Director of Public Prosecutions v Jones
[2023] VCC 1923
•23 October 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-22-00983
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BRODIE JONES |
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JUDGE: | HER HONOUR JUDGE HARPER | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16 October 2023 | |
DATE OF SENTENCE: | 23 October 2023 | |
CASE MAY BE CITED AS: | DPP v Jones | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1923 | |
REASONS FOR SENTENCE
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Subject:Criminal Law
Catchwords: Theft and firearms offences – childhood deprivation
Legislation Cited: Sentencing Act 1991
Cases Cited:Worboyes [2021] VSCA 169, Bugmy v The Queen [2013] HCA 37 (2 October 2013), Marrah v R [2014] VSCA 119
Sentence: 4 years 1 month imprisonment, NPP 2 years 2 months
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms A. Stephanides | A. Hogan, Solicitor for Public Prosecutions |
| For the Offender | Mr L. Barker | SLKQ Lawyers |
HER HONOUR:
1Brodie Jones, you have pleaded guilty before me in the Koori Court jurisdiction to two charges of theft, two charges of possess a drug of dependence being methylamphetamine, one charge of resist emergency worker on duty, one charge of prohibited person possess firearm, one charge of possessing an unregistered general category handgun, one charge of common law assault and one charge of use firearm to resist arrest.
2You have also pleaded guilty to related summary offences, being one charge of commit indictable offence whilst on bail, one charge of contravening a condition of bail, two charges of possess prohibited weapon, one charge of possess cartridge ammunition and one charge of deal with property suspected of being the proceeds of crime.
3The maximum penalties for these offences are 10 years' imprisonment for theft, 30 penalty units or one year imprisonment for possess drug of dependence where purposes of trafficking are excluded, six years' imprisonment for resisting an emergency worker on duty, 10 years' imprisonment for prohibited person possess firearm, seven years' imprisonment for possess unregistered general category handgun, and 10 years' imprisonment for use firearm to resist arrest.
4There is a maximum sentence of 10 years' imprisonment for common law assault given the circumstances in s320A of the Crimes Act 1958 are enlivened, and it thus becomes a Category 2 offence mandating a term of imprisonment unless the circumstances of s5(2H)(a) to (e) are met. Unless otherwise directed this sentence must be served cumulatively.
5For the related summary offences, the maximum penalties are three months' imprisonment for each of commit indictable offence whilst on bail and contravene condition of bail, two years' imprisonment for possess prohibited weapon, 40 penalty units for possess cartridge ammunition and two years' imprisonment for deal property suspected of being the proceeds of crime.
6You come before the court with a substantial criminal record which I will return to in the course of my sentencing remarks.
Circumstances of the offending
7On 26 August 2021 you were released on bail by the Dandenong Magistrates Court with conditions including a curfew.
8At 2.11 am on 6 December 2021, police were called to units in Milton Avenue, Clayton South. They found you and Maddison Thurgood asleep in a stolen blue Mitsubishi Lancer displaying false number plates. You were hunched over the steering wheel with keys in the ignition and the engine running.
9Leading Senior Constable Summers opened the driver's door and woke you. You were wearing a black bum bag around your chest and in your lap was a small plastic zip lock bag containing methylamphetamine. You were placed under arrest.
10You refused to exit the vehicle and were sprayed with OC spray. Police tried to smash open the driver's window with a baton but were unsuccessful.
11Leading Senior Constable Summers continued his attempt to remove you from the vehicle. You told him to 'fuck off' and then as he shone a torch through the driver's window you pointed a silver firearm in the direction of the police. The firearm was a revolver with black tape on the handle and a small red section showing at the base. Both members retreated.
12There was a stand-off for some 10 minutes before you exited the car and approached a male who came from one of the units and handed you a set of car keys.
13Leading Senior Constable Summers ran towards you, pointing his firearm and directing you and Ms Thurgood to get on the ground. Instead, you both got into a white Toyota Hiace van in the driveway.
14To prevent you fleeing, Leading Senior Constable Summers pointed his firearm and torch inside the van and directed you both to exit. In response you pointed the firearm to Ms Thurgood's head. Police again retreated.
15The van was stolen and was displaying false plates. You sped off in the van and a two hour police pursuit ensued, involving the airwing and the unsuccessful use of stop sticks.
16During the pursuit you used four separate vehicles in an attempt to avoid apprehension, namely the white Hiace, a red Holden Commodore bearing false plates which met up with the van in Springvale, a grey Suzuki Vitara which met up with the red Commodore in Clayton and finally a black Honda CRV with false plates which met the Suzuki in Clayton South.
17When the Commodore was abandoned, police located the silver revolver under the driver's seat. It was examined and found to be functional. At the time it was located it was loaded with six rounds but it is not known if the firearm was loaded at the time it was in the Lancer at the beginning of the offending.
18The Honda was last observed driving north on Warragul Road in Ashburton. At 6 am police and fire brigade responded to a call in relation to a vehicle fire in Heatherton. It was confirmed to be the black Honda CRV you were earlier driving.
