Director of Public Prosecutions v Brown

[2024] VCC 1622

IN THE COUNTY COURT OF VICTORIA

AT HORSHAM

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-23-01047

DIRECTOR OF PUBLIC PROSECUTIONS

v

RYAN BROWN

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JUDGE:	BLAIR
WHERE HELD:	Horsham
DATE OF HEARING:	27 August, 16 September, 4 October 2024
DATE OF SENTENCE:	14 October 2024
CASE MAY BE CITED AS:	DPP v Brown
MEDIUM NEUTRAL CITATION:	[2024] VCC 1622

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentence

Catchwords:              intentionally cause injury – recklessly cause serious injury – theft; recklessly cause injury – possession of a drug of dependence –  intimidation of a law enforcement officer – violent offending – psychotic episode – schizophrenia – methylamphetamine – cannabis – antipsychotic medication  – early plea of guilty – mandatory minimum gaol term

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

Cases Cited:R v Verdins [2007] 16 VR 269; Marks v The Queen [2019] VSCA 253; Yat v The King [2024] VSCA 93; R v Males [2007] VSCA 302

Sentence:                  Imprisonment for a period of 34 months with a non-parole period of 22 months

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr D. O’Doherty for Plea Ms C. Dunn for Sentence	Office of Public Prosecutions
For the Accused	Mr J. Miller	Marshall Jovanovska Ralph

HER HONOUR:

1Ryan Brown on 27 August 2024 you were arraigned on indictment N12355082.1 and pleaded guilty to each of the following charges: intentionally cause injury; recklessly cause serious injury; theft; recklessly cause injury; possession of a drug of dependence; and intimidation of a law enforcement officer.

2You have no prior convictions in Victoria. You did, however, admit your prior history from South Australia which has involved several court hearings and includes convictions for hindering, resisting and assaulting police, summary assault and a variety of driving offences.

Circumstances of the offending

3The agreed circumstances of your offending are set out in the Summary of Prosecution Opening for Plea dated 26 August 2024. In summary, you offended against 3 victims; Jed Hermans, a 16-year-old passenger on the V-Line firefly coach, Wayne Lentsment, the 63-year-old driver of the V-Line firefly coach and LSC David Tranter, a police member on duty at the time of your arrest.

4In the mid-afternoon of 29 October 2022, the V-Line Firefly coach service arrived at Stawell Railway Station. The driver, Mr Lentsment, left the bus to assist passengers to remove their luggage from the compartment located underneath the coach.

5You collected your belongings and exited the bus. You mistakenly believed that the bus had arrived in Melbourne. When you realised that the coach was at Stawell you got back on the bus and put your belongings back on a luggage rack. You approached Jed Hermans, who was sitting in a seat two (2) rows from the rear of the bus, on the driver’s side. You leaned in close toward him and said, “don’t fucking look at me like that, I could cut your eyes out”.

6You walked back to your seat, two (2) rows in front of Mr Hermans and sat down momentarily, you continued to stare at him. You then stood up aggressively and approached him for a second time and attempted to take his mobile phone out of his hands, Mr Hermans was able to hold on to his mobile phone. You picked up his backpack, from the seat next to him, and threw it down the aisle of the bus.

7For a second time, you leaned in towards Mr Hermans, this time you grabbed him by the t-shirt and slammed his head against the window of the bus. You then got on top of him, and repeatedly punched him in the face, and slammed his head against the window for a second time. Mr Hermans covered his face with his arms and hands and kicked out at you in an attempt to protect himself. You then lifted him by his hair and dragged him off his seat and up the aisle of the bus, into the wheelchair access point. You stayed on top of Mr Hermans and attempted to gouge his eyes. He shielded his face and continued to kick you from where he was on the floor.

8You stood up and stomped on Mr Hermans’ head, twice. Another passenger tried to intervene by speaking to you but she was unsuccessful in diverting your attention. You then sat on Mr Hermans’ torso and continued to punch him. You stood up and had hold of Mr Hermans by the hair, causing a chunk to be ripped out of his head. Mr Hermans fell back onto the floor of the bus - Charge 1 – Causing injury intentionally.

