Director of Public Prosecutions v Brown
[2012] VCC 1132
•2 August 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-12-01070
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| CHRISTOPHER BROWN |
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JUDGE: | HER HONOUR JUDGE HAMPEL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 24 July 2012 | |
DATE OF SENTENCE: | 2 August 2012 | |
CASE MAY BE CITED AS: | DPP v Brown | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1132 | |
REASONS FOR SENTENCE
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Catchwords: Guilty plea – aggravated burglary and criminal damage – group attack on family in home –escalation of dispute between 2 young people – prisoner had no involvement in original dispute – extensive criminal history – prior convictions for assault and criminal damage – long history of drug and alcohol abuse – no commitment to addressing drug and alcohol abuse – effect of prisoner’s different circumstances on parity considerations – Total Effective Sentence: 3 years non parole period 2 years
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr R. Mallia | OPP |
| For the Accused | Mr R. Morgan | Clarke & Barwood Lawyers |
HER HONOUR:
1 Christopher Brown, you have pleaded guilty to one charge of aggravated burglary and one of criminal damage. I have already sentenced two of your co-offenders, Nicholas Oram and Andrew Emond, who pleaded guilty to the same charges. The charges arise out of a disgraceful, thuggish and cowardly attack, by a group of young men on a family in their home at night. The attack was carried out by the group, of which you were a member, in front of an audience of friends and supporters who went there to watch, as if it were some form of entertainment.
2 Shortly after midnight on the 8th of January 2012, a group, or a mob, as it is more aptly described, left Oram’s home and walked to the Taylor family home in Queen Street, Colac; it was a relatively short distance away. You, along with Oram and Emond were part of that group. Eleven year old Henry Taylor was playing in the front yard with his dog. One of the group, who was by then armed with a pole, chased Henry saying, "You're dead, little boy." Henry ran inside, where his parents, his 18 year old brother Jack, the person the group had gone there to try to fight, and other children were present.
3 Some of the mob called out for Jack Taylor to come outside. Some, including you, picked up poles or other items that they could use as weapons. They smashed six external windows, two windows of the family car which was in a carport on the property, and the letterbox. The people in the house were terrified. Some of them were cowering in fear they were so frightened of what was going to happen at the hands of this angry, violent mob.
4 You were one of 3 who went into the house. One or more of you kicked in the front porch door. Using the iron bar you had armed yourself with, you smashed the internal door, which opened into the living room. Standing at that door, you continued to swing the iron bar. At one stage you hit the lounge room wall with such force that the picture frames hanging on the wall fell to the floor. One of the occupants, a 16 year old, was threatened. Another occupant just missed out on being hit with a pole that was being swung by one of you. Some members of the household tried to stop the mob getting in through the broken windows and door.
5 When police sirens were heard approaching, Oram went into the house to warn those of you inside it, including Emond and you, Mr Brown, that the police were on their way. You, and the rest of the mob, ran away.
6 Victim Impact Statements were provided by Joanne Taylor, the mother of Jack Taylor, and 11 year old Henry. She was understated but eloquent. Of her son, Henry, she said he was very distressed and became too frightened to go to sleep at night. He was prescribed liquid Valium so he could calm down enough to sleep. It took a long time to get him settled so he could sleep at night. He has had to see a psychologist. He was frightened to go anywhere near the front of the house or to go out in the yard on his own. For your part in this attack on the house and family, and for the consequences for that child, you, like Emond and Oram should be ashamed of yourself. What a thing to inflict on an 11 year old, to make him too frightened to play in the safety of his own front yard.
7 Ms Taylor believes that this has changed Henry dramatically and she says it makes her frustrated and upset that he does not feel his home is safe any more. She says the effect on her is to make her overly paranoid. She watches the house all the time. She is scared on weekends that something like this will happen again. She stays up late, too afraid to go to bed. She feels, understandably, angry, that this happened in her house, to her family, and that such disruption was wrought on a family in their home. The practical consequences, having to clean up afterwards, and the problems of dealing with insurance, the problem of discovering insurance does not cover all of the loss, the resultant frustration, financial loss and hassle should not be ignored, or underestimated either.
8 Ms Taylor said she felt sad that the current generation of teenagers and young adults think smashing someone's house and traumatising young children is the way to solve their problems.
9 Although some of the perpetrators were arrested over the next few days, you were not arrested until 18 April this year. When arrested you made a no comment interview.
