Director of Public Prosecutions v Coombes (a pseudonym)

[2022] VCC 2035

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

AT MELBOURNE

CRIMINAL DIVISION

DIRECTOR OF PUBLIC PROSECUTIONS

v

BRANDON COOMBES (a pseudonym)

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JUDGE:	HIS HONOUR JUDGE LAURITSEN
WHERE HELD:	Melbourne
DATE OF HEARING:	22 November 2021
DATE OF SENTENCE:	7 December 2021
CASE MAY BE CITED AS:	DPP v Coombes (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2022] VCC 2035

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:  One charge of aggravated burglary – one charge of causing injury intentionally – two charges of unlawful assault – one charge of committing an indictable offence whilst on bail – one charge of contravene Family Violence Final Intervention Order – Parity in Sentencing co-accused considered – Totality considered 

Legislation Cited:                Sentencing Act 1991 (Vic)

Cases Cited:Worboyes v R [2021] VSCA 169; Bugmy v R (2013) 249 CLR 571; R v Verdins (2007) 16 VR 240; Azzopardi v The Queen [2011] VSCA 372

Sentence:Total effective sentence of 28 months' imprisonment with a non-parole period of 16 months imprisonment

S6AAA: 42 months' imprisonment with a non-parole period of 24 months' imprisonment.  

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr C. McConaghy	Office of Public Prosecutions
For the Accused	Mr S. Ranjit	Papa Hughes Lawyers

HIS HONOUR:

1Mr Coombes[1],  at the outset, I intend to sentence you to a total effective sentence of 28 months' imprisonment and set a non-parole period of 16 months' imprisonment. I will declare 252 day of pre-sentence detention attributable to these offences as time served under my sentences.

[1]A pseudonym.

2You have pleaded guilty to a charge of aggravated burglary, a charge of intentionally causing injury, two charges of unlawful assault, one charge of committing an indictable offence while on bail and a charge of contravening a family violence intervention order.

3The circumstances of your offending are set out in the document entitled 'Summary of Prosecution Opening' which is Exhibit A.  I will summarise those circumstances.

Circumstances

4At about 5.10 pm on Thursday, 28 November 2019, you went to the home of Ross Farmer[2].  You were accompanied by John Tierney[3].  You and Mr Tierney banged on the front door.  None of the five persons inside the house let you in.  Apart from Mr Farmer, those persons were Lisa Price[4], the partner of Mr Farmer, her daughter, Sasha Price[5], Kim Fisher[6] and Rachel Alfred[7].

[2]A pseudonym.

[3]A pseudonym.

[4]A pseudonym.

[5]A pseudonym.

[6]A pseudonym.

[7]A pseudonym.

5Both of you went to the rear of house and then returned to the front. While at the rear, a friend of Mr Farmer, Annie, came to the house and was let in through the front door. When both of you returned to the front and resumed banging, she opened the front door. You pulled open the fly wire door, entered and paced around the house.

6You went to the bedroom where Mr Farmer was present. Ms Price stood in the front of the door. You slapped her face and she fell to the floor. This constitutes the summary offence of unlawful assault.

7Mr Tierney pulled apart a vacuum cleaner and took from it a metal pole. You and Mr Tierney entered the bedroom and both of you punched Mr Farmer multiple times and restrained him on the bed. Mr Tierney struck him multiple times with the pole. The blows were to his head and forearms while he lay on the bed. You and Mr Tierney continued to hit him until another person stopped you.

8Lisa Price and her daughter left the house, seeking help. At about 5.40 pm, they returned with John Lewis, a friend of Mr Farmer. By then, you and
Mr Tierney had left the house. 

9However, about five minutes later, both of you returned to the house. You went to the front door and demanded to know where the car keys were. You were not allowed into the house.

10Both of you went to the rear of the house, jumped a fence and entered through a sliding door. Mr Tierney possessed an axe. It is this entry into the house with the axe which constitutes the charge of aggravated burglary.

11Mr Lewis confronted both of you. Both of you pushed him into a corner, punched him multiple times and slammed him into a wall. This constitutes the summary charge of unlawful assault upon Mr Lewis.

12Mr Tierney swung the axe at Mr Farmer and missed. Both of you assaulted
Mr Farmer with Mr Tierney using a star post to hit him on the head. The star post came from the backyard. It is this attack upon Mr Farmer which constitutes the charge of causing injury intentionally.

13Ms Lisa Price and her daughter left the house again. Shortly afterwards, they saw both of you leave in Ms Prices’ car with an unidentified male.

