State of that property. I direct that it be placed in the custody of the Chief Commissioner of Police and be treated and held by him in the manner contemplated in the order which I have signed.
Sentence
If you could stand please Mr Brown. On the charge of aggravated burglary charge 1, you are convicted and sentenced to four years' imprisonment. That is the base sentence. On charge 2 theft you are convicted and sentenced to 2 months imprisonment.
39 On the summary offence you are convicted and sentenced to one month’s imprisonment.
The two month term imposed on the theft and the one month term imposed on the summary offence will be served concurrently with the base sentence and upon each other. This results in a total effective sentence of four years imprisonment. I fix a period three years during which you will not be eligible for release on parole.
Section 18 pre-sentence detention
41 You have already served 220 days by way of pre-sentence detention and that declaration is to be entered into the records of the court.
Section 6AAA
I have taken into account your guilty plea. If you had pleaded not guilty and been found guilty of these offences by a jury I would have sentenced you to six and a half years' imprisonment and fixed a non-parole period of five years.
Have a seat please. Are there any other matters that I need to deal with at all?
MS EDWARDS: Your Honour, on the last occasion, a copy of the victim impact statement was provided to the court.
HIS HONOUR: Yes.
MS EDWARDS: I have the original copy.
HIS HONOUR: You have got the original, have you?
MS EDWARDS: Yes, Your Honour.
HIS HONOUR: All right, hand that up and there was no issue in terms of me proceeding on the copy. But for Exhibit B I will substitute the actual victim impact statement.
MS EDWARDS: Thank you, Your Honour.
HIS HONOUR: Any other matters that I need to deal with at all?
MS EDWARDS: No, Your Honour.
HIS HONOUR: No. Mr Lindner, no other matters?
MR LINDNER: No, Your Honour.
55 HIS HONOUR: No, all right. Thank you. You will go down and see your client downstairs, will you?
56 MR LINDNER: I will.
57 HIS HONOUR: Mr Brown, that completes the matter. So Mr Lindner will come down and see you downstairs, all right. So Mr Brown can be removed, thank you.
(Prisoner removed.)
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