Director of Public Prosecutions v Knott

[2018] VCC 116

IN THE COUNTY COURT OF VICTORIA Revised
(Not) Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-01914

DIRECTOR OF PUBLIC PROSECUTIONS

v

BRODIE KNOTT

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	15 February 2018
CASE MAY BE CITED AS:	DPP v Knott
MEDIUM NEUTRAL CITATION:	[2018] VCC 116

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. Brennan
For the Accused	Mr M. Roper

HER HONOUR:

1Brodie James Knott, you have pleaded guilty before me to five charges of armed robbery, two charges of burglary, two charges of theft, one charge of handling stolen goods and six summary charges of driving whilst authorise suspended, which offences were uplifted to be heard in the County Court pursuant to s.145 of the Criminal Procedure Act.

2The facts underlying your offending are as follows.  The offending occurred over a short period of time, that is, between 10 June and 16 June 2017.  During this period, you had been evicted from rented premises where you had been living with your girlfriend and were staying temporarily at a friend's in Frankston North.

3Charge 1 relates to an armed robbery committed by you on 10 January 2017 at a café in Dandenong South, where you went in through a rear staff entrance, carrying a knife and a hammer which you pointed at two employees.  You demanded they give you cash, they tried to comply but you kept asking where the $50 notes were, made them lift up the till drawer to check underneath and in all stole between four and five hundred dollars in cash.  You also removed approximately $4000 worth of cigarettes.  You left the premises driving a Nissan Navara Ute, displaying stolen registration plates.

4Charge 2 relates to an armed robbery committed by you four days later at a snack bar in Braeside, where you entered carrying a knife and tyre lever, where you made demands for theft, threatening the owner, Socin Huck and his employee with a knife.  You removed a tray from the till containing about $40, demanded that Mr Huck open the ATM but he ran from the store.  You kicked the ATM several times but you could not get access, then left the premises with the tray and drove off in the Silver Nissan Navara Ute.

5Armed robbery number 3 occurred on 18 June 2017 at about 9 am, when you went into the Gone Fishin store in Carrum Downs as staff were opening up for the day.  You produced a large hunting knife and a jemmy bar, you demanded cash and were handed $320.  You then smashed a display cabinet and stole two surf fishing reels, valued at about $800 each.  Again, you left, you were wearing a black mask covering your nose and mouth and you left driving in the same silver vehicle.

6Armed robbery number 4 occurred on 19 June 2017 at about 5.45 pm, when you entered a grocery store in Frankston and approached the till being operated by a 17 year-old, produced a jemmy bar and demanded money.  The 17 year-old actually refused at first but then you ripped the whole till out, which included ripping out the plug from the socket; the till contained about $1445 in cash and left the store with it.  You were wearing a balaclava.  You left in the same silver vehicle.

7The fifth armed robbery occurred on 20 June 2017 at 6.40 am, when you parked in front of Woolworths in Baxter.  Carrying a long bladed knife and duffel bag, you entered the store and approached a 19 year-old staff member who was operating the register in the express lanes, you held it towards her left side and demanded she open the cash drawer, then removed that drawer from the register and then also moved to an adjacent register and took the cash drawer from that as well.  Again, you were wearing a balaclava and dark clothing.

8On 18 June 2017, you went to premises at 45 Keppler Circuit in Seaford, where you unsuccessfully tried to jemmy open the front door, before smashing a window to the right of the door, then climbed in and searched the premises but did not steal anything.  There was a woman asleep in the premises at the time.  You left in the same Nissan Navara car.

9Charges 7 and 8 relate to an incident on 18 June 2017, where after, it would seem, leaving Keppler Circuit, you entered the Sexy Secrets store in Carrum Downs by jemmying open a bathroom window.  You searched the premises, took a ton of batteries and a lighter worth about $100 and five display vibrators worth about $500.  That offending underlies Charges 7 and 8 on the indictment, that is, burglary and theft.

10Charge 9 is the charge of handling stolen goods which related to stolen registration plates found at your home in Frankston, which had been stolen on 14 June from a silver Nissan Navara parked outside a home in Bulleen.