9Mr Hermans shielded his face, whilst you kicked him in the head. The bus driver, Mr Lentsment attempted to intervene. You turned to Mr Lentsment and pushed him out of the way. Whilst your attention was diverted to Mr Lentsment, Mr Hermans retreated to the back of the bus, holding his head.

10You sat back down in your previous seat. Mr Lentsment requested another passenger call for assistance. You then stood up from your seat, retrieved your bag from the overhead storage shelf with your left hand, and struck Mr Lentsment in the face with your right fist.

11You then swung your right elbow back, and struck Mr Lentsment in the face, and you then punched him for a second time. Mr Lentsment retreated to the back of the bus and sat down on a seat.

12Once Mr Lentsment was seated you punched him three (3) times to the head, you struck him with your elbow two (2) times and struck him with your fist once more before you walked away. You then stopped walking in the opposite direction and turned around to face Mr Lentsment again as he was hunched over in a seat. You kicked Mr Lentsment in the head with such force that caused him to fall backward on the seat. Mr Lentsment was defenceless due to a serious concussion, you then punched him once more. - Charge 2– Causing serious injury recklessly.

13You collected your belongings, along with Mr Hermans’ backpack and exited the coach - Charge 3 – Theft. Other passengers saw you leave on foot, walking along the railway line. A witness contacted police and medical assistance. Police attended the scene and tended to Jed Hermans and Mr Lentsment and spoke to witnesses. Police investigators obtained the CCTV footage from the coach that captured your offending.

14At approximately 4:00pm, other police members, including Leading Senior Constable David Tranter, saw you on Grant Street, Stawell. Police made initial attempts to stop you, however, you ran off over a pedestrian bridge and into a paddock, near Napier Street. After an extensive foot pursuit you were apprehended on Dawson Street, Stawell. Police attempted to arrest you and at this time you struck LSC Tranter in the mouth causing his two (2) lower teeth and one (1) upper tooth to chip, bruising was also sustained to the side of his face - Charge 4 – Causing injury recklessly emergency worker.

15You were arrested and searched. Police located a jar of cannabis in your jacket pocket. Another container of cannabis was found in your backpack. A total of 42 grams of cannabis was located in your possession - Charge 5 – Possess drug of dependence.

16During the process of the arrest and search, you threatened to spit in Acting Senior Sergeant Eddie Malpas’ face and further stated, “I’ll come to your house, enter through a window, put a bullet in your head whilst you’re sleeping so your family would witness it” - Charge 6 – Intimidate law enforcement officer.

17You were taken to Stawell Police Station. Whilst in custody, you failed to provide your name and address to police. Your identity was confirmed by the name on your prescription medication. Your identity was confirmed via enquiries on the South Australia Police image data base - Summary charge 13 – Fail to state name or address.

18Jed Hermans attended Stawell Hospital where he was assessed. He sustained swelling to the side of his jaw, pain in his chest, face and head. He had multiple bare patches on the top of his head, where you had ripped hair from his head.

19Mr Lentsment suffered lacerations to his face and significant swelling around both eyes. He was transported by ambulance to Stawell Hospital briefly, before being conveyed to Horsham Hospital for further assessment. On arrival at Horsham Hospital, Mr Lentsment underwent a CT scan which revealed a subdural haemorrhage. He was required to remain overnight for observation. It was also revealed that Mr Lentsment sustained acute nasal bone fractures and a right orbital wall fracture which required facial reconstruction surgery on 9 November 2022.

20LSC Tranter attended Stawell Hospital where he was assessed. He received anti-inflammatory medication to assist with swelling. LSC Tranter developed increased swelling and bruising to his right cheek and neck area, he attended Ararat Medical Centre and received a CT scan. It was identified that he sustained soft tissue damage and bruising. On 7 November 2022, Tranter received dental work to fix three (3) teeth, broken during your arrest.

Victim Impact Statement

21A victim impact statement was received from Wayne Lentsment. The impact of your offending has been extensive psychologically, physically and socially. Mr Lentsment has suffered impaired memory and a lack of confidence. He has withdrawn from the many community roles he once enjoyed. Mr Lentsment struggles to sleep and as a result feels fatigued which impacts his ability to function as he had, prior to the assault. For a time, he was heavily reliant upon his wife to drive him around and for general support. Although Mr Lentsment has returned to work this has been in a reduced capacity. It is fair to say that this assault has been life changing for Mr Lentsment, however he has forgiven you.

