Director of Public Prosecutions v Browne

[2018] VCC 1747

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-01720

DIRECTOR OF PUBLIC PROSECUTIONS

v

ELISHA BROWNE

---

JUDGE:	HIS HONOUR JUDGE GUCCIARDO
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	26 October 2018
CASE MAY BE CITED AS:	DPP v Browne
MEDIUM NEUTRAL CITATION:	[2018] VCC 1747

REASONS FOR SENTENCE
---

Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms M Casey
For the Accused	Mr M Page

HIS HONOUR:

1Elisha Elizabeth Browne, you pleaded guilty to one charge of causing serious injury recklessly to Maria Tiglar on 3 April 2018, and also to using an unregistered motor vehicle.  The prosecution provided a summary upon your plea in relation to the circumstances of the offence.  It was tendered and exhibited.  For the purposes of this sentence, I will recite the salient agreed facts.

2You are 40 years old and were 39 in April 2018 when the offences were committed.  The victim, Ms Tiglar, was 30 years old.  At the time, you were in a relationship with Ross Perrys, with whom you had known for about 15 years as friends, and had become intimate since early 2017.  Maria Tiglar had met Ross Perrys when she was about 17 years of age, and in November 2017, had reconnected with him and he had started dating her as well.  Unbeknownst to you, Mr Perrys had a parallel relationship with Maria Tiglar which continued.

3I note his statement to police, dated later that day.  It begins rather triumphantly, "I have two girlfriends."

4Ms Tiglar, for a while, believed Perrys was single but quickly discovered he was also seeing you, but he convinced her at some point that this was no longer the case.  You also discovered later that he was dating Ms Tiglar.  You got her mobile number, called her numerous times to threaten her, and sent angry text messages and posted material about her on social media.

5On the day in question, you went to Perrys' home address and the two of you spent the day together working on the house.  His sister and mother were also present.  Ms Tiglar had been with Perrys' cousin at some point.  Perrys was told you had called his cousins' house and had made threats.  Mr Perrys arrived at that address and picked Tiglar up.

6You noticed he had gone, and became suspicious that he was visiting Tiglar.  You knew she was staying at the address of Perrys' cousin.  You became enraged and angered by your jealousy and sense of effrontery and betrayal by Perrys.  You drove your car, an unregistered car, towards the address where you thought to find Perrys and Tiglar.

7Perrys' sister told him you were angry and on your way.  Perrys and Tiglar drove away from the address in his car, only parking around the corner initially.  When you got to the cousins' address, they were not there.  A short time later Tiglar got out of Perrys' car, and you spotted her and asked her where she had been, to which she sarcastically replied she had been out for a walk.

8You then watched Tiglar get into Perrys' car and took off after them. 
Mr Perrys performed a couple of manoeuvres to try and evade your chase. 
He drove into a nearby court and you following, ramming the back of his vehicle.

9Perrys then took off again, and you followed closely behind, travelling at times in excess of 130 kilometres an hour.  The two cars approached a major road, and you both turned left through red lights because Perrys was in fear of being rammed again if he slowed down and stopped.  The vehicles proceeded along Clayton Road at high speeds.  At Bourke Road, both cars again turned left against red lights, and your car hit Mr Perrys' car twice more.

10At that point, his car stalled and came to a stop in the middle of Bourke Road.  Both Tiglar and Perrys got out of their car, Tiglar intending to run away, and they moved away from the car slightly.  You stopped next to Perrys' car, then purposefully reversed, and on an angle to face the car in the direction of Tiglar and Perrys.  You accelerated heavily and aimed your car towards them. 
He dodged the car by stepping away as you drove over a nature strip.

11You then hit Tiglar with the front of your car, causing her to partly be run over, in effect.  She was underneath the car as it was still moving, and she was dragged about 30 metres from where she was hit.  You did not stop.

12You turned left, drove off one nature strip across Viney Street, and you mounted another nature strip before knocking a street sign over.  You drove over the sign, re-entered Bourke Road coming off the nature strip, turned left, and over the median strip before pulling up next to Perrys' car, a small Mazda sedan.

13Still focused on your pursuit of Perrys, you got out of your car and retrieved the keys out of the Mazda.  As you got back in the car, Perrys ran towards you. 
You then turned left, hard, driving towards oncoming traffic, over the median strip to the north side of Bourke Road, missing other cars while fleeing the scene.  You drove to an address in Clayton, where you called a friend to come to pick you up and you left the area.