19During an examination of the Lancer in Milton Ave, Clayton South, police located your bum bag containing various ID and debit cards, an ASP baton, a brass knuckle duster and four shotgun cartridges.
20In the vehicle, investigators located power tools, personal items, drug paraphernalia, car keys, motorcycle gloves and fraudulent registration plates.
21On 8 December 2021 you were arrested at Rebel Sport in Mildura. You were observed to be the passenger in a stolen white Toyota Kluger displaying two stolen plates. The vehicle was stolen from Warrandyte. You were searched and on you police located a zip lock bag containing cash and 20 grams of methylamphetamine.
Gravity of the offending
22The circumstances of the offences you have committed are serious, particularly those involving a firearm. You pointed the weapon at both the police officers trying to apprehend you and at your co-accused. It was dangerous behaviour and could have resulted in one of them, or indeed yourself, being shot.
23The offending was prolonged, the car chase alone taking several hours. Fortunately, no one was injured, and I note there is no victim impact statement.
Plea of guilty
24While your plea of guilty was not entered until after a committal proceeding and a sentencing indication, your plea nevertheless has utilitarian benefit. You have saved the court and the community the time and expense of running a trial and spared the witnesses the ordeal of giving evidence at trial. In those circumstances, you have facilitated the administration of justice and you are entitled to a benefit for that.
25The utilitarian benefit of your plea is enhanced by the fact that the Worboyes[1] considerations are engaged. This results in a more pronounced amelioration of sentence than at other times.
[1] Worboyes [2021] VSCA 169
Remorse
26By your plea of guilty you have demonstrated an acceptance of responsibility for
27your offending. I have also received a letter from you, Exhibit 3, expressing your remorse and detailing something of your background.
28Your remorse was also clearly apparent during the sentencing conversation to which I will return. I take these matters into account.
Personal circumstances
29You are a proud Palawa man, born in Launceston in October 1995, and you are now 28 years of age. You were 26 years old at the time of your offending.
30You are the second eldest of six children born to your mother Carolyn Jones. Your siblings are between 22 and 31 years of age and all still reside in Tasmania.
31Your mother had a number of partners and was often violently assaulted by them.
32Between the ages of three and seven you were sexually assaulted by two brothers, purportedly family friends. You were also regularly exposed to substance abuse and while you commenced Year 8 at high school, you did not complete that year of your education or beyond.
33When you were 11 years of age, DHS became involved with your family. You and your siblings were moved to foster care and after one day, you, aged 12, and your younger brother Brereton, aged nine, ran away and lived on the streets. You stole to survive and your priority was looking out for your brother.
34You commenced smoking cannabis at 12 years of age and graduated to methylamphetamine by the age of 15. Your crimes increased to support your drug habit.
35At the age of 14 you were placed in the Ashley Youth Detention Centre where you suffered prolonged sexual abuse from multiple staff members. You were sent to that detention centre on four or five occasions and the abuse took place each time. You are now engaged with Voice of a Survivor and part of a class action against the Tasmanian government in relation to that abuse.
36In 2013, at the age of 18, you were placed in adult custody in Risdon Prison.
37You have been remanded to the Metropolitan Remand Centre for 684 days where you are a unit billet and a peer support listener for other men.
38You are prescribed buprenorphine and have produced a number of clean drug screens while in custody.
39You are a participant in the Torch Program and have painted a number of very impressive artworks. You have sought assistance from Uncle Wenzel and other Elders and respected persons when they have visited the MRC, you have made enquiries of Dardi Munwurro and you have participated in the Wadamba prison to work program. You also retain the support of your family and hope ultimately to return to Tasmania.
40You have further sought to engage with the NDIS on your release which is likely to assist you greatly.
Psychological and neuropsychological reports
41I have received a number of reports, a psychological report from Ian McKinnon dated 24 May 2021, Exhibit 6, and a neuropsychological report from James Drury dated 26 June 2017, Exhibit 5.
42While now somewhat dated, the reports have provided some insight. Mr. Drury opines that having suffered a moderate head injury in a car versus pedestrian collision in January 2009, aged 13 years, you suffered consequential behavioural changes. He found you likely suffered pre-existing behavioural issues, but these were exacerbated by the collision. Your drug use also increased after the collision.
43He found your acquired brain injury was not such as to prevent you from engaging in further study or training, although you may need some literacy support.
44Mr. McKinnon found you have complex PTSD, poly substance abuse disorder and an ABI. He recommended that you participate in indigenous-based programs such as mental health counselling and substance abuse treatment and that you engage with cultural supports.
Sentencing conversation
45Having never before had the opportunity to participate in Koori Court, you participated in a sentencing conversation with respected Elder Uncle Wally Harrison. You engaged positively with him and discussed your need to move forward and how you plan to do this. You acknowledged that you need supports around you in order to reintegrate into the community but you are motivated and you have hope for the future.
46It is recognised that participation in a sentencing conversation is more difficult than a general list plea hearing. It is confronting. You are held accountable and you have to speak for yourself. You have recognised the cultural healing you need to do and demonstrated to me that you are truly remorseful and have insight into your need to reform. You are therefore entitled to a mitigation of sentence.
