Director of Public Prosecutions v Cross
[2019] VCC 2265
•16 May 2019
| IN THE COUNTY COURT OF VICTORIA AT BALLARAT CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-19-00349
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BRANDON CROSS |
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JUDGE: | HIS HONOUR JUDGE C RYAN | |
WHERE HELD: | Ballarat | |
DATE OF HEARING: | 10 May 2019 | |
DATE OF SENTENCE: | 16 May 2019 | |
CASE MAY BE CITED AS: | DPP v Cross | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 2265 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – Armed robbery – Commit indictable offence whilst on bail – Plea of guilty.
Legislation Cited: Sentencing Act 1991
Sentence: 195 days imprisonment with a Community Correction order for 3 years with conditions; 195 days pre-sentence detention declared; Forensic sample order; 6AAA declaration: 12 months imprisonment together with a Community Correction order for 3 years with conditions.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr D. Cordy | Solicitor for the Director of Public Prosecutions |
| For the Accused | Mr M. Brennan | Emma Turnbull Lawyers |
1HIS HONOUR: Brandon Cross, on 10 May 2019 you came before me and pleaded guilty to one count of armed robbery, together with the related summary offence of committing an indictable offence on bail.
2You admitted your prior convictions.
3The maximum penalty for armed robbery is 25 years’ imprisonment, whilst the maximum penalty for the related summary offence of commit an indictable offence whilst on bail is three penalty units or three months’ imprisonment.
4Tendered as Exhibit A on the plea and read aloud in court was the summary of prosecution opening on plea. At the time of your offending you were 21 years of age and the victim in this matter was a young woman aged 19 years who was known to you. On 2 November 2018, you walked along Sykes Avenue, Mount Pleasant, carrying a golf wood that had its handle or shaft shortened. It could best be described as a form of nulla nulla.
5 Your victim was sitting in her car parked in the driveway of a residence in Sykes Avenue preparing to leave. You approached the victim and knocked on the driver’s side window. The victim wound down her driver’s side window and observed that you were drug-affected. Anticipating that you were going to try to take her keys from the ignition, the victim removed them herself at which point you grabbed her forcefully by the wrist and aggressively demanded the keys.
6 During the course of the struggle you struck your victim to the shoulder with the golf club. You eventually clawed the keys from the victim’s hand before walking around to the front passenger side door and demanded that the victim get out of her car. The victim screamed and ran inside the residence to alert the occupants, who were all known to you. The occupants of the residence came out and chased you away from the scene. You were observed in the driver’s seat of the car, trying to start it prior to getting out of the car and running away.
7
You were on bail at the time of committing this offence and this is an aggravating feature of your offending. You were interviewed under caution on
3 November 2018 and made a 'no comment' record of interview.
8 There is no victim impact statement.
9 The matter resolved at a second committal mention and your plea must be regarded as being entered early.
10 As at the date of your plea, you had spent 189 days by way of pre‑sentence detention.
11 For a young man, you have a lengthy criminal record which commenced when you were approximately 14 years of age. You have appearances for criminal damage, theft of motor cars, driving offences, burglary, aggravated burglary, dealing in property suspected of being the proceeds of crime and committing indictable offences whilst on bail. You also have a prior appearance at the Ballarat Magistrates’ Court in July of 2018 for contravening a Family Violence Safety Notice in respect to member of your family.
12 Between 2015 and 2017, there was a period where you did not commit a criminal offence. This absence of criminal offending was due to you being involved in a serious motor vehicle collision on 10 January 2015, which resulted in you being an inpatient at the Alfred Hospital for approximately 11 days. You suffered a severe brain injury comprising a frontal epidural haematoma with a 12 millimetre midline shift to the right. The collision was the result of a police chase. At the scene of the collision you had a Glasgow Coma Scale of three. You were intubated and transferred to the Ballarat Hospital and subsequently transferred to the Alfred Hospital, where you underwent a craniotomy, the insertion of an intracranial pressure monitor and drainage tube.
13 You underwent rehabilitation at Caulfield Hospital for a period of some two to three months. You suffered post-traumatic amnesia for a period of 23 days and as a result of your brain injury, you required ongoing speech pathology treatment to improve your speaking, understanding, reading and writing, and physiotherapy to improve your mobility and physical functioning. This latter treatment included working on your right arm function, assisting you to gain mobility and to walk independently. In respect to your neuropsychological assessment at the time of discharge, you had suffered a traumatic brain injury and exhibited significant difficulties with language and your ability to communicate. You displayed difficulties with focussing and sustaining your attention whilst doing activities such as reading and even the task of crossing the road. You struggled to comprehend complex ideas and think flexibly and these symptoms or problems worsened when you were fatigued. You were diagnosed with an acquired brain injury. (See Exhibit 1)
14 It is well understood that, whilst a patient who has suffered traumatic brain injury may be diagnosed with an acquired brain injury while at hospital or at the time of discharge from rehabilitation, it takes some two years or so before injuries of the kind resolve to where a proper neuropsychological assessment can be made to determine whether they have an acquired brain injury.