11Charge 10, theft, relates to an incident whereby between 16 and 18 June 2017, you went into the yard of some commercial premises in Carrum Downs and removed number plates belonging to a Volkswagen, which you later affixed to your girlfriend's Nissan Navara Ute, the car you were using when undertaking armed robberies.  At the time of this offending which involved you driving, you were the holder of a suspended probationary Victoria licence and there are six charges relating to your driving on these occasions. 

12On 25 June 2017, police saw the silver Nissan Navara driving in Frankston, tried to intercept it but then you drove it into the driveway where you were then living.  You ran from the car, police found your phone and identification inside the car, as well as a homemade balaclava and a fishing knife.  They made enquiries at the house, established that you had been living there for a few days and then maintained security of the car.

13About four hours later, they executed a search warrant on the premises where they seized a number of exhibits including a homemade balaclava, disposable gloves, crowbars, number plates and clothing relevant to the investigation.  Police then later that day, attended a house in Frankston North, the home of an associate of yours and on their attendance, you fled over the rear fence, running through backyards for about a kilometre but were eventually located in the front garden of a house, and after a short struggle were arrested and handcuffed.

14You were taken to the Frankston Police Station where you made full admissions regarding all the offences that had been referred to.  You were cooperative with police, you took them to some locations in Frankston where you disposed of cash, register drawers that you had stolen, you told police you had a drug and gambling addiction but said it was financial hardship that had led you to commit these offences.

15The maximum penalty for armed robbery is 25 years' imprisonment.  The maximum penalty for burglary is ten years' imprisonment.  The maximum penalty for theft is ten years' imprisonment.  The maximum penalty for handling stolen goods is 15 years' imprisonment and the maximum penalty for drive whilst authorise suspended where there is a prior history, is two years' imprisonment.

16This matter proceeded by way of a hand-up brief.  You pleaded guilty at a committal mention and it is accepted that you pleaded guilty at the earliest opportunity.  You have been remanded in custody since your arrest and have now served 235 days by way of pre-sentence detention.

17I now turn to your personal circumstances.  You are 29 years of age, you have two older and one younger sisters.  Your father worked in Breadworks and you were raised in Benalla.  You were diagnosed with attention deficit hyperactivity disorder and medicated to the age of 12.  You attended the Benalla and Swanpool Primary Schools, then Mansfield College, gaining year 8 pass.  You then left and worked in fruit picking and then in roadworks with your father.  You then operated a concrete pump and have been concreting since this time on an intermittent basis. You told psychologist Dr Aaron Cunningham, whose report dated 5 February 2018 was tendered on the plea, that you enjoyed this work and want to pursue it when you get out of gaol.

18You began using cannabis from about the age of 12, which you found helped you with your ADHD and then experimented with amphetamine and ecstasy.  You began abusing ice, just prior to being gaoled, in relation to a significant sentence that you received in 2013.  It would appear that you also abused ice in gaol.

19It is worth going here, to your prior criminal history which is reasonably extensive.  It begins in 2007, where you were placed on an intensive corrections order for reckless conduct endangering serious injury and related driving charges.  You then breached this and were made to serve 71 days.  In November 2008, you were gaoled for six months for driving whilst authorisation suspended, dangerous driving and making a false report to police.

20In March 2012, (so there is a gap of about four years), you were placed on a two months suspended sentence for driving whilst disqualified.  You breached that suspended sentence which was restored in April of that year.  You received five months' imprisonment in September 2012 for reckless conduct endangering serious injury, theft, unlicensed driving and failing to stop when ordered by police.  You also received a three month sentence on 15 October 2012 for burglary, theft, resisting police and further breach of the suspended sentence.  The sentence was ordered to be served cumulatively to the five months that you received.

21Then on 31 May 2017, you were sentenced to three years and six months' imprisonment with a 24 month minimum for charges of recklessly causing serious injury, criminal damage, two burglaries, four shoplifts, two thefts, reckless conduct endangering serious injury and resisting police.  You appealed that sentence, were granted appeal bail but offended in the meantime.  The appeal was abandoned and it turned out that you then had to serve the eight months of imprisonment relating to sentences received in 2012, on top of the 24 month minimum that you received in 2013.

22Whilst in gaol, you relapsed into drug use, you returned dirty screens.  Ultimately, you were placed in solitary confinement for a period of about nine months and then released into the community in 2016 on a period of six weeks' parole only.

