Director of Public Prosecutions v Browne
[2024] VCC 513
•23 April 2024
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 23-01888
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BRYAN BROWNE |
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JUDGE: | HIS HONOUR JUDGE JOHNS |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 17 April 2024 |
DATE OF SENTENCE: | 23 April 2024 |
CASE MAY BE CITED AS: | DPP v Browne |
MEDIUM NEUTRAL CITATION: | [2024] VCC 513 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW – Sentence
Catchwords: Dangerous driving causing serious injury – Fail to render assistance after a motor vehicle accident – Plea of guilty
Legislation Cited: Road Safety Act 1986
Sentence: Two-year Community Corrections Order
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms A. Stephanides | Office of Public Prosecutions |
For the Accused | Mr J. Lowy | Martin Middleton Oats Lawyers |
HIS HONOUR:
1Bryan Browne, you have pleaded guilty before me to a charge of dangerous driving causing serious injury which carries a maximum penalty of 5 years imprisonment, and a charge of failing to render assistance in circumstances where you ought reasonably to have known (a) there was a collision and (b) a person was seriously injured.
2You are 33 and have no prior convictions. There was nothing known put before me including any driving history and that is quite remarkable.
3This matter was listed in the Mildura County Koori Court for plea for these two charges last week. You attended court wanting to plead guilty to these two charges, and have your matter heard in the Koori Court, with the attendance of the Elders, and you had a number of people attend to assist you through the process and take part in the sentencing conversation if necessary.
4They were Samantha Poll your partner, Cole Fredag brother-in-law, Sheridan Fredag sister-in-law, Cheryl Hollace sister-in-law, Stella Browne daughter, John Cause friend, Amy Browne sister, Nancy Browne niece, Jacob Browne nephew, Kris Browne mother, Phillip Browne father-in-law, and Robert Browne brother.
5Because of what transpired, you have now elected to have the matter heard as a plea before me in Melbourne and if need be I make any order remitting the matter to this jurisdiction. In doing so you have foregone the opportunity to participate in a Sentencing Conversation and attract the mitigation that flows from that.
6Prior to arraignment in Mildura the Judge hearing the matter formed the view understandably that the elements to Charge 2 could not be made out on the evidence. The matter was stood down to provide the prosecution with an opportunity to consider not proceeding on Charge 2.
7I have had available the transcript of the hearing where the Judge sets out clearly the elements necessary to support the charge. Having taken instructions the prosecution indicated that they would proceed on Charge 2. That has remained the prosecution position.
8In those circumstances in Mildura His Honour adjourned the matter to a case conference before me which in my view was entirely appropriate in the circumstances. I heard a case conference in the matter on 17 April. Ms Stephanides appeared for the prosecution at the case conference and your counsel Mr Lowy appeared on your behalf.
9The following matters were established at the case conference:
·The elements to be proved in support of Charge 2, can be found in s61(3) of the Road Safety Act;
·To paraphrase, the offence requires that an accused person knew or ought reasonably to have known that an accident occurred and that a person was seriously injured as a result.
·The prosecution would proceed in the case against you on the basis that you ought reasonably have known of the collision and that serious injury flowed from it;
·That you accept those elements of the offence. You did not wish to proceed to trial on Charge 2. You intended to plead guilty to both charges when arraigned. You understand that a plea of guilty is taken as an admission of those elements.
·Your counsel Mr Lowy was not instructed to make any submission which traversed or traverses that acknowledgment and admission.
10In addition to considering the prosecution opening I have had regard to the victim's statement and to your record of interview in preparing for the case conference. I was also assisted by the submissions made by Ms Stephanides on the facts in response to my queries.
11I am satisfied that an assessment of whether there is support for the element of ought reasonably knowing there was serious injury is not confined to an acceptance of what you have said on the question in your interview with the police within the hours of the collision. The objective circumstances of the case involve the multifactorial serious injury occasioned to the victim as a result of you mounting the curb and colliding with her, in circumstances where you were angry and distressed at what had taken place up until that point.
12The conclusion can be drawn from those objective facts that you ought reasonably to have known serious injury flowed. Not the precise injury, but serious injury. That is different from saying, of course, that you did know or suspected. It is put in objective terms that you ought reasonably to have known.
13The admission of that element by way of your plea provides further support for that conclusion. Failing to render assistance in those circumstances is a very serious offence, however there are mitigating circumstances of the offending in your case.
14As I stated at the case conference which then morphed into a sentence indication hearing, you were the victim of serious criminality. There were other people in the vicinity who may have posed a threat to your safety. You were under stress, in fear, and also angry at the time. All of these circumstances arose from what you had experienced.
15These comments in no way denigrate the victim who it seems clear was a vulnerable Aboriginal woman experiencing a psychotic episode.
16The circumstances of your offending are set out fairly in the summary of prosecution opening which is Exhibit A on the plea and forms part of these reasons for sentence. I do not propose to recite the facts. I would add the following.
17On balance I accept what you stated in your record of interview at question and answers 117-123, question and answer 208 and 359-386 as to what took place in the vehicle.
