Director of Public Prosecutions v Elliot

[2022] VCC 2159

IN THE COUNTY COURT OF VICTORIA

 Revised

Not Restricted

 Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION  CR-22-00122

DIRECTOR OF PUBLIC PROSECUTIONS

v

BRADLEY ELLIOT

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JUDGE:	HER HONOUR JUDGE WILMOTH
WHERE HELD:	Melbourne
DATE OF HEARING:	28 November, 1 December 2022
DATE OF SENTENCE:	02 December 2022
CASE MAY BE CITED AS:	DPP v Elliot
MEDIUM NEUTRAL CITATION:	[2022] VCC 2159

REASONS FOR SENTENCE

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Subject: Criminal law - sentence

Catchwords: pleaded guilty to one charge each  of intentionally causing injury, one rolled up charge of attempting to pervert the course of justice,  handling stolen goods, possessing a drug of dependence -  cannabis, four summary charges -  driving whilst disqualified, possessing a prohibited weapon, possessing ammunition and  failing to stop after an accident; 42 years old - animosity between offender and victim – sentence indication accepted – found unsuitable for CCO – CCO imposed – difficult childhood – early drug use – borderline personality disorder – high risk of breaching CCO – exemplary behaviour in custody.

Sentence: TES 12 months imprisonment; time served 365 days, 3 year CCO  300 hours to be served - $500 aggregate fine for 2 summary offences

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr Z. Petric Mr M. Wilson (sentence)	OPP
For the Accused	Mr A. Marshall	Gallant Law

HER HONOUR:

1Bradley Elliot, you have pleaded guilty to one charge of intentionally causing injury, one rolled up charge of attempting to pervert the course of justice, one charge of handling stolen goods and one charge of possessing a drug of dependence, namely cannabis.

2You have also pleaded guilty to four summary charges, driving whilst disqualified, possessing a prohibited weapon, possessing ammunition and one charge of failing to stop after an accident.

3On Sunday 7 March 2021 you were involved in an incident in your home town of Stawell, when a car driven by you collided with the rider of a motorised bicycle injuring him.  The victim was an acquaintance of yours, Simon Beasley. 

4The background was that the previous day you had been arguing with Beasley and you made a threat to his daughter.  In a text message to him, you threatened to smash his daughter and indirectly threatened his life.  In fact there had been animosity between you and Mr Beasley for some time involving exchange of text messages including mutual threats.

5At about 7 pm on 7 March Mr Beasley was riding his motorised bicycle in
Napier Street, Stawell heading east to visit a friend.  You were driving a blue BMW coupe in Wakeham Street heading east.  At the time you were disqualified from driving, and that is summary Charge no.7. 

6Wakeham and Napier Streets run parallel with each other, separated by a train line.  Both you and Mr Beasley turned left onto Colquhoun Street travelling north, with you appearing to be following Mr Beasley.  You drove across the train line overpass and continued travelling north on Colquhoun Street, following Mr Beasley.  

7As soon as he had crossed Napier Street, you drove up to the rear of his bicycle making contact, causing him to kick at the grill of your car while trying to push the car away.  In order to get away he crossed over to the wrong side of the road and you accelerated towards him, intentionally striking him with your car.  This is Charge 1 on the indictment, intentionally causing injury.

8This was observed by two witnesses from their front yard.  Mr Beasley was knocked off his bicycle and was dragged underneath the car for about
three seconds.  After you hit him, you slowed down and looked at him and then sped off, turning left into Maud Street and onto the highway.

9Having failed to stop, of course you did not render any assistance.  That is summary Charge 6, failing to stop after a motor vehicle accident and failing to render assistance.  Police and ambulance attended the scene and Mr Beasley was airlifted to the Royal Melbourne Hospital where he was found to have a fractured ankle requiring surgery, minor burning to his back, concussion and numerous cuts and abrasions.

