Director of Public Prosecutions v Bruwer
[2012] VCC 1276
•30 August 2012
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-12-01243
| DIRECTOR OF PUBLIC PROSECUTIONS |
| V |
| NEIL PHILIP BRUWER |
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JUDGE: | HER HONOUR JUDGE WILMOTH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 30 August 2012 | |
DATE OF SENTENCE: | 30 August 2012 | |
CASE MAY BE CITED AS: | DPP v Bruwer | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1276 | |
REASONS FOR SENTENCE
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Catchwords: CRIMINAL LAW – Aggravated burglary, criminal damage, common assault, early pleas of guilty; accused aged 27, long-term cannabis dependence currently abstaining; long-term depressive illness; whether Verdins principles apply to reduce criminal culpability – not necessary to determine; experiencing paranoia at time of offences prompted by mental health condition in context of recent drug detoxification and alcohol abuse; aggravated burglary put on basis of recklessness as to presence of victim at the time; accepted by prosecution that offending and injuries inflicted are at lower end of range of seriousness; victim describes extensive emotional effects of assault; accused has taken positive steps towards rehabilitation with good effect; good work ethic; family support, CCO within range.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr P. Triandos | Office of Public Prosecutions |
| For the Accused | Mr A. Trood |
HER HONOUR:
1 Neil Phillip Bruwer you have pleaded guilty to one charge each of aggravated burglary, criminal damage and common assault. The maximum penalties for these offences are 25 years, ten years and five years imprisonment respectively.
2 It should be noted form the outset the prosecution puts the charge of aggravated burglary on the basis not of your knowledge of the presence of a person, but on the basis of recklessness as to that fact.
3 You pleaded guilty to these charges at an early stage, at the committal hearing which proceeded by way of a straight hand-up brief. You are entitled to a discount on your sentence for that plea because it has avoided a trial and the witnesses have not had to give evidence. That is recognised as being of assistance to the criminal justice system as well. A plea of guilty is also accepted as an indication of remorse and you have also given other indications of regret at having acted as you did.
4 The circumstances as put by the prosecution in the summary which is Exhibit A, were that on 12 November 2011 you and your girlfriend picked up the complainant Paul Galea and Joshua Bryant and drove to a men's club in Brunswick. There you all drank heavily. Later in the night you suddenly punched Mr Galea to the right side of his head and had an altercation with security. Galea and Bryant left the club by taxi and Galea went to his home in Doreen and went to bed at about 3 am.
5 Shortly after 4 am you arrived at his house and smashed the front wooden door, causing extensive damage to it and to the lock. You entered the house and went to the complainant's bedroom where you punched him to the nose causing it to bleed, and then you dragged him from the bed into the hallway where you then punched him four to five times on the head while he was still on the ground.
6 The two of you wrestled and bumped into walls before the complainant forced you out through the front door. Neighbours who had heard the noises were outside and called the police. Your girlfriend who had been screaming, was also outside and you left with her in your car.
7 Mr Galea suffered a bloody nose, pain in his shoulders and lower back and grazes to his elbows and legs. He has provided a victim impact statement in which he described considerable emotional suffering as a result of the attack. Fortunately there were no lasting physical effects and the prosecution has characterised the injuries as being at the lower end of the range of seriousness.
8 The explanation you have provided for the offending is in the context of suffering a long-standing depressive illness complicated by a similarly long-term cannabis dependency from the age of 17. This caused you to leave school early before completing Year 12 and to cause such aggressive behaviour that your parents sent you away from the family home and obtained an intervention order against you.
9 You breached that order by returning home and in May 2006 you were dealt with in the Magistrates' Court and fined without conviction. That matter forms your only previous criminal history.
10 Over the years you have made several attempts at overcoming these difficulties by voluntary detoxification and through psychiatric treatment. However you relapsed into drug use until a final one week detoxification at Moreland Hall in October 2011.
11 Upon discharge you went to see your treating psychiatrist, Dr Christopher Walsh who reports that at the time of the offending in November you were in the middle of a paranoid regression following that cannabis detoxification to which I have referred.
12 The heavy drinking on the night in question doubtless contributed to your paranoid state and the combination of factors caused you to react disproportionately to a perceived slight to your girlfriend in the form of touching by Mr Galea. You punched him and the security staff intervened.
13 Apparently you have little memory of events but you believe that you were assaulted that night outside the premises, and indeed an ambulance was called and you were taken to hospital arriving there at about 2 am. You suffered a laceration to your eyebrow, bruising to the ribs and a suspected pneumothorax and multiple abrasions and grazes.
14 Your girlfriend arrived at the hospital and told you that your car, which had been parked near the premises, had been damaged. You discharged yourself from hospital and drove to Mr Galea's house where you broke the door and entered the house and assaulted him. All three charges arise from this incident.
