Director of Public Prosecutions v King, Bradford Paul
[2012] VCC 1761
•9 November 2012
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT GEELONG
CRIMINAL DIVISION
Case No. CR-12-00853
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BRADFORD PAUL KING |
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JUDGE: | HER HONOUR JUDGE LAWSON | |
WHERE HELD: | Geelong | |
DATE OF HEARING: | 1 November 2012 | |
DATE OF SENTENCE: | 9 November 2012 | |
CASE MAY BE CITED AS: | DPP v King, Bradford Paul | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1761 | |
REASONS FOR JUDGMENTSENTENCERULING
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Catchwords: Criminal law – sentencing – aggravated burglary – contravened a family violence intervention order – young offender – excellent rehabilitation prospects – 41 days pre-sentence detention – released on C.R.E.D.I.T bail program – excellent progress – non-custodial sentence imposed.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms A. Sampson | Craig Hyland solicitor for Public Prosecutions |
| For the Accused | Ms A Hurst | W.S Lawyers |
HER HONOUR:
1 Bradford King, you have pleased guilty before me to one charge of aggravated burglary. You also agreed that a summary charge be transferred to this court pursuant to s.145 of the Criminal Procedure Act 2009, and you pleaded guilty to one summary charge of contravention of a family violence intervention order.
2 Aggravated burglary is a serious offence, the seriousness of how Parliament views this charge is reflected in the maximum penalty that is prescribed, and that is, 25 years' imprisonment.
3 The maximum penalty in respect to the summary charge of breach of a violence intervention order is two years' imprisonment or 200 penalty units.
4 In addition, you admitted before me your criminal record. There are 12 court appearances that span the period from the 13th of January 2003 until the 25th of February 2010. You have numerous convictions, primarily for driving related and alcohol offences, and other offences such as criminal damage.
5 I note there is a conviction recorded at the Geelong Magistrates' Court on the 2nd of November 2004 and that was in respect of reckless conduct endangering serious injury; unlawful assault, stopping in a loading zone and driving in a matter dangerous, and that related to an altercation you had with a traffic enforcement officer. That appeared to be the only matters where crimes of violence against a person were alleged.
6 Over the years you have received a variety of dispositions from the courts and they have included fines, with or without convictions, adjournments without conviction, community-based orders and wholly suspended sentence. I note in the past that you did spend some limited time in custody. There was a two month period of imprisonment in October 2007.
7 From your criminal history, there is no record of any convictions in respect to aggravated burglary, or breach of a family violence intervention order.
8 You do have a previous matter that was dealt with by the Geelong Magistrates' Court on the 20th of June 2012, and that concerned an incident that occurred on Tuesday the 3rd of January 2012.
9 Briefly you went to your former partner's home, Ms Chapman, and in order to gain access to your young son, you kicked down the door and gained entry. You demanded access to your son, Mason. You took him and left the house. Police later contacted you and following a request, you returned your son home. Subsequently you also repaired the damage to the door.
10 Ms Chapman filed a "no complaint" in relation to the entirety of the allegation relating to this incident, and also the incident, the subject of today's sentence.
11 In respect to the charges for which you were dealt with at the Geelong Magistrates' Court on the 20th of June 2012, you were convicted and sentenced to an eight months' community corrections order with the condition that you undertake 25 hours unpaid community work.
12 Following that incident you were subsequently arrested and charged with respect to aggravated burglary and breach of the family violence intervention order. On the 22nd of February 2012, you were remanded in custody and not released until you had served a period of 41 days. You were released on the C.R.E.D.I.T Bail Support Program with strict conditions. You have been supervised by Ms Lavecchia, the C.R.E.D.I.T Bail Support Program Manager, whose progress report was tendered at the plea hearing. I will refer to that shortly.
13 I will now proceed to sentence you on the basis of the Crown opening that is marked Exhibit 1. There was no dispute in relation to the opening. The context of your offending occurred in the context of an acrimonious breakdown in your relationship with Ms Sydney-Lace Chapman, your son, Mason's, mother.