14Ms Tiglar remained on the nature strip until transported to the Alfred Hospital by ambulance.  She sustained multiple injuries and needed two operations.  She sustained a left mid-shaft femur fracture which required a titanium rod inserted.  She sustained a left ankle bimalleolar fracture, requiring two medial tension wires and a fibular plate to repair the damage to the malleoli - that is, the bones that stick out of the inside and outside of the ankle at the tibia and fibula lateral and medial bones.

15This ankle fracture was not discovered until rehabilitation for the former fracture and required surgery on 19 April 2018.  She experienced flashbacks, nightmares and difficulties with sleep, and has required psychological support. 
She experienced greater pain post-operatively than expected by medical staff.  She required extensive post-surgical rehabilitation.

16The collision scene required the attendance of ambulance, fire brigade, police units, police Air Wing, highway patrol and even a K9 unit.  Photographs taken of the scene and the vehicles attest to the destructive force involved and the consequent danger created along the journey and at the ultimate scene.
The front bumper bar of your car was detached and left behind on a grass nature strip, left near the Mazda.  The impact on the back of the Mazda is clearly heavy, with side damage as well.

17While police attended the scene, you called Perrys' phone.  Police heard your incoherent rant, full of expletives, in which you denied running Tiglar over and then telling Perrys that what had happened was in effect his fault.  A police officer spoke to you and told you to return to the scene, but your response was incomprehensible.

18On the next day, your car was located and towed to police premises for examination.  The bumper bar was missing, the bonnet was damaged and uplifted, the front right-hand side tyre was shredded, with the wheel showing rim damage.  The front driver's side quarter panel was dinted and sight indicator was missing.  There was a large indentation along the lower rear passenger door, driver's side, along the front rear passenger side doors, and there were separate scrape marks.  The passenger side external mirror was smashed.

19On 4 April, the police came to your home with a worker from NEAMI, a community-based mental health service.  After about 20 minutes of negotiations, you came out.  You were emotional and police sat you down on the front step.  You were then arrested and later interviewed.

20The contents of the interview, in terms of your description of the incident, is fragmented, and though generally admitting your participation in the event, you denied that you aimed at anyone in particular, but you agreed that Tiglar had gone down on her knees at the sight of your car at some stage, but had got up and had started "wailing off with that trashy mouth of hers."

21You described, in general terms, the events with a deal of tentative narration and concluded by saying:

"I was trying to figure out myself what I'd just done and what happened, and just to get out of it."

22You described your relationship with Ross Perrys, that Tiglar was a prostitute he had "hooked up" with, and described your jealousy and hate for her. 
You described the speeds at which you drove as "crazy" and "immense", well over 100 kilometres per hour, possibly 140, because your vehicle was "redlining."  You said you were overwhelmed with emotion, feelings of revenge and anger.  You wanted, you said, to:

"Scare the buggery out of them."

23You wanted to hit them when the victims got out of the car at the collision scene, but you were not aiming at either one in particular.  You said you knew you had hit Maria Tiglar with the front driver's side - hit her, and pushed her to the side.  You told police that if you had not been so weak and gullible and had maybe more self-esteem for yourself, you would not have allowed yourself to be manipulated in this way.

24You said you had barely slept for about three days prior, because you were in a panic, and that you had taken Valium.  You said you were embarrassed and disgusted with your behaviour, and you acknowledged endangering other road users, but that you were not thinking rationally and you again reiterated you did not aim at anyone specifically.

25I take your plea into account.  You have indicated your intention to plead guilty prior to the committal after bail was refused, which means you remained in custody from 4 April 2018.  No witnesses were cross-examined at committal, and yours is an early plea which will be accorded a discount on your sentence. 
I accept it is accompanied by remorse, and it has utilitarian value, having avoided a trial.

26An evaluation of the objective gravity of your offending must include the assessment of the great risk which your behaviour gave rise to.  Not just for the victim, but Mr Perrys and those who were also on the road at that time.  It was fortunate indeed that innocent travellers were not injured.  It was fortunate that the injuries occasioned to Ms Tiglar were not life-threatening as she could have been killed.  Her injuries were serious and repercussions for her are ongoing.

