Director of Public Prosecutions v Brunning (a Pseudonym)

[2016] VCC 1286

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

AT MELBOURNE
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

CHRISTIAN BRUNNING (A PSEUDONYM)

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JUDGE:	HER HONOUR JUDGE LAWSON
WHERE HELD:	Melbourne
DATE OF HEARING:	24 August 2016
DATE OF SENTENCE:	29 August 2016
CASE MAY BE CITED AS:	DPP v Brunning (A Pseudonym)
MEDIUM NEUTRAL CITATION:	[2016] VCC 1286

REASONS FOR SENTENCE
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Catchwords:        Criminal law – sentencing – aggravated burglary and contravention of a Family Violence Intervention Order – related summary offences – term of imprisonment imposed

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms J. Malobabic	John Cain, Solicitor for Public Prosecutions
For the Accused	Mr V. Peters	Chris McClennan Lawyers

HER HONOUR:

1Christian Brunning,[1] you have pleaded guilty before me to one charge of aggravated burglary and one charge of contravention of a Family Violence Intervention Order and, in addition, you have consented to summary charges being transferred pursuant to s.145 of the Criminal Procedure Act 2009 and entered pleas of guilty in respect to Charge 9, commit an indictable offence, namely aggravated burglary whilst on bail and Charge 11, unlawful assault and you have entered pleas of guilty in respect to those two charges.

[1] Christian Brunning is a pseudonym.

2The offences are serious and that is reflected in the maximum penalty prescribed by law and they are as follows:

·25 years' imprisonment for aggravated burglary;

·2 years' imprisonment for contravention of a Family Violence Intervention Order;

·3 months imprisonment for unlawful assault and commit an indictable offence whilst on bail.

3In addition, you admitted your prior criminal history.  You have a substantial criminal record that occupies some 24 pages.  The offending commenced when you were around the age of 18 years and your first appearance was at the Melbourne Magistrates' Court on 10 September 1990.  The last recorded conviction prior to these matters was on 17 April 2015.

4It is evident from a reading of your prior criminal history that you have numerous convictions for driving offences, drug related offences, dishonesty, assault, street offences, unlawful assault, recklessly cause injury and contravene a Family Violence Intervention Order.

5You have received a variety of dispositions over the years including fines, community based orders and imprisonment.

6In addition, you have some outstanding matters that have yet to be dealt with by the courts.  You are due to appear at the Heidelberg Magistrates' Court on
4 October 2016 in relation to a charge of persistent contravention of a Family Violence Intervention Order and commit offence whilst on bail and theft charges.

7There is also a contested matter in relation to a breach of a Family Violence Intervention Order.  All the Family Violence Intervention Orders relate to the complainant in this matter, Emma Mustar,[2] who was your former partner of some 25 years.

[2] Emma Mustar is a pseudonym.

8I shall now proceed to sentence you in respect to the current offending on the basis of the Crown opening.

9On 28 February 2016 you attended an address where Ms Mustar was visiting a mutual friend, Brayden Hodges.[3]  Mr Hodges had left to go to the supermarket and Ms Mustar remained in the house with her son Joshua,[4] aged 9, her grandson Dominic,[5] aged 9 and nieces Brooke,[6] aged 12 and Mackenzie,[7] aged 11.  Mr Hodges' son Cameron[8] was also present but he was asleep in a back room.

[3] Brayden Hodges is a pseudonym.

[4] Joshua is a pseudonym.

[5] Dominic is a pseudonym.

[6] Brooke is a pseudonym.

[7] Mackenzie is a pseudonym.

[8] Cameron is a pseudonym.

10It is not in dispute that there was a final Family Violence Intervention Order in place against you and that was made by the Heidelberg Magistrates' Court on
5 April 2015.  Ms Mustar is a protected family member and is protected by that order.

11You attended Mr Hodges’ address at about 4.30 pm.  Young Dominic saw you outside the front lounge window and said, "There's Pop".  You then started banging on the window.  Ms Mustar immediately told all the children to hide in the bathroom.

12She and the children all went into the bathroom and closed the door.  She called the police and the operator noted that she sounded hysterical.  She told police that she was hiding in the bathroom and that she was scared she would get hurt.

13After hearing the banging on the window, the next thing she heard was you talking to Cameron Hodges, in the lounge room.

14He had been woken up by your yelling and had made his way to the lounge room.  You were already in the house having entered through the front door.  You were really aggressive and yelling, "Where is she, where is she?  I know she is here."  You then pushed past Cameron Hodges and went looking through the rest of the house.