22The Court did not receive a victim impact statement from anyone else, but I am satisfied that the experience would have been a frightening one for Mr Hermans, LSC Tranter, and Senior Sergeant Malpas, along with others on the bus at the time.

23I take into account the impact of your offending upon all the victims in sentencing you.

Nature and gravity of offending

24Mr Brown your offending was captured on CCTV footage that was played to the court during your plea hearing. It was sickening to watch the unprovoked and repeated assaults on Jed Hermans, a 16-year-old teen, and Mr Lentsment, who was a mature man who had tried to intervene to protect his passengers. There is no doubt your offending is very serious and that it would have been a terrifying ordeal for your victims and other witnesses.

25A measure of the seriousness of your offending against LSC Tranter is revealed by the fact that I must impose a minimum gaol term of 6 months in prison for this offence alone. This is because parliament has seen fit to designate the charge of recklessly cause injury involving an emergency worker as a category one offence that has a statutory 6 month mandatory minimum term of imprisonment.

26Mr Brown I will say more about your offending and the interplay of your mental state when I come to your mental health issues. Objectively viewed your offending was unprovoked, sustained and violent, committed  against relatively vulnerable members of the community in public. I consider it to be a serious episode of offending. Your counsel, Mr Miller, quite righttly conceded as much on your behalf..

Background circumstances

27You were born and raised in suburban Adelaide. Currently your parents remain living as a couple in Port Adelaide. Your parents both worked in paid employment, your mother as a cleaner and your father in a concrete factory. You have a sister who is two years older and with whom you got along well with when you were young.

28During your childhood your father was a strict disciplinarian who would often give you a hiding with the strap or a wooden spoon. Your father struggled with heavy alcohol abuse. As you grew older you resented your father and would antagonise him by doing the wrong thing just to spite him. Not surprisingly you were not close to your father who was not emotionally available. Your mother did not shield you from the attacks of your father.

29In terms of your education, you enjoyed primary school on both a social and academic level. You describe yourself as a slow learner. You transferred to Golden Grove High School before leaving school in year eleven. You had a good group of friends throughout secondary school, but you frequently got into trouble.

30You left school to work in a masonry factory where you turned sand into building materials. You remained in this employment for two to three years. Since that time, you have worked in a variety of different roles including hospitality and on building sites. At various times you have lived independently outside the family home although you have returned to live with your parents from time to time.

31Throughout your adult life you have had two serious relationships, one when you were around 18 to 19 years of age and the other from when you were aged 23 to 27. You have been single since that time and describe yourself as a solitary kind of person.

32Although you have experimented with several different illicit substances, alcohol, cannabis and methamphetamine have been the substances that have caused you most concern. You began drinking alcohol at the age of around 16 years and this became quite a problem for you into your late twenties. You have been abstinent from alcohol for around 5 years having successfully engaged with Alcoholics Anonymous. You also began to smoke cannabis at around the age of 16. You have been a frequent user of cannabis since. When you were arrested you had more than 40 grams of cannabis on your person. You estimated that you had been smoking roughly six to seven grams of cannabis per day around that time.

33In your mid-twenties you began to use speed in a social context when you were out drinking and dancing. You eventually moved to the use of ice, which you would smoke and on occasion use by injection. You used ice up until the day prior to your offending.

Mental health

34Your counsel tendered a report, dated 8 February, 2024 and two addendum reports dated 23 August, 2024 and 1 October 2024 respectively, from consultant forensic psychiatrist Dr Nicholas Hughes. Dr Hughes interviewed you via video-link on 3 October 2023. Later, in September 2024, he was given access to your subpoenaed custodial medical records. The focus of the last addendum report from Dr Hughes was his analysis of these medical records and the impact upon his previous opinions.

35On 3 October 2023 you told Dr Hughes that you had never been diagnosed with schizophrenia, but that you had been told you might have suffered manic depression or bipolar. In assessing your mental state, Dr Hughes noted that you have been consistently labelled as a poor historian and there has been limited ability to get collateral history or information from family members.

