Director of Public Prosecutions v Dines, Brett
[2012] VCC 2122
•20 December 2012
| IN THE COUNTY COURT OF VICTORIA | Revised |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-12-01715
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BRETT DINES |
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JUDGE: | HER HONOUR JUDGE GAYNOR | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 20 December 2012 | |
CASE MAY BE CITED AS: | DPP v Dines, Brett | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 2122 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr T. Sherwood | Office of Public Prosecutions |
| For the Accused | Mr J. Anderson |
HER HONOUR:
1 Brett Dines, you have pleaded guilty before me to one charge of attempted armed robbery and admitted prior convictions. The facts underlying this offending are as follows.
2 On the night of 16 June 2012 you entered the Columbia Milk Bar in Narre Warren with your arm across your face and the hood of your jacket over your head. You reached over the counter and grabbed hold of the 61-year-old milk bar owner, bringing from your pocket a long bladed knife. You demanded the victim open the till but he struggled against you and fell over. You then tried to walk around the counter, the victim yelled out to his 22-year-old son who was in the back of the shop, who then came into the store, saw you with the knife and picked up a chair, walked towards you and yelled at you to leave. The victim picked up a baton and walked towards you with it. You backed away and ran out of the store, chased by the victim and his son. You were seen to join up with another man and run away with him.
3 Police were called and checked CCTV footage of the incident captured on the milk bar security camera, and on 25 June 2012 you were arrested. You admitted committing the offence.
4 I now turn to your personal circumstances. You are 18, the youngest of three children born to your mother by different fathers. Your mother and father separated when you were an infant on the discovery that he had been sexually abusing your older half-sister. She was removed from home by the Department of Human Services and your father, a truck driver, was soon after killed in an accident when he fell asleep at the wheel. Three months before that road accident your older brother, who was then about five or six, suffered serious injuries, including an acquired brain injury, in a car accident and has suffered from the effects of that ever since.
5 Your family, comprising you and your mother and brother, moved to the Frankston area, where you were essentially raised and you attended primary school without any reported difficulties. It was when you began secondary school that problems arose, and you were regularly subjected to detentions and suspensions for angry and disruptive behaviour in class. You refused to attend anger management courses.
6 It would seem that in your late childhood and early adolescent years your mother formed a series of relationships, about four in all, three of which involved emotional and physical abuse being perpetrated upon her and which you witnessed and ultimately responded to.
7 You left school part-way through Year 9, taking up employment with a garden landscaping company, which employment you held for about eight months until you had a telephone altercation with your employer after you failed to report in sick and missed a day.
8 You began using cannabis and alcohol at the age of 14, which have continued to remain problem drugs for you. Between about 2008 and 2009 you committed a large number of offences, including thefts and burglaries, stalking and handling stolen goods.
9 You first appeared before the Children's Court in June 2010. Several of those offences involved an incident arising in relation to your neighbour, with whom your mother was in dispute, and you perpetrated a burglary upon her as a sort of revenge for that behaviour. The magistrate placed you on a supervised deferral that was overseen by Youth Justice, but in August 2010 you were remanded for further offending which included motor car theft, arson, intentionally destroying property and going equipped to steal.
10 In November 2010 you were convicted and ordered to be detained in a Youth Justice Centre for ten months, which sentence was set aside on appeal in January 2011. You were placed on an 18 month Youth Supervision Order.
11 Reports from Youth Justice that I have received as your progress describe that supervision order as being shaped in two distinct halves. Between January and September 2011 you kept 21 out of 22 scheduled appointments with Youth Justice and completed 14 out of 15 appointments of community work that had been attached to the order as a special condition. In April 2011 you obtained employment with a neighbour, a builder with his own business who was impressed with your skills to the extent that he offered to take you on as an apprentice.
