Director of Public Prosecutions v Browne

[2023] VCC 2102

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

 Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR -23-00920

DIRECTOR OF PUBLIC PROSECUTIONS

v

JENAYA BROWNE

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JUDGE:	HIS HONOUR JUDGE JOHNS
WHERE HELD:	Melbourne
DATE OF HEARING:	3 November 2023
DATE OF SENTENCE:	14 November 2023
CASE MAY BE CITED AS:	DPP v Browne
MEDIUM NEUTRAL CITATION:	[2023] VCC 2102

REASONS FOR SENTENCE

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Subject:  CRIMINAL LAW - Sentence

Catchwords:  Aggravated burglary – Common assault – Contravene Family Violence Intervention order – Damage property – Plea of guilty – Youth – No prior criminal history – Remorse 

Cases Cited:Bugmy v The Queen [2013] 249 CLR 571; R v Verdins (2007) 16 VR 269

Sentence:                 Community Corrections order of 30 months.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. Gray	Office of Public Prosecutions
For the Offender	Ms J. Clark	Kurnai Legal

HIS HONOUR: 

1Jenaya Browne, you have pleaded guilty before me to a charge of aggravated burglary, two charges of common assault, contravention of a family violence protection order and two charges of damaging property.

2The maximum penalties are as follows:  for aggravated burglary, 25 years' imprisonment; for common law assault, five year's imprisonment; contravention of a family violence intervention order intending to cause harm or fear for safety, five years' imprisonment; damaging property, 10 years' imprisonment.  You also pleaded guilty to a relevant summary offence of exceeding the prescribed concentration of alcohol whilst driving a motor vehicle.  The maximum penalty for that is 20 penalty units.

3You have no criminal record and that is a significant matter in the sentencing exercise. 

Circumstances of offending

4The circumstances of your offending are set out in the Summary of Prosecution Opening on Plea which was dated 2 November of this year.  Mr Gray read that into the record.  I will not summarise that in the same detail in these sentencing remarks, however, that opening is Exhibit A and forms part of these reasons for sentence.

5You were 22 at the time of the offending and the offending related to the circumstances of your six-year relationship and the breakdown thereof with Mr Parker,[1] and the victim of your offending was also a Ms Shakya White who was present during this serious intrusion.

[1]A pseudonym.

6As the contravention of the family violence order indicates, you were subject to a final limited intervention order from 3 January 2022.  A condition of that order was not to commit family violence against Evan Parker,[2] who was the protected person, and also not to damage any property belonging to him.

[2]A pseudonym.

7On 21 January you were at a friend's house, and you had consumed clearly a significant quantity of alcohol.  The consumption of alcohol had been a problem for you since your teenage years.

8The other party to the intervention order, that is the aggrieved family person or the protected person, I should say, and you had been in a relationship for some six years.  So that is from when you were the age of 16. You became a young mother at that age also.  You have two children with Mr Parker.

9At approximately 2.20 am on 22 January, you drove to Robertson Street, Morwell, where Mr Parker, Ms White and Ms White's four-year-old son were asleep in the house.  You entered the house and Mr Parker awoke.  You soon thereafter punched him to the face, causing his nose to bleed instantly.  You were yelling out 'You love her, you love her', followed by 'Let me get to her, let me flog her.'  You continued to punch Mr Parker to the face.  You were trying to get past him to get to the bedroom where Ms White was still in bed.  Mr Parker  pushed you onto the couch, grabbing your wrist trying to prevent you from getting to the bedroom.  You managed to kick him in the face.  One of the kicks hit him with such force that it caused him to fall backwards, letting go of you, and you ran to the bedroom and jumped on top of Ms White, again hitting her in the head.  She was trying to defend herself.

10Mr Parker then started to try and drag you off that area which was the bed area.  You were continuing to try and assault Ms White, you were saying 'Let me get her.'  You were dragged out of that room into the loungeroom.  Mr Parker was able to get you out of the house and locked the front door.  After he did so you kicked a side window next to the front door, causing it to crack, and that is one of the criminal damage charges.  You then went around to the back door.  Mr Parker heard you and ran into the kitchen where he slipped over and landed on his back.   You came in through the back door and started to stomp on his face a number of times, causing serious damage to his teeth.  He managed to get to his feet and was again able to get you out the back door and lock the door.

11You went back to the car that you had driven to the address in and deliberately drove into the front of Mr Parker’s vehicle which was parked on the nature strip, hitting it head-on causing it to roll backwards seven and a half metres into the front yard of the neighbouring house.  That is the second charge of criminal damage.

12Police attended.  You were arrested and provided with your caution and rights.  You made the following admissions which sum up what was going on for you at the time.  You were asked 'Where is all the blood from?' and you said, 'From me and my ex probably.'  You went on to say you hope 'It's all him' – that was a reference to the blood.

