Director of Public Prosecutions v Carrington
[2023] VCC 2128
•20 November 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT BENDIGO & MELBOURNE
CRIMINAL JURISDICTION
CR 22-01586
CR-22-01309
AP-23-0116
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BRAYDON CARRINGTON |
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JUDGE: | HIS HONOUR JUDGE CHETTLE |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 15 August 2023 |
DATE OF SENTENCE: | 20 November 2023 |
CASE MAY BE CITED AS: | DPP v Carrington |
MEDIUM NEUTRAL CITATION: | [2023] VCC 2128 |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW SENTENCE
Catchwords: Sentencing – aggravated burglary, prohibited person possess firearm, recklessly cause serious injury in circumstances of gross violence, assault custodial officer on duty - plea of guilty. Appeal Charge – criminal damage by fire (arson)
Legislation Cited: Firearms Act 1996, 6AAA Sentencing Act 1991
Cases Cited:
Sentence: Imprisonment, Total effective sentence 9 years, non-parole period, 6 years. Sentenced as a serious violent offender in relation to Charge 3. Forfeiture and disposal orders.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr B. Kerlin | Ms J. Goddard, Office of Public Prosecutions. |
For the Accused | Mr M. Sturges | Mr R. Jakobson, Sarah Pratt & Associates. |
HIS HONOUR:
1Braydon Carrington, you have pleaded guilty to one charge of aggravated burglary, one charge of being a prohibited person possessing a firearm, one charge of causing serious injury recklessly in circumstances of gross violence, and one charge of assault of a custodial officer on duty.
2In addition, you have appealed a 10-month prison sentence imposed by the Melbourne Magistrates' Court on 30 February of this year for one count of the offence of arson. On 1 June 2021 you set fire to bedding in your cell at the Melbourne Assessment Prison by using wiring from a kettle in a benchtop power point. The fire caused $2800 damage to the cell and the Metropolitan Fire Brigade extinguished the blaze.
3You have not served any of the sentence imposed on that charge and sentencing you for that offence involves the court addressing totality issues with the sentences that will be imposed for the indictable offences you have pleaded guilty to.
4The facts of that offending are set out in Exhibit A, the prosecution plea opening. I was informed by your counsel that I could treat that document as an agreed statement of fact and I incorporate it into these reasons for sentence, and I sentence you on the basis of the facts set out therein.
5Very briefly stated, on 12 December 2021 you attended at the home of a
Mr Edward Shore[1] at Bell Park. Mr Shore was unknown to you but had a Holden utility and three motorcycles visible to you at his premises. You entered his house through the front open door, carrying a sawn-off double-barrelled shotgun. That is the basis of Charge 1, aggravated burglary.[1] A pseudonym.
6You pressed it to the back of Mr Shore’s head and demanded money and jewellery. Mr Shore had told you that he had neither. You directed him into his bedroom and made him kneel, and then fired the shotgun over his shoulder into a wardrobe. You then led him at gunpoint outside and demanded that he load a KTM motorbike onto the tray of his utility.
7There was difficulty securing the tailgate before you got into the utility intending to drive off. You put the shotgun on the seat beside you.
Mr Shore put you in a chokehold around your neck. He grabbed the shotgun and unloaded it before hitting you with the shotgun several times. Your scuffle continued out of the vehicle and into the front yard.8You ran back to the vehicle, grabbed the shotgun, and reloaded it. When
Mr Shore approached the utility, you pointed the shotgun in his direction and fired a round through the driver's window. This conduct is the basis of Charge 3, recklessly causing serious injury in circumstances of gross violence.9Mr Shore was shot to his torso and right arm. You ran away carrying the shotgun and were picked up by a vehicle in a nearby street and left the area. Mr Shore ran to a neighbour and police and paramedics arrived. You were a prohibited person under the Firearms Act[2] when you possessed the sawn-off shotgun, the basis of Charge 2, to which you have pleaded guilty.
[2]Firearms Act 1996
10When paramedics attended the scene, they assessed Mr Shore as having an open wound to his right arm with significant muscle body injury and blood loss to this region. He was taken by ambulance to Geelong University Hospital and kept in a medically induced coma. He suffered bilateral neural thoraces, right lung injuries, a bowel injury, a liver injury, right arm limb nerve artery and vein injury, all injuries with retained foreign bodies.
11He underwent four lots of surgery in hospital, shotgun pellets were removed from his torso and arm. The combination of injuries that he suffered were life threatening in nature. There is no doubt that without his treatment in hospital Mr Shore would have died.
