Director of Public Prosecutions v Bryson

[2018] VCC 403

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-01844

DIRECTOR OF PUBLIC PROSECUTIONS

v

LOUISE BRYSON

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JUDGE:	HIS HONOUR JUDGE GUCCIARDO
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	4 April 2018
CASE MAY BE CITED AS:	DPP v Bryson
MEDIUM NEUTRAL CITATION:	[2018] VCC 403

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Office of Public Prosecutions	Ms C. Cameron
For the Accused	Ms C. Lynch

HIS HONOUR:

1Louise Bryson and Paul Branson each pleaded guilty to one charge of aggravated burglary, one charge of causing injury intentionally and one charge of theft.  At the time of the offending, Louise Bryson was 39 years old and Branson was 46.  The two of them were in an on and off again relationship for some ten years, a relationship characterised by a mutual drug habit.  They had two children from this relationship aged seven and five.

2At the time of the offending, Branson was living with his mother in William Street Wodonga, in a house that backs onto the unit of the victim in this matter,
Mr Duncan.  Ms Bryson was living at an alternative address from Mr Branson.  The circumstances of the offences are contained in a summary of the prosecution opening which was exhibited at the plea hearing and will be retained on the court's file.

3On the night of 14 April 2017, Branson and Bryson spent the night together at Branson's mother's house in William Street, Wodonga.  The following morning, Branson indicated to Bryson that he wanted to obtain drugs.  Neither of you had any money and Branson mentioned to Bryson that he would go and steal
Mr Duncan's wallet.  Paul Branson attended Mr Duncan's unit nearby where he joined Mr Duncan drinking beer and watching the football on television.  At about 1.30pm, Bryson called Branson and told him that she was going to the Wodonga Plaza.  Branson told her to wait as he would accompany her.  They both then attended the plaza where Branson indicated that in order to steal the wallet, Mr Duncan would need to be hit on the head and knocked out.  Bryson agreed.

4They both decided that Branson should return to the unit and continue to try to steal the wallet, but if that failed, he would call Bryson to come over and assist in the aforementioned plan.  Bryson then returned to the William Street address and Branson returned to Mr Duncan's unit.  Branson later called Bryson a number of times between 3.37 and 4.12 pm, calls which went unanswered, before returning to the William Street address to speak to her personally.  Branson told her that he had placed a piece of wood near the bins of
Mr Duncan's unit and that he would leave the door to the unit unlocked, so that she could enter.  He then returned to Duncan's unit where he continued to drink and watch football on television.  Bryson then ventured outside and retrieved the piece of wood Branson had left near the bins.  She then entered
Mr Duncan's unit and proceeded to hit him over the head three or four times with the wood from behind, causing him to fall off his chair and onto the floor.  As he lay there, she continued the assault, hitting him five or six times in total.

5Mr Duncan called out to Branson for assistance, but he was ignored.  Bryson then fled the unit and ran up the street.  On the way, she passed Branson's mother, before throwing the wood into the bushes and entering the house of a friend.  Whilst Duncan remained on the floor, Branson removed his wallet from the back pocket and took approximately $140 in cash from it.  He then placed the wallet on the book shelf in the living room, before assisting Mr Duncan off the floor and sat him down back into his chair.

6Mr Duncan then attempted to press the personal safety alarm which he wore around his neck.  Branson tried to stop him, but Mr Duncan managed to press the personal alarm some five times.  The alarm sent a distressed signal to the company Vital Call and also activated a light on a base unit located inside the flat, which then initiated a verbal message to confirm that Vital Call had received the distressed signal and before an operator could then come online.  Branson became agitated, began yelling and hitting the unit, trying to turn it off. 
Mr Duncan was trying to yell to the operator to call the police and a call to the police was in fact made. 

