Director of Public Prosecutions v Brown
[2013] VCC 2181
•31 July 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-12-00205
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DAVID BROWN |
---
JUDGE: | HER HONOUR JUDGE DAVIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 12-18 June 2013 | |
DATE OF SENTENCE: | 31 July 2013 | |
CASE MAY BE CITED AS: | DPP v Brown | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 2181 | |
REASONS FOR SENTENCE
---
Catchwords: CRIMINAL LAW – Causing serious injury intentionally – same victim – breach of suspended sentence – no evidence of remorse.
Sentence: Total Effective Sentence of 4 years and 6 months imprisonment with new non-parole period of 3 years.
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr Saunders | Ms Picone |
| For the Accused | Mr Kowalski | Mr Marash |
HER HONOUR:
1 David Patterson Brown you have been found guilty by a jury of one charge of causing serious injury intentionally to Adam Wells. This offence carries a maximum penalty of 20 years' imprisonment or 2400 penalty units.
2 At trial, you said that late in the evening on 2 June 2011, you heard Mr Well’s car idling in the lane for a couple of minutes before going outside to see why he was there. You said that he got out of his car and you exchanged words before he hauled himself up onto the fence twice, making threats and attempting to instil fear in you. When he hauled himself up onto the fence a third time, and tried to swing over it, you picked up the handsaw which was lying on a table nearby and swung it at him in an attempt to make him break his grip on the fence. You conceded that the blows you struck with the handsaw caused Mr Wells serious injury, principally a wound to the back of his right hand which required plastic surgery. During the scuffle which ensued Mr Wells also suffered a number of minor injuries such as scratches, grazes and abrasions to his face, fingers, arms chest and knees. However, you insisted that when you inflicted the blow to Mr Well’s hand you were acting in self-defence.
3 Mr Well’s account of the altercation may be briefly summarised.
4 On the night of 2nd June 2011 there was a violent altercation between the two of you as a result of which you both suffered injury. The altercation began when Mr Wells went to move his car from where it was parked on the street to his property via a lane. Both you and the victim had access to your respective properties via that lane. Mr Wells received a text message as he was driving down the lane and stopped to read it in the lane. As he was sitting stationary in his car reading the message, with the engine still running, he noticed a bright light being beamed through his rear window. He believed this light to be coming from your property. He then heard something strike the roof of the car. Upon hearing the object strike the roof he got out of his car and walked over to the fence of your property which abuts the lane. He asked you why you had thrown something at his car and why you were shining a light into his car. You then leaned over the fence and struck him twice on the hand with a handsaw. He stumbled back away from you and the fence. You then came out of your property through the gate onto the lane.
5 As Mr Wells turned to get away from you, you struck him with the handsaw on the back. At this stage he was cornered between the fence and his car. Given his position he decided to attempt to defend himself and disarm you. He rushed at you and tackled you to the ground. He punched you several times to the head. His dog came out of his car and you swung the handsaw at the dog. Fearing for his dog, Mr Wells again tackled you to the ground and again punched you several times to the head. He was then able to obtain possession of the handsaw. He went to his property and called the police.
6 By its verdict, the jury rejected your account of the circumstances in which you struck Mr Wells. The jury found that the Mr Wells suffered a serious injury, that you caused that serious injury, that you intended to cause such a serious injury and that you did so without lawful justification or excuse. In so finding, the jury must have rejected your explanation for self defence. I therefore sentence you on the basis of Mr Well’s account of the circumstances of the incident.
Personal Circumstances
7 You were born on 31 January 1951. You were 60 years of age at the time you committed the offences. You are now 62. You are tertiary educated and, according to your resume, had been in steady full-time employment as a civil engineer or building manager between 1973 and 2008. You divorced your wife in 1996 but maintained a good relationship with her and with your daughter from the marriage, who is now 21. After 2008 you worked part-time and you stopped working in August 2010. You have some family support, as evidenced by your mother’s presence throughout the trial and the presence of your mother and a brother at the plea hearing. You remain friends with your ex-wife and have a close relationship with your daughter.