12On 14 December he was transferred to Alfred Hospital for further treatment, and he was discharged from that hospital on 28 December 2021. You were arrested on 17 December in Geelong West. When interviewed you made a no comment record of interview.
13On 25 January 2022 you were being held in the Atwood Unit at Melbourne Remand Centre. Mr James Jansen[3] was the rostered senior prison officer rostered on duty. At 4.35 he made a call to the medical centre to try and get you medication you required but had not received.
[3] A pseudonym
14You walked up to him and said, 'You fucking dog. Who do you think you are?' and continued to verbally abuse him. After Mr Jansen directed you to return to your cell, you punched him in the face. All this was caught on CCTV footage. Mr Jansen was bleeding and suffered bruising and swelling to his face, a laceration on his cheek, soreness, headaches, and a mouth infection.
15Mr Shore and Mr Jansen both made victim impact statements, Exhibits B and C respectively. Neither wanted their statements read aloud, but it is clear that Mr Shore has suffered lifetime permanent impairment and irreparable physical and mental damage as a result of your crimes. His life and future are shattered. Mr Jansen suffers anger and anxiety and has trouble sleeping. He feels unsafe at work, and he suffers headaches and has difficulty eating.
16I take the victim impact material into account in sentencing you. You have admitted a criminal record. In 2013 you were fined for unlawful assault. In 2014 you were again fined for that offence. In 2014 I sentenced you to seven years with a four-year non-parole period for aggravated burglary and intentionally causing serious injury.
17My sentencing remarks are Exhibit D on this plea. Whilst in custody you recklessly caused injury to a prison officer and were sentenced to six months' imprisonment on 19 October 2015, reduced to one month on appeal to the County Court.
18Subsequently, in 2021, you were sentenced to three short terms of imprisonment for contravention of conditions of an interim supervision order. Your 2014 offending occurred when you were only 19 years of age. You forced entry into an ex-girlfriend's home and hunted and cornered and stabbed your ex-girlfriend's new partner, causing shocking serious injuries. There are similarities to that offending and to that which you have pleaded guilty and are being sentenced for today. You committed an aggravated burglary armed with a weapon and inflicted serious injury in both offences.
19Turning to your personal circumstances, you are now 29 years of age, being born in January 1994. As I stated, when previously sentencing you, you had a tragic and disjointed childhood. You were abandoned by your mother and remained in the custody of your father. Your father was a criminal who was in and out of custody throughout your childhood.
20You spent extended periods of your childhood in foster care and DHS residential facilities. You also spent time in youth training centres. You have eight siblings that you are aware of, and the only ones you have significant contact with, were your twin brother and your half-sister.
21Your twin brother committed suicide in 2015 while you were in custody. You spent your childhood in foster care and DHS, as I said, with your twin brother. He was one of the constants in your life. You have a son, who is eight years of age, and you have no contact at the moment with his mother.
22You attended a number of different primary schools and secondary schools; one in Victoria and one in Queensland, where your behaviour was questionable. You completed Year 8 but did not progress any further, and upon your release from custody whilst you were on that interim supervision order, you had some work in concreting.
23You have been a drug user for most of your life. Whilst on remand you have been attending upon the forensic psychologist, Tennille De Lorenzo, who comments that you are committed and motivated to make and maintain change, and you have demonstrated constant attendance and participation in all sessions to date.
24Your disjointed, dysfunctional, and deprived childhood has made you the man you are today. It was in my view almost inevitable that you would end up in prison. I take that background into account in a general way in sentencing you.
25As discussed on your plea, I assess your aggravated burglary offence as a mid-level example of that offence. You entered Mr Shore's house through an open door, you were alone, and it was during the afternoon, not night-time, you were, however, carrying a loaded sawn-off shotgun that you intended to use, and did use to effect your dishonest purpose.
26Your offence of being a prohibited person and possessing a firearm is again a mid-level example of that offence. Charge 3, however, causing serious injury recklessly in circumstances of gross violence, represents and upper, mid, or lower high-level example of that offence.
27You had fired the shotgun inside the house. You knew it was loaded. When Mr Shore unloaded the shotgun, you reloaded it and pointed it in his general direction, being aware that pulling the trigger would probably cause serious injury, and you did just that.
28The circumstances of gross violence are established as you planned in advance to have the weapon with you, and in fact used that weapon to cause serious injury. The serious injuries inflicted were upper-level serious injuries. Your offence of assaulting a custodial officer represents a mid-level example of that offence. Both your counsel and the prosecutor agreed with my characterisation and assessment of each of your offences.
