Director of Public Prosecutions v Brown-Nash

[2022] VCC 1754

IN THE COUNTY COURT OF VICTORIA

AT Melbourne

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-21-00512

DIRECTOR OF PUBLIC PROSECUTIONS

v

BEAU BROWN-NASH

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JUDGE:	HER HONOUR JUDGE GWYNN
WHERE HELD:	Melbourne
DATE OF HEARING:	16 September 2022
DATE OF SENTENCE:	13 October 2022
CASE MAY BE CITED AS:	DPP v Brown-Nash
MEDIUM NEUTRAL CITATION:	[2022] VCC 1754

REASONS FOR SENTENCE
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Subject:Criminal Law

Catchwords:          Causing injury intentionally

Legislation Cited:        Sentencing Act 1991 (Vic)

Cases Cited:

Sentence:   Fined $3,200 without conviction

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr A. Buckland	Office of Public Prosecutions
For the Accused	Mr. J. McQuillan	James Dowsley and Associates

HER HONOUR:

1Beau Brown-Nash you have pleaded guilty on Indictment to a single charge of causing injury intentionally.

2In sentencing you for this crime I must have regard to the maximum penalty for the offence you have committed. Causing injury intentionally carries a maximum penalty of 10 years imprisonment. That penalty reflects the seriousness with which Parliament regards the offence.

3The circumstances of your offending were set out in the document entitled 'Amended Summary of Prosecution Opening for Plea' dated 27 September 2022. This is what we call an agreed document and it represents your acceptance of the elements of the offence to which you have pleaded guilty, as well as the factual basis on which I am to sentence. I turn to those facts now.

The offending

4In short compass, on 11 January 2020 the victim, Elijah Mainieri, travelled to an address in Mernda to meet with friends John Ioannidis and John Reid, planning to have dinner with them.

5You and Mr Mainieri had been close friends between 2016 and 2019 but there had been a falling out in early 2019.

6Whilst Mr Mainieri was on his way to Mernda, you, then aged 23 years, and your father, Adam Brown, then aged 45 years, met with Mr Ioannidis at the Mernda address and he told you and your father not to 'start dramas'.

7Mr Mainieri then arrived and saw you and your father talking to Mr Ioannidis and Mr Reid out the front of Mr Ionnnidis' home. You greeted each other and Mr Reid went inside to use the bathroom.

8You asked Mr Mainieri to follow you around the corner to discuss issues that had been going on for some time. Mr Mainieri complied with your request. You apparently appeared calm at this point.

9Once out of sight you asked Mr Mainieri to pay the $1,000 you claim he owed to you. Mr Mainieri told you that he did not owe you any money.

10Mr Mainieri was looking towards the ground when, without warning, you swung your arm forcefully and struck him on the left side of the jaw with your fist.

11Mr Mainieri fell to the ground.

12Hearing the victim scream, your father, Mr Reid and Mr Ioaniddis ran around the corner to where you were. Mr Reid saw you crouching over Mr Mainieri who was laying on the ground and Mr Reid pulled you away.

13Your father then pushed Mr Reid away from you.

14Mr Mainieri was able to stand up and backed away. Your father then pushed him against the fence and punched Mr Mainieri once in the face and several times to the body with a closed fist.

15Mr Mainieri managed to run away but you and your father chased him down the street yelling that he needed to pay up what was owed. By this point Mr Mainieri was scared and could feel that his jaw was loose and bouncing around.

16The victim made it to his car but you and your father stood between him and his car, shouting. Mr Ioannidis and Mr Reid came and stood between you and your father and Mr Mainieri trying to de-escalate the situation.     

17The victim then ran from his vehicle and your father chased him down the street, yelling that the victim needed to pay up what he owed.  You ran alongside your father and when you both reached the victim some 40-60 meters down the road, you in fact held your father away from the victim.

18CCTV partially captured this incident and has just been played to the court.

19Mr Reid drove Mr Mainieri to hospital.

20Mr Mainieri's injuries were outlined in detail in the Crown document. He suffered, as you know, a broken jaw in two locations and there was soft tissue swelling and subcutaneous emphysema.  He was unable to lie flat due to bleeding profusely from the jaw and blood pooling in the mouth. He required painkillers and antibiotics. He required surgery to insert plates and screws to fix and stabilise his fractures.   One of his teeth had to be removed.  His jaw fracture and surgery meant eating solid food and speaking were problematic in the short term. Mr Mainieri required ongoing dental treatment.  He experienced a loss of sensation around his lower lip and incisors and his left and right-side teeth no longer bit together evenly. He was referred for orthodontic rehabilitation

21You were interviewed by police on 30 January 2020 and, as is your right, gave a 'no comment' record of interview.