23Along the way, I should mention, that you formed a relationship in your late-teens with a young woman called Bianca by whom you have two children, now aged nine and 11. That relationship appeared to have broken down acrimoniously.  Your former partner clearly has some substance abuse difficulties.  The Department of Human Services became involved and the children have been placed with their maternal grandmother, with whom you have a difficult relationship.

24In any event, on your release, you went home to live with your family in Wangaratta.

25You were paroled to live with one of your sisters.  There, you obtained work and for a nine month period, achieved all the goals it appears that you had set yourself in gaol.  You obtained work, you attended on drug and alcohol counselling and I received a positive report from that service as to that period of time, you formed a relationship with a young woman and all appeared to be going well.  However you were not being paid particularly highly, and you were offered a job in Melbourne.

26In addition, there were difficulties with the children in that their grandmother lives in Drouin, was uncooperative about bringing them to you and you had to travel a ten hour round trip in order to see them.  It appears that you had somewhat unrealistic expectations about how you would relate with your children when you got out of gaol and that caused you some stress.  It was noted by your family and your partner, all of whom wrote very helpful references to the court, that after your release from gaol, you were somewhat withdrawn and seemed to exhibit social anxiety when around any numbers of people.

27I make it clear that I regard the way in which your parole was handled after an extended period of time in solitary confinement as inadequate in the circumstances.  It appears it left you with a certain anxiety about dealing with people when you got out, and in my view, there should have been some sort of transitional period and certainly a longer period of parole around you.  And I regard that mismanagement as in some small way, having a part to play in the unravelling of your life thereafter and your ultimate re-offending.  I emphasise a "small way" because as was made quite clear to you on the plea, you are the man who is responsible for your own destiny.  And what really upset the apple cart was the offer of a job in Melbourne in glowing terms, offering far more money than you had had previously and you and your girlfriend moved to Melbourne, where everything fell to pieces.

28The job, although well paid, involved incredibly long hours and it appears, an amount of verbal abuse from your boss.  You struggled on with the job for a while but eventually could not cope with it.  In the meantime, because you were not seeking any sort of therapeutic treatment and had basically decided you were going to tough it out by being a bloke who had a job and paid for everything, you coped with your emotional difficulties by turning first to gambling, that is, on poker machines and then by relapsing into drug use.

29Eventually, of course, the job came to an end because you could not handle the stress of it.  You were out of money.  Eventually you were evicted and at the time of this offending, you were in dire financial circumstances.  I understand that you had told police that it was your economic hardship that led you to offend but really, a lot of money had gone into that gambling and a lot of money had gone into the drugs, and so it could not be said that simply ceasing work was the cause of your problems.

30As I had discussed with you the course of the plea, you dealt with emotional difficulties arising from the hardships of your employment and the difficulties of dealing with your children, not by therapeutic means but by self-medicating with drugs and by seeking to lose yourself in gambling on the pokies.  It was inevitable, once you made that decision not to return home, not to pull up stumps, go home to Wangaratta and settle down again, but rather tough it out in Melbourne and deal with your problems in those ruinous ways that you were going to end up offending again.

31There was no other way this was going to end up and once you started doing those things, there was an arrow above your head, Mr Knott, basically saying "Go to gaol, do not pass, do not collect $200."  I hope that is very clear.  I understand how all this came about and how it led to you being in court in what I accept is a horrified state that you are here again.  I accept that you very much wanted to turn your life around when you got out of gaol and I accept that this is something that you want to do again.

32I am informed that whilst in custody, you have a six-day-a-week job as a room billet, that there had been a number of screens carried out randomly.  The first was dirty, the rest had been clean.  That is very much to your credit.

33I accept your counsel's submission that but for your very open admissions to police, a number of these charges may not have been able to be laid against you.  That is an extremely important aspect of all this in several ways.

34Firstly it shows a genuine remorse for your offending, as opposed to remorse based on the fact that you have been caught.  Secondly, it leads me to the conclusion that the need for specific deterrence is not one to which I need have particular regard in sentencing you.  Thirdly, it plays into your prospect of rehabilitation.  It allows me to draw the conclusion that you do truly wish to reform and that hopefully this last disastrous descent into crime has taught you some lessons about how you need to handle your life when you get out of gaol again.

35It is not a matter of flying off to a place with a brand new start, it is setting up proper psychological and drug counselling around you while you attend to those problems.  And when you attend to those, you are always going to be at risk of tumbling straight back into the situation you are in today.