15 On the plea your mother was called and gave evidence that as at the date of your plea, you demonstrate difficulties in understanding and expressing yourself and these difficulties became more pronounced when you are fatigued. I accept that at the date of your offending and your plea you suffer from an acquired brain injury.
16 Despite being advised that you should abstain from drinking alcohol and using drugs of any kind, after a period of two years you returned to your old ways and became addicted once again to methylamphetamine. You were adversely affected by methylamphetamine at the time of your offending.
17 As to your personal history, it is principally set out in the report of Carla Lechner, clinical psychologist, dated 6 May 2019, which became Exhibit 4 on your plea. You are the second of three children born to your parents. Your parents are in the process of divorcing. You reported a good relationship with both your parents and your older sister. You do not enjoy such a good relationship with your younger brother, Aaron. At the time of your offending, you were not and are presently not in any relationship. You grew up in Ballarat but left school halfway through Year 8 because you were a disruption within the classroom. You went to work for your parents in their windscreen fitting business.
18 You began smoking cannabis at the age of 12 and by the age of 14 were smoking every day. You graduated to ice and heroin and your offending prior to the collision which occurred in 2015 is attributable to your abuse of methylamphetamine.
19 Ms Lechner conducted a standard intelligence test on you which revealed that you had 'borderline/low average range of intelligence', having an IQ of 78, indicating that 93 per cent of adults would perform better than you. Ms Lechner could not comment upon your premorbid intelligence and the issue of your acquired brain injury and its contribution to your offending is vexed.
20 Your family are supportive of you and your mother will provide a home for you upon your release from prison. The manager of your parents’ business was the author of a reference that is part of Exhibit 2 and in that document you were described as 'an above ordinary young man' as well as being described as 'a kind young man'. The manager of your parents’ business wrote: 'I feel in my own heart that Brandon would fit back into my workplace without even budging an eyelid.'
21 There were other references from members of your family that form part of Exhibit 2, but of particular importance was your mother’s evidence on the plea. Your mother has visited you whilst you had been on remand. You are housed within a youth unit in prison and are drug-free, you appear to your mother to be healthy and she regards herself as having her old Brandon back. Your mother attributed your relapse into the abuse of methylamphetamine to the divorce proceedings between her and your father as well as the death of your grandmother to whom you were very close. Be that as it may, for a man of 21 years you have a long history of abusing methylamphetamine from your early teens and, but for the intervention of a serious motor vehicle accident, I am of the view that you would have continued to offend consistent with your prior criminal history.
22 Mr Thompson of counsel who appeared on your behalf relied upon the following factors for the purposes of sentencing:
23 (a) an early plea that facilitated the course of justice and is indicative of remorse;
24 (b) victim empathy as expressed to Ms Carla Lechner;
25 (c) your acquired brain injury as partially responsible for your limited capacity to reflect and impact upon your behaviour;
26 (d) a lack of relevant adult prior convictions;
27 (e) that you are a youthful offender and as a consequence rehabilitation is an important sentencing factor;
28 (f) that you have a supportive family who will support you and give you stable accommodation;
29 (g) that you have prospects of gainful employment with your family’s successful business;
30 (h) that as a consequence, you have a reasonable prospect of rehabilitation should you remain drug-free; and
31 (i) that you have completed a drug rehabilitation course whilst in prison, that there have been no positive drugs screens whilst in prison and that you have been a regular participant in Narcotics Anonymous meetings while in prison. (See Exhibits 3 and 5)
32 Mr Thompson submitted that the period of time that you have spent on remand has been a salutary lesson to you, as it was your first time in prison. Further, he submitted that you had used your time wisely in prison to become drug-free, having attended courses in respect of drug rehabilitation as well as attending Narcotics Anonymous meetings. Mr Thompson submitted that you should receive a combined sentence, being a term of imprisonment combined with a community correction order. Mr Thompson submitted the time that you had spent in custody had been sufficient to detoxify you from methylamphetamine, educate you as to the effects of its abuse and imbue in you a desire not to use methylamphetamine again.
33 Mr Cordy, who appeared on behalf of the Crown, submitted that a combined sentence was within the range of sentences available for your offending.
34 Accordingly, I had you assessed for a community correction order and the report from the Department of Justice and Regulation, dated 10 May 2019, assesses you as being a high risk of reoffending, however, you were assessed as being suitable for a community correction order with conditions.
35 I am satisfied that the time which you have spent in custody has been of benefit to you and that there is little purpose in prolonging it. You should be released on a community correction order with conditions for a period of three years to ensure that the process of rehabilitation which you have commenced will be assisted and continue within the community.