36On the basis of your presentation and the information Dr Hughes’ had at the time of his February 2024 report, it was his opinion that you were suffering from ongoing psychotic symptoms despite adherence to antipsychotic medication and a long period of abstinence from illicit substances. Further to this, he was confident that you suffer from a complex constellation of symptoms, attitudes and beliefs which contribute to periods of disordered mental state which had a significant impact on the alleged offending. It was his opinion that you would meet the criteria for schizophrenia as defined in the DSM-5, based on the ongoing psychotic symptoms in the form of auditory hallucinations in the absence of illicit substances.

37Your custodial medical records were of assistance in determining the true state of your mental health. It is apparent that your mental state has fluctuated substantially during your time on remand largely dependent upon the medication you had been prescribed. The fact that your presentation worsened when your medication was changed from Olanzapine to Aripiprazole, enabled Dr Hughes’ to firm up his diagnosis that you suffer from an enduring psychotic illness.

38When asked about the circumstances of the offending, you told Dr Hughes that you were hearing things in the form of voices and that you saw things that weren’t there. You also said that you were a bit worried and paranoid and that you had an unusual mental state. On the basis of his assessment of your presentation and this history taking Dr Hughes opined that he believed at the time of the offending you were in the throes of florid paranoid psychosis. He did not believe this was of sufficient severity to rob you of the awareness of the nature and quality of your actions such that would give rise to the defence of mental impairment.

39It was Dr Hughes opinion that

“Mr Brown was suffering from significant symptoms of paranoia and hypervigilance during the day of the offence, and he would have possibly been struggling with fears for his wellbeing and safety due to the odd experiences he was enduring (as is seen commonly in states of paranoia). His actions towards the victim of the primary assault were likely in part driven by a psychotic misinterpretation of the noises he was hearing; however, he is now quite aware of what his actions were in hindsight”.

40In response to a direct question from your legal team as to the impact of your drug taking at the time of your offending,  Dr Hughes stated that it was not possible to say with great authority whether your psychotic state at the time of the offending was the result of drugs or of your organic condition. Dr Hughes acknowledged that it is well accepted amongst the psychiatric field that methamphetamine and cannabis both have a role in precipitating paranoid mental states not only in individuals with major mental illness but also those without any such diagnoses. Dr Hughes opined that both schizophrenia and cannabis/methamphetamine were contributing substantially to your symptoms of psychosis. Further, Dr Hughes considered that you were seen in the early phases of your incarceration to be irritable and hostile and these symptoms improved with antipsychotic medication led him to the firm belief that you were experiencing enduring psychosis during the offending and that was not a drug-induced mental state.

41In terms of your experience in custody, initially, you had an unwillingness to engage in assessments and were hostile, irritable, and anti-social towards prison staff and clinicians. When unmedicated, you were occasionally involved in violent incidents and were often seen by medical and mental health staff. During assessments with various psychiatrists, paranoia, antagonism, and grandiosity seemed to be prevalent in your mental state when unmedicated. You were first assessed on 3 November 2022 and were not started on medication until 3 July 2023.

42During your time on remand you have been assessed by multiple psychiatrists and mental health clinicians. Although, you reported having psychotic symptoms, initially, none of the psychiatrists were convinced you had psychosis rather it was thought that you suffered from a cluster B personality disorder.  Your presentation and mood state improved significantly when you started on Olanzapine, an antipsychotic medication. On 24 July 2023, three weeks after starting this medication, you were assessed as having no clear acute mood or psychotic symptoms, and your behaviour improved.

43In early 2024, your medication was changed to Abilify due to issues with weight gain related to taking Olanzapine. Abilify is also an antipsychotic drug but could be considered a less potent agent. This switch appears to have de-stabilised your mental health. You were seen urgently by a psychiatrist. This psychiatrist noted you had become unhappy with the guards, believing them to be targeting you due to jealousy over your looks. You also reported a disagreement with a prisoner in a neighbouring cell.

44In April 2024, your psychiatric rating was increased to V1, due to staff concerns about your behaviour. You were transferred to Melbourne Assessment Prison for admission to the Acute Assessment Unit. Whilst there, you were assessed by two psychiatrists who both opined you were experiencing symptoms of psychosis.