27An assessment of your moral culpability ultimately must conclude that it is high.  To seek to avenge a betrayal so violently and publicly, fuelled by the red flag of anger and animosity, is unacceptable.  Many criminal offences are committed with such motivation.

28The moral culpability may well be shared, to some extent, with the man who was at the centre of this unfortunate set of circumstances and it is perhaps understandable that such duplicitous conduct would be hurtful and induce feelings of animosity.  However, it is never acceptable to vent that frustration and animosity in violence, reckless disregard for others and a type of vigilantism for a perceived romantic wrong.

29In that sense, our community does not tolerate the crime passionnel.  It no longer forms, if it ever did, any part of the culture and decent civility which our law reflects and holds.  Conduct like yours, rightly, is abhorrent and unacceptable, and deserving of punishment.

30Recklessly cause serious injury carries a maximum penalty of 15 years' imprisonment.  By this maximum, the legislators have indicated the seriousness of the offence.  Of course, the charge encompasses many various degrees of severity and circumstances.  But in my view, these circumstances are not at the lower end of such offending but firmly in the middle range of such conduct.

31Maria Tiglar provided the court with a victim impact statement.  She was a registered nurse.  Three years ago, her marriage broke down.  Then six months into a relationship with Perrys, she found out he was two-timing her.  She was terrified, understandably, when she was injured.  She heard the crack of bone as her leg broke and her head hit the curb, finally landing on grass nearby.

32She spent five months in hospital.  She still returns to hospital every week for rehabilitation, hydrotherapy, and has a permanent limp.  Walking for any length or distance or time is difficult.  The post-accident life was marred by unstable accommodation and financial hardship, and further inability to look after her two children. All of this is related to this event and I take her statement into account.

33I take your personal circumstances into account.  You have a prior criminal history.  In 2015, you were before the court for tampering with a car and an assault.  In 2008, a conviction for possessing a controlled weapon, a taser, was recorded.  In 2007 and 2008, the court was still dealing with a series of offences such as making a threat to kill, assault, assault by kicking committed in 2003 as a result of non-compliance with earlier community-based dispositions.  2005 also contains priors for possession of ecstasy and cannabis.

34I take your background into account.  You were born in Papua New Guinea and came to Australia aged four.  Both you and your mother were victims of domestic violence, and your parents' relationship ended when you were aged about nine.  Your mother re-partnered and was often absent and a mothering role was taken up by you out of necessity to care for your young brother.

35When you were 14 you began running away from home because you reported violence from your stepfather, and you then became a ward of the state, residing in youth homes.  Despite this dysfunctional background, you stayed in education until age 16 and then found employment with Mercedes Benz, eventually, at 21, becoming second-in-charge of a service centre, and undertook an apprenticeship as a mechanic.

36At age 19, you had a son.  He was diagnosed as autistic, and because of the need to look after him you gave up work in his formative years to do that.  He exhibited difficult behaviour and various physical and social problems at first, which required therapy and medical attention.  To your credit, he is now
21 years old and completing an accountancy degree.  Much of that progress is due to your hard work.  You paid for education at a private school for the last years of his high school, and these are matters that go to your credit which I take into account.

37During these difficult periods, beset by problems, you sought treatment and support for depression and anxiety, and you were linked in with NEAMI Health since at least 2014.  Unfortunately, the problems you encountered also included a new relationship between 2007 and 2017 which you reported was violent and abusive.  As a result, you resorted to methamphetamine as the relationship broke down.

38Dr Mary Buttegeig wrote a letter dated 27 September 2011.  It was some time ago, but the contents reflect that part of your life between 2004 and 2011, about which I have mentioned above.  She writes that she has treated you in that time for a major depressive and generalised anxiety disorder, with panic attacks and post-traumatic stress developed as a result of a home invasion and assault in August 2006, in particular.

39You apparently spent a considerable time in 2010 and 2011 at Box Hill Hospital in Peter James Rehab Centre, dealing with what's called a conversion reaction disorder which renders mobility very difficult.  Symptoms of these conditions are chronic and persistent, and have been difficult to treat.

40The letter from the doctor included a description of your daily struggle with overwhelming distressing symptoms which impacted, at that time, your ability to cope.  She writes that you were often dissociative, but despite significant issues, you were endeavouring to manage your symptoms which included insomnia, flashbacks and nightmares.  Your treatment consisted of regular counselling at the Austin Hospital, both with doctors and through medication such as Seroquel.