8 Two character references were tendered on the plea. One reference was from a former colleague and a friend for the past 25 years, who wrote favourably of your loyalty and integrity both professionally and personally, but made no reference to the offence for which you stand to be sentenced. Another reference was from the capital works manager at a local council, under whom you worked on contract for nine months from April 2007 providing professional project management services. He wrote that you carried out your work professionally and successfully. You had made him aware of your recent conviction at trial and he expressed surprise at the situation and noted his belief that such behaviour was out of character given what he had observed of you when you worked together.
9 You have significant prior convictions. Mr Saunders for the prosecution was able to provide brief details of these offences: On 19 May 2000 you were convicted of intentionally causing injury and wilfully damaging property. This related to the breakdown of a relationship you were having at the time. On 3 October 2002 you were convicted of unlawful assault. The female victim was attending her mother’s house in your street. You prevented her from entering her car and punched her in the neck. On 19 November 2002 you were convicted of reckless conduct endangering a person and other driving offences associated with a road rage incident. On 2 December 2003 you were convicted of assault with an instrument and unlawful assault arising out of an altercation with a woman at a service station. On the first three occasions you were fined and on the fourth occasion you were placed on a community based order which you completed successfully.
10 You did not engage in any further criminal behaviour until 12 January 2008. Most significantly, you were found guilty by jury verdict on 12 March 2010 of three criminal offences perpetrated against the victim of the current charges, namely two counts of conduct endangering a person, and one count of criminal damage relating to conduct on 12 January 2008. You were found not guilty of charges relating to earlier incidents in 2007.
11 According to the sentencing remarks of His Honour Judge Howie, at paragraph 5, on 12 January 2008, you drove your car forwards into the lane adjacent to your house in circumstances where Mr Wells was ahead of you on his bicycle, and where your driving amounted to dangerous driving which placed him in danger of serious injury. You collided with Mr Wells who was thrown onto the bonnet of your car and his bike went under your car.
12 In relation to your prior convictions in 2000, 2002, and 2003, His Honour noted at paragraph 18 that the offences “suggest a man with a tendency to act in a significantly immature and unreasonable manner and with a serious anger management problem”. In relation to your conduct in January 2008, His Honour noted that your driving in that way was voluntary and deliberate and was dangerous conduct motivated by animosity towards the victim. In relation to the charges of conduct endangering a person, you were sentenced to a term of 18 months imprisonment. That term of imprisonment was wholly suspended for a period of three years on the basis of “the importance of specific deterrence, the period of almost two months imprisonment that you have served and the need to facilitate your rehabilitation” according to His Honour Judge Howie. On the charge of criminal damage you were sentenced to a Community Based Order which you have completed successfully.
13 Your conduct on 2 June 2011 breached the suspended sentence imposed by His Honour Judge Howie.
14 Mr Kowalski made a plea in mitigation on your behalf and his submissions may be summarised briefly. He said that your criminal history is unusual, in that you were a law abiding citizen until 2000 when you were nearly 50 years of age. Since then, however, for some unexplained reason you have been on a downward spiral. He did not have instructions from you, nor any psychological evidence concerning an explanation either for your past offending nor for the offences for which I am sentencing you today. However, he suggested that most of your offending concerns the area in which you live and is connected to the development of units behind your home in the late 1990s. I note that he did not explain how this applied to the convictions of 2002 and 2003.
15 Mr Kowalski noted that you have not reoffended whilst on bail. He noted that there was a significant gap of five years between the offences you committed against persons other than the victim, and your first offending against Mr Wells in 2008.
16 He acknowledged the inevitability of your being sentenced to a term of imprisonment. He submitted that over the past ten years you have lost the capacity to work, have suffered substantial financial losses, and have lost contact with many of your friends.
