Director of Public Prosecutions v Holz
[2023] VCC 1185
•10 July 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 22-00860
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BRODIE HOLZ |
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JUDGE: | HIS HONOUR JUDGE CARMODY |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 10 July 2023 |
DATE OF SENTENCE: | 10 July 2023 |
CASE MAY BE CITED AS: | DPP v Holz |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1185 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW – Sentence
Catchwords: contravene bail condition by failing to comply with personal safety intervention order – contravene personal safety intervention order
Legislation Cited: Criminal Procedure Act 2009; s145
Cases Cited: Worboyes v The Queen [2021] VSCA 169
Sentence: Convicted and sentence to four months imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Dr J. Harkess | Office of Public Prosecutions |
For the Accused | Mr J. Mortley | Emma Turnbull Lawyers |
HIS HONOUR:
1Brodie Holz, on 5 July 2023 at the County Court here in Melbourne you pleaded guilty to two summary related charges:
Charge 1, a breach of bail condition by failing to comply with a personal safety intervention order by contacting Andrew Smith. That charge has a maximum penalty of three months' imprisonment;
Charge 2, which is breaching the Personal Safety Intervention Order by contacting Andrew Smith on the same occasion. That charge has a maximum penalty of two years imprisonment.
2The further three related summary charges were withdrawn by the prosecution on that day. On the same day, a notice of discontinuance was filed in respect of indictment No.M11719542.
3You have served a total of 277 days of pre-sentence detention in respect of all of the alleged criminality arising around the time of 15 August 2021 which were the indictment charges and the related summary charges which occurred on the following day. The withdrawn related summary charges were the initiating charges for the indictment charges. You have admitted to you prior criminal history.
4In 2011, you had two separate appearances at the Ringwood Magistrates' Court where you were convicted and fined for charges of recklessly cause injury, reckless conduct endangering serious injury and related driving charges. In June of 2019, again at the Ringwood Magistrates' Court, you were convicted and fined for unlawful assault and acting to the prejudice of the good order for gaol. Your offending in 2021 saw you incarcerated for the first time.
The circumstances of your offending
5The learned prosecutor tendered a summary of prosecution opening dated 7 July 2023. It was Exhibit A. The learned prosecutor read the opening into the record of the court.
6At the time of the offending, you were 32 years old. You were an associate of Andrew Smith, the victim of these charges. He was 30 years old.
7In early 2021 you were unable to find a place to live. Your friend, Geoff Jenkins, allowed you to move into his place in Ferguson Court, Ferntree Gully. Mr Jenkins lived at that address with his girlfriend, Megan Gibson. Mr Smith, as I understood it, was a long-term of Mr Jenkins. In the middle of 2021, Jenkins wanted you to leave the place. Mr Smith took it upon himself to assist in that task. There was an incident on 4 August 2021 where you had a confrontation with Mr Smith which involved firearms. As a result of all of those altercations and activities by you, a personal safety intervention order was served on 5 August 2021 and the protected person was Mr Smith.
8The conditions of the order included that: (1) you must not contact or communicate with the protected person by any means and (2) approach or remain within five metres of the protected person. You were granted bail on 6 August 2021 to appear at Ringwood Magistrates' Court initially on 21 October 2021. Your bail conditions included that you reside at a designated address in Ferntree Gully, that you notify the informant within 24 hours before you changed your address, that you have no contact with any of the witnesses for the prosecution, that included Mr Smith, and to comply with the intervention order where the protected person was Mr Smith.
9Your matters arising from the use of the firearms and other matters originally from 4 August 2021 were dealt with on 20 December 2021. I was informed this morning that you were sentenced to a total of 21 days for what I would describe as the background offending to these charges. You have served that sentence.
10The circumstances of this offending is different. On 16 August 2021, at around midnight you attended at the premises at Ferguson Court to collect your property from the premises. Whilst you were at the premises, Mr Smith has attended. Mr Smith had called his partner Ms Sporrall and asked her to call the police. You and Mr Smith spoke to each other at the premises and Mr Smith informed you that you were in breach of your bail conditions by being at the residence when he was there. Police arrived at the premises at about 2.30 in the morning and spoke with Mr Smith. They then subsequently have located you in the bathroom of the premises. You were arrested and given a caution and then taken to the Knox Police Station. You remained in custody until May 2022.
Victim Impact Statements
11In this case, a victim impact statement was filed on behalf of Shelley Sporrall and Andrew Smith. I note particularly that Andrew Smith is the victim of this offending. That victim impact statement was dated 7 July and it is Exhibit “B” on the plea.
12Mr Smith and his partner have been constantly surveilling their surroundings and environment to ensure you are not watching them or a danger to them. They have moved house. They have set up security cameras at their new place. Each of them are on medication for anxiety. The damage to Ms Sporrall's car has not been paid for. Of course, the damaging of her car was part of the basis for the personal safety intervention order notice which is not part of these offences. Mr Smith has not returned to work due to his mental health decline. Your offending has had serious consequences for your victim.
Personal circumstances
13I have heard about your personal circumstances this morning. At the time of the offending, you were 32. You are now 34. I have already addressed you about your prior criminal history and effectively the subsequent criminal history. You have been a disability support pensioner in your adult life. That is due to a spinal injury. You are the eldest of four children in your family and you have three older stepsiblings. I know little or nothing about them. More importantly, you have qualified for a Certificate II in welding, and I am told that you have considerable skills in that activity of welding.
14Unfortunately for you, when you were a young man your father who you describe as a good bloke, but when drunk was not. He beat you and probably beat others in front of you. That may have set you on a path where you thought violence was an answer to some of your problems, I do not know, but let me tell you, violence is no answer to anyone's problems.