14 I accept having heard evidence from your sister, Ms Gladman, that the relationship between you and Ms Chapman can be described as tempestuous. Over the years there have been considerable arguments and fights and conflict. You shared a common interest in drug use which adversely impacted on your relationship.
15 Following separation in May/June 2011, access to your son, Mason, was another source of conflict. I note that he was born on the 24th of December 2010.
16 You tried unsuccessfully to come to an agreement with Ms Chapman about access to Mason. Ms Chapman obtained a family violence intervention order at the Geelong Magistrates' Court on the 9th of November 2011. It had an operational period of some six months. She is listed as one of the affected family members.
17 The conditions of the order prevented you from committing family violence which included threatening a family member or damaging property. It did not prohibit you from attending 4 Universe Court, Whittington, where Ms Chap,am was living.
18 Briefly; in the early hours of Wednesday the 22nd of February 2012, Ms Chapman heard noises outside her home. On investigation she saw you outside and told you to leave. You were aggressive and told her that you wanted Mason. She called Triple 0. You gained entry to the house by a rear sliding door and at the time you had with you a small wooden baseball bat. Those facts form the basis of Charge 1, aggravated burglary, that is, entry as a trespasser to a building, 4 Universe Court, Whittington, with intent to assault and at the time you had with you an offensive weapon, namely a baseball bat.
19 You confronted Ms Chapman in the kitchen area and waved the baseball bat around in a threatening manner. She told you to put the weapon away. You said words to the effect, "You're lucky I don't beat your head in you filthy mutt," or "whore". Those circumstances constitute the summary offence, Charge 6, contravene a family violence protection order.
20 You told Ms Chapman you were going to take your son and walked down the hallway. She told you that you are not going to take him and shortly prior to police arriving, you left the house and walked out the back door. You were immediately arrested and volunteered to the police the small baseball bat that was on your person.
21 There are a number of aggravating features of this offending. You attended your former partner's home in the early hours and entered it against her will and behaved in a threatening manner. Notwithstanding she has not filed a Victim Impact Statement, I consider the circumstances of that offending would have been very frightening and confronting to her. Your actions were in clear breach of the family violence intervention order. Fortunately, when confronted by you, Ms Chapman had the good sense to stand her ground and insist upon you leaving. I note you did not inflict any actual violence and did leave the home when requested.
22 Mr King, courts cannot condone people taking matters into their own hands and the use of threats of violence, in the context of breakdowns in personal relationships. There is a need for the court to emphasise general and specific deterrence in the sentence that I am about to impose.
23 On behalf of the community I must denounce your behaviour and you must accept and learn to accept that you need to resolve conflict through conventional means and not through threats of violence.
24 A letter was produced to the court that is signed by Ms Chapman and dated the 8th of March 2012. The letter presumably was used for the purposes of the bail application. Her letter confirms that you remain a part of Mason's life; that you are a great father and that you love your son very much. She considered that it was important for you be out of gaol to be there for your son and she writes, "I understand Bradford has done the wrong thing. He understands this also and is extremely remorseful for his actions. I am writing to you to please ask that you do not send him back to prison."
25 A progress report signed by Ms Lavecchia dated the 24th of May 2012, confirms that you have been compliant with all aspects of the community corrections order that has already been imposed by the court. She describes you as presenting in an open, honest manner, and appearing genuine in your desire to implement positive changes to your lifestyle.
26 I am satisfied in the circumstances of this case that you are now a more mature person and have reflected on your behaviour and now acknowledge that what you did on that occasion was not acceptable. There are a combination of factors that have assisted you in this regard. I note, and accept, that you are now drug free. You are being supported by both your mother and your sister. You did engage properly with the C.R.E.D.I.T. Bail Program, and the community corrections order, and you are accepting assistance from counsellors; all of which is evidence that you have a more positive attitude and that you are taking real steps to turn your life around.
27 A report was tendered from Mr Ian Joblin, Forensic Psychologist, dated 12 June 2012. That report sets out in comprehensive detail, your history and background, and I do not propose to repeat it in detail.