10 On the plea, I was told that your instructions were that you had come into this at the last minute. You did not know the intended victim, Jack Taylor, and had had no involvement in what was apparently a childish feud which had existed between Jack Taylor and Oram since primary school.
11 Ms Taylor’s reference to the tendency of young people to think smashing someone's house and traumatising young children is the way to solve their problems succinctly puts the reason why denunciation, just punishment and deterrence are important sentencing considerations for these offences. Resort to violence, or threats of violence, terrorising people in their home, and engaging in gratuitous and wanton acts of destruction of somebody else’s property, to avenge some real or imagined petty wrong is totally unacceptable behaviour.
12 If Jack Taylor had been the only occupant of the house, this attack on the house would have been bad enough. But his parents, and the children and young people who lived in the house, or who were guests in that night, had nothing to do with whatever it was that had spurred the group to go on the rampage. That the Taylors' right to be safe in their home and free from attack could be so ignored, or be seen as acceptable collateral damage to the aim of exacting revenge on Jack Taylor adds to the seriousness of the offending, and reinforces the need to properly reflect denunciation, just punishment and deterrence in the sentence.
13 Another matter adding to the seriousness of your role in the offending is the fact you knew nothing of the circumstances which had led to Oram and Emond deciding they were going to force a confrontation with Jack Taylor. You were simply prepared to take part in their planned attack, to work yourself into a state of violent, aggressive anger, and to engage, with them and others in gratuitous threats of violence and acts of destruction of property on a group of people who you did not know, in their own home, at night.
14 On your account, as put to me on the plea, you were in a vulnerable emotional state because you had just broken up with your girlfriend. You had gone to Colac without her, attended a party, then gone back to Oram’s house with a group of people. By the time you got to Oram’s house, you had consumed a cocktail of drugs, and a substantial amount of alcohol. You claim not to have known there was a plan to go to Taylor’s home and call him out to fight until you, with the group, were walking to the house. On your instructions, as put to me on the plea, on the way to the house, people were geeing you up, and you were becoming agitated. You said that on arrival at the house, someone handed you a pole, and you saw others had picked up poles and you heard the sound of things being smashed. You acknowledge that you heard people calling out for Jack Taylor to come outside before you went into the house. Emphasis was placed on the that fact you remained in the porch area of the house, and did not cross the threshold into the loungeroom.
15 I do not consider any of these factors to be mitigatory. Your explanations all seek to minimise your role and to shift blame and responsibility onto others.
16 Whatever was the cause of the feud between Emond and Taylor, and whatever precipitated the decision of Emond, Oram and others to act as they did, it was nothing to do with you. You blame unnamed others for geeing you up. You, and you alone are responsible for controlling yourself. You said someone handed you a pole, while others picked up their own. Even if that is right, you could have refused to take it, or put it down. It was your choice to arm yourself with that bar, and to use it. On your account others did damage first. You said you heard the sound of things smashing. Even if they did, that does not excuse your conduct. In some ways it makes it worse, as you were adding to the harm already done and to the fear already created in the occupants. You emphasise not going beyond the front porch. That is a very fine distinction indeed when you admit that the three who were in the porch had kicked the outer door in, and had smashed the glass of the inner door with the bars they were armed with, that it was your actions in striking the wall of the loungeroom which brought the picture frames down, and acknowledge that at that time the occupants were trying to keep the three of you from coming any further inside the house.
17 Dealing then with your personal circumstances. You were born in Colac and have lived in the area for most of your life. Your parents separated when you were 2, and although your father lives, and operates a business in Colac, I am told that he has played no part in your life since then. When you were in grade 6, you were diagnosed with ADHD and prescribed Ritalin. At some stage during your primary school years your mother repartnered. You describe the treatment meted out to you by her partner as extremely violent. You started staying for extended periods with a great aunt and uncle in Colac, and by the age of 13 you went to live with the great aunt and uncle full time. You remained with them until you were 16, and then moved to independent accommodation provided by a youth assistance program. When your mother’s relationship with that partner came to an end, when you were about 16, your contact with her increased, and since then you have lived with her at times, and at other times independently of her. Your schooling was disrupted. You were expelled from a number of primary and secondary schools for antisocial behaviour. You ultimately completed year 10 by home schooling with the assistance of a tutor.
18 Your account of your childhood indicates you have not had the advantages of a stable and loving home, or parenting or schooling which could successfully assist you in addressing your behavioural problems.