12 During this time you were living with your mother and older brother in Frankston. By September, however, it was noted that your attitude and behaviours began to change. You started missing appointments, often lived out of home, stopped working and stopped keeping regular contact with Youth Justice. It emerged you had begun a relationship with a young woman who was a drug user, living in a community residential unit after being ordered out of home, and you yourself began using amphetamines and re-offending, sometimes in her company.
13 Ultimately you were arrested, kept in a Youth Justice Centre for 55 days, and on 16 December 2011 were convicted of numerous offences, including burglary, theft, dealing with property suspected of being the proceeds of crime, unlicensed driving, intentionally causing injury, assault in company, criminal damage, theft of motor vehicle, assaulting, resisting and hindering police, using threatening words and using indecent language in a public place, and were released on a Youth Attendance Order for a period of eight months to 15 August 2012 with special conditions that you attend therapy for grief, loss and trauma and for substance abuse.
14 You committed the offence that brings you before this court in June, roughly two months before the Youth Attendance Order was about to expire. It was, however, your only offending in quite some period of time and there has been nothing since.
15 In a report dated 1 November 2012 your Youth Justice case manager, Tanya Koukalka, who has in fact been your case manager for quite some time, reported that whilst on the Youth Attendance Order you regularly attended upon psychologist Sarah Russo from Adolescent Forensic Health Service on a weekly basis for counselling, and also regularly attended upon Jessica Brian from Youth Support Advocacy Services for counselling for your drug use.
16 Ms Koukalka in her report wrote that you had attended the majority of your Youth Justice and community work appointments, and during her sessions with you, you had always presented as a polite young man who engaged appropriately. Ms Koukalka said that you had never presented as a threat or a behavioural management risk to Youth Justice staff in the years you had been supervised by them.
17 In a further more detailed report from Ms Koukalka dated 18 November 2011, prepared for your appearance before the Children's Court at that time, she noted that the relationship with your girlfriend had led to significant tension and disruption in your life and it was strongly disapproved of by your mother, with whom it appears you have a close but troubled relationship where you constantly seek her support and approval.
18 Your mother strongly disapproves of your relationship, which is, however, also extremely important to you. You told Ms Koukalka that your mother and your girlfriend were the two most important people in your life and you would do anything to please them both. She noted that your offending in fact reflected this, in that in one of the assaults you stood up for your mother in a conflict and in another assaulted some men who had made comments towards your girlfriend.
19 The remainder of those offences were property-related and apparently enabled you to buy drugs, namely, ice, which you had begun to use on a fairly heavy and regular basis, as well as money to survive in the periods when you were homeless due to arguments with your mother.
20 The situation with your mother has not resolved. At the time of the attempted armed robbery you were drinking with a friend and had been on something of an ice binge and not slept for several days. You went to the milk bar specifically to get money to buy drugs. Stills from the CCTV footage give a graphic depiction of the seriousness of this offending, showing you leaning over the counter, gripping the victim's shirt and holding a very large carving knife towards him. The experience must have been a terrifying one and indeed in their Victim Impact Statements both the victim and his son spoke eloquently of the great fear they had been subjected to, the older man stating: "This has really traumatised me in many ways, emotionally and mentally. It is hard to get the incident out of my head. It is affecting my stress levels, causing me to live with a constant reminder."
21 His son in his Victim Impact Statement stated that "I fear the guy might come back. I am paranoid because he knows where we live and knows my dad is physically hurt and scared. I am concerned for my dad's health." He says he needs to make sure the doors are always locked and that he fears for his family's safety. This is, of course, a classic ongoing fear and emotional trauma response of victims of violent incidents such as that perpetrated by you.
22 Your Youth Attendance Order expired in August this year but you have continued to attend upon Ms Koukalka on a voluntary basis. Importantly, in her report dated 3 December 2012 Ms Koukalka said you expressed genuine remorse and good insight into the impact of your offending. She stated: "During discussions with Mr Dines he was able to express victim awareness and the impact his actions could have had on the rest of the family. When discussing the direct impact on the victims, particularly the father, Mr Dines reported 'I think I scared the shit out of him and I think about it all the time now. He works hard and owns three shops.'" You subsequently discovered in fact you vaguely know the victim's son, who works at the local bottle shop, and this has heightened your sense of remorse.