36 Will you please stand.
37
By this sentence, I must punish you, publicly denounce your conduct and deter you and others from committing this kind of crime. Taking into account the circumstances of the offences and their effects, your personal circumstances and antecedents, and endeavouring to produce a sentence which reflects and promotes the purposes of sentencing in a manner appropriate to you and your offending, I propose to sentence you to an aggregate sentence, being a term of imprisonment of 195 days being time already served, together with a
three-year community correction order with conditions:
38 (1) you be supervised by the secretary of the department or his nominee;
39 (2) you undergo treatment and rehabilitation in respect of drug abuse;
40 (3) you undergo treatment and rehabilitation in respect of alcohol abuse;
41 (4) you undertake treatment and rehabilitation in respect to your mental health; and
42 (5) you undergo programs aimed at reducing your risk of reoffending.
43 I declare that you have served 195 days by way of pre-sentence detention, not counting today.
44 Pursuant to s.6AAA of the Sentencing Act, I declare that but for your plea of guilty, I would have sentenced you to 12 months' imprisonment together with a community correction order for a period of three years with conditions. Are you prepared to enter into that community corrections order?
45 OFFENDER: Yes.
46 HIS HONOUR: Can you take that to the offender to sign, thank you. Just be patient there for a moment, please, Mr Cross. Mr Brennan, do you wish to assist your client in the execution of this document?
47 MR BRENNAN: Yes, I would, Your Honour. I'd seek leave.
48 HIS HONOUR: Yes, you may approach the dock.
49 MR BRENNAN: Thank you.
50 (Community-based order signed and acknowledged.)
51 HIS HONOUR: You can copy that, please, for both counsel and for the prisoner. Now, Mr Cross, you will be taken from the dock to the police station, where you will be released. You have consented to a three-year community correction order, which starts today and will last until 15 May 2022, some three years.
52 Apart from the mandatory conditions, the conditions which I have placed upon you are that you must be supervised or be under the supervision of a community corrections officer for a period of three years. You must undergo assessment and treatment, including testing for drug abuse or dependency as directed by the regional manager. You must undergo assessment and treatment including testing for alcohol abuse or dependency as directed by the regional manager.
53 You must undergo any mental health assessment and treatment that may include psychological, neuropsychological, psychiatric, or treatment in a hospital or residential facility as directed by a manager. You must participate in programs and/or courses and address factors relating to the offending as directed by the regional manager. Understand this: if you breach this community correction order, you will come back to me, and I can almost guarantee that you will not get your freedom. Do you understand?
54 OFFENDER: Yes.
55 HIS HONOUR: I have a most unhealthy feeling in my stomach presently that you do not understand the true significance of the sentence which I have passed upon you and that you have a perception that you may have got away with something. If you breach this community correction order, you will rue the day of it. Do you understand that term?
56 OFFENDER: Yes, I do.
57 HIS HONOUR: Can I make myself any clearer to you?
58 OFFENDER: No.
59 HIS HONOUR: These last remarks will appear in my sentencing remarks, and should I retire before this community correction order finishes, the judge who you come before for breach will have it. Do you understand that?
60 OFFENDER: Yes.
61 HIS HONOUR: The Crown have made application for a forensic sample. I have granted that order because the seriousness of the circumstances of the offending warrant it. Your prior convictions warrant making the order. The order was by consent and the granting of the order is in the public interest. Now, the terms of this order are somewhat ham-fisted, and it works like this.
62 A period of four weeks from today is to elapse, and after that period of four weeks, you have 28 days to attend on the officer in charge of a police station for the purpose of having a forensic sample taken from you. And the appropriate police action will be at Ballarat. I must warn you that if you do not consent to the taking of the sample of a mouth scraping, which is the forensic sample that I have approved of, under the supervision of an authorised member of the police force, then the sample to be taken will be a blood sample and police may use reasonable force to enable that procedure to be conducted.
63 I will have the community correction order and that forensic sample order copied for counsel and for Mr Cross. You may be seated, Mr Cross.
64 All right. I would like to thank you, Mr Brennan, and in particular you, Mr Cordy, for the assistance that you provided to me in this matter, particularly this morning, drawing to my attention the fact that this man was still on remand and with the efficiency of having the problem preventing me from sentencing him solved. Because I assure you: the circumstances were that if that had not happened, he would not have been sentenced today, and until he had obtained bail, I do not believe I would have been in a position to have sentenced him at all. And it may very well have been that he would have needed to have been reassessed in respect to the community correction order. So, I am much indebted to both of you.
65 COUNSEL: As Your Honour pleases.
66 HIS HONOUR: Remove Mr Cross, please, for the purposes of having him discharged from the police station. Remove the prisoner. Two o'clock.
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