36I received a number of extremely helpful references from your sisters, from your partner, from your partner's mother, from your father and from your mother.  They spoke with great insight into your offending.  It is quite clear they very much love and support you.  It is clear you come from a functional and law-abiding family and this is a very strong, positive factor for you in your life.  I understand it is your intention to return to your family once you are released from gaol and to start over again.  Perhaps this time, a little more realistically.

37Your partner, Alex, has stood by you and I found her very long letter extremely helpful in describing your descent, ultimately into crime, despite her best efforts.  Hopefully the relationship endures but she is certainly a person who is a positive in your life.

38It was conceded from the outset that the only way I can deal with you is by way of a term of imprisonment to be immediately served.  In sentencing you, I do take into account your early plea of guilty, what I found to be your genuine remorse, your exceptional cooperation with authorities, what I would regard as your guarded to fair prospects of rehabilitation.  It is all about the drugs and the psychological treatment, Mr Knott.  If you were to attend to those, I am satisfied that you have got a good future ahead of you.

39However, I should also refer to the victim impact statement, which was tendered.  The only one of the victims who made such a statement, that being Lena Pastoni, but can I say, as I remarked during the plea, this is typical of persons who were the subject of armed robberies.  She had to leave her job because of her increased anxiety, a job that she enjoyed and probably was not paid very much in.  She has become extremely anxious for her security and safety.  She finds it hard to go out, she has had to put security up, she has trouble sleeping at night, she has an amount of stress and she has to attend on a counsellor.

40You have thoroughly undermined her enjoyment of life and I would be extremely surprised, although I can make no finding as to it, if all the other victims of this violent offending are not in same boat.  You have done a number of perfectly innocent people a great deal of emotional damage, that in the experience of these courts, will take them years to overcome and you should be thoroughly ashamed of your actions.  The fact that you behaved in that way completely swallows up the reasons why you offended.

41At the end of the day, because of your inability to deal with the problems that arose in your life, other than to turn to gambling and drugs and then criminal means to obtain the money to support those, five people have been traumatised.

42Certainly in my view, principles of general deterrence and protection for the community are paramount in the sentencing exercise before me.  But as I have said, I do regard you as remorseful, you have been extremely cooperative with police, which has enabled more charges to have been brought against you than would otherwise be the case.  I accept your desire for reform, I accept that you have a good strong family waiting for you.

43Having taken all those circumstances into account, I have therefore decided to sentence you as follows:  Could you stand up please?  On each of Charges 1 to 5, you are sentenced to 20 months' imprisonment.  On the charges of burglary, you are sentenced to 12 months' imprisonment, that is, Charges 6 and 7.  On Charges 8 and 10, the charges of theft, you are sentenced to six months' imprisonment.  On Charge 9, the charge of handle, you are sentenced to three months' imprisonment.  And on each of the drive whilst suspended charges, you are sentenced to two months' imprisonment.

44The base sentence for this sentencing will be the sentence imposed on
Charge 1, 20 months.  I order that eight months of each of the sentences imposed on Charges 2, 3, 4 and 5 that six months of each of the sentences imposed on Charges 6 and 7, that three months of each of the sentence imposed on  Charges 8 and 10, and two weeks of each of the sentences imposed in relation to the summary charges.  That will give a total effective sentence of 73 months, or six years and one month and I order that you serve a minimum of three and a half years before becoming eligible for parole.  I declare that two - was it two hundred and?

45MR BRENNAN:  Thirty-five?

46HER HONOUR:  Thirty-five.  We will make it 36 to account for today.  Two hundred and thirty six days of this sentence have already been served by way of pre-sentence detention.  All right?  So when you get out, you are going to owe the parole board two years and seven months, all right?

47OFFENDER:  Yes.

48HER HONOUR:  So, a good long time for you to be on parole.

49OFFENDER:  Yep.

50HER HONOUR:  All right and you just remember, when you are on parole, you are very much at risk.  If you breach any of the conditions of parole, that is a charge.  Any sentence you get for it has to be served cumulatively to anything you owe parole.  Got it?  If you offend on parole, any sentence you get is served cumulatively for what you owe on parole.  All right?