Sentencing principles and factors
47Mr. Jones, your offending was thoughtless, dangerous and it placed both yourself and other members of the community at real risk of injury or death. A revolver is a lethal weapon and you pointed it at both police and at Ms. Thurgood. You are very fortunate police did not discharge their firearms at you in response.
48You have a lengthy criminal record but this is your first appearance in the County Court. It represents an escalation in your offending but has also given you the opportunity to participate in Koori Court.
49You have experienced a great deal of neglect and disadvantage in your life, and I consider the principles cited in the case of Bugmy v The Queen[2], to have general application in this case. You are an indigenous man, exposed to drug abuse, violence, sexual abuse and neglect in your younger years. You were homeless, you report using drugs from the age of 12 and you have been periodically incarcerated from the age of 14.
[2] Bugmy v The Queen [2013] HCA 37 (2 October 2013)
50Your experience of childhood deprivation is significant, and I take this into account when assessing your moral culpability. You are now 28 years of age and I accept the impact of your upbringing does not diminish over time.
51While I accept the application of the Bugmy principles, there is of course the countervailing need to protect the community from your behaviour.
52I consider that your prospects of rehabilitation are reasonable, contingent on you remaining abstinent from drugs and engaging with support services.
53As held in Marrah v R[3], while general deterrence and denunciation have some role to play in this sentencing exercise, both are moderated by your childhood disadvantage.
[3] Marrah v R [2014] VSCA 119
54Your acquired brain injury, combined with your complex post-traumatic stress disorder, is relevant to your cognition and perception and ability for consequential thinking. I further note your incarceration will likely have a greater impact on you than on someone not suffering these conditions. These factors impact you in an R v Verdins[4]sense, however, cannot easily be separated from your poly-substance abuse disorder.
[4] R v Verdins [2007] VSCA 102
55Specific deterrence must be considered given your relevant criminal history.
56Your counsel, Mr. Barker, and the prosecutor, Ms. Stephanides, both submitted that the only available sentence in all the circumstances is one which imposes a head sentence and a non-parole period. I take totality into consideration.
57Would you please stand, Mr Jones.
Disposition
58On Charge 1, theft, you are sentenced to six months' imprisonment.
59On Charge 2, possess a drug of dependence, you are sentenced to one month imprisonment.
60On Charge 3, resist emergency worker on duty, you are sentenced to one year imprisonment.
61On Charge 4, prohibited person possess firearm, and Charge 5, possess unregistered general category handgun, you are sentenced to an aggregate term of imprisonment of two years and six months.
62On Charge 6, common law assault, you are sentenced to six months' imprisonment.
63On Charge 7, use firearm to resist arrest, you are sentenced to two years' imprisonment.
64On Charge 8, theft, you are sentenced to six months' imprisonment.
65On Charge 9, possess drug of dependence, you are sentenced to one month imprisonment.
66On summary Charge 9, commit indictable offence on bail, and summary Charge 10, contravene condition of bail, you are sentenced to an aggregate term of imprisonment of one month.
67On summary Charges 15 and 16, possess prohibited weapons, you are sentenced to an aggregate term of imprisonment of two months.
68On summary Charge 17, possess cartridge ammunition, you are sentenced with conviction to pay a fine of $500.
69On summary Charge 18, deal with property suspected of being the proceeds of crime, you are sentenced to six months' imprisonment.
70I order that the aggregate sentence imposed on Charges 4 and 5 be the base sentence.
71I order that two months of the sentence on Charge 1, two months of the sentence imposed on Charge 3, two months of the sentence imposed on Charge 6, 10 months of the sentence imposed on Charge 7, two months of the sentence on Charge 8 and one month of the sentence imposed on summary Charge 18 be served cumulatively on the aggregate sentence imposed on Charges 4 and 5 and on each other.
72That makes a total effective sentence of four years and one month imprisonment.
73I order that you serve a minimum non-parole period of two years and two months before being eligible for parole.
74On Charges 1 and 8 your licence is cancelled and disqualified for a period of six months from today.
75Pursuant to s18 of the Sentencing Act 1991 I declare that you have served 684 days, excluding today, by way of pre-sentence detention.
76Pursuant to s6AAA of the Sentencing Act 1991, had you not pleaded guilty the sentence I would have imposed would have been five years six months' imprisonment with a minimum term of three years seven months' imprisonment before being eligible for parole.
77I grant the disposal and forfeiture orders sought by the prosecution.
78You may be seated, Mr Jones. Is there anything else from either party?
79MR BARKER: Nothing further, Your Honour, thank you.
80COUNSEL: No, Your Honour.
81HER HONOUR: We will adjourn the court, thank you.
82COUNSEL: As Your Honour pleases. Thank you.
83HER HONOUR: You can take Mr Jones out.
84MR BARKER: Could he just be kept for a moment, Your Honour, so I can speak to him.
85MR BARKER: Yes, just for a moment.
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