45As noted by Dr Hughes, a total of four psychiatrists, including Dr Hughes, in the six months preceding April 2024 noted you were experiencing psychotic symptoms. You were re-started on Olanzapine and your mental state and behaviour improved such that you were able to return to mainstream prison on 30 May 2024.

46Whilst in custody at Barwon Prison you have been managed in a maximum security cell with frequent lockdowns as part of a management regime. You had significant restrictions on your movement and freedoms within the gaol as a result of your V1 rating and very limited time out of your cell. You were also subject to a strict hand-cuff regime. At times you have struggled in your relationships with staff and other prisoners. You have had your nose broken in an argument. It appears that these conditions and incidents have been brought about by your poor mental state. Now that you are appropriately medicated your experience in custody has improved.

47Dr Hughes in his initial report opined that your schizophrenia would have a significant impact on your experience in the custodial environment given the symptoms you have experienced. Dr Hughes also opined that he was confident that you were experiencing a significant elevation in restriction and distress compared with the usual prisoner. Each of these factors were as a direct result of your poor mental state. From review of your custodial medical records these observations of Dr Hughes are not only valid but appear to have been borne out by the evidence.

48From 30 May to 28 August 2024, Dr Hughes noted you engaged well with mental health staff and no significant concerns about your mental health were raised. Your counsel Mr Miller drew the court’s attention to the more recent entries in the custodial medical notes which reveals an improvement in your insight and compliance. You have transitioned onto depot medication and do not want your court attendance to interfere with your mental health.

Verdins

49Mr Miller submitted that the principles enunciated in Verdins were enlivened in your case.[1] He submitted you were unable to exercise appropriate judgement or make calm and rational choices or think clearly at the time of your offending. You were disinhibited and your ability to appreciate the wrongfulness of your actions was impaired to some extent. He referred to the opinion of Dr Hughes that although your impairment was not sufficient to found a mental impairment defence, it did nonetheless have a bearing on your moral culpability for the offending.

[1] R v Verdins [2007] 16 VR 269.

50Your counsel rightly acknowledged that you were on notice that you had a mental health condition that was exacerbated by using drugs. However, he submitted there is no evidence, from your criminal priors or elsewhere, that would suggest you knew this sort of outcome was possible or likely when engaging in methamphetamine and cannabis use whilst not taking your medication. Further, Mr Miller submitted that yours was not a drug induced psychosis, rather you have a separate and enduring diagnosed mental illness.

51Additionally, Mr Miller submitted that limbs 5 and 6 of Verdins have application in your case based on the harsh conditions you have experienced in custody which are directly related to your poor mental health. Again, he relied on the opinion of Dr Hughes in this regard.

52Although the application of Verdins was fairly conceded by Mr O’Doherty for the Crown, he submitted that any assessment of the concession to be allowed by the court with respect to the principles in Verdins had to be made in recognition that you were using illicit drugs on top of poor underlying mental health. Further, Mr O’Doherty submitted this was not momentary offending, you left and came back on more than one occasion, in these circumstances the court was required to look at the totality of the facts in this case. Mr O’Doherty submitted although you have underlying mental health conditions you could not escape the seriousness of the offending.

53On my assessment of the evidence, including the spontaneous albeit somewhat protracted nature of your offending and more particularly the opinions of Dr Hughes I accept on balance that each of the Verdins limbs is enlivened in your case. At the time you offended I accept that you were in the throes of a psychotic episode. You were experiencing auditory and visual hallucinations and did not have the capacity to exercise appropriate judgement, make calm and rational choices or think clearly. You were disinhibited and your ability to appreciate the wrongfulness of your actions was impaired. Further, I accept that you were not on notice that the ingestion of illicit substances would cause you to act in this aggressive and frightening manner and that you have a psychotic illness that exists independently from your substance abuse issues.[2]

[2] Marks v The Queen [2019] VSCA 253.

54I consider on the basis of the evidence from Dr Hughes that there is sufficient evidence to establish that the underlying reason for your mental condition is one of illness. In all the circumstances of your case, I consider your moral culpability and therefore the need for just punishment, should be regarded as reduced. Further, as a result of your psychotic state at the time of your offending and your poor mental health now at the time of sentencing, I consider your suitability as a vehicle for general deterrence should be somewhat reduced.

