Director of Public Prosecutions v Brown

[2024] VCC 1785

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

 Revised
Not Restricted
 Suitable for Publication

CR 22-01393

DIRECTOR OF PUBLIC PROSECUTIONS

v

LACHLAN BROWN

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JUDGE:	HIS HONOUR JUDGE MOGLIA
WHERE HELD:	Melbourne
DATE OF HEARING:	13 August 2024
DATE OF SENTENCE:	7 November 2024
CASE MAY BE CITED AS:	DPP v Brown
MEDIUM NEUTRAL CITATION:	[2022] VCC 1785

REASONS FOR SENTENCE

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Subject:Criminal Law – Sentence – guilty plea – Aggravated Burglary – Persistent Breach Family Violence Intervention Order

Catchwords:              Sentencing – Community Corrections Order – Rehabilitation – Pre-Sentence Detention – Family Violence – Intervention Order

Legislation Cited:      Crimes Act 1958 (Vic); Sentencing Act 1991 (Vic)

Cases Cited:Brown (aka Davis) v The Queen [2020] VSCA 60; Boulton v The Queen [2014] VSCA 342.

Sentence:240 days Imprisonment with 2 years Community Correction Order.

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APPEARANCES:	Counsel	Solicitors
For the DPP	T. Glass	Office of Public Prosecutions
For Accused	M. Brogden (plea) J. Sullivan (Sentence)	Sullivan Brougham Solicitors

HIS HONOUR:

1Lachlan Brown, you have pleaded guilty to aggravated burglary, damaging property (4 charges), common law assault (2 charges), making threat to kill (2 charges), persistently breaching an intervention order (3 charges) and contravening an intervention order causing harm or fear (5 charges), all between 9 September 2020 and 9 June 2021.

Summary of offending

2The agreed basis for your guilty plea is set out in the Summary of Prosecution Opening for Sentence indication dated 19 September 2023.

3In short, you were in a relationship for about nine months with the victim who I will call KC, which ended in June 2020. An intervention order was made against you at that time.

4On 9 September 2020, you had contact with KC first by texting threatening to harm yourself but then in person where you argued, calling her names and hitting yourself and breaking a ceramic vase over your own head, causing yourself large lacerations to your face (Charge 1 damage).  After that, you grabbed KC by the throat, placing pressure on it (Charge 2 assault; Charge 3 breach of intervention order intending to cause harm or fear).

5On 27 September 2020, things got out of hand, and you were aggressive, including to KC's dog (Charge 4 breach of intervention order intending to cause fear).

6On 9 October 2020, you were again visiting and got into an argument. You broke a mirror (Charge 5 damage), threatened KC with a piece of wood from the mirror frame (Charge 8 assault), said you would kill her (Charge 7) and then held the wood towards your own throat threatening to kill yourself.  All of that in breach of the intervention order (Charge 6).

7On 20 October 2020, you argued and placed a hand over KC's neck and she punched you to get you away from her (Charge 9 breach of intervention order causing harm or fear).

8On 8 January 2021, you entered KC's home uninvited while she was in bed (Charge 10 aggravated burglary).  You went to her bedroom door in an aggressive state. You punched a hole in her wardrobe door and, having yelled at her, caused damage to the door as you left (Charge 11 damage).

9On 7, 8 and 10 January 2021, you went to KC's house in breach of the intervention order (Charge 12 persistent breach of intervention order).

10On 19 April 2021, you were at KC's home and arguing with her again. As she got into her car to leave, you punched a window in the vehicle causing a crack (Charge 13 damage). You followed her to where she was going and standing near her, you then threatened again to kill her (Charge 14; Charge 15 breach of intervention order intending fear).

11Between the 1 and 28 of May 2021, you sent her 1,066 messages in breach of intervention order (Charge 16 persistent breach).

12Between 31 May and 9 June 2021, you breached the order by kicking her car and sending a further 106 messages (Charge 17, persistent breach of intervention order).

13Police arrested you later that year on 8 December 2021.