15Ms Mustar heard the bathroom door handle rattle and she held the handle.  You were yelling, "Are you'se hiding in there?"  You then forced the door open and the children all started to scream.  You motioned to
Ms Mustar and she stepped out of the bathroom to get away from the children.

16You raised your hand to hit her.  Your son Joshua then jumped in between the two of you and said, "Please Dad, don't.  We haven't been anywhere."  You then went out into the lounge room and started taking Ms Mustar's personal items.

17As soon as she could, she ushered the children out of the house.  Police arrived at about 4.39 pm.  They observed Ms Mustar and the children hiding at the rear of the home and you were arrested at the scene.

18Ms Mustar told police she was truly scared and feared for her life and the life of her son.  She said he was already seeing a counsellor on a weekly basis and she was also concerned for her grandchildren.

19Cameron Hodges told police that during the time you were at the house, Ms Mustar and the children were extremely scared and feared that you would harm them as you were very aggressive towards them.

20Following your arrest, you were taken to Richmond Police Station where you made a no-comment record of interview.

21Mr Peters, on your behalf, made a plea in mitigation.  He relied on your plea of guilty entered at the commencement of the committal mention prior to cross-examination of any witnesses.  I have taken that into account in your favour and accept that you entered an early plea of guilty at the earliest opportunity.

22You now accept that your actions were wrong.  I accept that the plea represents some remorse on your behalf.  By your plea, you facilitated justice and spared the witnesses the trauma of having to give evidence on your trial.  There is real utility in your plea and I have discounted your sentence accordingly.

23I reject your explanation for the offending, namely, that you believed Ms Mustar had forcibly entered your unit in Glen Iris and taken most of your personal belongings and that therefore you went to the Fitzroy address to retrieve your possessions. 

24By your actions on this occasion, you breached the conditions of bail that you had entered earlier on 8 January 2016.  On that date, you were charged with contravention of the Family Violence Intervention Order and released on bail on the same conditions as set out in that order.  The conditions of the order specifically prohibit you from committing any family violence against a protected person who include Emma Mustar and your son Joshua and you were only permitted to communicate with a protected person through a lawyer or mediator.

25It is not in dispute that the full terms of the Family Violence Intervention Order were explained to you at the time that you consented to the making of the order.  It would have been repeated to you at the time you entered into your bail conditions.  By your actions on this occasion, you clearly contravened the order and in addition, you breached your bail conditions.

26Family violence is a serious problem in Australia.  In 2004, it was reported that family violence is the leading contributor of death, disability and illness in women in Victoria aged between 15 to 44 years.[9] As recognised during Parliamentary debates on family violence on the Family Violence Protection Bill 2008,[10] intervention orders can only protect victims threatened by violence if they are effectively enforced and if the breach of the order attracts an appropriate sentence.  Further, the offence of aggravated burglary is serious and that is reflected in the maximum penalty of 25 years' imprisonment.

[9] Victorian Law Reform Commission, Review of Family Violence Laws Report (2006), [2.94].

[10] Victorian Parliamentary Debates, Legislative Assembly, 21 August 2008, 3191 (Jeanette Power).

27On this occasion, you entered the premises with the intent to commit the offence, namely the assault, knowing Ms Mustar was present or reckless as to whether or not she was so present.  You caused Ms Mustar to be fearful and your actions also further caused distress to the children who were present and observed your behaviour.

28On this occasion, you did not physically harm Ms Mustar.  However you caused her some considerable distress as was evidenced in the observations of the other adult occupant, present on that occasion, namely Cameron Hodges.

29Ms Mustar was asked to make a victim impact statement, however she declined to do so.  Nonetheless I accept that by your behaviour, you would have instilled real fear in her and your behaviour on this occasion was aggressive.

30Breach of an intervention order especially in the context where the breach is a prelude to violent and indictable offences involving former partners is viewed seriously by the courts.  Intervention orders are designed to protect people from precisely the sort of fear that you engendered on this occasion.  Overall I consider your moral culpability to be high and your actions deserving of stern punishment.

31Your criminal record discloses that in the past you have been convicted for a breach of a Family Violence Intervention Order.  Your behaviour demonstrates an ongoing contempt for court orders generally and the principles of both general and specific deterrence are of importance in this case.