19 It is not surprising having regard to that background that your employment history is poor. You have had a number of short term unskilled labouring jobs, the last finishing in April 2011.
20 This picture of disadvantage is compounded by a long history of abuse of drugs and alcohol. As Dr Cidoni, who assessed you for this plea reported, you now present as having a very significant polydrug dependence. You have not ever engaged in any programs to address your drug and alcohol abuse.
21 A letter of apology from you was tendered on the plea. In it you said what made it easy was all the drugs you were on, which made you make the worst choices you have ever made in your life.
22 In addition to your history of drug and alcohol abuse, you have a long history of committing angry, violent, and impulsive acts when impaired by drugs and alcohol. It is clear that by the time of the commission of these offences, you were well aware of the effect of drugs and alcohol on your behaviour. This included becoming agitated, angry and apt to act impulsively and aggressively. You were well aware that that had frequently resulted in you committing criminal offences, in particular, assaulting people and destroying their property. You were well aware of the legal consequences of acting in that manner. In those circumstances, engaging in activity of the sort you did on this occasion, when fuelled by drugs and alcohol that you had chosen to abuse does not excuse your behaviour, or carry any mitigatory weight. The only way your conduct on this night can be described as the worst choices in your life is to say that it is the most recent in a long string of similar choices.
23 At the age of 23, you have an appalling criminal history. Since you turned 17, you have amassed 10 appearances before adult courts. You have 9 separate convictions for causing criminal damage, 1 for aggravated burglary, 3 for burglary and 14 for theft or related dishonesty offences. You have 5 convictions for summary assaults, and 1 for intentionally causing injury. You have 3 convictions for weapons offences, including one for possession of a firearm when prohibited from possessing firearms. You have breached most, if not all rehabilitative orders you have been sentenced to. You have served periods of youth detention and adult imprisonment.
24 It is abundantly clear from this recital your frequent contact with the criminal justice system has done nothing to deter you. It is clear therefore that the sentence must reflect the need to give weight to specific deterrence as well as general.
25 Although your reason for joining in this night is different from that of your coaccused Oram and Emond, your behaviour too is properly categorised as that of a thuggish bully. There is no place for such behaviour in a civilised society.
26 The conduct of the group of which you were a part that night escalated what seemed to be no more than an immature and childish dispute between two young men still in their teens, into a dangerous episode of mindless mob violence.
27 These sorts of escalating episodes, particularly when the participants are fuelled by drugs and alcohol, can quickly get out of hand and rapidly lead to really serious consequences, serious injury, and even death to people.
28 I am told that you have now acknowledged, for the first time, since being remanded on these charges in April this year, that you are have a mental illness, and that you have a problem with drug and alcohol abuse. I am told you are now prepared to seek treatment for depression, and for substance abuse.
29 When Dr Cidoni assessed you, just days before the plea, you reported to him a history of depression since 2006. Your reported symptoms included periodically low mood, associated with suicidal ideation, negative thoughts about yourself, poor appetite, impaired sleep, and reduced energy. You told him that you had experienced a particularly bad period leading up to April of this year. You told him you had never sought help for depression because you had not wanted to admit that you had a problem. Although the record of the 2008 sentence of youth detention to which I referred earlier noted depression as a risk factor when you were sentenced, no reports from that time were provided to me.
30
In the section of his report headed opinion and recommendations, Dr Cidoni said:
“Mr Brown has suffered from a major depressive disorder although it is difficult in the setting of very significant polysubstance dependence to determine what the effects of the substances are and what the effects of the underlying mood disorder are.”
31 The combination of the scant and unsupported history of depressive symptoms recounted by Dr Cidoni, and the history of polysubstance abuse provided to me does not in my view establish a sound evidentiary foundation for his opinion that you have suffered from a major depressive disorder. Having regard to what I was told of your substance abuse in the time leading up to this offending, and on the night itself, I accept that it is likely the substance abuse was a contributing factor to the offending. However, Dr Cidoni’s report provides no support for any causal connection between the offending behaviour and any depressive disorder.
32 In the absence of any proper foundation for the diagnosis of depressive disorder, and of any opinion as to whether you currently experience depressive symptoms or would qualify for a current diagnosis of depression, his report provides no basis for a finding imprisonment would likely exacerbate depressive symptoms. His opinion that imprisonment might exacerbate your mental state can only be described as speculative.