14KC read her lengthy Victim Impact Statement in court during your plea hearing (Exhibit A).  She spoke of trying to block out the horrific and traumatising scenes involving your conduct. She has had flashbacks, anxiety attacks and now suffers with depression. She lives with not having shielded her son from what you did and having to see the effects that has on him.  Her post-traumatic stress affects her new relationship and made her feel less confident and independent.  It made her feel worthless at times.  She and her son moved home for fear of you going there again which has made access to medical care for her son more difficult.  KC herself is seeing a counsellor and psychologist, over the time, to deal with what happened.  This has all been a terrible cost to her and her son.

Procedural history

15Following your arrest on 8 December 2021 you were remanded in custody where you remained for about eight months until being bailed on 5 September 2022.  I cannot help but noticing you spent as much time in custody as you did, approximately, in the relationship.

16You were released on strict bail conditions, including that you move out of the city, observe a curfew and report daily to police. While about 12 months ago the number of times you report to police was reduced to two days a week, you have had to remain under curfew for the whole time since you were granted bail until today.

17At the sentence indication hearing on 22 September 2023 and 14 December 2023, following a discussion of your case, you were then arraigned and pleaded guilty on 21 December 2023.  No trial date had been set at that stage.

18Your plea hearing proceeded on 13 February 2024 and I deferred your sentence pending your engagement with ongoing treatment, counselling and Men's Behaviour Change Program which I monitored when you returned to court as a part of a de facto judicial monitoring process on 22 April, 27 June and 13 August 2024.  At those stages you confirmed your engagement with that treatment and so the finalisation of your plea occurs today.

19Your guilty plea avoided the need for a trial, one that would have required KC to give evidence again and would no doubt have added to her trauma.  I note that she was called to give evidence at a contested committal.  So I find it has significant utilitarian value.

20It also represents you taking responsibility for what you did, demonstrates your willingness to help the justice processes progress more quickly and, in the context of all the material including what you said most recently to Corrections, I accept that your plea represents genuine remorse.

Personal circumstances

21During your plea and the deferral, you relied on the following documents:

Exhibit 1: the psychological report of David Ball & Associates dated 23 February 2022, by way of background;

Exhibit 2: an email from Lisa Smith, Community Correctional Services in Gippsland dated 3 August 2022;

Exhibit 3: a GP report of Dr Dirk Teubner relating to your current partner's medical condition and needs, dated 2 June 2023;

Exhibit 4: Letter of Psychologist Melanie Krop dated 5 July 2023;

Exhibit 5: Department of Families Fairness and Housing letter and Protective Agreement Plan dated 16 August 2023 in relation to child protection;

Exhibit 6: Character references of Joshua Wilkinson, Rachael Francis, Jacob Shingles, Elly York-Williams, Sarah Williams, Shaun Foster, Timothy Williams; and Katie Boyd;

Exhibit 7: psychological report of Gina Cidoni dated 19 September 23;

Exhibit 8: treating psychologist letter of Stephen Brown dated 26 October 23;

Exhibit 9: Urine Drug Screen results from October 23 to June 2024;

Exhibit 10: counselling letters of Peter Winter dated November 2023 through to May 2024;

Exhibit 11: certificates from courses completed in custody from February to July 2022; and

Exhibit 12: a report about your Men's Behaviour Change Program and Certificate dated 31 October 24.

22You grew up in Sale and then lived in Patterson Lakes with your mother and with her partners over time.

23After completing Year 10, you entered the workforce and for the last 10 years or so, you have been a trained carpenter, running your own small businesses for periods of time.

24Tragically, you fell into a hard drinking and drug taking culture partly related to that work. This was the case during the offending period. Two things can be said about this. First, being confronted by an aggressive drug‑affected person not in full control of their behaviour, would be truly terrifying.  Second however, with appropriate support and solid commitment, over time such a habit can be changed, as indeed you have shown.

25You have a limited but relevant criminal history in that you were placed on a two-year CCO on 23 August 2020 for family violence including stalking and assault.  Being on a CCO at the time of this offending makes the offending in the current case more grave.  It was no doubt an influential factor leading to your remand into custody in December 2021.

26Your CCO Case Manager wrote however that you were engaged in that order during 2020, attending supervision and programs both during the offending period and following it, more importantly (Exhibit 2).