13You were asked, 'Is there anyone else injured that we need to be aware of?'  You said, 'Probably his girlfriend, I hope.'  'Have you taken anything tonight?'  You said, 'I'm off antidepressants, I've been drinking, I sure have.'  You were asked what you had been drinking and you said, 'Double Jacks and I'm off my medication.'

14You were taken to the Latrobe Regional Hospital for a blood analysis and that revealed .068 grams of alcohol per hundred millilitres of blood, exceeding the prescribed limit of .05.

15Mr Parker’s teeth were snapped and broken as well as lacerations inside his mouth.  That is a very serious aspect of this offending, the breach of the family violence intervention order, the circumstances of entering the house, attacking Ms White, her four-year-old son was nearby, and of course that vicious assault on Mr Parker with its consequences.  All of those are serious aspects of the offending, aspects that absent other factors would almost always translate into a head sentence and a non-parole period.  Aggravated burglary is a very serious charge, as I have said, carrying a maximum penalty of 25 years' imprisonment.

Sentence Indication Hearing

16Notwithstanding the very serious offending, the matter came before me as a sentencing indication hearing, and to summarise very briefly, at that point in time your relative youth, lack of criminal record and the circumstances of the offence – by that I am referring to the entire relationship history going back to when you were 16 years of age, your own development and disadvantage, to a degree, disrupted upbringing, and your mental health frailties in relation to depression. 

17All of those factors in combination with you in the stressful situation deciding to come off your medication without medical supervision, drinking to excess, all of these matters caused you to act in a way that I am satisfied was out of character and your response since apprehension has been to your credit.  You have made real steps towards rehabilitation and there are two young children to consider that both you and Mr Parker are responsibly engaging in sharing their care.

18So those were the matters that in summary I accepted at the sentencing indication hearing, indicating that in its context and applying some leniency and mercy, a non-custodial disposition was open in this matter and is what I would impose.

19Mr Gray of course on behalf of the prosecution, quite rightly at that time and again at the plea, raised and highlighted the serious aspects of the offending, which I have summarised, and referred me to authority, including Hogarth v R[3] and others, which are important considerations with the Court of Appeal stating on many occasions how these confrontational aggravated burglaries are to the dealt with. 

[3]Hogarth v R (2012) 37 VR 302

20I did indicate at the sentencing indication hearing and again at the plea, however, that based on my assessment of all factors, the gravity of the particular offending before me was not such that in the context of mitigatory circumstances personal to you and some aspects and circumstances of the offending which placed it in a light and in a context that gives the court some confidence that you can rehabilitate. Given all those factors, I was not disposed to send a young mother such as yourself with no criminal record, into custody.

Personal Circumstances

21At the plea a number of matters were put on your behalf.  In particular, the psychological report of Sandra Cokorilo was relied upon.  Ms Cokorilo noted previous diagnoses, a major depressive disorder, generalised anxiety disorder, a history of suicidal ideation with suicide attempts and self-harming behaviours.  Ms Cokorilo noted that in her opinion you were a 22-year-old female of indigenous heritage who emanates from a dysfunctional background characterised by maternal psychopathology and maltreatment, instability, exposure to family violence and disrupted parental attachment. 

'Such an early invalidating environment has undoubtedly contributed to early disengagement from the educational system and dependency on her partner to whom she attached in the absence of alternative supports.  She became a mother at a very young age which additionally hindered her development and limited her vocational, social and educational activities.'

22She opined that your emotional development has also been compromised by childhood adversity:

'Which has predisposed her to development of mental health problems. The resulting dysregulation of neurophysiological systems that support mental, emotional and behavioural health can lead to poor coping with stresses experienced later in life.'

23And again later, Ms Cokorilo opined:

'Taken together these mental health factors would have impaired Ms Browne's ability to think clearly, respond calmly and exercise appropriate judgment.  Her reasoning would have been additionally impaired by disinhibiting effects of alcohol which she uses as a coping mechanism.'

24The opinions of Ms Cokorilo are based upon a context and a family and personal history that I accept that is also summarised in Ms Clark's outline of submissions.

25Your parents separated when you were four years of age.  You are one of four children.  You are also a young woman of Aboriginal heritage born in New South Wales.

26I accept that there has been family violence and disruption you were exposed to prior to separation, but there were further upheavals growing up, including due to your mother's mental health problems.  She suffered a schizoaffective episode when you were eight years of age and had ongoing unstable mental health thereafter.  Some aspects of the difficulties for you and your sister in growing up with your mother are summarised in the report of Ms Cokorilo.

27You did not have a lot of contact with your father.  There were some negative aspects to your father's presentation.  You describe it as a love/hate relationship with your father.