28 You are now aged 27, I believe. I note your parents did separate not long after you were born. Your father is English and returned to live in the United Kingdom when you were aged seven. You have remained in regular contact with him over the years and do have a good relationship with him. Your mother is in her early 60s and lives in Newcomb. You are currently living with her. She is now in another relationship. She works as a teacher at a special school and does respite care for disabled people. You enjoy a good relationship with her.
29 You have two half siblings from an earlier relationship and maintain a good relationship with them. You left school at the end of Year 9. You had some difficulties at school associated with the diagnosis of ADHD, but on leaving school you were able to commence and complete a chef's apprenticeship. You, however, did not seek work in that field and you have been working over the years undertaking some concreting work. Currently you are performing some occasional casual work.
30 You left home at the age of 16 and have lived with various people, but, as I said earlier, you are now living at home with your mother and you have been so since your discharge from prison.
31 You did have difficulty with alcohol and drug abuse in the past, but you reported to Mr Joblin that your alcohol use was no longer a problem and he noted some use of cannabis. He formed the view that you do have good intellect and reasonable insight. He said that you were attending to your behaviour which precipitated this offending and he noted the attendance at a men's behavioural change course run by Bethany. He noted that you were aware that you had a problem and needed to do something about your impulsivity.
32 He considered that you have obvious personal difficulties which result in a propensity to become easily angered. You feel a very close emotional bond to your son and that has meant that when you are denied access, or access has been confused, such as being promised but not delivered, that you in the past demonstrated an adverse reaction.
33 He considers that you have a number of psychological problems, including a threshold of tolerance and you become aggressive easily. He noted that you were somewhat fragile at the time of this offending because of your difficulties in, and frustration with regard to, access to your son.
34 I accept those expressed comments, particularly in view of the evidence that I heard from your sister, Ms Gladman in this hearing.
35 A drug screening test was provided to the court, dated 30th of October 2012, which is clear.
36 Your sister also gave evidence that there has been no evidence of your drug taking since your release. She says that your incarceration proved to be a real watershed. Prior to being in gaol, she described you as being a person who was like a “train wreck”, and that you were very volatile. Since your release, she has found you to be a person who has taken more responsibility and you now do everything required that you have been asked to do, in order to address your underlying problems.
37 She says you are trying to be the best person that you can be in order to be the best father for your son, Mason. She told the court how you have consulted a family lawyer in order to seek access to your son, and you have taken that advice. A mediation has been conducted. Unfortunately, it did not resolve the situation, however, there are some interim arrangements in place for supervised access to Mason through the organisation, Bethany, and that has been in place for the last three to four months, during which time you have only seen Mason on three occasions and that is related to Ms Chapman not being consistent in arriving at the allocated time.
38 She considers that your whole demeanour is now different; you are very calm and thinking through things, trying to do everything in order to be in a position to enable you to have access to your son.
39 Those sentiments were also reflected in the reference provided by Mick Ashman, Outreach worker, dated 22nd of August 2012, and Jamie Hogan’s letter.
40 In his letter, Mr Ashman notes that you have been seeing him professionally, meeting with him weekly to address your substance abuse issues. You have been open to, and participated well, in therapeutic interventions, and you have requested and been given information about Narcotics Anonymous, Alcoholics Anonymous, Making Changes and Ready to Act Action and Commitment Therapy.
41 Overall he says you have demonstrated a positive approach, a motivation to change, and you are now committed to getting your life back in order and your goal is to re-connect with your son, regain employment as a concrete subcontractor and a commitment to leading a drug-free and productive life.
42 Mr Hogan says he has known you approximately 17 years and he describes your relationship with him as like a little brother. He has been in continual contact with you over the last several months, during which time you have been talking openly with him about the offending and the effect the offences have had on you and your family. He considers you have shown remorse for your actions, not just because of being charged, but coming to an understanding of how this affects others, and that you are working very hard on your thought processes. Overall he says you are in a much better place in your own mind and that the positive steps you have taken in the last few months have been very pleasing. He expresses the hope that you will continue to talk to him about your issues and become the person that you have expressed you have wanted to be.