10Police found a piece of a front bumper bar at the scene bearing a registration plate which belonged to a 1996 blue BMW, registered to Mark Vanderworth. 
Mr Vanderworth told police that he had sold the car in September 2019 to a man who in turn told police that  he had sold the car to you on 5 March 2021, which was two days before this incident. 

11At about 7.25 pm on Sunday 7 March you telephoned police and reported your car as being stolen from a side street off Wakeham Street, Stawell at about
6.30 pm.  The police officer who took the call asked you for the registration number of the car and you hung up and did not call back.  The telephone call was traced to your mobile phone number.

12On Tuesday 9 March, investigators found the car in bushland in Stawell, with its right-hand front bumper missing, consistent with damage from an accident.  When put together later, the missing piece matched the damaged area and was an exact fit and bore the same registration number.

13A cigarette butt was found in the car which was tested for DNA and was found to be a match with your DNA.  CCTV footage from a premises at
Wakeham Street was obtained and contained footage showing a blue BMW parked outside your home at 8 Wakeham Street at about 5.49 pm.  You were seen to get out of the car, walk past no.10 and into the driveway of no.8.

14At about 7.01 pm you were seen to get back in the car and execute a U-turn.  CCTV footage from other points showed you driving east along
Wakeham Street and Mr Beasley riding east on Napier Street.

15A few minutes after the collision, other CCTV footage captured your car travelling in Maud Street, Napier Street and Sloane Street with the front numberplate missing. 

16Just before 7.30 pm you were seen on CCTV getting out of a Ford Territory driven by your girlfriend, Katrina Van Rooy, at your home address where you ran into the driveway.  Also in the car was a passenger, Sharna Fox. 
Ms Van Rooy stated that she had received a phone call from you asking her to pick you up. She drove to a location near the water tower in Stawell and found you standing in the middle of the road. 

17She told you to get in the boot area of the car and she asked you what was going on? You told her   to ‘shut up and drive.'  She drove to your house and the two of you entered the house.  Ms Fox then left in the Ford Territory.  You asked the women to state that you were at the supermarket together and came home to find the BMW stolen.

18Ms Van Rooy said you told her that you had run over Mr Beasley after driving over the rail crossing bridge.  The CCTV footage showed you wearing clothes that were later found at your home when police executed a search warrant.  Also found were registration plates, BADONK which you had joked about to Ms Van Rooy.  A homemade laser and cartridge ammunition were also found.  Those give rise to summary Charges 11 and 12.

19Police spoke to Phil Scott, the owner of Scott's Auto Electrical at
10 Wakeham Street who said that you had asked him at about 6.53 pm on Sunday 7 March to delete CCTV footage from the business’s camera. You told him you had been driving without a licence.  CCTV shows you entering the business at that time when you spoke to Scott.  This is the charge of attempting to pervert the course of justice.

20The registration plates BADONK were found to have been stolen from a mail box in Stawell on 4 March 2021.  That is Charge 3, handling stolen goods.

21You were interviewed at the police station, charged and remanded in custody on 21 March 2021.  On 22 December you applied for bail but it was refused.  After a hearing over two days in February 2022 you were committed to stand trial and a trial was listed for 13 February 2023.

22Recently you applied for a sentence indication hearing which I heard on
28 November.  You have now been in custody for 611 days.  Following that hearing I arranged for you to be assessed as to your suitability for a Community Correction Order.   I shall return to that matter later.

23I note that the maximum penalties for these charges are as follows:

-Intentionally causing injury, 10 years imprisonment. 

-Failing to stop and assist, 8 months for a first offence, 2 years but not less than 4 months for a second offence. 

-Attempting to pervert the course of justice, 25 years. 

-Handling stolen goods, 15 years. 

-Possess a prohibited weapon, 1 year. 

-Possess ammunition, a fine of 40 penalty units. 

-Possess cannabis, 1 year. 

-Drive whilst disqualified, 2 years.

24The defence submission as to sentence was, that given your efforts towards rehabilitation in custody, time served is adequate punishment for the injury charge, and a Community Correct Order would be appropriate for the other offences.