23 Ms Koukalka said you did not minimise your involvement when describing the offending to her, and that you understood the actions of the victim's son, stating you would have done the same thing in his place.
24 When you first appeared before me on this plea, which was part-heard, you told me frankly from the dock that you were still occasionally using ice and a discussion then ensued. The matter was adjourned so that I could have you assessed for suitability for placement in a Youth Justice Centre or for suitability for placement on a Community Corrections Order. Apparently since that date, which was 2 November 2012, you have stopped using ice entirely and that is to your credit and also a very sensible decision in the light of what we were discussing.
25
Of particular assistance to me in determining the appropriate course of dealing with you was a Children's Court Clinic report dated 9 December 2011, compiled by psychologist Dr Stephen Mihailidis. He reported that you initially attended on him, blank-faced and unhappy, although polite, but after about
15 minutes into the interview started crying almost uncontrollably. He said you presented with significant grief, loss and depression, and that it appeared as you spoke about the disintegration of your family over the years that you have taken on a great burden of self-blame for the conflict between the adults in your life, divorce and abuse.
26 You were made aware when you were about nine through your mother that both she and your father had been heavy intravenous amphetamine users, that your father was violent to your mother, and that he did sexually abuse your sister when she was about nine. She was then taken from the family but became a heroin addict when she was about 15, you being under the impression until she actually contacted you by Facebook earlier this year, that she had died from a heroin overdose. Your earliest recollection of childhood was seeing your brother being hit by the car in the accident that ultimately so disabled him. You said you could remember that day as you were out the front of the house.
27 While you completed primary school without there being any reports of problems there, your domestic situation was not a happy one, your mother going on to form, as I have said, four more relationships, the first when you were nine, three of them being with men who violently abused her. You were told it was when you were nine that your mother also told you why your sister was no longer at home and you found this very difficult to cope with.
28 The psychologist noted that you became grief-stricken when you were speaking about your sister. There was a reunion when she came over at Christmas one year, but came with a boyfriend and a black eye. Your mother physically attacked the boyfriend and your sister turned on her mother and was alienated from your family thereafter.
29 Speaking of your mother's partners, you said that the violent ones would regularly bash your mother when drunk, that you had seen your mother bruised and hurt on many occasions. As you grew into adolescence and became more physically strong you then started retaliating against them when they attacked her.
30 Your older brother became a successful landscape gardener and in fact took on a mortgage and a home in the Frankston area. You are very close to him and admire him greatly for what he has been able to achieve in the face of the great injuries and disabilities he suffers. He now works for a recycling firm.
31 You described to Dr Mihailidis feeling extreme feelings of unhappiness in the four years before his assessment of you in December 2011, saying you felt caught in a cycle of depression and anger, and reported that during periods of tension and conflict, particularly with a man, the faces of your mother's boyfriends would come back to you in a flood, leading to short, intense outbursts of violence. Dr Mihailidis said your mood lifted briefly when you talked about your girlfriend but you showed great distress about the conflict between her and your mother.
32 It was Dr Mihailidis' opinion that the problems you had in secondary school were part of a generalised escalation in what he called "oppositionality", that is, arising from your rebellion against your step-fathers. Around this time you also began mixing with older offending peers. Dr Mihailidis commented most particularly on the great need you have for your mother's approval, the arguments you have had with her over your girlfriend causing you enormous guilt, you saying you were feeling that you were too much stress on your family, and telling Dr Mihailidis that you hated fighting with your mother because it hurt her so much.