43 Ms Hurst, in her plea on your behalf, referred to a number of mitigating factors. She emphasised the fact that you entered a plea of guilty at the earliest opportunity and that was at the committal mention on the 25th of May 2012. Having regard to all the evidence before me, I accept that your plea is evidence of genuine remorse. Further, you have saved the state the expense and inconvenience of a trial and spared Ms Chapman from having to come and give evidence, you have thereby facilitated justice and your sentence will be discounted accordingly.
44 Further, Ms Hurst emphasised all the positive steps that you have taken to address your underlying offending behaviour following release from prison and I have already articulated in detail what those steps entail.
45 I note in the past you did have a long-term history of heavy drug use and that you have dealt with that by detoxing and currently are said to be abstinent. That is reflected in the negative drug screen that was tendered at the hearing and also the evidence of your sister.
46 Ms Hurst relied on the evidence from the C.R.E.D.I.T. Bail Progress Reports and the various references that I have referred to, and says that they demonstrate you have a real commitment to your rehabilitation and that you have undertaken every step that could be done in order to provide for your rehabilitation.
47 Overall I accept that your rehabilitation prospects are excellent in view of your post-release conduct and currently the risks of re-offending of a like nature; are negligible.
48 Ms Hurst acknowledged that these were serious offences, however, she submitted that the offending was of a type that was at the lower end of seriousness for this type of offending. She emphasised that you have no outstanding matters. She acknowledged the need for the court to emphasise general deterrence, especially in the context of there being an aggravated burglary, combined with a breach of a family violence intervention order. She sought an order from the court that would involve you not going back into custody and requested that the court consider a community-corrections order.
49 Ms Sampson, on behalf of the Crown, emphasised the seriousness of the offending, the degree of planning, and the use of a weapon. She referred the court to the decision of DPP v. Johnson and unreported Court of Appeal decision [2011] VSCA 288.
50 She submitted that a term of imprisonment to be immediately served was appropriate in all of these circumstances. She confirmed that there was no Victim Impact Statement and that the complainant had asked for these matters not to proceed.
51 I have read and considered, and have taken into account, the principles enunciated in DPP v. Johnson. Your case can be distinguished from that matter on a number of levels. Mr Johnson had six prior convictions for breach of intervention order. Further, having regard to an exchange that occurred in the sentencing process, the Court of Appeal indicated that that was reflective not only of his contempt for court orders, but also the increased risk that he would commit further violent acts and the breach of orders put in place to protect victims.
52 Mr Johnson committed the breach of intervention order whilst on parole and further he was charged with an assault arising out of the circumstances of the conduct constituting the breach of intervention order. He remained at the complainant's premises for some time demanding and pleading with the complainant until she convinced him to leave. He had convictions for very serious violence offences, such as armed robbery, multiple prior convictions, including one for recklessly causing serious injury; four for intentionally or recklessly causing injury, four for assault, four for burglary, and multiple prior convictions for breaching intervention orders. The offending constituting the breach of the order also involved the child and that was an aggravating feature that was not present in this case.
53 I consider that it is important to remember that orders granted pursuant to the Family Violence Protection Act 2008 are designed to place particular emphasis on the protection of violence against the protected person.
54 In sentencing you, Mr King, I am required to impose just punishment. I must have regard to the particular circumstances of your case. I have formed the view that this incident leading to the charge of aggravated burglary and breach of family violence intervention order has been a catalyst for significant and real change in your behaviour and that has been manifested in the ways in which you are now dealing with the various professionals that are supporting you in the community.
55 I consider that you have made a remarkable turnaround from the person that you were at the time that these offences were committed. Your compliance with the C.R.E.D.I.T. Bail Support Program, the community-corrections order, together with the independent evidence that confirms your efforts towards dealing with your behavioural issues and, in particular, how you deal with conflict, is indicative of very good prospects for rehabilitation.