25The prosecution submission was for a head sentence with a non-parole period. 

26You are a 42 year old single man with a considerable criminal history, having been before the courts for effectively the whole of your adult life. 

27In September of this year you were seen by a psychologist Ms Laura Fleming for sentencing purposes, but she was asked not to comment on the offences before the court.  Accordingly, the report does not contain any reference to the topic of remorse. 

28You had a difficult childhood which, as Ms Fleming observed, probably caused the mental disorders she has diagnosed.  I shall return to that later in these remarks.

29Your parents separated when you were a small child and your mother
re-partnered.  This man was physically abusive towards you and lied to your mother about the cause of your injuries.  She offered no support in this regard and minimised your distress.  Her relationship with your stepfather ended when you were 10 as he had sexually abused your sister.  Around the same age you were sexually abused by an older cousin.

30When you were 12 your mother re-partnered with another man whose five sons moved into the house and you had to sleep in the garden shed with one of your stepbrothers.  Shortly afterwards your sister became pregnant to one of the stepbrothers.

31Apparently you started offending in your mid-teens but at the same time you excelled at sport, playing hockey at state level and later being paid to play football for regional teams.

32At school you experienced some bullying following your sister's pregnancy and you were slow to learn.  You got into frequent fights and you were eventually expelled.  By this time you were using drugs, having been introduced to them by your stepfather when you were 14,  and you did little work apart from brief periods in an abattoir and in painting and decorating. For the past five years you have been on a disability pension owing to back injury caused by motor vehicle accidents. 

33You are the father of three children from three different relationships, an adult son and daughter and a school age daughter.  You do not consider yourself as being in a relationship currently.  You have managed to foster good relationships with your children.

34Your history of drug abuse continued into your twenties with regular use of heroin and methamphetamine.  You ceased heroin use three years ago but continued to use methamphetamine and cannabis until your arrest, as well as GHB.  Alcohol had been a problem in the past leading to aggressive behaviour which became the reason you stopped drinking.  You have attended drug rehabilitation in the past and you have remained sober in custody, although you told Ms Fleming that has not always been the case when in custody.

35I digress here to note that your record as to drug testing and behaviour in custody has been perfect, and you were one of only three prisoners in Victoria cleared to work in the covid cleaning billet.  This meant that for five and a half months you helped feed, clean and wash prisoners who were in 24 hours lockdown.  I give significant weight to that factor.

36Ms Fleming's opinion was that you have traits of borderline personality disorder and I quote:

…'characterised by marked impulsivity and a pervasive pattern of instability in relationships, self-image and emotional regulation.' 

37Ms Fleming noted that and again I quote:

…'stress, anxiety, trauma or other adverse factors in childhood such as early abuse of substances can affect brain development.' 

38She said this was consistent with your offending on 7 March. She described your complex profile as being further complicated by polysubstance abuse which seems to have developed as a form of self-medication for untreated trauma and distress. She explained that substance abuse can result in the same cognitive impairment as trauma increasing the risk of criminal misconduct, as in your case.

39Ms Fleming thought it unlikely your mental health would be adequately treated in prison, particularly given that the covid pandemic has resulted in reduced programs.  I might add that it is well known that there are currently long waiting lists for drug treatment, for example.

40Ms Fleming considers that you need intensive psychotherapy and contact with a general practitioner for appropriate medication.  You also need drug counselling and perhaps time in a residential facility.  She also addressed the risk of your reoffending.  Tests show that you are at moderate risk of reoffending, with protective factors being support from your family, that is, your sister and mother, and willingness to engage in treatment.

41Further background from which to assess your prospects for rehabilitation is provided by your criminal history.  You have prior convictions for, or relevant to, several of the charges to which you have pleaded guilty.  These include intentionally causing injury and assault, driving offences of many types and contravention of court orders.  These are consistent with the mental disorders identified by Ms Fleming and strongly suggest an antisocial attitude in general and difficulty dealing with authority.