32As has been stated by Charles JA with whom Brooking and Phillips JJA agreed in R v Cotham:[11]

"Intervention orders must be strictly adhered to and it is very much in the interests of the community that those against whom such orders are made be under no misapprehension that the courts will punish severely those who breach such orders… Only by appropriately severe penalties can the courts make clear to the applicant and the broader community that such conduct will not be tolerated."

[11] [1998] VSCA 111, [14].

33The fact that the offending occurred in the presence of your son Joshua is also an aggravating feature.

34The Family Violence Intervention Order was granted pursuant to legislation that is designed to place particular emphasis on protection of children from family violence.  Children who are exposed to the effects of family violence are particularly vulnerable.  Exposure to family violence may have a serious impact on children's current and future physical, psychological and emotional well-being.

35I do not have any further information about the particular effects on your son Joshua of your behaviour and I will be proceeding to sentence you on the basis of the material that is to hand.

36I have had regard to the past instances of violence against Ms Mustar, namely your conviction for contravention of a Family Violence Intervention Order on
21 March 2013, whereby you received an aggregate sentence of 12 months' imprisonment.  On that occasion, you entered Ms Mustar's home without permission when she was asleep on the couch.  You took some belongings.  You struck her with a closed fist to the face and she fell to the ground, bleeding to the cheek.  You then kicked her three times to her stomach.  You pushed her to the ground and stood on her head, applying force to her head. 

37On 17 April 2015, you were convicted on unlawful assault and on that occasion, you were sentenced to an aggregate sentence of 90 days' imprisonment.  On that occasion, you entered Ms Mustar's home and demanded money, but refused.  Both the victim and her son were present and you went into your son's bedroom on that occasion.  You pushed the victim with both of your hands to her chest.

38I do not consider that this current offending represents an escalation of your previous behaviour, but nonetheless, your past violent behaviour towards
Ms Mustar does provide a context to this offending and explains why Ms Mustar reacted in the manner that she did on this occasion.

39You will not be punished for your past history of breaching other orders or assault, other assaults against Ms Mustar.  You are to be punished in respect to the particular circumstances of this incident.

40Mr Brunning, you are a man who has had limited formal education, having left school during Year 9.  You have had limited work as a skilled labourer, but essentially you have been unemployed since age 21.  You were placed on a disability pension after suffering nerve damage to your left arm when you were cut with a machete.

41You have a long history of poly substance abuse, commencing with abuse of cannabis at age 13 and moving on to abusing prescription drugs from around age 13 and heroin from age 18.  You are currently on a methadone maintenance program.  You reported intermittent use of methamphetamine up until the time of your arrest.

42From the date of your arrest on 28 February 2016, you have been remanded in custody. 

43You have had a long-term relationship with Ms Mustar. My understanding is that you separated three years ago.  There have been children born of that relationship, your older daughter, Lucy,[12] is aged 25 and your son, Joshua, is aged ten.  There was another child, Madeleine,[13] who died at aged three months from SIDS.  I accept that it has been difficult for you following Madeleine's death in terms of unresolved grief.  

[12] Lucy is a pseudonym.

[13] Madeleine is a pseudonym.

44On 9 September 2015, you were placed on bail and put on the Court Integrated Services Program, known as CISP, by the Melbourne Magistrates' Court.  I have read the two progress reports. It is confirmed that in the past you had a diagnosis of depression for which you have been managed by Dr Neil Cameron at Banyule Community Health Service.  As part of the CISP program, you were placed with a housing worker and through Launch Housing you were allocated a unit in Glen Iris.  As a consequence of these charges having been laid and your remand, it is apparent that that unit is no longer available to you.  I am told that there is a further opportunity for you to apply for transitional housing upon your eventual release through Launch Housing.

45Under the CISP program, you initially presented well and were motivated to participate in treatment.  In the final progress report, your case manager,
Ms Miranda Mossoud, from the Justice Housing Support Program, noted that initially things went smoothly without incident, but then over time you became aggressive and abusive towards her.  It was noted that if you did not make positive changes to your behaviour and engage with services then it was foreshadowed you would be evicted from your lease and that is apparently what has now happened following your remand.

46In summary, it was noted that you completed CISP having been an active client for 17 weeks.  Initially progress was good, you engaged well, and presented punctually as scheduled.  You participated in an alcohol and drug assessment, a men's behavioural change assessment and one session of anger management counselling.  You are linked with Windana for complex drug and alcohol counselling and you had some social support available through the Men's Shed.