14At the time of these events, you were the subject of three sets of bail, including a grant of bail three days earlier. This constitutes the charge of committing an indictable offence while on bail.  

15Mr Farmer was taken by ambulance to a hospital. He suffered a fracture to his left forearm, a cut to the left side of his forehead, grazes and bruising to his hands, knees and stomach.

16Two days later, you were arrested at a property in Melbourne. An existing family violence intervention order prevented you from attending at this address unless you were in the company of a police officer. Plainly, you were not. This constitutes the charge of contravening a family violence intervention order.

17You were interviewed by the police. You admitted attending Mr Farmer’s home but denied being present with Mr Tierney and assaulting Ms Price, Mr Farmer and Mr Lewis.  

Criminal History

18Between 16 January 2012 and 12 February 2019, you have appeared in a criminal court on 12 occasions and found guilty or convicted of 217 charges. Including suspended sentences of imprisonment, you have been sentenced to imprisonment on 6 occasions. Your longest sentence of imprisonment was 12 months, imposed on 8 February 2017. 

Pre-Sentence Detention

19Excluding today, you have spent 252 days in custody in relation to these charges.

20You were arrested on 30 November 2019 and remained in custody until

[8]Report of Brooke McEllister dated 21 June 2021.

3 December 2020 when you were granted bail. Your bail contained a condition relating to the Court Integrated Services Program. Among the documents tendered by your counsel is a report of that program setting out your progress until June 2021.[8] Despite the reasonable progress you had made on the Court Integrated Services Program, on 10 September 2021, your bail was revoked.

21However, a significant part of your detention has been spent serving sentences on other offences.

Victim Impact Statements

22There are no victim impact statements. Nevertheless, the victims would have found the experience terrifying. 

Guilty Pleas

23Your pleas of guilty were indicated in early September 2021. There had been a committal hearing over three sitting days in November and December 2020. These pleas were not indicated at the earliest reasonable opportunity as contended for by your counsel. I will adopt the prosecutor's description of the timing of the plea as 'relatively early' even though that is generous.

24I accept your pleas of guilty are evidence of your remorse.   

25Whether or not a guilty plea is evidence of remorse, it benefits the criminal justice system by bringing your proceeding to an end without the need of a trial and the calling of witnesses. In normal circumstances, it deserves a significant discount on the sentence that would otherwise be imposed if you had not pleaded guilty but found so after a trial. Your pleas have a heightened effect in the current crisis in the criminal justice system due to the restrictions caused by the pandemic. I will quote a passage from the recent case of Worboyes v The Queen[9].  I do so for two reasons. First, outside of legal circles and, in the absence of remorse, it may not be thought that a guilty plea having only utilitarian benefits deserves any discount on the sentence. Second, in the same circumstances, it would not be thought that the existence of a crisis in the criminal justice system should make any difference in the sentence. The Court said:[10]

‘As is abundantly clear, one of the pernicious effects of the current pandemic is that the lists of the criminal courts in this State have become severely congested.  Unacceptable delay in the disposition of criminal cases is endemic.  Indeed, it is not an overstatement to say that the system of criminal justice in this State is in crisis, requiring a response from the courts.  We therefore consider that, whilst the courts of this State continue to labour under the adverse effects of the pandemic, a sentencing court should view a plea of guilty as carrying with it a greater utilitarian benefit than at other times and in other circumstances, and, concomitantly, as attracting an augmented mitigatory effect on sentence, simply because the plea will benefit the beleaguered administration of justice.  Given the unhappy state of the courts’ lists, the courts must, in an endeavour to alleviate the strain on the system, encourage those accused who are guilty to so plead.  Such encouragement must come from an actual and palpable amelioration of sentence.’

[9][2021] VSCA 169.

[10][2021] VSCA 169 at paragraph 35.

Psychologist

26Warren Simmons is a psychologist. On 15 November 2021, he interviewed you at the request of your solicitors.[11] 

[11]Report dated 15 November 2021.

27Mr Simmons diagnosed you as suffering from post-traumatic stress disorder due to the sexual abuse committed upon you by an uncle. The psychological effect of the violence committed upon you forms part of the symptoms underlying the diagnosis of post-traumatic stress disorder.  

28Historically, you have been assessed as suffering from intellectual difficulties. It is clear Mr Simmons adopts that assessment although he did not formally test you.  Mr Simmons made recommendations;

(a)   you be placed on a Justice Plan;

(b)   you receive drug and alcohol counselling;

(c)   treatment for your post-traumatic stress disorder by a therapist skilled in treating that disorder and suffered by a person with an intellectual disability.  