42These opinions and observations were echoed in the Mental Health Screening report provided by a senior mental health clinician who assessed you this week as part of the assessment for a CCO.  The writer made specific recommendations for your treatment once you are in the community.  Importantly he said this, and I quote:

…'Mr Elliot may have difficulties benefiting from intensive psychotherapy until his substance abuse is well managed, and thus this has not been recommended as a condition of his CCO.  However, he is encouraged to seek intensive psychotherapy on his own volition.'

Those words, 'on his own volition' are in bold font in the report.

You are found to be unsuitable for a CCO.  There were several reasons for this.  The first is that having had 10 community based dispositions imposed between 1999 and 2016, you have contravened nine of them.  You either failed to comply with the conditions or further offended, or both.  You told the officer that you are now in a better position than previously to succeed with such an order because you have been drug free for 20 months since being in custody. The writer considers that your history of non-compliance demonstrates that such an order is not a deterrent to you.  He said that the orders do not mitigate your risk of reoffending nor do they assist with your rehabilitation because you fail to engage in treatment satisfactorily, or at all. The writer did concede that there have been some limited changes to your personal circumstances or protective factors which might support you in the successful completion of a CCO.

43I find it extremely concerning that you gave the officer a version of the incident that is different from that recounted in the prosecution summary.  Your plea of guilty is based on that summary, that the injury inflicted on the victim was intentional, not accidental as you have continued to claim.

44You said your behaviour in leaving the scene was because of shock, not an attempt to avoid responsibility.  When the hearing resumed on 1 December, I heard from your counsel Mr Marshall in response to the reports findings.  He reiterated the value of your good progress in custody and abstinence from drugs, over 20 months. In the past your time in custody has not exceeded three months, from which I inferred him to be saying that that is a short period to be drug free in a meaningful way. 

45Mr Marshall on your behalf sought to explain the account you gave to the officer as being consistent with what you have maintained all along, that it was a spur of the moment decision to follow the victim and for your car to connect with his bike, but you do accept that the charge is made out.

46Having considered these submissions, I decided a CCO was inappropriate and that I would not impose a combined disposition.

47A head sentence with a non-parole period should be imposed, consistent with the prosecution sentencing submission. However, I outlined the difficulties as I saw them imposed by ss208 and 209 of the Criminal Procedure Act, in a case such as this. S.209(1) precludes the imposition of a more severe sentence following a sentence indication.

48Mr Marshall's further submission was to ensure compliance with the legislation by imposing a total effective sentence of 20 months, which would be time served.  This would see you being released immediately with no supports for you or protections for the community when you are at high risk of reoffending, according to the Corrections report.

49I consider that in those constraining circumstances the proper course is to impose a combination sentence, although I consider that there is a high risk that you will breach it.  There is also a chance that you will engage in it to your benefit and to the benefit of the community.

50The glimmer of hope rests on the fact that during your time in custody you have demonstrated an ability to change, by what appears to be exemplary behaviour as a prisoner, and by remaining abstinent from illicit drug use.  Apparently you will be able to live with your sister which will provide some stability.

51The indications are that for you to comply with this order is going to take a radical change in your behaviour and way of living.  That is going to be up to you.  Your long period on remand may have provided some degree of deterrence, against a background where nothing else has.

52More significantly the requirement of obeying the law and complying with treatment and community work may be an effective deterrent.  Of course your sentence should also reflect the need for general deterrence, and that is provided by both a prison term and a lengthy and onerous Community Correction Order. 

53Before I proceed to sentence, there are two other mitigating factors in addition to those already mentioned.  Your plea of guilty which is a relatively late plea, has avoided a trial with the associated expense and inconvenience, and that is especially valuable to the court and the criminal justice system when the backlog of cases is still high as a result of the pandemic.  You are entitled to a discount on your sentence for that plea.

54Similarly, the pandemic has caused great difficulties for the prison system, and your time in custody has coincided with the restrictions imposed on programs and visits, with the additional anxiety caused by the risk of infection.  I take those matters into account.