7Soon thereafter having left, Branson returned to his own address and retrieved his mother, before returning with her to Mr Duncan's unit.  Police and ambulance arrived a short time later.  During a conversation with Mr Duncan, police and ambulance officers realised that Mr Duncan's wallet was not in his back pocket where he believed he placed it in, they located it on the book shelf.  Mr Duncan was transferred to Wodonga Hospital where he was treated for multiple deep lacerations, grazes, cuts to his arms and hands and a metacarpal fracture.  He received multiple stitches to his scalp laceration. 

8Branson then attended the Elgin Hotel Bottle Shop where he purchased alcohol.  He told a friend, with whom he walked there, that he had told Bryson to "Hit him harder" and motioned as if swinging downward with a baseball bat.  He also stated to the friend that he had “stolen money from the old cunt", taking his wallet from his back pocket while he was incapacitated on the floor after the assault.  Police arrested Bryson on 16 April 2017 and taken to the Wodonga Police Station for interview.  She made full admissions to the assault on
Mr Duncan, but claimed that she had only struck him once.  She provided a written statement which implicated Branson and she indicated a willingness to give evidence against him.  This willingness was also later reiterated at her plea on 15 February 2018, during which she gave the court an undertaking under oath, to give evidence in accordance with her statement against Branson, if required.

9After the police interview, Bryson agreed to ring Branson, have police record the conversations.  On that day, from 4.40 pm onwards, three telephone calls were made from Bryson to Branson.  During these calls, the offending was discussed and Branson made the following admissions.  That Mr Duncan was not aware that he had left the door to his unit open for Bryson to enter.  That he watched Bryson enter the unit and that he stole $115 cash from Mr Duncan.  Branson was later arrested on 18 April and a record of interview was conducted, in which he disputed much of the facts of the offending.  In a statement, Bryson made full admissions to the assault on Duncan and asserted that Branson had pressured her by threats of violence.  The prosecution's position on this is neutral and asserts that the motivation beyond getting money to buy drugs from both of you is unknown, as far as providing an explanation of participating by coercion or threats.

10Although there is some indicators that the relationship between Branson and Bryson was volatile, dysfunctional and probably marred by domestic violence, and it is asserted by Bryson in her statement, I am not in a position, through these assertions or inferences, to conclude beyond reasonable doubt, that this was in fact the case and am therefore left with the position asserted by the Crown and accepted by Branson at least, that your criminality is equal.  Certainly in this respect, as fully cooperating individuals acting together for a common purpose and outcome, your moral culpability is equal in my view.  Even if pressure or threats had been applied to you, Bryson, by Branson, the vehemence and violent intensity of your attack was vicious and probably the expression of your asserted belief about the victim's dealing with your child in an improper fashion.

11Branson's role is no less, cowardly attacking an elderly person who he befriended and watching the assault, preventing him from calling assistance, having enabled the entry and then feigning concern in an exaggerated fashion, according to police, at the aftermath, and then stealing money from his pocket when he was bleeding on the ground, this was a disgusting cowardly act.  To steal money from an acquaintance, even at the cost of injury, or in revenge in your case Bryson, it is a revolting and repulsive act.  Such behaviour is utterly unacceptable.

12Mr Duncan is a 74 year old man living alone and though he may have trafficked in his own medication, Fentanyl morphine to you Mr Branson, he was attacked from behind and injured in a brutal fashion in his own residence, for a small amount of cash.  He made a victim impact statement which I take into account.  He says before this incident, he was retired and enjoying his life, playing indoor and outdoor bowls and gardening.  This event has changed his life.  Depressed, his motivation to do anything, had knocked the confidence out of him.  He no longer feels safe in his own home.  He is anxious, hypervigilant and loses sleep which is hardly conducive to his wellbeing.  He is angry and more socially isolated from friends and family.

13The objective gravity of this offending is significant and your moral culpability is high.  The offence of aggravated burglary carries a maximum of twenty-five years.  This level of penalty indicates that the legislation has indicated the gravity of this offence.  It is an offence which strikes at the heart of the safety and security of each person, in the comfort of your home, safety and security each citizen is entitled to feel.  The court is rightly concerned about such criminality, as indeed is the community and looks to the court to punish those breach this right with impunity.  The community looks to the court for protection and stern punishment, to deter likeminded persons, to denounce such conduct.  Intentionally causing injury and theft each carry ten year maximums and are in turn, serious offences.

