Director of Public Prosecutions v Doran
[2024] VCC 2111
•20 December 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-24-00109
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BRODIE KENNETH DORAN |
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JUDGE: | HER HONOUR JUDGE GWYNN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 18 December 2024 | |
DATE OF SENTENCE: | 20 December 2024 | |
CASE MAY BE CITED AS: | DPP v Doran | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 2111 | |
REASONS FOR SENTENCE
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Subject:Criminal Law Sentence
Catchwords: Robbery, possess drug of dependence
Legislation Cited: Sentencing Act 1991
Sentence: 174 days' imprisonment reckoned as having already been served and a community corrections order for a period of two years
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr R. Casey | Office of Public Prosecutions |
| For the Accused | Ms N. Lowe | Victoria Legal Aid |
HER HONOUR:
1Brodie Doran, you have pleaded guilty on indictment to a charge of robbery and possession of a drug of dependence, namely cocaine.
2You have also entered a guilty plea to two related summary offences of driving whilst suspended and two related summary offences of use an unregistered vehicle on a highway.
3In sentencing you for your crimes I am obliged to consider the maximum penalty for the offences you have committed. Those maximum penalties reflect the seriousness with which parliament regards each offence and are as follows:
(a) Robbery – 15 years' imprisonment;
(b) Possess a drug of dependence – five years' imprisonment or one year imprisonment if I am satisfied on the balance of probabilities that your possession of cocaine was not for the purposes of trafficking;
(c) Drive whilst suspended – four months' imprisonment; and
(d) Use unregistered vehicle - 25 penalty units.
4The circumstances of your offending were set out in a document entitled 'Amended Summary of Prosecution Opening for Plea' dated 22 November 2024. This is an agreed document and represents your acceptance of each of the elements of the offences you have committed, as well as the factual basis on which I am to sentence. I have had recourse to the entire document and will refer to some of the facts in these sentencing reasons so that the circumstances can be understood.
The offending
5At approximately 11.14 am on 9 June 2023 you attended a chemist in Victoria Gardens shopping centre and purchased Band-Aids before parking your car in the vicinity of the Cash For Gold store on Swan Street, Richmond.
6You vacillated for some time, walking in front of the store and back to your car numerous times before you entered Cash For Gold around 1.00 pm disguised by a black surgical mask and blue Band-Aids under both eyes to conceal tattoos.
7You made demands for cash and gold, primarily gold, of store employee Romika Goswami, during which you threatened with the use of force. The victim complied with your demands and let you into the back room with the safe.
8You took cash and gold with a total value of $143,028.00 made up of $2,865 in cash and the remainder in gold.
9These facts form the basis for the charge of robbery.
10You left the store and ran to your car.
11Ms Goswami telephoned her employer who, in turn, contacted Triple 0.
12On 13 June 2023 you departed Melbourne for Bali.
13Police located your vehicle in the basement of the car park at Victoria Gardens shopping centre on 21 June 2023. On search of the vehicle, amongst other items relevant to their investigation, police located a small resealable plastic bag containing cocaine, forming the basis for Charge 2 on the indictment, possession of a drug of dependence. $750 in cash was also located, said to be directly linked to the charge of robbery.
14Your driver's licence was suspended at the time of you driving on 9 and 12 June 2023. On each of those occasions the vehicle you were driving was unregistered. These facts form the basis for summary Charges 5, 6, 7 and 8.
15On return from Bali on 26 June 2023, you were arrested by police at Melbourne airport. You had made arrangements in advance to hand yourself into police. On interview at that time you substantially replied with 'no comment'. On 19 October 2024 you voluntarily surrendered yourself to police and participated in a second record of interview where you made full admissions.
Offence gravity and victim impact
16I am less concerned about the summary offences. The driving offences show a disregard for the privilege of driving in lawful circumstances.
17I accept on the balance of probabilities that your possession of cocaine was not for the purposes of trafficking in that drug.
18The offence of robbery is obviously serious and is the primary focus in your sentencing.
19The circumstances which contributed to your decision-making at the time of your offending are outlined in materials filed. Whilst they provide some context, they do not provide you with an excuse.