29In the last paragraph of his report, Mr Simmons said,

‘Given that Mr Coombes has an intellectual disability, some of the underlying problems contributing to his behaviour, will only change to a limited degree, if at all. Mr Coombes appears to depend on his partners to provide structure and support in his life and should his current relationship break down, then there is a high possibility of substance use and consequent offending. Mr Coombes’ ability to always think through the consequences of his actions appears to be limited and therefore, he will engage in behaviours under the influence of others with no thought of the consequences.’

Personal

30You are now 28.

31Your father is of Spanish descent. He is now about 54. In the past, he was imprisoned often but is now receiving treatment for a cancer. Your mother is 50 and is now in poor health. She is indigenous. You are your parents’ only child, but you have four half-sisters, aged between 19 and 32, through your mother. Your parents separated before you were born. You lived with your mother in Melton[12] and later in Frankston[13] with your father. 

[12]A pseudonym.

[13]A pseudonym.

32Your mother had a number of partners. They were strict with you, physically discipling you. You described them as being violent to you and your mother. They also demeaned you by saying you were worthless and would not amount to much. Your mother was not a good provider, and you were deprived of proper food and clothing.

33When you were about 14, your mother developed a heroin addiction. Consequently, your father's mother had a lot to do with you. She would take you to prison to visit your father. Ironically, you found life more settled when you started living with your father. You chose to live with your father and did so until you were 24. 

34You remained close with your father until five years ago when he stabbed you after you told him that his brother had sexually assaulted you a 'fair few times.'  

35You have had three attempts at suicide: at 15; at 17; and two days before the current charges.

Education

36Your formal education is very limited. You were expelled from the Melton Primary School[14] for a year for fighting. You attended the Frankston Community School[15]. You completed Year 9 but then left because you found the schoolwork too hard. Nevertheless, after your release from detention in 2010, you completed a Certificate III in automotive studies. Despite this qualification, you have never been employed.

[14]A pseudonym.

[15]A pseudonym.

Relationships

37You have had several relationships.

38You told the Australian Community Support Organisation or ACSO of an intimate relationship at 15, which ended five years later with the death of your partner in a car accident.

39You met Lina[16] when you were 19. Your relationship lasted between two and three years. There is a child, Summer[17], now aged seven.  Following your separation, Lina and Summer went to Tasmania and you have had no contact with them since. 

[16]A pseudonym.

[17]A pseudonym.

40At 22, you met Brianna[18]. Your relationship lasted about 18 months and ceased when you were imprisoned. 

[18]A pseudonym.

41In May 2021, you formed a relationship with Frances Letch[19]. She lives in Hawthorn[20] and has two children. You have kept contact with her while in custody through the phone and audio-visually with Skype and Zoom. It is your intention to continue that relationship after your release from custody.  

[19] A pseudonym.

[20] A pseudonym.

Drugs

42You drank alcohol from the age of 14 or 15 and regularly from 21. Your mother drank heavily. You started using cannabis from the age of 17 after being introduced to the drug by your father. You used methylamphetamines from the age of 23 or 24 and regularly from 25 or 26. The use of methylamphetamine continued until November 2019. Your use was between a half a gram to a gram daily. You first used GHB at 23 or 24 and regularly from 25 or 26. You used four or five grams a day. You have used heroin once or twice. In December 2020, ACSO assessed the level of your use of methylamphetamine and GHB were at harmful levels, and you were likely addicted to both. You have not used any illicit drug while in custody.

Suicide attempts

43Mr Simmons records you have attempted suicide on three occasions. On each occasion you attempted to hang yourself. The first occasion was when you were 15. The attempt ended when your father walked into the room. The second occasion occurred when you were 17. This ended when your partner found you. The third occasion happened on 28 November 2019, when you went to a creek to hang yourself, but the rope snapped.     

Indigenous background

44You are a Koori. While in custody, you have engaged with the Wadamba Prison to Work Program. You have shown good commitment to the program by attending sessions regularly and contributing in a positive and respectful manner. Once sentenced, you will leave the Metropolitan Remand Centre. It is unclear whether you will remain involved in the programme.  

45Your counsel relied upon Bugmy v The Queen[21].  In that case, the court stated the proposition that the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending. However, the court pointed to the conflicting purposes of punishment and the fact that such deprivation may mitigate the penalty while, on the other hand, its effect on the particular offender may increase the importance of other purposes of sentencing. The court in that case gave the example of protecting the community from the offender.  