27Sometime after your relationship with KC ended, you began a new relationship with your current partner.  This seems to have provided an opportunity for change. Ms Williams has her own health concerns in relation to which you support her (Exhibit 3).  She is wise, it might be said, to the threat of family violence and you have not kept your history from her. She supported you throughout your time in custody.

28On remand, you did not just abandon hope or the work you had commenced with Ms Smith on your CCO.  Rather, you stayed clear of drugs and engaged in courses relevant to your risks, particularly about drug use and resorting to violence in relationships. In all, you completed about 18 courses during that eight month of remand which I find reflects a good use of your time but also significant progress towards rehabilitation (Exhibit 11).

29After your release on bail, you engaged with a psychologist, Ms Krop, for six sessions over a number of months. I accept you were candid with her about your circumstances including your previous drug use and offending, and, as well as that, your work and developing a new relationship with Ms Williams (see Exhibit 4).

30In mid-2023, due to your history, your partner having two children from a previous relationship and the recent birth of your son together, Child Protection became involved and assessed your new family. In August 2023 however the Department wrote to confirm that following their investigation they did not see any need for ongoing involvement (Exhibit 5).

31Nevertheless, you maintained your efforts in treatment. Over 2023 and 2024, you found a counsellor in Melbourne (Exhibit 8) and then one in your local area that meant you did not have to return to the city.  You have attended voluntarily at more than 20 sessions with them.  

32Mr Winter, the counsellor local to you, confirmed not only your engagement but also that you have had joint sessions with your partner (Exhibit 10). I find that this demonstrates not only commitment on your part, but also insight into the need for you to be candid with those around you and to enlist their support as you re-establish yourself in a life without drugs and violence.

33Equipped with the things you have learned in therapy, you sought out and enrolled in the Latrobe Community Health Service Men's Behaviour Change Program, a face-to-face group lasting 20 weekly sessions.  You completed this, which is no small commitment.  Having completed that course successfully, you now have access to both one-on-one and further group based sessions, as needs be, to maintain healthy and equal relationships (Exhibit 12).

34You have also provided drug screen reports that support your claim that you have been abstinent from drug use, an abstinence to which others also attest (Exhibit 9).

35In early 2022, provisional psychologist Ms Kennedy assessed you while still in custody and reported that your testing revealed elevated scores on some scales that she thought indicated a personality disorder (Exhibit 1).  Happily for all concerned, that conclusion was not borne out.

36In 2023, an experienced psychologist Gina Cidoni considered the Kennedy report, a range of other information and conducted a further assessment of you. She reported (Exhibit 7) that while you were previously struggling with an adjustment disorder, it had by mid‑2023 mainly resolved.  Based only on historical matters, she found you fell within a high-risk group of family violence offenders.  But such risk-group-based assessments, however, are not reliable indicators of personal likelihood to further offend.

37Ms Cidoni listed, in fact, a number of non-historical and dynamic factors that mitigated or reduced your risk, which I accept.  Among them, she noted your sustained abstinence from drug use noting its likely role in your offending; your engagement in treatment over the two years since being bailed; your new stable family; your work and ownership of the small business; your willingness to engage in ongoing counselling and treatment and your engagement in that treatment with your new partner; and you having been open with those who now support you.  She found you to have a renewed sense of purpose and responsibility.  There was no challenge to the contents of the report and I accept its contents.

38A large number of people provided references about you and the changes you have made in yourself and your life in the community (Exhibit 6).  Their accounts of you indicate that you have truly taken responsibility for your previous actions, that you are reliable, trustworthy and have shown a different side of your life to them.  They assist me in assessing whether or not in the extended period whilst you have been on bail and under the deferral of sentence before me you have achieved real reform.

39Importantly as the prosecutor has confirmed, you have not offended again since June 2022. This is also a significant factor among others that I have taken into account.

Sentencing issues

40The maximum penalty for Charge 10 aggravated burglary is 25 years in gaol. For Charges 1, 5, 7, 11, 13, and 14 it is 10 years each. For charges 2, 3 ,4, 6, 8, 9, 12, 15, 16 and 17 it is five years each.

41While the prosecutor was correct to say that the aggravated burglary charge is the most serious offence on the indictment, that is not to undermine the significance of the overall offending over those months and the context of family violence within which each offence falls.