18You were interviewed after having gone to the police station at 9 am, some hours after what took place to report what had happened to you. You spent two days in custody after you were arrested on suspicion of having intentionally cause serious injury.
19The conduct you engaged in was completely out of character for you. Filed on your behalf were testimonials as to your work history and your good character. I also accept that had the plea taken place in Mildura County Koori Court, a number of people whose names I have read out would have been able to speak on your behalf.
20No doubt you enjoy strong support in the community and I have no difficulty, particularly given the absence of a history and your work record, that you are a person of previous good character and this was completely outside your character and the circumstances that led to your conduct were wholly outside your experience. These are significant considerations.
21Your personal circumstances are set out in the psychological report of Dr McConchie and also summarised in Mr Lowy's outline of submissions, which I will make Exhibit 1 on the plea. Dr McConchie's report will be Exhibit 2. The reference of Gavin Lorne Exhibit 3, and the reference of Lauren Beckman Exhibit 4.
22You are 34 years of age. I correct what I said at the outset. You were 33 at the time of the offending. You are 34 years of age. Your background is one of being a member of the Larrakia nation, through you father's line. You have an older brother and an older sister. Your older brother lives in Mildura and your sister lives in Ballarat.
23Your father had problems with alcohol and was prone to violence when intoxicated, I was told. You were exposed to family violence in the home as a child. Due to that violence your mother left the home when you were 14. You moved to Mildura when you were 15 with your family.
24Your father unfortunately passed the following year. Your mother now lives in Shepparton. You are very close and speak on the phone all the time.
25Your previous good character, work history, and the fact that you are supporting and caring for a family of your own are significant matters given this difficult and disadvantaged background.
26You completed Year 10 at Coomealla High School. Year 11 was difficult for you. You then went on to complete two courses at Sunraysia TAFE with a Certificate II in Commercial Cookery and a Certificate II in Building and Construction. You have done fruit picking, but the last 12 years or so you have been employed at Sanector, formerly Best Bottlers. You do have aspirations to retrain to become a diesel mechanic.
27You have prosocial habits. You do not have difficulty with alcohol. You do not use drugs. You are in good health. Your partner Samantha and yourself have been together since you were 18. You have got two children; a 10 year old and a 2 year old. In all respects as I have indicated you are an upstanding and law-abiding and productive member of society.
28I do accept that you have intense regret and remorse. I also accept that you were mortified when you understood how seriously injured the victim was. I accept what Dr McConchie has said about your fear at the time, your heightened anxious state of flight or fight. You acted defensively and impulsively.
29You have continued to have experienced hypervigilance due to the traumatic involvement in this episode, which was as I said, wholly outside your experience. I accept you have been having flashbacks.
30You pleaded guilty at the earliest opportunity. You have been demonstrably remorseful. You went to the police and gave a full account of what took place. I accept to a substantial degree the case against you comes out of your own mouth. You are entitled to substantial mitigation in that respect as well.
31I accept given all the matters I have summarised that your prospects of rehabilitation are excellent. Based on all of those factors and the circumstances of offending which I have alluded to, together with your personal circumstances I have been satisfied as I indicated at the sentence indication hearing, that notwithstanding the serious nature of the charges, the objective gravity of the charges of dangerous driving causing serious injury and failing to render assistance in those circumstances, based on the mitigating circumstances of the offending and personal mitigation, you are entitled to a non-custodial disposition. That is appropriate, without hesitation in your case.
32Having stated that at the indication, and notwithstanding the significant penalty a prolonged and lengthy loss of licence would impact upon you, given the serious nature of the charges, the injuries that flowed to the victim and the need for denunciation of that, and to give some effect to general deterrence, I find I am unable to impose the disposition I foreshadowed without a conviction on each charge.
33Accordingly, what I am going to do by way of sentence, Mr Browne, is to impose an aggregate sentence in respect of both charges of a two year Community Corrections Order with conviction on each charge. There will be 80 hours of community work imposed in respect of that Community Corrections Order.
34In respect of - I think I am required to impose the licence cancellation in respect of each charge. So in respect of Charge 1, your licence is cancelled and disqualified for a period of 18 months. In respect of Charge 2, your licence is cancelled and disqualified for a period of four years. As I say, I fully appreciate that that is a significant penalty. Counsel made very useful and considered submissions in respect of the great imposition that will impose upon you and your family, given your work situation; two young children and a wife who does not drive. I have considered that carefully.
35However, in all the circumstances of the offence, I have concluded that to impose without conviction in respect of Charge 2, would not be appropriate given the factors of general deterrence, and denunciation in particular that I must consider.
36I should also add of course that in arriving at the sentence I have imposed, I have taken into account the fact that you spent two days in custody in respect of this matter, which I accept must have been an extremely difficult and distressing time for you, given your background and given the circumstances in which you attended the police station.
37Pursuant to s6AAA were it not for your plea of guilty, I would have sentenced you to a three year community corrections order with 250 hours of community work with conviction.
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