47You were successful in obtaining the unit in Glen Iris but your engagement on the CISP program was noted to have decreased in December 2015 and you had not engaged with the CISP manager since 4 December 2015.

48I have had regard to your background and history that was set out in detail in Dr Aaron Cunningham, psychologist's report dated 22 August 2016.  He was asked to assess you to evaluate the presence of an intellectual impairment and he found no such indication. 

49On his testing, he considered you were in the average range of non-verbal fluid intelligence.  He opined you presented with a diagnosis of post-traumatic stress disorder and that you were predisposed to the development of that by exposure to violence in your early teenage years and the absence of a stable male role model.

50He noted that you were raised around violence and anti-social behaviour in your local area and you began using drugs at a very early age.  When you were evicted from your family home as a teenager, you spent increasing amounts of time with negative peers and your drug use escalated, to combining prescription Benzodiazepine with heroin, and that led to crime and incarceration.

51His opinion is further that your post-traumatic stress disorder stems from your incarceration as you have been exposed to significant violence and have been placed in fear for your life in gaol.  He noted that you presented with protective factors which may reduce your risk and improve your prospects of rehabilitation. He referred to the stable independent accommodation that you had and also your decision to end your romantic relationship.  It is obvious that he is not fully aware of the issues surrounding the unit in Glen Iris and his opinion has to be looked at in that context.

52Dr Cunningham noted that you had not previously been diagnosed with post-traumatic stress disorder and that you were open to engaging with support services and he recommended drug and alcohol counselling and a referral to a community mental health referral service.

53Mr Peters, on your behalf, confirmed that following your remand you have undertaken some courses, including conflict resolution, occupational health and safety, food handling, drug and alcohol and also that you are continuing with your methadone maintenance program of 100 grams per day.  He submitted having regard to all the features of your case, that time served was adequate punishment for this offending and that consideration ought to be given to a disposition that allowed for your release on a Community Corrections Order, directed at your drug and alcohol problems, mental health issues and other orders including supervision.

54Ms Malobabic, on behalf of the Crown, submitted that the circumstances of your case meant the court ought to emphasise both general and specific deterrence, and that there was a need for the court to impose just punishment and to denounce your behaviour.  She noted the long history of domestic violence in relation to Ms Mustar.  She submitted that a term of imprisonment in excess of the time served is warranted, in combination with a CCO to follow or alternatively, an appropriate non-parole period being set. 

55Mr Brunning, I had you assessed as to your suitability for a Community Corrections Order, but as discussed with your counsel earlier this morning, you have been assessed as not being suitable, having regard to past poor compliance with a multitude of past orders. 

56The report prepared by Richard Temple-Camp confirms that you have demonstrated a clear and persistent pattern of non-compliance and non-engagement with community based dispositions over the past 24 years.

57Having carefully considered all the circumstances, I have concluded that a CCO is not an appropriate option and I shall proceed to sentence you for the offences.

58In sentencing you, the court must impose punishment sufficient to send a message out to would-be offenders that if you indulge in such conduct, that is breaching Family Violence Intervention Orders, that you will receive stern punishment.  I must balance all the matters countered in your favour, with the need to reflect denunciation, just punishment and deterrence.  I have considered all other available sentencing options and I am satisfied in this case that no sentence other than a term of imprisonment to be served is appropriate in all the circumstances.

59Could you please stand, Mr Brunning?  The formal court orders are, Charge 1, aggravated burglary, convicted and sentenced to nine months' imprisonment; Charge 2, contravening a Family Violence Intervention Order, convicted and sentenced to 12 months' imprisonment; and the summary Charge 9, unlawful assault, convicted and sentenced to one month imprisonment; and summary Charge 11, committed an indictable offence whilst on bail, convicted and sentenced to one month.

60Charge 2 is the base sentence and I order that three months of the sentence imposed on Charge 1, be cumulative upon the sentence imposed on Charge 2, making a total effective sentence of 15 months' imprisonment.  I fix a non-parole period of nine months' imprisonment. 

61I declare that you have served 183 days.  I direct that that be entered into the record of the court.

62I make the following declaration pursuant to s.6AAA of the Sentencing Act but for your plea of guilty, I would have imposed a term of imprisonment of two years and three months, to serve one year and six months.

63I do not believe any ancillary orders were sought?

64MS MALOBABIC:  No, Your Honour.

65HER HONOUR:  All right.  So that completes that matter of Mr Brunning and
Mr Brunning can be removed.  Thank you.

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