15You are a person who suffers from dyslexia. You finished school at Year 8 which is probably the earliest you could get out of there. School wasn't for you. I am told that you cannot read properly but read enough to get by.
16At age 15, you took to cannabis as many young men do. When you moved in with Jenkins in 2020, you started on methamphetamine. No doubt that change in your life has been the escalator of your criminality in more recent times.
17Mr Smith and Jenkins were friends. You have instructed your counsel to say that you thought that Mr Smith was trying to steal from Mr Jenkins and when he realised there was nothing there, he was going to steal from you.
18I am informed that your time in custody which was lengthy was sufficient for you to stop using methamphetamine and you have not gone back to it. You currently live with a stepbrother at the designated address on your bail. You continue to be a recipient of the Disability Support pension.
Sentencing considerations
19The basic purpose for which a court may impose a sentence are just punishment, deterrence, both specific and general, rehabilitation and denunciation of your actions and the protection of the community. In sentencing you I must have regard to a range of factors such as the seriousness of your offending, your culpability for it, and your personal circumstances.
20I am also required to balance the interests of the community in denouncing your criminal conduct with the interests of the community in seeking to ensure, as far as possible, that you as an offender are rehabilitated and reintegrated into society.
21I am also required to take into account current sentencing practices in fixing your sentence. That inquiry is directed particularly, but not exhaustively, to the kinds of sentences imposed in comparable cases. I have had regard to the statistics for the sentences for those sort of offences. I have considered the statistics and current sentencing practices, mindful that each case must be considered in the light of its' own particular circumstances and many of the cases would be distinguishable from your case as indeed they are from one another. Of course, current sentencing practices is only one of the factors I am required to take into account when fixing your sentence for these charges.
22You have pleaded guilty to both charges. The journey you have taken to arrive at your plea of guilty on 5 July 2023 is an unusual one. You were charged with very serious offending which was discontinued against you on 5 July 2023.
23Your plea does have utilitarian value of allowing for the orderly and effective administration of justice. There is a certainty of outcome and a resolution of the substantive issues raised by your offending and your plea allows for the preservation of court and police resources to deal with other matters and your plea vindicates the public confidence in the legal process set up to protect the community.
24Your plea is also a clear acknowledgement by you that you accept responsibility for your criminal behaviour on this occasion. Your plea also recognises you are willing to facilitate the course of justice in the community. I accept that your plea to these charges indicates and demonstrates remorse on your part. Your plea of guilty has relieved any further stress and inconvenience to people to give evidence in any hearing before the court.
25Your plea to these charges has been entered at a time when the courts are dealing with the backlog due to COVID-19. The Worboyes discount is applicable to your sentence. In addition, it is relevant to take into account the impact of lockdown restrictions that have been imposed as a result of the COVID-19 pandemic and were applicable to you because you have served all of your time along with other prisoners during the COVID lockdown period and I take that into account. The whole of your time on remand was subject to that lockdown regime imposed by Corrections Victoria.
26Your offending is serious. In each charge you have breached two separate court orders in the single exchange and contact you had with Andrew Smith. You attended at a premises where you had previously lived, to collect your goods. By chance, Mr Smith was there, and you knew of your recent conflict with him. You should have left straightaway. In any event, this offending is one event in a number of occasions where there was conflict between yourself and Mr Smith.
27The delay between the offending and the finalisation of these charges is nearly two years. You have spent nearly nine months in custody in that period. It was the first time you were in custody. The remainder of the time you have been on bail and not offended.
28Your time on remand will be greater than your sentence for the offences before this court. The delay has allowed your legal representatives to properly test the allegations of the more serious offending which resulted in the filing of a notice of discontinuance for those charges.
29I assess your prospects of rehabilitation as fair. You have some history of drug use and that was the position on the day around this offending. You have done 277 days in custody and remain drug and offence-free since May of 2022. You are not engaged in paid employment and have been on a Disability pension for your adult life. Your past criminal history is for violent offending.
30The prosecution and your counsel submitted that the appropriate disposition was a monetary penalty with conviction. I view these charges as more serious than that and take into account that you have already served time in custody around these matters.
31The appropriate sentence in this case, taking into account general and specific deterrence, just punishment and protection of the community is one of imprisonment.
32In respect of the charge of breach of the bail conditions, Charge 1, you are convicted and sentenced to one month imprisonment.
33In respect of Charge 2, which is the personal safety intervention order, you are convicted and sentenced to three months' imprisonment.
34I declare that you have served the full sentence of those period and you are to be released forthwith. Is there anything further?
35DR HARKESS: Those are concurrent, Your Honour?
36HIS HONOUR: Sorry?
37DR HARKESS: Those are concurrently served?
38HIS HONOUR: Yes, sorry. They are to be served concurrently. That is, a total effective sentence of three months and a s6AAA of six months.
39MR MORTLEY: If the court pleases.
40DR HARKESS: If the court pleases.
41HIS HONOUR: What that last bit means, Mr Holz, is the two sentences are to be served together. You have already served them and for your plea of guilty effectively it is half-price. Why I say that is, as I said during the course of it, it is Worboyes and your plea of guilty.
42Now, from now on, you do not have to listen to a word I have said because I have finished the sentence. It is really easy for young blokes like you to slip into drug trade and/or use. You have been there - I am talking about the use - you have been there. You are a person, unfortunately for you, but you are a disability pensioner so you have got a lot of spare time on your hands. Idle hands make for trouble. So you are going to have to turn your mind to how you are going to live the rest of your life crime-free. You have had big periods of it out of trouble. All you have got to do is hang-tight to that, whatever that is. Perhaps stick to your stepbrother, he might be of some help to you. See if you can get back to welding; someone will need your skills. Thanks, you can step out of there now.
43MR MORTLEY: If the court pleases.
44HIS HONOUR: Thank you.
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