14Louise Bryson, you are 40 years old.  There are matters in the way that your plea has arisen and been made which will attract a discount on your sentence.  This is in clear contradistinction to Paul Branson.  I will outline these matters in a moment, each of which I take into account.  You have a prior criminal history, a matter which goes to your prospects of rehabilitation.  The two matters of dishonesty in the Victorian Magistrates' Court in 2015 and 2016, attracted fines without conviction.  However, earlier matters in South Australia are relevant and of some seriousness.

15You were sentenced to six months imprisonment as a head sentence and suspended sentence, bond of one year in 2004 for non-aggravated serious criminal trespass in larceny.  In the District Court of South Australia in 2006, you were sentenced to eighteen months, with a non-parole period of six months for aggravated serious criminal trespass and theft.  You breached the bond I referred to.

16This is a particularly relevant prior.  You have other priors in 2007 and 2008, as well as 2010 when those matters attracted community service orders and good behaviour bonds and fines.  These priors show that your path of rehabilitation must be viewed as guarded.  I take into account that yours was an early plea.  At that time, an armed robbery was alleged, but you offered to plead to the three current charges once that issue was resolved.  I accept that the pleas are accompanied by some remorse, but this emotion in my view is measured and counterbalanced by your quasi justification for your vehemence in the assault and the assertion you make of Duncan's misconduct with your daughter.

17I accept the plea has a utilitarian benefit of having avoided a criminal trial and that you did not cross-examine Mr Duncan at committal.  I must take into account your cooperation with police.  This resulted in three pre-text calls being made by you to Branson which would have assisted the prosecution, as well as a confessional statement outlining yours and Branson's participation in this joint enterprise.  It is clear that your statement and willing to give evidence pursuant to this statement, forced Branson to plead guilty once you made it and avoided the trial upon which he was to stand in January of this year 2018.  This cooperation and the undertaking given by you on oath is of significant value and justifies a significant lower sentence.  Such value is conceded by the Crown which may have had probably little evidence of acting in concert of any plan, without such statement.

18I accept that even on the scant material about your relationship, you have placed yourself at risk, both currently and in the future, from Branson's retaliatory violence and threat of violence given his history.  You were observed at least on one occasion, showing signs of bruising and unusual distress and you reported this abusive domestic scenario also to the psychologist who prepared a report to the court.  I take into account your personal circumstances.  You had a reasonably stable childhood, despite your parents' separation at an early age.  You were the victim of sexual abuse when 13 years old and by the age of 16, you had started to use drugs with your then boyfriend who committed suicide.  You completed Year 10 at school, but then after a short stint as a florist, you were employed in hospitality for a number of years.

19Heroin addiction followed and the offending for which you served imprisonment in South Australia 2006.  The relationship that followed your release, that is the one with Mr Branson, was marred by drugs and domestic instability and violence.  There are two children who have been removed from your care.  They are in foster care.  Your endeavours on the methadone program have been in order to regain their custody, but this is a problematic issue for you.  As for example, at the time of these offences, you were still clearly using drugs.

20Whilst in custody, before being released, you received some trauma counselling for your abuse and the family violence issues.  You completed a parenting course, completed a program dealing with family violence.  Your work prospects may have been enhanced by a number of work related programs which you have undertaken.  I take these efforts into account in your favour.  You were released on bail in August 2017, although you have found yourself socially isolated and your desire, I was told, to relocate to South Australia, should you eventually be able to regain your children.  These are still prospects which I view with reservations.

21Psychologist Alison Maynard says that you suffer from a complex trauma disorder and meet the criteria for post-traumatic stress disorder, borderline personality disorder and major depression disorder.  I accept these may have impacted on your decision making, but they provide slight moderation of themselves to your involvement in this course of conduct.  It may be true that a person with a depleted and traumatised personality, you were unable to disassociate yourself from the plan, from Mr Branson and from the implementation of this criminal enterprise. 