33
Dr Mihailidis was of course conducting an assessment in the light of the offending you were engaged in then, most of which related to property theft, but I found what he had to say very helpful. He said you would get into a mood before you offended where you got angry and preferred not to be at home and you wandered the neighbourhood brooding about the family and what you had missed out on. It appeared according to him that while you were offending you would have to go into a state of being focused and alert, that is, a state of adrenaline, and that would give you temporary distraction from your family problems. You showed a huge amount of remorse to
Dr Mihailidis about your offending, you accepted total responsibility for it and you said that you needed to be punished and that you needed to be placed in detention.
34 It was Dr Mihailidis' view that your early years were extremely difficult, with your parents' previous substance abuse, your exposure to family violence, the disrupted bond to your father, the involvement with protective interveners because of the sexual abuse of your sister, which for some reason you also seemed to feel responsible, although you were only about two at the time, her removal from your home and the disruption of your bond with her.
35 On the positive side, according to Dr Mihailidis, you got good maternal care from your mother before she became involved in that further series of violent relationships, and at that time you seemed to be a child without any indications of significant behavioural disturbance. He said as you went into adolescence you assumed a protective role towards your mother, although it was through violent means such as targeting her partners with physical abuse.
36 He stated: "The peaks in complex emotions Brett regularly experienced in the context of his family relationships had an apparent close association with triggers for his offending behaviour, particularly the theft-related offending. It is probable that Brett uses offending as a problematic means of emotional regulation and self-soothing." What that means is it makes you feel better. "Brett appears to derive a distraction from feelings such as anguish, helplessness and rage as he engages in criminogenic thinking. He must be focused during the execution of his stealing, the adrenaline associated with feelings of power and competence. Brett was also angrily disaffected from his community and his offending was a suspected means of directing anger at privilege and wealth from people whom he feels disconnected from and whom he does not feel supported by."
37 He said, as I have already mentioned, you have significant feelings of grief and loss associated with the severe traumatic experiences in your family in your past, and that your relationship with your mother was particularly unstable, stating: "But in the context of a young person who is hurt and exhausted by trying to win her approval, Brett is also a very warm, loyal person, but he has poor self-esteem which leaves him overly vulnerable to others' negative opinions of him." What that means is, Mr Dines, is that criticism of any kind hurts you a great deal.
38 He believed that family therapy would be extremely helpful, but it appears your mother was not willing to engage in it. She does remain supportive of you, and you continue to live with her and your brother, and she appeared on each occasion of the part-heard plea.
39 The neighbour who employed you apparently continues to support you and is willing to offer you work. I make the comment, Mr Dines, that the sort of distraction that Dr Mihailidis says offending affords you from your problems can equally be achieved by having a job. Did you enjoy working for the neighbour?
40 OFFENDER: Yes.
41 HER HONOUR: Yes. He thought you had a terrific work ethic, he thought you were really good. I bet you were thinking of other things while you were working. All right? Just had your mind on the job?
42 OFFENDER: Yes.
43
HER HONOUR: Yes, of course. Have a think about that. You have not
re-offended since the attempted armed robbery.
44 So overall, Mr Dines, you present as a young man with many problematic issues arising from your past. You seem to swing on the one hand from excessive guilt and self-blame for matters over which you had no control, such as the violence perpetrated on your mother and the sexual abuse of your sister, and then flip to feelings of anger and rage that seem to have accompanied much of your offending in the past. And unsurprising in the mix there comes your substance abuse.
45 It appears your girlfriend was a co-accused in a number of the offences for which you were placed on the Youth Attendance Order in late 2011. It is also clear that both your mother and your girlfriend are extraordinarily important to you. You want to please them both, but there is an enormous gulf. You long for your mother's approval but cannot give up your girlfriend. On the positive side is a clear theme running throughout the reports that you have always engaged well with the services that have been offered to you, that you do have victim empathy and insight, that you can be a good worker when you choose, that in fact those who deal with you generally like you, and it does seem to me on balance that you are a young man of some potential.