17 He submitted that the injuries suffered by Mr Wells were not at the highest level of seriousness, and therefore that you should not be sentenced as though the offences you committed were in the worst category of offending. He said that it should be taken into account that you have never previously been sentenced to a term of imprisonment, that you are older than most prisoners and will find gaol harder because of this. He submitted that as Mr Wells has moved out of the area, the animosity which fuelled your behaviour has disappeared and there is no longer any need to be concerned for the protection of the community. He submitted that while you are in gaol, your daughter will move into your house and attempt to keep servicing the $400,000 mortgage which remains on it, but that it is likely that you will lose the house. In addition he submitted that as a result of being imprisoned you are unlikely to be able to obtain further work in the future. He also submitted that it should be taken into account that while in gaol you will be unable to help your elderly mother and stepfather on a weekly basis.
18 Mr Kowalski noted that you have the support of your family – one of your brothers, your daughter, your mother and your stepfather, and good prospects for rehabilitation. He conceded that there was no evidence of remorse on your behalf. Notwithstanding the need for general and specific deterrence, he urged the court to impose a merciful sentence and proposed that any sentence imposed be ordered to be served concurrently with the sentence being served for the January 2008 offences. He submitted that the range proposed by the prosecution was too high. He said you did not oppose the making of a 464ZF forensic sample order or a disposal order.
19 Mr Saunders on behalf of the prosecution conceded that the principle of totality had to be applied and may temper the sentence to be imposed on the 2011 offences. In the light of your prior misconduct, apparent issues with anger management and the nature of the attack against the victim in June 2011, he submitted an appropriate range was a term of imprisonment of between 5 to 7 years with a non parole period of between 3 and 4 years.
Sentencing Considerations
20 Aggravating factors: I consider that there are four aggravating factors. Firstly, at the time of committing this offence you were serving a sentence imposed by His Honour Judge Howie on 31 March 2010, an 18 month term of imprisonment wholly suspended for a period of 3 years. You committed the offence less than a year after being sentenced by Judge Howie.
21 Secondly, the offence was committed against the same victim you previously attacked in January 2008.
22 Thirdly, the offence involved the use of a weapon, in this case a handsaw.
23 Finally, the attack was ended only by Mr Wells when he was able to disarm you, subdue you and remove the handsaw from the scene.
24 Gravity. I consider the offence is a serious one. I accept that it involved little planning. However, you made a decision to come out of your house knowing whose car was idling in the lane, a man whom you had previously attacked, at a time when you were serving a suspended sentence in relation to that previous attack. You decided to arm yourself with a handsaw and to approach Mr Wells. This is a serious example, at the very least, of a man taking the law into his own hands to solve a perceived neighbourhood grievance. There was a potential for far greater injury to Mr Wells but for his own physical prowess and ability to subdue and disarm you.
25 I turn to factors in mitigation. As your counsel conceded, although it was your right to plead not guilty, and you cannot be criticised for so doing, in doing so, you cannot expect the sentencing discount that attaches to a plea of guilty or any indication of remorse that such a plea may have demonstrated. There was no indication of remorse on the plea before me and there was no evidence which might explain your conduct in January 2011 nor your earlier behaviour. However, I accept that this is a somewhat unusual case in that you commenced offending when you were nearly 50 years old and I acknowledge that you have had the benefit of tertiary education, a stable home and solid professional career and committed no offences until the early 2000’s. Further, I acknowledge that you were injured by Mr Wells when he subdued you and disarmed you, although you brought this on yourself by your conduct. I also acknowledge that because of your age gaol may be more onerous for you.
26 I consider that the principles of general and specific deterrence loom large in this case. General deterrence is significant in that longstanding problems between neighbours can escalate all too frequently into violence of a very serious nature. I consider that the protection of the community is an important consideration in this case. Specific deterrence looms large in this case not just because of your prior violent behaviour towards others but particularly because of your prior attack on this victim. In addition, specific deterrence looms particularly large because the sentence imposed by His Honour Judge Howie did not deter you from committing this offence. The fact that the victim has since moved to another location does not in my view alter the relevance of specific deterrence. I do not accept your counsel's unsupported submission that your prospects for rehabilitation are good.