22These matters did not obscure your intent or your resolve to both punish your victim for perceived wrongs and to effect the conditions for theft of money, which would bring the opportunity of drug taking.  I accept that these conditions would render your reclusion somewhat more difficult than a normal person.  This is particularly so, given your epilepsy which results in seizures, particularly when stressed, as has happened here in court on a couple of occasions.

23However, there is effective medication for this condition and you have been on medication for it for most of your life.  You described the significant level of violence from Branson in your interview with Ms Maynard.  I accept that you have suffered some significant level of violence at his hand, though it is true that you are ambivalent about your feelings for him.  You appear very immature and childlike in your emotional ability, with low insight and poor judgment.  I will take the detail analysis of your mental health into account.  In my view, when someone is so diminished as a person, as you appear to be, some recognition of this factor must moderate the effect of general and specific deterrence, which though they remain relevant and important can give way to a merciful application, of what in my view, is the only disposition available in this case, that is imprisonment.

24I repeat that your cooperation by way of your undertaking may expose you to some realistic risk, and therefore the consideration given to this step must be significant.  I also take into the references from Julie Crusk, counsellor at WestCASA, the letter from Dr Croft and your own letter written to the court.  In that letter, you write of a nine month unification order being in place and your ability to see your children every week.  You express regret for your actions and your arrest and you assert to not be on methadone, or to using any other hard drugs in the future. 

25I should say that it was submitted that an analysis of the offending could lead to a conclusion that this was serious, though low end offending because although there was planning, it was said not to be sophisticated, of short duration, not resulting in serious injury or in a theft of a substantial sum of money.  These arguments are somewhat fissile.  These distinctions can perhaps be made, but they have little significance in terms of what the offences actually were, or their gravity.  The appropriate sentence in my view is that which the prosecution contended for and not a combination sentence, as sought by the defence, though I have turned my mind to that possibility and have excluded it. 

26On the aggravated burglary, Ms Bryson is convicted and sentenced to two and a half years. 

27On the intentionally causing injury to one year and on the theft, to nine months. 

28I have stated that I accept I should order a significant amount of concurrency, given the inter-relatedness of this offending, with some cumulation and recognition of the discreet criminality of each offence.  I order that three months on Charge 2 and one month on Charge 3 be cumulative on Count 1, making a total effective sentence of two years and ten months, with a non-parole period of fourteen months. 

29But for her plea of guilty, I would have sentenced her to four years, with a non-parole period three years.

30I have noted on the court's record and declared that she has served 115 days of imprisonment, which will be reckoned as days of pre-sentence detention.  I note that I sentenced Mr Branson on an earlier occasion to a total effective sentence of three years and ten months and I fixed a non-parole period of two years and three months.  Are there any ancillary orders that I need to make?

31MS CAMERON:  Yes, Your Honour, application was sought for a 464ZF order.

32HIS HONOUR:  Yes.  I am not sure that I have those draft orders, but if I do not have them in the file, perhaps you could make them available.

33MS CAMERON:  Yes, Your Honour, I will forward them to your associate.

34HIS HONOUR:  I will sign an order under 464ZF for the provision of a biological sample for the DNA database by
Ms Bryson.  Yes, thank you. 

35MS LYNCH:  As the court pleases.

36HIS HONOUR:  Thank you for your help Ms Lynch in relation to this matter.  As I understand it, now that I have read the sentence, VGRS should have it available within a relatively short period of time and I will make sure that my associate makes it available to you and to the prosecution, so that you can discuss this matter perhaps more fully with her, although I am sure that as it was just delivered, you might be able to have a conversation with her downstairs.

37MS LYNCH:  Yes, Your Honour.  I'll attend upon her now, thank you.

38HIS HONOUR:  Thank you, Ms Lynch.

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