46 Standing in the way of the sort of future I have no doubt that you want, of course, are the continued psychological problems arising from the loss in your family, the guilt, the grief, the self-blame, the inevitable drug use. You impressed Ms Koukalka in her assessment of your suitableness for placement in a Youth Justice Centre, and it seems she has always appreciated your cooperative and polite attitude towards her and the other services she has directed you to.
47 You also impressed a Community Corrections officer who you attended on in order for assessment for suitability for placement on a Community Corrections Order. It is clear you were open with him, speaking frankly about the offending, your alcohol use - I note that you were also drunk at the time of the offending, as well as under the influence of ice - you spoke of your drug use, your problems with controlling anger, your admission that you had underlying personal issues that may have led to your drug use and offending.
48 It was the prosecutor's submission that this offending does represent an escalation and that, of course, is true. It has brought you before the County Court for the first time and you are now too old to be dealt with by the Children's Court. And it was a submission of the prosecution that I should deal with you by way of a sentence of detention in a Youth Justice Centre. There is no doubt, Mr Dines, and I am sure you are perfectly aware of this, that what you did was extraordinarily serious.
49 It is the duty of courts such as this to protect vulnerable persons such as owners of shops, who are all too often the victims of attacks such as yours. As I said earlier, the effects of this sort of offending are well known to this court. The ongoing emotional trauma, particularly to someone like a 61-year-old man who was subjected to a terrifying experience is appalling. You have rendered his general wellbeing and enjoyment of life much less enjoyable. He has become cautious and afraid, as has his son. It will take both men a considerable time, in the experience of this court, to overcome the emotional damage you have inflicted upon them on top of everything else.
50 At the same time in my view you are a young man of potential. You know it can be better than this and you desperately want it to be so. Am I right?
51 OFFENDER: Yes.
52 HER HONOUR: Yes. Although you are no longer in the Children's Court where rehabilitation is the overwhelming sentence factor - and we have talked about this, Mr Dines, you are not in the Children's Court any more so the massive concern about your wellbeing is no longer going to be the dominant theme - you are still a young offender for the purposes of the Sentencing Act so that rehabilitation has a greater role to play than with an older offender.
53 You pleaded guilty at an early stage, you have demonstrated genuine remorse, you have not re-offended, and indeed your re-offending pattern has slowed down considerably, which is a significant matter in someone of your age and in my duty to determine the role that community protection must play in the sentencing exercise before me.
54 Despite the seriousness of your offending, which is of a kind that is all too prevalent in your community, I am not convinced that the community's interests are best served by your placement in a Youth Justice Centre. You have demonstrated over the years a good capacity to engage in therapeutic treatment and it is my view this is still a road which offers the greatest chance of success for you and affords the community the best chance of protection via your rehabilitation.
55 It is my view that a Community Corrections Order would allow you to undertake the therapeutic intervention you still, in my view, desperately need, as well as attendance to your drug problems which, I note, played a significant role in the commission of your offence.
56 I make it clear, however, Mr Dines, that the court's capacity to deal with you by way of a non-custodial response, i.e. gaol, is fast coming to an end. This was very serious offending and any repetition of it or anything like it will undoubtedly result in a sentence of a detention in a Youth Justice Centre or adult gaol. All right? What I mean is, if you offend while you are on this you will be brought back in front of me and I will throw you into gaol so hard your head will snap. Do you understand? Got it?
57 OFFENDER: Yes.
58 I have decided after anxious consideration that the most appropriate course is to place you on a Community Corrections Order which will contain conditions relating to drug use, treatment for psychological issues, treatment for your anger management, programs to address your offending behaviour, including your anger management problem, which arises whether you are substance-affected or not, and I will also be attaching a work hours component and I will be ordering that Community Corrections provide me with a report every three months of your progress. You will be under my eagle eye, Mr Dines, for the next two years.
59 In sentencing you I take into account your plea of guilty, your general remorse, your youth, the psychological and substance abuse issues underlying your offending, and your prospects of rehabilitation.