55I accept that general deterrence is a significant factor in sentencing for offences of this kind. Further, the class of person to whom general deterrence is directed includes those who may be tempted to take illicit drugs and involve or expose themselves to engage in aggressive and assaultive behaviour. Although there is a need to reflect considerations of general deterrence in your sentence it is my view this must be moderated on account of your mental state.

56Further, in my view, limbs 5 and 6 of Verdins have application in your case. This submission is supported by the opinion of Dr Hughes, who stated he was confident that you were “experiencing a significant elevation in restriction and distress compared to the usual prisoner”. It is clear on the basis of the subpoenaed custodial medical records that you have experienced such difficulties as I have discussed above.

57On your plea I raised the application of the Court of Appeal cases of Males and Yat as to the principles the court could apply where a prisoner has experienced burdensome conditions in custody where those conditions arise from the prisoner’s own misbehaviour.[3] Upon further reflection it is my view that such issues are more appropriately considered under limbs 5 and 6 of Verdins as they are directly related to your poor mental health.

[3] Yat v The King [2024] VSCA 93; R v Males [2007] VSCA 302.

Plea of guilty

58You have pleaded guilty, albeit at a late stage in the proceeding. I do consider that there is utilitarian value in your pleas of guilty and that you have facilitated the course of justice. You have avoided the need for victims to relive this terrifying experience by giving evidence at trial, which would have been a harrowing experience for them. Further you have spared the court the time and expense of a trial.

59I note that there was considerable time spent by your counsel in determining both your fitness to stand trial and the possibility of any defence of mental impairment.

Sentencing principles

60I consider the relevant sentencing principles that must be applied in your case are general and specific deterrence, albeit moderated as a result of my findings in relation to the application of Verdins,[4] denunciation and just punishment also have reduced application consistent with those findings.  I must also be mindful of the principles of parsimony, proportionality and totality. I am of the view that community protection is an issue in your case. I am somewhat comforted by your recent demonstration of insight into your mental illness. You require significant supports and supervision in the community and I intend to make provision for these by way of a period of parole.

[4] R v Verdins [2007] 16 VR 269.

61I take into account the sentencing guidelines referred to in s5 of the Sentencing Act 1991,[5] where relevant to your case. Ultimately, the sentencing exercise requires that I balance all relevant factors and make a judgment as to the appropriate sentence in the circumstances of your particular case.

[5] Sentencing Act 1991 (Vic) s 5.

62In fixing the overall and individual sentences, including the orders for cumulation that I will announce shortly, I have had regard to the principle of totality and considered the entirety of your criminality involved in your offending.

63Mr Brown you are convicted of each of the offences to which you have pleaded guilty and you are sentenced as follows:

1.     In relation to Charge 1, intentionally cause injury to Jed Hermans, I sentence you to 10 months imprisonment.

2.     In relation to Charge 2, recklessly cause serious injury to Wayne Lentsment, I sentence you to 26 months imprisonment and that is the base sentence.

3.     In relation to Charge 3, theft, I sentence you to 2 months Imprisonment.

4.     In relation to Charge 4, recklessly cause injury to David Tranter, I sentence you to 6 months imprisonment.

5.     In relation to Charge 5, possession of a drug of dependence, you are convicted and discharged.

6.     In relation to Charge 6, intimidation of a law enforcement officer, I sentence you to 2 months imprisonment.

7.     In relation to Summary Charge 13, fail to state name or address, you are convicted and discharged.

64I ordered that 4 months of the sentence on charge 1, 3 months of the sentence on charge 4 and 1 month of the sentence on charge 6 be served cumulatively making a total effective sentence of 34 months (2 years and 10 months) imprisonment. I order that you serve 22 months before being eligible for parole.

65I declare that you have served 716 days by way of pre-sentence detention and this is to be deducted from your sentence as time already served.

66Pursuant to 6AAA of the Sentencing Act but for your plea of guilty the sentence I would have imposed is 4 years 6 months with a non-parole period of 3 years.[6]

[6] Ibid s 6AAA.

67I have made the order for forfeiture sought by the crown. This application relates to cannabis found on you at the time of your arrest, two sets of sunglasses and some cologne. I note that there was no opposition to this order being made.