27 Mr Brown would you please stand.
28 Taking all of the matters I have outlined into account, as well as the principle of totality, I sentence you on the charge of intentionally cause serious injury to a term of imprisonment of three years with a non-parole period of 18 months. I declare that a period of 37 days pre-sentence detention is to be reckoned as time served on the sentence that I have imposed upon and deducted from the sentence that you have to serve and I order that this be entered into the court records.
29 I will now deal with the breach of the suspended sentence. I have already referred to the circumstances of the offences which led to the imposition of the suspended sentence and to the sentencing remarks of His Honour Judge Howie. Your counsel conceded on your behalf that there were no exceptional circumstances to warrant an order other than the restoration of the suspended sentence pursuant to s83 AR(2) of the Criminal Procedure Act 2010. I therefore have no alternative but to restore the whole of the sentence imposed by His Honour Judge Howie, that of a term of imprisonment of 18 months, and I do so. I declare that a period of 54 days pre-sentence detention is to be reckoned as time served on the sentence that I have imposed upon you and deducted from the sentence you have to serve.
30 I turn to the question of cumulation. Ordinarily, pursuant to s 83AR(3) of the Criminal Procedure Act 2010, when a suspended term of imprisonment is wholly restored that term is to be served cumulatively upon any other sentence of the court, subject to any order to the contrary made by the court. Your counsel has submitted, without explaining why other than calling for mercy, that I should make an order for total concurrency. I consider that total concurrency fails to do justice in this case for three reasons.
31 Firstly, you abused the trust placed in you by His Honour Judge Howie only 9 months after having been sentenced by him.
32 Secondly, you attacked the same victim.
33 Thirdly, you provided no real explanation for your conduct such as might provide mitigating circumstances.
34 In the circumstances of this case therefore, I do not consider that there is any basis for displacing the ordinary presumption as to cumulation. I have considered the principle of totality in determining the total effective sentence. Therefore the restored sentence of 18 months imprisonment is to be served cumulatively upon the sentence imposed today for the offence of intentionally cause serious injury.
35 The total effective sentence is that of 4yrs and 6 months imprisonment.
36 In fixing the non-parole period, I note that your counsel did not provide any material to support his submission that you have good prospects of rehabilitation. Whilst I do not consider that your prospects or rehabilitation are negligible, given your violent behaviour in the past, even if it is only in the relatively recent past, and the absence of material in mitigation, there is no basis for providing a large gap between the head sentence and the non-parole period in this case. For this reason, I will fix a new non-parole period of 3 years. I therefore direct that you serve a minimum of 3 years before becoming eligible for parole.
37 I note that you do not oppose the making of the orders sought by the prosecution for disposal and the taking of the forensic sample. I make the disposal order sought by the prosecution in relation to the items identified in the schedule which is the handsaw.
38 In relation to the forensic sample, I am satisfied that, in all the circumstances, the making of the forensic sample order is justified because of the seriousness of the circumstances of the offending warranting the order; because the order is not opposed; and because I consider that the granting of the order is in the public interest.
39 I order that pursuant to s 464ZF(2) Crimes Act 1958 that you undergo a forensic procedure for the taking a scraping from the mouth and/or a blood sample in accordance with subdivision 30A of Part 3 Crimes Act 1958 until a sample of sufficient standard is obtained for placement on the database. I inform you that if at the time of the request you do not consent to the taking of a mouth scraping under the supervision of an authorised member of the police force then the sample to be taken will be a blood sample and police may use reasonable force to enable that forensic procedure to be conducted. Do you understand?
40 PRISONER: I've already submitted a sample.
41 HER HONOUR: Thank you, Mr Brown.
42 PRISONER: No, I don't understand, perhaps my counsel will explain it to me.
43 HER HONOUR: Just take a seat for a moment and your counsel can approach you in relation to that. Have I got the pre-sentence detention correct?
44 MR KOWALSKI: Yes, that's correct, Your Honour.
45 HER HONOUR: And in relation to the correct offences?
46 MR KOWALSKI: It's a total of 91 days as I read it.
47 HER HONOUR: Excellent, right. We'll just prepare the orders and provide those to you. We'll adjourn briefly.
- - -
0
0
0