20Whilst you clearly contemplated your actions for some time, ultimately your decision-making on 9 June 2023 was to enter the Cash For Gold store in an aggressive fashion and making demands for cash and gold. It was an event which required some planning, given your disguise, and was a crime of high yield to you, almost none of which has been recovered.
21Whilst I will come to the victim impact statement of the owner, I have little doubt that you would have frightened Ms Goswami or she would not have acted as she did and responded to your demands. She was isolated and therefore vulnerable in her place of work, an environment in which she was entitled to feel safe.
22The purpose of a victim impact statement is to give those affected by your crime the opportunity to participate in the criminal justice process by informing the court about the effects of the crime on them.
23Mr Michael Salib is the business owner and has provided a victim impact statement. His statement was read to the court, so you should have some understanding of how what you did has affected others besides yourself. Mr Salib speaks of his increased vulnerability, the constant questioning of himself of what he could have done differently and his obvious concerns for his staff member. He has had trouble sleeping and his business suffered an obvious and substantial financial loss.
24You have caused harm to others, you have brought shame to your family in circumstances where you used the cash and gold you stole to relieve you of some debt and then to fund a trip to Bali. Your actions are truly appalling.
Plea of guilty
25The Sentencing Act 1991 obliges me to consider the stage at which you entered your guilty plea.
26You were committed to this court on far more serious charges. You had previously made an offer to plead guilty to the very charges which are now the subject of your indictment. Your matter resolved when appropriate charges and facts had been agreed. In that sense this matter is an early plea of guilty as it was only upon resolution that your plea was in a position to proceed.
27Your plea has saved the court the time and expense of contested proceedings, and importantly, the need for witnesses to attend and relive distressing events.
28I am satisfied based on materials before me that you are remorseful for your offending.
29These matters will all be taken into account in your favour.
Personal circumstances
30I turn now to your personal circumstances which are helpfully set out in written submissions filed on your behalf and in a psychological report authored by Carla Lechner dated 1 September 2024.
31You were raised in Moe by your parents Kenneth and Marcia. You have one older sister, Eilish.
32Yours was a stable and loving family environment, and fortunately for you, continues to be.
33You did have some difficulty during your school years and left part-way through Year 10.
34You did have talents as a boxer and were involved in that sport between the ages of 10 to 18 years. You won two Victorian titles.
35I was told that your progression in this sport was interrupted by your resort to recreational drug use and a party lifestyle.
36After leaving school, you obtained an apprenticeship in a small engine reconditioning business working with high-performance engines. You worked at Moe Engines for two years and then spent a further year at the Powerhouse in Warrigal which was an elite engine building workshop. You completed three of a four-year apprenticeship.
37From around 19 years you worked as a dogman and drill rig offsider with Acciona Geotech for the Metro Tunnel project and were able to work during the COVID-19 pandemic.
38However, your interest in drugs continued. Your drug use commenced with cannabis at the age of 17 to 18 years. You would use ecstasy when going out. Your cocaine use began when you were 19 years and by the time you were 21 or 22 you were consuming about a gram a day. You also dabbled with ice, GHB and ketamine. Your primary addiction was to OxyContin.
39You have had a stable working history until about 12 months before this offending, when your attraction to drug use and a certain lifestyle and circumstances associated with that lifestyle led to your decline and led to the offending before this court. At that time, you report abusing ice, GHB, cocaine, OxyContin and Valium. There had been a decline in your mental health and you had been discharged from hospital only the day prior, following a suicide attempt. I accept that your circumstances overall have had some impact on your moral culpability for this offence and it will be reduced accordingly.
40Your criminal history is part of your personal circumstances. Your admitted history is relatively limited.
41On 5 February 2016 you appeared at the Latrobe Valley Magistrates’ Court in relation to a charge of drive in a manner dangerous and other associated offending. You were fined an aggregate of $1200 without a conviction being recorded and orders were made against your licence.
42On 8 May 2018 you again appeared at the Latrobe Valley Magistrates’ Court in relation to a charge of make threat to kill and you were fined $750 without a conviction being recorded.
43On 7 June 2019 you were placed on an adjourned undertaking for six months for a single charge of affray.
44Each of these matters do have an aggressive element, as did your offending in June of 2023.