60 I can only place you on a Community Corrections Order with your consent. Can you stand up please?
61 The core conditions, that is, the fundamental conditions which apply in any order are these. You have to report to the Community Corrections office - we will give you the address and telephone number - within two working days of the making of this order. That means that you have to have reported in by Monday. The second order is that whilst you are on the order, which will last for two years, you must not commit any offence punishable by imprisonment. You got it? Are you chewing gum?
62 OFFENDER: Yes.
63
HER HONOUR: Can you take it out of your mouth please? Just stop chewing, not appropriate. So no offending in that time. If you do, you will be breached on the order, you will be brought back in front of me, I will
re-sentence you on this attempted armed robbery. I have already said to you what will happen if that occurs. All right?
64 The third fundamental condition is that you must report upon and receive visits from the Community Corrections officer. You must not leave Victoria without the permission of the Community Corrections officer. You must report any change of address or employment within 24 hours of that change to the Community Corrections office, and you must obey all lawful directions of the Community Corrections office. I am also going to order supervision.
65 I am also going to order that you perform 250 hours of unpaid community work. I am going to order that you undergo assessment and treatment for psychological issues. I am going to order that you undergo assessment and treatment for drug use and alcohol use. I am going to order that you engage in programs designed to reduce re-offending. You are also to undertake an anger management course. You are going to be a very busy man for the next two years. Are you prepared to do that? I am going to order three-monthly reports and you are going to be under supervision. Do you agree?
66 OFFENDER: Yes.
67 HER HONOUR: Have a seat while that report is prepared. Thank you. It will be a conviction. Were there orders that I was meant to sign?
68 MR SHERWOOD: Yes, Your Honour. The Crown seeks a DNA sample order.
69 HER HONOUR: Yes.
70 MR SHERWOOD: And also there is a disposal order which has been whittled down to the knife only.
71 HER HONOUR: Right, thank you very much. I will sign those. Pursuant to section 6AAA I declare that had you not pleaded guilty I would have sentenced you to a term of two and a half years in a Youth Justice Centre.
72 I have also - could you stand up please, Mr Dines?
73 I have also ordered that police take a saliva sample from you, which means taking a swab. If you refuse to cooperate with the taking of that sample police are entitled to use reasonable force in order to obtain it. All right? Have a seat, thank you.
74 Thank you, I will just get you to sign that, thank you, Mr Dines. Mr Dines, is there any problem with you still; living with your mum?
75 OFFENDER: No.
76 HER HONOUR: That is OK? All right. Do you reckon you can manage this? Stand up. What do you think? You are going to have to do quite a lot. Do you think you can do it?
77 OFFENDER: Yes.
78 HER HONOUR: Do you understand why I put you on it?
79 OFFENDER: Yes.
80 HER HONOUR: What do you think are the main things you have to work on?
81 OFFENDER: Behaviour and not re-offending.
82 HER HONOUR: Yes, and?
83 OFFENDER: Drug use.
84 HER HONOUR: Yes. And what about - the reason I want you to do the therapy that you have been doing as well is because you do not get angry for no reason. I spoke quite a lot about your childhood and all those issues, I am sure you have talked about them with other psychologists as well. You need to keep working on that too. And it would be - do you think you can take up employment with the neighbour?
85 OFFENDER: Yes, he said if I didn't got to gaol then he'd give me a job.
86 HER HONOUR: All right, try and hang onto it. Apart from anything else, it is a great relief for your head. You do not have to keep thinking about the things that upset you. Very well then. Happy Christmas to everybody. I thank counsel for their assistance in this matter. All right, Mr Dines, I very much hope that you succeed on this. As I said, I warn you if you do not I am going to be running out of options. I think if you do complete this, you strike me as an intelligent young man with a good future if you want one, if you can manage to overcome these issues, and I very much hope that apart from keeping you from offending that you get some use out of this. The order is meant to help you as much as anything else. All right? Thank you very much. We will stand down.
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