[21][2013] HCA 37.

Discussion

46The unusual aspect of this case is that I do not have a clear understanding as to why you committed these offences. It is clear your intention was to assault
Mr Farmer but why you wanted to do so does not appear. The explanation recorded by Mr Simmons does not make sense.

47Section 5(1) of the Sentencing Act 1991 sets out the purposes for which sentences may be imposed. Section 5(2) sets out factors which I must, if they are relevant, take into account in sentencing you.

48Plainly, the purposes of deterring you and deterring others from committing these offences or similar offences are important. My sentences should manifest a denunciation of these offences. They should also act to protect the community from you. Aspects of those purposes may be achieved through your rehabilitation. For if you are rehabilitated, then you will not re-offend by committing these or similar offences again.  

Maximum penalties

49The maximum penalties for the charges are:

(a)   aggravated burglary - 25 years' imprisonment.

(b)   causing injury intentionally - 10 years' imprisonment.

(c)   

unlawful assault - three months' imprisonment or a fine not exceeding

15 penalty units.

(d)   committing an indictable offence on bail - three months' imprisonment or a fine not exceeding 30 penalty units or both the imprisonment and a fine.

(e)   contravening a family violence intervention order - two years' imprisonment or a fine not exceeding 240 penalty units.   

Nature and gravity of the offences

50The prosecution concedes the gravity of your offences are in the mid-range of seriousness. This concession adopts the concession made by the prosecution in the case of your co-offender, John Tierney.  

Your responsibility

51Despite the difference in your ages, the prosecution concedes the primary offender was John Tierney. Your role was secondary to his.

52The effect of your highly dysfunctional upbringing, including the sexual assault, remains. It does reduce the extent of your moral responsibility for the offending. As in Bugmy’s case, its mitigatory effect is largely offset by the sentencing considerations of specific deterrence and protecting the community from you.     

Current sentencing practice

53Neither counsel drew my attention to current sentencing practices.

Verdins

54Your counsel relied upon each of the propositions or limbs set out in the case of Verdins v The Queen[22]. He relied upon the diagnoses of your intellectual disability, post-traumatic stress disorder and attention deficit hyperactivity disorder. Although relying on all of the limbs, the submission focussed on limbs five and six.

[22](2007) 16 VR 269.

55Frankly, there is no support for the application of any of the limbs in the report of Mr Simmons. There is no basis for me to use any of the limbs to moderate or eliminate any of the matters contained in the limbs.   

Totality

56I am conscious of the time you have spent in custody overall and the relevance of the principle of totality to your sentencing.

Parity

57On 1 September 2020[23], I sentenced Mr Tierney to 10 months’ imprisonment on the charge of aggravated burglary and on the charges of causing injury intentionally, unlawful assault and committing an indictable offence while on bail, I placed him on a community correction order for two years with conditions. An important difference between you and Mr Tierney is your age. You are now 28. When I sentenced Mr Tierney, he was 19. In sentencing him, because of his age, rehabilitation played a very important part. I referred to the case of Azzopardi v The Queen[24] where it was said that one of the greatest objectives of the criminal law is the rehabilitation of a young offender. You are not a young offender in the sense that he was.

[23]A pseudonym.

[24][2011] VSCA 372 at paragraph 35.

Sentence

58I will sentence you as follows:

(a)   on the charge of aggravated burglary - 24 months' imprisonment;

(b)   on the charge of intentionally causing injury -12 months' imprisonment;

(c)   on the charge of unlawful assault - three months' imprisonment;

(d)   on the charge of unlawful assault - three months' imprisonment;

(e)   on the other charge of unlawful assault - three months' imprisonment;

(f)    on the charge of committing an indictable offence on bail - one month imprisonment;

(g)   on the charge of contravening a family violence intervention order - one month imprisonment.

59The sentence on the charge of aggravated burglary is the base sentence. Four months of the sentence on the charge of intentionally causing injury will be served cumulatively upon the base sentence. The remainder of the sentences will be served concurrently with themselves and the sentences on charges 1 and 2. This results in a total effective sentence of 28 months' imprisonment.

60I will set a non-parole period of 16 months' imprisonment.

61I will declare 252 days of pre-sentence detention as time served under these sentences.

S 6AAA

62If you had not pleaded guilty but had been found guilty, I would have sentenced you to an overall sentence of 42 months' imprisonment and set a non-parole period of 24 months' imprisonment.  

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