45You will not be punished for your criminal history a second time, but it is relevant to the weight to attach in your sentencing to the important principles of specific deterrence, denunciation and protection of the community.
Prospects for rehabilitation
46You are now aged 27 years and were 25 years at the time of your offending.
47As a direct consequence of your offending, you have spent two separate periods on remand totalling a period of some 174 days. You initially spent 68 days in custody before being released on bail on 1 September 2023. You surrendered yourself into police custody again on 19 October 2023, being concerned about your parents having provided a substantial surety for your bail. You spent a further 106 days on remand before again being released on 1 February 2024.
48Given your limited history and what I have otherwise described, I accept there is a degree of sanction and hopefully deterrent in this experience. You have no pending matters.
49You have returned to live at home with your parents which I accept is a stable and supportive environment. They have provided a reference where they describe themselves as being extremely proud of the man you have become since being out on bail.
50I have also had recourse to the character references authored by Brock Gane and Brendan Van Herick who each reflect on your remorse for your offending and the positive changes you have made in your life.
51You have returned to paid employment as a marketing specialist with 'The Smiles Dentacare' and commenced a university course in computer studies.
52You are prescribed Suboxone, a drug replacement, Prozac and mirtazapine. You say you have not used illicit drugs since being released on bail. Urine screens which show no illicit drug use have been tendered on your behalf. You would still appear to have an unhealthy interest in alcohol, consuming a bottle of whiskey every few nights.
53A letter authored by Jo Colvin, nurse practitioner with Mindful Leaf dated 19 November 2024 confirms that she has been working with you since February of 2024 in relation to drug and alcohol addiction. You are described as being actively involved in your own recovery.
54The report authored by Carla Lechner, psychologist, diagnosed you with post- traumatic stress disorder and substance use disorder. I have had recourse to the entire report. She did express some concern for your mental state should you be returned to custody given your relative stability and range of therapeutic supports. I take this into account in a general sense. Ms Lechner found that you were capable of reflective and consequential thinking now that you are sober and your mental health has stabilised. This augurs well for your continued rehabilitation.
55A letter authored by Garry Lawler, psychologist, dated 21 November 2024 confirms that he has been seeing you since March of this year to assist you with treating your post-traumatic stress disorder, anxiety and depression. You are described as engaging well in your sessions and there has been a reduction in your symptoms. Ongoing sessions were recommended to consolidate gains you have made, and I would encourage you to do so.
56You have a wide range of well-established therapeutic relationships and other stabilising factors currently in place. It would appear that your prospects for rehabilitation are positive. As a result, there is less need to give weight to the sentencing principles of specific deterrence and protection of the community.
Submissions on sentence
57Both parties have submitted that all relevant sentencing considerations can be reflected in the imposition of a combination sentence, that is, a term of imprisonment in combination with a Community Correction Order.
58Accordingly, I have had you assessed as to your suitability for such an Order. You are assessed as suitable for a Community Correction Order.
59A Mental Health Advice and Response Service report dated 28 November 2024 recommended a mental health condition to any Correction Order made.
Sentencing
60I do make the ancillary orders as sought for disposal and forfeiture of scheduled items.
61The basic purposes for which a court may impose a sentence include punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community. In sentencing you, I must have regard to a range of matters, such as the seriousness of the offending, your culpability for it, your personal circumstances and those of your victim.
62I must also balance the interests of community in denouncing criminal conduct, with the interest of the community in seeking to ensure, where possible, that offenders are rehabilitated and are reintegrated into society.
63I have taken into account the sentencing guidelines referred to in s5 of the Sentencing Act where relevant to your case. I have taken into account current sentencing practices for the offences to which you have pleaded guilty and the principles of both totality and proportionality.
64Before I turn to the actual sentencing, I just want to check with each of you that there aren't any other matters that you need to bring to my attention.
65MR CASEY: No, Your Honour.
66MS LOWE: No, Your Honour.
67HER HONOUR: Thank you.
68For the summary charges of driving whilst suspended, you are convicted and fined an aggregate of $1500.
69For the summary charges of driving an unregistered vehicle, you are convicted and fined an aggregate of $500.