33 Dr Cidoni notes in the opinion and recommendation section of his report you are expressing a willingness to go into residential rehabilitation, “as an alternative to ongoing imprisonment”. He says this has far more prospect to improve the risk of reoffending than imprisonment. In theory that is clearly so. However, what he says fails to take into account is the absence of any evidence that you are prepared to turn your desire to find an alternative to ongoing imprisonment into a demonstrated commitment to address your drug and alcohol abuse. Apart from a certificate showing you have completed a one 2 hour staying safe in the community program whilst on remand, there is no other evidence that you have embarked upon any effort at all to address your drug and alcohol abuse. Although it is common knowledge that access to drug and alcohol and anger management courses is much more restricted for remand prisoners than it is for those serving sentences, there are other courses available for prisoners on remand and the material before me is insufficient, in light of your history, to establish any commitment to, or current capacity for change.
34 This provides little to support the assertion of your new-found insight into your state, or any genuine preparedness to engage with treatment, whether for a psychiatric or psychological conditions or drug and alcohol abuse. The Community Based Order that you were placed on in January 2008 required you to submit to medical, psychiatric and psychological assessment and treatment as well as assessment and treatment for drug and alcohol addiction. When you were sentenced to youth detention in October 2008, the record refers to you being assessed to be at risk in detention due to psychiatric and drug and alcohol addiction issues.
35 But at no stage have you demonstrated any commitment to addressing your drug and alcohol abuse, or to taking steps to take responsibility for your own behaviour, by looking at ways to curb your impulsive behaviour, or control your anger, or your ready resort to violence.
36 Your plea was put on the basis that you should be afforded the same opportunity I had afforded your coaccused Oram and Emond by imposing a Community Corrections Order on you and allowing you to serve your punishment in the community, while addressing your drug and alcohol abuse in residential rehabilitation. Quite apart from the fact that you have not identified any program that you would be prepared to undergo, and have not been assessed for, or demonstrated any commitment or capacity to undertake the onerous requirements of a residential rehabilitation program, there are sound reasons why parity considerations do not justify taking such a course.
37 You, at 23, are older than the other two. Oram was 19 at the time, and Emond, 21. Their criminal histories were minor in comparison. Neither had convictions for like offences. Each had demonstrated a commitment to addressing the combination of circumstances, including drug and alcohol abuse, living away from home without parental supervision and unemployment which bore on their offending and a risk of reoffending.
38 The prosecution submitted that in light of your record and your role, an immediate custodial sentence was warranted. They submitted a total effective sentence in the range of 2 ½ - 4 years with a non-parole period in the range of 1 ½ - 2 ½ years was appropriate.
39 In my view, no sentence other than one of imprisonment, immediately served is appropriate in all the circumstances as I have outlined them. I propose to fix a non-parole period which will give you the opportunity, if you are released on parole, to undergo at least part of a residential rehabilitation course whilst under parole supervision. That should provide added support to encourage you to remain substance free when you are released.
40 Would you now please stand? Christopher Brown, on the two charges to which you pleaded guilty you are convicted.
41 On Charge 1 of aggravated burglary you are sentenced to be imprisoned for a period of 2 years and 6 months.
42 On Charge 2 of criminal damage you are sentenced to be imprisoned for a period of 1 year and 6 months and I direct that 6 months of that be served cumulatively upon the sentence on Charge 1.
43 That makes a total effective sentence of 3 years. I fix a non-parole period of 2 years. I declare that you have spent 106 days in presentence detention and direct that that be counted and reckoned as part of the sentence already served.
44 Pursuant to s.6AAA of the Sentencing Act I declare that but for your pleas of guilty I would have sentenced you to a period of imprisonment of 3 years and 9 months on Charge 1, 2 years and 3 months on Charge 2. With partial cumulation, I would have fixed a total effective sentence of 4 years and 9 months and a non-parole period of 3 years and 6 months.
45 Do the orders I have pronounced reflect what I said I intended to do?
46 MR MALLIA: Yes, they do, Your Honour, and I apologise for the confusion. The pre sentence detention is correct. I figured out where I went wrong at 106 days.
47 HER HONOUR: All right, thank you. Any further orders that are required to be made?
48 MR MALLIA: No, Your Honour.
49 HER HONOUR: Agree with that, Mr Morgan?
50 MR MORGAN: (No audible response.)
51 HER HONOUR: Yes, thank you. Could you remove Mr Brown, please.
52 PRISONER REMOVED
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