56 You impressed me as a young man who has reflected deeply upon his behaviour and that your priority now is to ensure that you maintain a positive and ongoing relationship with your son, Mason.
57 By reason of your total abstinence from drug taking you do have a stronger likelihood of achieving your expressed aim of leading a crime free lifestyle. To send you back to prison in this context would be, in my opinion, a retrograde step and would subject you to undue influences and negative peers and expose you to risk of further criminality in the future.
58 It would, in my view, have the real prospect of undoing all the good work that has been done to date. Yours is an exceptional case, and I consider it is in the interests of the community that you be punished in relation to these crimes, but that you be allowed to remain in the community to undertake your punishment within the community.
59 In particular, I have had regard to the remarks of the President of the Court of Appeal, President Maxwell, in the decision of DPP v. Tokava [2006] VSCA 156 where he says at paragraph [21]:
60 "A sentencing judge should be astute to investigate whether a non-custodial disposition is to be preferred even in the case of a serious offence, if in the long-term, the community's interest will be best served by that course."
61 He then went on speaking of the Court of Appeal and said:
62 "That this court should seek to promote public understanding of the fact that apart from the interests of the individual whom it is sought to rehabilitate, an important interest in itself, there is a vital community interest in maximising the prospects of rehabilitation of an individual who has been convicted of a serious crime."
63 In my decision today, the order that I shall make is to enable you to be punished for these offences and that meets the needs for just punishment, and also the needs of general and specific deterrence, but, importantly, it sets up a proper path for you for your ongoing rehabilitation in the community which, in my view, is in not only in just your interests, but also the community's interest. The community has a real interest in you being a productive member of our community.
64 I will make the formal orders. The purpose of the Community Corrections Order is to enable you to continue to be supported and provide for your ongoing rehabilitation.
65 Could you please stand now, Mr King.
66 In respect to the one charge of aggravated burglary and the summary charge of contravention of a family violence order, you will be convicted and an aggregate sentence of 12 months community-corrections order effective from today's date with a special condition of 50 hours community work, together with the programs that I have indicated, namely drug and alcohol treatment and programs to reduce re-offending is now imposed.
67 My Associate will provide you with the document shortly, that confirms that, and I ask that you acknowledge that in writing.
68 The ancillary orders will be made. I make the disposal orders sought in respect to the small baseball bat. I make the order for the forensic sample, pursuant to s.464ZF(2) of the Crimes Act 1958 and what that means, Mr King, is that you will have to attend the police station and provide them with a scraping from your mouth. They will provide you with a cotton bud, you just pop it inside your mouth and provide that to them. By doing that you comply with my order.
69 I have to tell you that if you do not do that, if you do not consent to the taking of the mouth scraping under the supervision of a member of the police force, well, then police may use reasonable force to enable the forensic procedure to be conducted, but I believe that you will co-operate with them.
70 PRISONER: Yes, Your Honour.
71 HER HONOUR: So that order has been signed. I am satisfied in all the circumstances the making of the order is justified, having regard to the seriousness of the circumstances of the offending, I consider it is warranted, and it was by consent; finally, the granting of the order is in the public interest.
72 I have signed those orders, I will provide those to my Associate. I do not believe there is anything else that I need to do. There is one final thing.
73 Section 6AAA of the Sentencing Act requires me to make a declaration of what sentence I would have imposed had you not pleaded guilty. But for your plea of guilty, I would have convicted and sentenced you to a period of 12 months' imprisonment to be served immediately.
74 All right?
75 PRISONER: Thank you, Your Honour.
76 HER HONOUR: I think finally that now covers everything. It did take some time but I do need to spell out in detail what the reasons were for the sentence. It is important for everyone to understand what the court took into account. Certainly I just encourage you to continue on your way.
77 PRISONER: Yes, I will.
78 HER HONOUR: You are doing very well.
79 PRISONER: Thank you.
80 HER HONOUR: And you should also follow the advice of your sister.
81 PRISONER: Yes, I will.
82 HER HONOUR: Mr King can be released from the dock. Once that copy is provided, he may leave the court.
83 (Prisoner released.)
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