55I sentence you as follows:

For Charge 1 intentionally causing injury, 12 months.  This is the base sentence for purposes of cumulation.

For Charge 2, attempting to pervert the course of justice, 6 months.

For Charge 3, handling stolen goods, 1 month.

For Charge 4, possessing a drug, 1 month.

56Turning the summary charges:

For failing to stop, 10 months and you were sentenced on the basis that this is a second offence.

For driving whilst disqualified, 1 month.

For possessing a prohibited weapon and for possessing ammunition, an aggregate fine of $500.

Each prison sentence will be served concurrently upon the base sentence and with each other, resulting in a total effective sentence of 12 months.

57In making those orders for concurrency, I have taken into account that one incident led to most of the indictable offending, and I have considered the need for proportionality and totality.

58The CCO applies to Charges 1 and 3.  It will begin today and will last for 3 years.  You will be under supervision and you must perform 300 hours of unpaid community work.  Any hours of treatment which you complete may be credited against those work hours.  You will have treatment for drug use and mental health treatment, and must take part in any suitable program to reduce offending, which might include for example, a driver education program given your extremely poor driving record.

59There will be judicial monitoring and the first date will be 28 February at 10.00 am at the Horsham Corrections office.  I'll explain a little bit more about that later Mr Elliot.

60If you fail to comply with the obligations under your order, or if you offend again, you will have breached the order and will be brought back to court to be
re-sentenced by me.  Do you agree to be bound by the conditions of the order?

61OFFENDER:  Yes Your Honour.

62HER HONOUR:  You have been in custody and I am not sure whether it's
611 or 612 days, is there any agreement about that at the Bar table?

63MR MARSHALL:  I'm reasonably sure it's 611, Your Honour.

64HER HONOUR:  611, all right.  I declare that 365 days are to be declared as already served which should bring about your immediate release.  This will leave approximately 8 months of undeclared time. 

65If you had pleaded not guilty to these charges I would have sentenced you to 3 years imprisonment with a non-parole period of 2 years. 

66There are orders for forfeiture and disposal which I shall make subject to any opposition, Mr Marshall?  Forfeiture and disposal?

67MR MARSHALL:  I have no opposition, no Your Honour.

68HER HONOUR:  Thank you.  One query I have for you Mr Wilson is, I'm not sure whether there are any driving licence orders I need to make.

69MR WILSON:  No Your Honour.

70HER HONOUR:  No, all right thank you.  Are there any other matters that I neglected or omitted?

71MR WILSON:  Nothing Your Honour, I just ask Your Honour to clarify the aggregate fine for 11 and 12 of the summary offences.  Was that $100 or?

72HER HONOUR:  $500.

73MR WILSON:  $500 sorry, thank you Your Honour.

74HER HONOUR:  Yes, yes, now Mr Elliot on 28 February you will be required to go to the Horsham Corrections office and there will be a video link to me in this court here. 

75OFFENDER:  Yes Your Honour.

76HER HONOUR:  You will be with your corrections officer, there won't be anyone else involved, and you're probably very well familiar with these hearings, although maybe judicial monitoring wasn't in place back then, I'm not sure. 

77OFFENDER:  No, no.

78HER HONOUR:  However the point of it is for me to find out what progress you are making if any.  And hopefully you will have been inducted into the program, that will happen within the next two days because between now and Tuesday at 4 o'clock you have to report to the Horsham Corrections office.  Do you understand that?

79OFFENDER:  Yes Your Honour.

80HER HONOUR:  By 4 o'clock next Tuesday.  By 28 February I will have a report from your case manager and I will know how you are progressing in those initial months.  After that I will determine further judicial monitoring hearing dates from time to time. 

81The Community Correction Order itself will be printed out and will be sent to you in prison, Mr Elliot, for you to sign.  And it will be then sent back to the court and you will have a copy of it.  Anything else Mr Marshall from you?

82MR MARSHALL:  No Your Honour.

83HER HONOUR:  All right well thank you to counsel for your assistance during the last week or so.

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