22The Crown case is that it cannot be determined whether it was you or your father who caused the fracture to the victim's jaw. Medical evidence that would have been part of your trial indicated that a single blow could have caused the two fractures identified. It is agreed between the parties that you struck the victim with a single punch causing Mr Mainieri substantial pain and it is on that basis that you fall to be sentenced. It cannot be proven that you caused the other injuries referred to. As I have indicated, you will not be punished for such, yet the injuries serve to highlight what can go horribly wrong when there is a resort to violence and that the impact on a victim can be far reaching, well beyond the day on which the injury actually occurred.

Offence gravity and victim impact.

23Obviously the events of 11 January 2020 should never have happened.

24You invited Mr Mainieri out of sight and when he denied owing you money you hit him unexpectedly, with force, and in circumstances where he simply had no opportunity to defend himself. Your punch was hard enough to knock him to the ground. I do accept that this act was spontaneous but equally it was unprovoked and started the events which then followed.

25You remained aggressive when Mr Mainieri ran away after your father had assaulted him and continued to demand that he 'pay up'. I note that you were responsible for stopping your father from further violence towards the end of this shameful episode, all of which occurred in the street, exposing others to violence.

26Whatever the catalyst for what occurred there were surely avenues that did not see a resort to violence. In sentencing you for these circumstances there remains a need to reflect the principle of general deterrence and denunciation in order to discourage others from acting in a similar way.

27I accept that it is also relevant to the sentencing exercise that you are said to be responsible for that single blow as outlined - although there have been plenty of examples in history where that has been enough.

28Whilst no victim impact statement has been filed you would be well aware of the ramifications for Mr Mainieri physically, socially and emotionally. From a Notice of Additional Evidence that was filed it appears that, fortunately and in his words, that Mr Mainieri is now 'in a happy place' in his life and looking forward to a good future.     

Plea of guilty

29The Sentencing Act 1991 obliges me to consider when you entered your plea of guilty.

30Your plea was entered on the eve of your trial for charges of intentionally causing serious injury or, in the alternative, a charge of recklessly causing serious injury.

31By this point the victim had made what was described as a 'statement of no complaint'.

32You have therefore entered your plea to a significantly lesser charge than those for which you were listed for trial. This appears to have occurred in circumstances where the efflux of time gave Mr Mainieri pause for thought and, in contrast to evidence he gave at a committal hearing in March of 2021, he was no longer sure at which point his jaw had been broken and certainly was not in a position to state with confidence that you were responsible. He is to be commended for his frankness.

33You had previously indicated a willingness to plead guilty to a charge of causing injury intentionally based on a single punch on 5 March 2021 prior to a committal hearing but your offer to do so was not accepted at that time.

34In the circumstances overall, your plea is one which I consider to be at an early opportunity. 

35In addition, your plea has utilitarian benefit in saving the court the time and costs associated with any trial, as well as sparing witnesses having to give evidence and relive an incident of violence.

36In addition, your decision to plead guilty in the context of the COVID-19 pandemic has additional utilitarian value as it provides certainty and finality to all parties in circumstances where the court's operations have been significantly disrupted and some trial dates remain unfixed.

37I do accept that you regret your actions of 11 January 2020 and, based on other materials provided, I accept you are remorseful for them.

38These factors will all be taken into account in your favour.

Delay

39You were spoken to by Police about this incident in January of 2020.

40It is now 2 years and 10 months later.

41A chronology of court listings was set out in the Prosecution opening for plea.

42In addition, issues arose at the time of your initial plea hearing on 16 September 2022 as to how the Crown put its case.  This has taken time to resolve.

43The delay overall is relevant in two ways – one, the burden on you of the stress and costs associated with Court proceedings and, two, an opportunity to assess your prospects for rehabilitation.

44You had no prior criminal history before the events of 11 January 2020 and I am told that there has been no matter since. This does point to 11 January 2020 being particular to that point in time and as an out of character event. There seems to be in the circumstances little need to give weight to specific deterrence in the sentencing mix nor a need to protect the community from you.

45I accept also that there has been a degree of sanction and deterrent in the court proceedings and the need to adhere to bail conditions over an extensive period of time.

46Your prospects for rehabilitation would appear to be excellent and are reinforced by materials tendered on your behalf to which I will shortly refer.

Personal circumstances

47You are still relatively young at 25 years of age and had just turned 23 at the time of your offence. Given your age at the time, the principles in relation to sentencing younger offenders, which reinforces rehabilitation over retribution, still has a role to play in your sentencing.

48You are the youngest of 3 children born of your parents. I am told you continue to live with your parents in the family home

49You have two older sisters.

50Your sister, Louise Nash, has provided a reference.  She also resides in the family home with her two children. She describes you as a gentle soul and a good uncle. Louise speaks of your remorse and regret for your actions, actions which she states are out of character.

51On completing your schooling to a Year 10 level you completed the Victorian Certificate of Applied Learning and completed a pre-apprenticeship in carpentry.

52Over a 4-year period you commenced and completed an apprenticeship in Carpentry with I & D Constructions before being employed with Delta Group Constructions.

53You have clearly been hard working since leaving school.