42As to aggravated burglary, any person is entitled to feel safe in their home and it was no different for KC in this case.  Your disregard of her right in this respect at that time makes your conduct a serious offence as is reflected in the maximum penalty for that charge.  

43In my view it warrants imprisonment and to be clear I do not reduce your culpability for this by reason of any intoxication from alcohol or any other drug that you were under at the time.

44Your remand and remaining in custody for the time you did, before bail was found to be suitable, also reflects the seriousness with which the community regards this type of offending.

45In my view, family violence of the type your charges represent can indicate entrenched attitudes, including to violence against women, that raises real doubts about the likelihood of change for an offender.

46These matters quite properly influence whether a person should be granted bail and the type of sentence to be imposed upon them.  

47In order to reliably protect women from violence such as yours, a sentencing court must, in my view, give due regard not only but primarily to punitive aspects of sentencing, but also to those aspects that are best suited to ensuring change to those underlying drivers of violence.  It is only in that way that violence against women will truly in the long‑term be reduced.

48Your case came before me as a sentence indication because of the issues at play between you and the prosecution about the aggravated burglary.  These related to whether the prosecution would be able to prove that you entered the home that night believing positively that you were trespassing, particularly in circumstances where you had regularly attended there in the days and weeks beforehand.

49Also, there was an issue about whether the only inference open on the evidence was that upon entry to the house you intended to assault KC rather than behave in another way without assaulting her.

50Inferring an intention from conduct alone can present challenges to parties during a trial and I accept that these were real issues in your case. In that context, having heard from both parties during the sentence indication hearing I accepted and do so now that your plea is significant and that your early resolution of the dispute about the aggravated burglary has real value.

51I am not suggesting when I say that, however, that the perception expressed by KC in her victim impact statement that the case has dragged on for a time that has been difficult for her to endure is anything but true for her.

52As should be clear from my remarks, the community will no longer tolerate family violence.  Accordingly in my view it is important that your sentence, having regard to all its aspects, deters others, denounces your conduct clearly and punishes you for what you did.

53Being remanded and for a considerable time upon being charged is a very significant step in manifesting these principles in an appropriate case. It in effect breaks the cycle of offending. You made comments to Ms Cidoni along those lines about being grateful for the cycle being broken.

54Sentencing, however, is not only about breaking the cycle and exacting just punishment. Particularly in the context of family violence, there is an important public interest in ensuring real change is achieved so that such an offending cycle is not simply re-established upon release from a long prison sentence.

55As the Court of Appeal in the case of Boulton said, a community correction order can be tailored to meet a range of sentencing requirements, including punishment and deterrence, and for serious offences. This can be so, particularly, where a combination sentence is imposed, where the flexibility of a community correction order, combined with the firm hand of an imprisonment term, can work together to achieve goals that the community values highly.

56Your criminal history reveals in my view that there was such a cycle of offending at play in your case.  So I have had particular regard to ensuring your risk of future offending is contained and minimised through both punishment by imprisonment but also by closely supervising release into the community.

57I have also had regard to the potential for imprisonment having a counter‑therapeutic effect in this respect, leading ultimately to increased risk to others upon release.  As the Sentencing Advisory Council has reported, lengthy periods in custody are likely to be criminogenic and do not aid in reducing risk in every case.

58I have also given weight in considering your sentence to specifically deterring you from further offending and to the need to protect the community.

59I have also noted that while there are 17 charges on the indictment, they all relate to the one period of nine months following the breakdown of your relationship and to seven specific incidents not counting the persistent contact offences. I have had regard to that in structuring the sentences and at arriving at a total.

60You were in custody for eight months during the height of the COVID-19 pandemic.  This rendered your time in custody, in my view, more burdensome.  Conditions in custody at the time included lockdowns, restricted movements, reduced access to rehabilitation and vocational programs for some, and limited access to treatment. I have moderated your sentence according to the facts of your case.[1]

[1] Brown (aka Davis) v The Queen [2020] VSCA 60, [48].

61As to what you have done after release, I find that you have indeed engaged diligently in an extended period of rehabilitation since bail in September 2022, now more than two years ago.