15 Both Mr Galea and your friend Joshua Bryant have denied that anything was done by them to provoke your violence and it seems likely that your perception was distorted by your paranoia. The events of the night destroyed your friendship with Mr Bryant; a matter of regret for you.
16 It seems you now understand the gravity of your offending and that may well have contributed to the change in attitude that those around you have observed.
17 The reports from Dr Walsh and the clinical psychologist Ms Ntobedzi, state you are well motivated to change, compliant with treatment and that your aggressive behaviour and levels of irritation have reduced. Recent drug screens show no signs of illicit drugs and your ten month abstinence since last October is by far the longest period of abstinence that you have been able to achieve.
18 Your sister, and your friend who knows you and your family well, gave evidence and confirmed these improvements. They describe you as having made significant changes for the better in the way you relate to people and spend your time, avoiding the company of drug users with whom you used to associate. Your parents have written to the court confirming this, and others who know you well have written of your otherwise good character and personal qualities.
19 Apart from the period covered by the intervention order, you have lived with your parents and sister and you continue to do so. You are employed as a dogman by a company owned by a cousin, in a position requiring responsibility and close attention to safety, and it is said that you perform your duties well.
20 Mr Trood, who appeared on your behalf, submitted that your mental illness at the time of the offending gives rise to the sentencing principles in the case of Verdins applying in this case. That is, that your moral culpability is reduced by reason of that illness.
21 As an overlay to your depressive illness, the paranoid state, which according to Dr Walsh was induced by the detoxification process, seems to have played a large part in your aggression, as well as the over-indulgence in alcohol. It also appears that you had used the drug Valium inappropriately the previous evening according to the report of the Corrections Officer who interviewed you earlier today.
22 It is difficult to untangle all these elements, but the likelihood is that your mental functioning was impaired by your depression to some extent. It may well be that paranoia caused indirectly by your drug dependency and disinhibition caused by alcohol combined with Valium, played a greater part in your offending. It is not necessary for me to determine that, given that there are other reasons justifying a non-custodial disposition in this case.
23 You had already taken steps voluntarily to combat your drug dependence and related behavioural problems when you committed these offences. You already had insight into your poor behaviour, demonstrated by the fact that you ceased work from time to time when you feared that your attention to detail and safety issues might not be dependable. That insight was insufficient to prevent this offending and Mr Galea was the unfortunate recipient of your aggression and lack of control.
24 After the offences you continued with your psychiatric treatment and were referred for psychological treatment earlier this year which is continuing. Together with your abstinence, these are important steps towards your rehabilitation and credit must be given to you for your commitment to it, which at this rather early stage indicates reasonable prospects.
25 You have no history of violence and apart from the breach of the intervention order, your only other court appearance was a more recent charge of discharging a missile and wilful damage, resulting from you firing an arrow into the ground which then ricocheted into a neighbour's property. You were not convicted but ordered to pay a small amount into the court fund.
26 While the need for general deterrence is most important in a case like this, a case of wanton violence and breaking into someone's home, there are significant mitigating factors which allow for leniency.
27 Mr Trood submitted on your behalf that a Community Corrections Order was appropriate and Mr Triandos for the prosecution agreed that this was within the range of appropriate dispositions.
28 Taking all matters into account, I had you assessed as to your suitability for a Community Corrections Order and indeed you have been assessed as suitable. Noting that you have also been assessed as being at low risk of re-offending, I will make such an order with conditions which I will now explain.
29 Will you stand now please, Mr Bruwer. The Community Corrections Order will apply to all the charges and will begin today and will last for two years. You will be required to perform 100 hours of unpaid community work within six months; to be under supervision; to be assessed and if necessary, treated for drug and alcohol use and in relation to your mental health. Your continuing treatment with your psychiatrist and psychologist will be monitored. You will be required to attend the Greensborough Community Correctional Services Office by 4 pm on 3 September.
30 If you should breach this order by non-compliance or further offending, you will be brought back before me to be re-sentenced. If you had pleaded not guilty to these charges I would have sentenced you to a four year Community Corrections Order with 250 hours of community work.
31 The prosecution seeks an order under s.464ZF of the Crimes Act for a forensic sample of blood or saliva to be obtained. That is not opposed and I make that order. I must advise you, Mr Bruwer, that the police do have the power to use reasonable force to obtain that sample, but I trust that will not be necessary.
32 Are there any other matters that I have neglected first of all, Mr Triandos?
33 COUNSEL: No Your Honour.
34 HER HONOUR: Thank you. Mr Bruwer you will be asked to sign the Community Corrections Order in one moment. Do you want to have a look at that first Mr Trood?
35 MR TROOD: Yes Your Honour.
(Order signed by Prisoner.)
36 That is completed now, thank you.
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