29As observed during your plea I have been alert to avoid issues of double punishment because of the three charges involving the carrying, possession and use of the firearm. Totality is a significant factor in sentencing you.
30I take into account in sentencing you a range of matters. Firstly, your pleas of guilty. Although your pleas to Charges 1 to 3 were not entered at an early stage, they do have significant utilitarian value, as you have saved the community the time and expense of a criminal trial, and the witnesses the need to give evidence at that trial.
31The utilitarian value is greater because of the facilitation of justice is greater as a result of the effect COVID-19 has had upon our justice system. Accordingly, you are entitled to a greater reduction in sentence as a result. Your plea of guilty on Charge 4 was in fact an early plea of guilty.
32I accept that your pleas of guilty evidence remorse for your crimes and acceptance of responsibility for them. You have taken steps to address your drug issues whilst in custody and have obtained counselling. You have family support from your sister.
33I can only assess your prospects of rehabilitation as guarded given the violent nature of this offending and the violent prior offending to which I have referred. As stated, I have had regard to your disadvantaged background in a general way and I accept the prosecutor's submission that it's difficult to assess any moderation of your moral culpability as a result of that history. Nonetheless I have taken it into account.
34You fall to be sentenced as a serious violent offender in respect of Charge 3. I am obliged to regard protection of the community as the principal sentencing factor for that charge. In order to protect the community, the court has power to impose a disproportionate sentence. The prosecution did not submit that I should do so, and I do not intend to impose such a sentence as the court can properly protect the community with the sentencing options otherwise available to the court. I direct that it be recorded in the records of the court that you have been sentenced as a serious violent offender in respect of Charge 3.
35Your counsel properly conceded that a term of imprisonment is required in your case, a head sentence, and a non-parole period in excess of four years must be imposed as Charge 3, recklessly cause serious injury in circumstances of gross violence, is a category 1 Sentencing Act[4] offence.
[4]Sentencing Act 1991
36Principles of general deterrence, specific deterrence, denunciation, just punishment and community protection are all important sentencing considerations in your case. I must, as I have said, have regard to principles of totality and parsimony.
37Your offending is extremely serious. You behaved like a gangster; you employed a weapon which can only be used to shoot people. You inflicted serious, everlasting damage. Your regular resort to violence is concerning. You have in the past intentionally caused serious injury. You have assaulted those who annoy you.
38You set upon a prison officer who was in fact trying to help you. Your appeal matter demonstrates you to be a person who will behave in a dangerous manner to get what you want. People who act like you did must understand they will be imprisoned for a substantial term. You need to be deterred from continuing your violent behaviour and other dangerous behaviour, such as lighting fires in prison.
39I have had regard to the cases referred to in the table of cases provided by your counsel in order to get some assistance with current sentencing practices. Ultimately each case depends on its own unique characteristics and factors.
40On all charges you are convicted. On Charge 1, aggravated burglary, you are sentenced to be imprisoned for four years. On Charge 2, being a prohibited person possessing a firearm, you are sentenced to be imprisoned for two years. On Charge 3, recklessly causing serious injury in circumstances of gross violence, you are sentenced to be imprisoned for six years, and on Charge 4, assaulting a custodial officer on duty, you are sentenced to be imprisoned for one year.
41I order that one year of sentences imposed on Charges 1 and 2, and six months of the sentence imposed on Charge 4, be served cumulatively upon the sentence imposed on Charge 3, which I declare to be the base sentence. That is an effective term of imprisonment of eight years and six months on the indictable matters.
42On the appeal charge of arson, I set aside the orders imposed in the Magistrates' Court and sentence you to a term of imprisonment of nine months. I order that six months of that sentence be served cumulatively on the sentences imposed on the indictable charges. That is a total sentence on all matters of nine years' imprisonment, and I order that you serve six years of that sentence before being eligible for parole.
43I declare 703 days of the sentence I have just imposed has already been served by way of presentence detention, and I indicate pursuant to 6AAA of the Sentencing Act[5] that but for your pleas of guilty I would have imposed a total effective term of imprisonment of 12 years with a non-parole period of eight years and six months.
[5]Sentencing Act 1991
44Are there any other orders required?
45MR KERLIN: There was a disposal order and forfeiture order.
46HIS HONOUR: I make the disposal and forfeiture orders sought by the prosecution.
47MR KERLIN: As Your Honour pleases.
48HIS HONOUR: Anything, Mr Sturges?
49MS STURGES: Nothing further, Your Honour.
50HIS HONOUR: Thank you, we will terminate the link. Thank you, gentlemen.
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