62I accept that you do now not only have good prospects of rehabilitation, but that you have already achieved rehabilitation to a significant degree.  To be clear, I do not mean that you do not need to keep working on it.

63The prosecutor submitted at the sentence indication that a sentence that attracts a non‑parole period was appropriate in your case. He relied then on the Sentencing Advisory Council statistics for aggravated burglary covering a period of 2017 to 2022 and it suggested only 12.9 per cent of cases attracted a term of imprisonment of less than one year.  

64Statistics can be helpful but they can also be misleading.  In fact, the 12.9% related to the subset of aggravated burglary cases where imprisonment was imposed.  It did not include the 20% of cases that attracted other orders – 16.4% of cases for example attracted a CCO alone.  So of all the cases over the five year period involving aggravated burglary, 31% or nearly a third attracted a sentence less than one year imprisonment, including CCOs and other orders.

65Your counsel in that context submitted that a combination sentence would be appropriate and that this falls within the bounds of current sentencing practice. He referred me to other cases, Edwards [2017] VCC 1267, Newbegin [2021] VCC 858, Oberhauser [2023] VCC 103 and Young [2016] VCC 450 as examples in this court, not the Court of Appeal, where such a sentence was imposed.

66I have had regard to the statistics and the other cases referred to, of course without being bound by them.  True, they help to establish current sentencing practice, and a significant proportion of total aggravated burglary cases have attracted a sentence in keeping with your counsel's submission.  Keeping that in mind alongside all of the other factors, I will of course impose a sentence that the circumstances of your case require.

67To assist me, I have ordered an assessment by Community Correctional Services dated 5 July 2024 (Exhibit B).  In it they state that in spite of your repeat offending, due to your ongoing efforts to change, you are only a moderate risk of further offending.

68They provided an updated CCO assessment report dated 7 November 2024 (Exhibit C) in which that risk assessment was repeated with further comments recording your insight and remorse for your offending.  I find this to be a significant recognition of the changes you have made in your life, and the gains you have been able to make in treatment.

69In all the circumstances I have outlined above, including your progress since the sentence indication was given, over the last 12 months, I have determined that a combination sentence remains the appropriate sentence.

70I sentence you as follows:

(a)   Charge 1, damaging property – CCO;

(b)   Charge 2, common law assault, combined with Charge 3, breach of intervention order – aggregate sentence of 4 months combined with a CCO;

(c)   Charge 4, breach of intervention order – CCO;

(d)   Charge 5, criminal damage, Charge 6, breach of intervention order, Charge 7, threat to kill and Charge 8, common law assault - aggregate sentence of 150 days combined with a CCO;

(e)   Charge 9 – CCO;

(f)    Charge 10, aggravated burglary – 180 days combined with a CCO;

(g)   Charge 11, damaging property – 1 month combined with a CCO;

(h)   Charge 12, persistent breach of intervention order – CCO;

(i)    Charge 13, damage, charge 14, threat to kill, charge 15, breach of intervention order – aggregate sentence of 150 days combined with a CCO; and

(j)    Charges 16 and 17, persistent breaches of intervention order – aggregate sentence of 4 months combined with a CCO.

71Thirty days of the aggregate sentence on Charges 5, 6, 7 and 8 and 30 days of the aggregate sentence on Charges 13, 14 and 15 are to be served cumulatively upon each other and upon the 180 days imposed on Charge 10.

72The total effective sentence is therefore 240 days combined with a single CCO.

73I declare that you have served 240 days pre-sentence detention and direct that this be reckoned as a period already served under the sentence.

74The Community Correction Order is with conviction and runs for two years commencing today.  The conditions of the order are that you be supervised, engage in assessment and treatment in accordance with the updated assessment in relation to drug use, and assessment and treatment in relation to your mental health and that you perform over the period of two years 120 hours of community work.  

75As well as providing for further punishment during this CCO period by way of community work I regard that you doing those hours in your new community will provide a real way in which you can give back, including by sharing your skills as a carpenter with others in the community.  Such engagement, in my view, is important for you but also those around you.

76In accordance with section 6AAA of the Sentencing Act 1991, but for your plea of guilty I would have imposed three years and fixed a non-parole period of 18 months.

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