70Whilst I have the power to do so, I will not make orders against your licence as it seems necessary to your employment and you are in a rural area. This is a mechanism to foster your rehabilitation.
71For Charge 2 on the indictment, possession of a drug of dependence, namely cocaine, you are convicted and discharged.
72For Charge 1 on the indictment, robbery, you are convicted and sentenced to 174 days' imprisonment. This period is reckoned as having already been served. In addition, you are placed on a Community Correction Order for a period of two years. That Order has the following conditions:
(a) You are to be supervised by the Office of Corrections;
(b) You are to complete 175 hours of community work;
(c) You are to submit for treatment and rehabilitation in relation to drug use;
(d) You are to submit for treatment and rehabilitation for your mental health;
(e) You are to submit for programs designed to reduce your offending including an assessment for participation in the Forensic Intervention Services.
73I will add 'submit to treatment and rehabilitation' in relation to alcohol use to the treatment components, bearing in mind what I have been told about your continued alcohol usage.
74Seventy-five hours of community work condition is to be offset against the treatment conditions, therefore, the more treatment the less community work.
75In addition to the conditions I have imposed there are standard conditions. The first and foremost of those is that you must not commit any other offences during the two-year period which could be punished by imprisonment. You must also report within two working days to the nearest Corrections office. You are required to advise your supervising Corrections office of any change of address of where you are living or working and must do so within two clear working days. It is a term of all community corrections orders that you must submit to visits as directed and you must obey all of the instructions and directions of a Corrections officer. You are not able to leave the State of Victoria without the prior permission of your Corrections office.
76In my view, this order presents you with a chance to continue your life in a positive fashion should you choose to take up that opportunity and the supports that should be made available. The order can be breached if you do not comply with it in terms of the conditions or reoffend, as I have said, with an offence punishable by imprisonment whilst it is in place. If you do, you will have to appear before me for contravening the Order and I may have to resentence you on the original charges and to sentence you for contravening the Order.
77I can only place you on such an Order with your consent and will give you the opportunity to speak with Ms Lowe as to whether that consent will be forthcoming.
78So it is just going to take a moment for those orders to be finalised. Before that does occur:
79Section 6AAA of the Sentencing Act obliges me to state the sentence I would have imposed had you not pleaded guilty. If not for your pleas of guilty, you would have been sentenced to a total effective sentence of two years and two months' imprisonment with a minimum of 14 months before being eligible for parole.
80Thank you, that's been signed Ms Lowe. Ms Lowe - that's been signed.
81MS LOWE: Yes, it has been signed.
82HER HONOUR: Thank you.
83MS LOWE: Can I just have a moment to just check something in the Lechner report - - -
84HER HONOUR: Of course. Do you want me to stand down.
85MS LOWE: Yes, just for a couple of minutes if that's possible, thank you.
86HER HONOUR: Alright.
(Short adjournment.)
87MS LOWE: Thank you for the time, Your Honour. There is one thing that Mr Doran wishes for me to raise, and it may not affect anything - - -
88HER HONOUR: I have announced sentence.
89MS LOWE: Yes, well.
90HER HONOUR: I asked at one stage were there any matters that you wanted to raise. I have announced sentence, I am now functus. If it's important to your client, tell me, but I am done.
91MS LOWE: Yes, I don't believe it will change anything.
92HER HONOUR: Alright.
93MS LOWE: But simply we accept that in the Lechner report there's a reference to alcohol and that Mr Doran stated that he drinks a fair bit, estimated to be a bottle of whiskey every few nights. He has just instructed that that was when he was initially released on the first lot of bail, and he's saying that he doesn't drink currently but is willing to engage in that condition. But he simply just wanted to correct me on that.
94HER HONOUR: If he doesn't need to the treatment he'll be assessed.
95MS LOWE: Yes.
96HER HONOUR: And it won't be recommended.
97MS LOWE: Yes, and that's what I have advised him. Thank you.
98HER HONOUR: Yes, thank you very much. Alright then, well thank you to the parties for their assistance. In the nicest possible way, Mr Doran, I don't want to see you again. I'm pretty sure your parents don't want me to see you either. All the best for the festive season. I'll stand down now until 12, thank you.
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