54You are currently completing a Certificate 4 in Demolition at the Glenroy Institute of Technology. You intend starting a business in partnership with your uncle. You have registered that business RB&B Demolition and Excavation, and have sought an ABN.  You intend, as I said, commencing that business with your uncle, your uncle already having an established client base. You are clearly on the cusp of the next part of your working life and one which carries additional responsibility in terms of your own needs running a business and the employer of any intended others.

55Your uncle, Steven Nash, attended your plea hearing and has provided a written reference.  In his reference your uncle describes you as an outstanding young individual who is family focused as well as being a 'highly driven young man who understands the value of hard work and determination'.  You have spoken to your uncle of your remorse for your actions of 11 January 2020. He believes that you have learnt that rash decisions have serious consequences.

56I accept that you are well supported by family which also augurs well for your future.     

Parity

57In relation to these events your father was prosecuted in the Magistrates’ Court for a single charge of recklessly cause injury, a charge which carries a maximum penalty of 5 years imprisonment.

58A summary of the circumstance in which he entered his plea of guilty has been provided. On the facts as outlined before me it was alleged that Adam Brown punched Mr Mainieri to the face and the body at a point after he had already been struck by you and, as was then alleged, when you had stomped or kicked on Mr Mainieri to the head 4-5 times whilst he was on the ground. This last aspect is not part of the Crown case against you.

59Notably Adam Brown was obviously older than you – he had the role to lead you as a father - and had a prior criminal history of some 7 court appearances which included some 18 convictions for breach of intervention order. 

60On 26 March 2021 Adam Brown was convicted and fined the amount of $1,800 by the Melbourne Magistrates Court for that charge of recklessly causing injury.

61You on the other hand have pleaded guilty to an offence which carries a maximum penalty of 10 years imprisonment but where it involved a single blow, and is put on the basis that you caused substantial pain. You were obviously relatively young, have no prior criminal history or offending since. Given those factors and the vastly differing factual matrix put against each of you, there does seem to be limitations in applying the principle of parity between your offending and that alleged against your father from the events of 11 January 2020. 

Submissions

62At your initial plea hearing in September 2022, your Counsel submitted that all relevant sentencing considerations could be reflected in the imposition of a community corrections order or fine.

63At that same hearing, and maintained today, the prosecution submitted that a community corrections order and a fine, each with conviction, is the appropriate disposition.  There has been greater clarity in how the Crown case is put against you since the time of your initial hearing.

64In any event, in order to be better informed, I did have you assessed as to your suitability for a corrections order. You expressed your remorse for your offending to the assessor and showed insight stating that when you got angry you should have simply walked away. You were assessed as being a low risk of general reoffending.  It was recommended that minimal order conditions be imposed, should I resort to a corrections order, that being, 'in line with evidence-based practice which finds that minimising interventions is an effective way of maintaining a person who is of low risk of recidivism'. You were assessed as suitable for a corrections order.   

Basic sentencing purposes

65The basic purposes for which a court may impose a sentence include punishment, general deterrence – that is sending a message into the community - specific deterrence – that is sending a message to you - rehabilitation, denunciation and protection of the community. In sentencing you, I must have regard to a range of matters such as the seriousness of the offending, your culpability for it, your personal circumstances and those of your victim.

66I am also required to balance the interest of community in denouncing criminal conduct with the interest the community clearly has in seeking to ensure, where possible, that offenders are rehabilitated and are reintegrated into society.

67I have taken into account the sentencing guidelines referred to in s5 of the Sentencing Act 1991 where relevant to your case. I have taken into account current sentencing practices for the offence to which you have pleaded guilty as well as the important principles of both proportionality and parsimony.

68In all the circumstances there does not seem to be a need for you to be supervised by Court Order. You have had a lengthy period of complying with community expectations since your offence occurred. A financial penalty is capable of reflecting both punishment and deterrence.

69I have considered the provisions of s8 of the Sentencing Act which include the nature of the offence, your character and past history, and the impact of recording a conviction on your economic or social well-being or on your employment prospects. The offence, whilst rightly described as serious, is a single event in an otherwise blameless landscape and you are, as I have said, on the cusp of the next stage in your chosen working life when you intend setting up your own business furthering your ability to contribute to your own future, the community and that of others. You should not be encumbered unnecessarily in that course.   

70For the single charge of causing injury intentionally to Elijah Mainieri on 11 January 2020 you are fined the amount of $3,200 without a conviction being recorded.

71Section 6AAA of the Sentencing Act requires me to state the sentence that I would have imposed had not pleaded guilty to the charge. If not for your pleas of guilty you would have been sentenced to a community corrections order of 12 months duration.

72Does that complete all matters from your end, Mr Buckland?

73MR BUCKLAND:  Yes, it does, thank you, Your Honour.

74HER HONOUR:  And from your end, Mr McQuillan?

75MR McQUILLAN:  Indeed, it does, Your Honour, thank you.

76HER HONOUR:  Very well.  Just pardon me a moment.  Yes, I will stand down temporarily, thank you.

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