41Dr Leon Turnbull wrote a report for the court about his assessment of you, dated 12 June 2018.  He mentions both your efforts at raising a son with autism and your use of ice at the end of 2017, on top of lifelong use of cannabis.  He reports you are currently clear and abstinent of drugs, which has not only clarified your thinking but provided some relief into the context of that drug's negative effect on depression and anxiety.

42You are currently treated with an anti-depressant medication.  He writes that you have endured pathological levels of anxiety and low mood for many years.  Ice use would render you more frenzied and chaotic.  I accept you have been a strong advocate and carer for your son, and have maintained good employment, and a person who has generally overcome significant negative factors in her history with some determination.

43In my view, your prospects of rehabilitation are inherently tied to your continued abstinence from ice use and returning to a more stable life of work and care of your family.  Your family support and prospects of participation in treatment by NEAMI are in my view indicators that your prospects of rehabilitation may be reasonable.

44I also received a bundle of letters in support.  Each highlights the out of character nature of the offending as opposed to the efforts you have made, particularly in relation to your son.  Mr Perrys' sister is a frequent visitor to you, and she writes that you are a great mother and good person who is very remorseful.

45NEAMI National has been involved with you since 2005.  Mr Taylor, the service manager, writes that the recovery team focuses on supporting people such as yourself upon release.  Partners in Recovery is a mental health initiative which provides coordinated support with people with complex needs, and since 2014, you have been a client.

46You have been motivated more lately, more resilient and resourceful.  A long-term strategy is needed to learn better coping skills in the future.  During your period in custody, you availed yourself of counselling to address the issues, including domestic violence, which have brought you to this point.

47The question as to appropriate sentences in these type of cases is invariably a complex question.  I had you assessed for suitability for a community corrections order in order to explore the option of such a disposition in combination with a period of imprisonment.  I note that that assessment found that although you were suitable, you were at high risk of reoffending.

48Even if ultimately, at age 40, you have now undertaken your first period of imprisonment, and that no doubt has had a hard and salutary effect, the provisions concerning the imposition of a community corrections order limit the available period to be combined so that the court is called upon to evaluate whether that alternative can meet all the requirements of the sentencing principles applicable here.

49In my view, even if your time served was not to be accounted for the available period of combination with a community corrections order, that combination would not deal with all the sentencing principles applicable.

50Allowing for your plea, your personal circumstances and the exercise of some leniency in your case, the objective gravity of your conduct, where your private and personal emotional grievance has turned into a dangerous, violent and public occasion for retribution, is simply too serious and must properly be met with appropriate punishment.

51The importance of general and specific deterrence here must be paramount.  The community looks to the court to dissuade by stern punishment those who are like-minded to let such personal grievance fuel violence directed at persons, especially in a public setting.

52Please stand.

53On recklessly cause serious injury, you are convicted and sentenced to three years' imprisonment.

54On the summary offence of being a second or subsequent offence of using an unregistered vehicle, you are fined $500.

55I set a non-parole period of two years.

56But for your plea, I would have sentenced you to four years with a non-parole period of two-and-and-half years.

57I will note for the records of the court that you have 205 days by way of pre-sentence detention which will be accounted for by Correctional authorities.

58Due to the alleged speed involved in this offending, pursuant to s.28(1A)(2) of the Road Safety Act, the court orders a suspension to your license for a period of two years from today.

59I order, under s.464ZF, that a biological sample be collected from you for placement upon the DNA database.  A request will be made for a collection by the taking of a mouth scraping, which is not a painful procedure, under the supervision of an authorised member of the police force for collection of that sample.  If, at that time that request is made, you do not consent, then that authorised officer can use reasonable force to obtain a blood sample from you.  Do you understand?

60Yes.  I have signed that order.  Ms Browne might have family in the court room.  I am happy to remain on the bench while they speak to her.  Unfortunately, they cannot have any physical contact with her but I will remain on the bench while that takes place for a short time.

61MR PAGE:  I am grateful, Your Honour.

62HIS HONOUR:  Thank you, Ms Casey and Mr Page. 

63MS CASEY:  Thank you, Your Honour.

64HIS HONOUR:  I will stand down.

‑ ‑ ‑