28Importantly, you had a sister present here during the plea hearing and you have your brother here today.  I accept that you have family support and you have also accessed other supports in the community, particularly since this offending.

29You and your mother moved frequently through New South Wales, Canberra and Queensland, arriving in Victoria in 2012.  Your mother moved back to Canberra, and it is at that time as I understand it, you started living with Mr Parker at a young age and you became a mother at 16.  As I noted, you have two children with Mr Parker.

30After the offending in this matter you moved to Bendigo and you were seeking supports there.  You are currently living in Newborough and on the last occasion Ms Clark brought me up to date as to the situation with your children.  There had been a period there where your former partner, the victim in this matter, was caring for the children but I was advised by Ms Clark at the time of the plea that both children are now back with you.  You have maintained the enrolment of your older child in Newborough, in the school, your daughter is in kinder.  You drive some distance to take him to school and pick him up. 

31There were submissions made in relation to your licence and submissions made that I not take action against your licence, and I am minded not to do so in relation to this matter when I consider all of the factors, and in particular your ongoing rehabilitation.

32After the offences before me you engaged in appropriate supports through VACCA.  There were letters attesting to that before me from Colleen Boulton, from Gillian Keily also.  I accept those matters.  I am told you are in a new relationship now.

Factors in Mitigation

33Other matters that were relied upon, of course, the plea of guilty.  I do accept what was submitted on the plea that you have moved on, you are now maturely, and no doubt supported within the new relationship and with your family, moving forward in your life.    

34I have summarised all those matters to set the context for what happened, rather than approach the case as one of whether Bugmy v The Queen (“Bugmy”) applies or whether R v Verdins (“Verdins”) applies.[4]   The prosecution made submissions in respect to both those matters and on careful consideration of them I tend to agree that whilst there are a number of features in your background and development that are relevant to my assessment of the offending, it does not quite meet the application of the Bugmy principles, in my view, not that there is a threshold.  I do not consider that there does have to be profound disadvantage, but those background features are relevant. 

[4]       Bugmy v The Queen [2013] 249 CLR 571; R v Verdins (2007) 16 VR 269

35So too with Verdins.  It is the submission of the prosecution, as I understand it, that possibly Limbs 5 and 6 may have some application but the causal connection is not there in relation to moral culpability, particularly because we have the cloudiness of the alcohol and coming off the medication.

36Again, in my assessment there are mental health factors that are relevant to my assessment, in an explanatory sense, as to what occurred here.  Really it is a situation where I look at the matter holistically.  I look at your background, your childhood, the commencement of this relationship at a very young age, the two children, the underlying mental health vulnerabilities, as I have noted, exposure to alcohol at a young age, alcohol becoming a problem in circumstances of distress.  Inability to have appropriate coping mechanisms, dysregulation, coming off the medication and heightened emotions.  You have acted in a way which I am satisfied you do regret very much and are remorseful for.

37As I said at the sentencing indication, in those circumstances, given the steps you have made in the meantime, given the lack of a criminal record and given what lies ahead, your continued care for your children, I am satisfied that all the sentencing factors in this case, general deterrence, which is very important and significant when it comes to breach of family violence orders and the offence of aggravated burglary, in particular, denunciation is also very important for the same reasons.  And some specific deterrence and community protection. 

Sentence

38In your case, Ms Browne, I am satisfied that all of those factors can be met by imposing an aggregate sentence across all charges before me, including the relevant summary offence, an aggregate sentence that will be a community corrections order of two-and-a-half- years' duration.  It will have a condition of supervision.  There will be a condition of 200 hours of unpaid community work.  There will also be conditions of alcohol assessment and treatment as directed, mental health assessment and treatment as directed.  I direct that up to 75 hours of treatment programs can be credited against the community work of 200 hours.

39Were it not for the pleas of guilty I would have sentenced you to a total effective sentence of two-and-a-half years' imprisonment with a non-parole period of 20 months.

40Do you consent to that community corrections order, Ms Browne?

41OFFENDER:  Yes.

42HIS HONOUR:  I have to tell you that if you breach that order, if you commit further offending or you do not comply with that order, the conditions of that order, you can be brought back before me for re-sentencing.  Understand?

43OFFENDER:  Yes.

44HIS HONOUR:  Now that order is going to be prepared.  I will sign it now and then you will be asked to sign it.  Alright, now that that's been signed, I will just say, Ms Browne, that is a lenient sentence in many ways, there are some very serious aspects to this offending as the prosecutor pointed out.  Young people in your position can end up very much on the other end of this, this could have been a very different outcome for you very easily.  So just make sure you complete the order and don't come back.  Good luck.

45OFFENDER:  Thank you.

46MS CLARK:  If Your Honour pleases.

47MR GRAY:  As the court pleases.

48HIS HONOUR:  Thank you.

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