51So you know, if you decide you are going to get out and collapse and start using, you are going to come back with a giant sentence because there will just be a whole raft of sentences for which you have been sentenced and you are not going to get anything but gaol now from the court.  Your priors are too bad, all right?  So this has got to be your last hoorah.  You have got to get it right this time.  I hope you were listening to what I said.  I mean, I know it is hard listening to a judge rar, rar, rar at you.

52OFFENDER:  Yeah.

53HER HONOUR:  But you know, you need to work out where you went wrong, rather than rely on everybody else to fix it up for you.

54OFFENDER:  Yes.

55HER HONOUR:  All right?  And if parole is not working, if you do not like your drug and alcohol counsellor or it is not good enough, you go and find another one.  You do it for you, okay?

56OFFENDER:  No worries.

57HER HONOUR:  Thank you.  Have a seat.  Pursuant to s.6AAA I declare that had you not pleaded guilty, I would have sentenced you to a term of imprisonment of eight years and order that you serve a minimum term of six years.  Is there anything else that I need?  You have got some orders for me to sign?

58MR ROPER:  I have the orders, Your Honour.

59HER HONOUR:  Did that all add up, Mr Roper?  Or did you just not even try?

60MR ROPER:  I was trying - I ‑ ‑ ‑ 

61HER HONOUR:  Pardon?

62MR ROPER:  I was trying, Your Honour, I have calculated it.

63HER HONOUR:  Okay.  So I just want to check that I get this right so there is not a great disaster when I am back in chambers.

64MR ROPER:  Yes.

65HER HONOUR:  So you have got 20 months ‑ ‑ ‑

66MR ROPER:  On charge ‑ ‑ ‑

67HER HONOUR:  Then you have got four - so, 20 months on Charge 1.

68MR ROPER:  Yes.

69HER HONOUR:  Then you have got four lots of eight months, which is 32 months.

70MR ROPER:  Which is 50 ‑ yes.

71HER HONOUR:  That gives 52.

72MR ROPER:  Yes, 52 months.

73HER HONOUR:  Then you have got another 12 months for the two charges of burglary.

74MR ROPER:  Yes, 60 ‑ ‑ ‑

75HER HONOUR:  Which gives 64, then there is another six months because of the two theft charges.

76MR ROPER:  Theft charges.

77HER HONOUR:  So that gives you 70.

78MR ROPER:  Seventy.

79HER HONOUR:  And then the two weeks on each of the six charges, that is 12 weeks which is three months.

80MR ROPER:  Three months.

81HER HONOUR:  So that equals 73 months, which is six years and one month.

82MR ROPER:  And one month.  Yes, no, that adds up, Your Honour.

83HER HONOUR:  You are not just being polite in court?

84MR ROPER:  No ‑ ‑ ‑

85HER HONOUR:  I have not done - and I have not done any cumulation for the handle.  All right?

86MR ROPER:  No, that is right.  That is Charge 9.

87HER HONOUR:  I am just not going to.

88MR ROPER:  No, I understand that, Your Honour.

89HER HONOUR:  No?

90MR ROPER:  No, that adds up.

91HER HONOUR:  That adds up?  All right.  You okay with that Mr Knott?

92OFFENDER:  Yes, definitely.  Thank you, Your Honour.

93HER HONOUR:  Pretty inevitable, was not it?

94OFFENDER:  Yep.

95HER HONOUR:  All right.  So good luck with it all.

96OFFENDER:  Right.

97HER HONOUR:  Why is there a 464ZF?  Why isn't there a retention?  Have not they already got his sample on file?  Surely they would have taken it last time.

98MR ROPER:  No, that was - we did check that, actually.  No, apparently there has not been a previous order made against (indistinct)..

99HER HONOUR:  Okay well certainly, I do  not  always order it but you know ‑ ‑ ‑ 

100MR ROPER:  A bit surprising.

101HER HONOUR:  - - - i he is going to get out and use and go and do burgs you would need his DNA sample, I am happy to grant that.  I will make it by way of a swab.  So what is happening is, I am ordering that police take a swab from your mouth, Mr Knott, they will come and do it and I need to advise you that if you resist them in any way, police are entitled to use reasonable force to obtain that sample.  Okay?  So ‑ ‑ ‑

102OFFENDER:  Yep.  I think they already done it.

103HER HONOUR:  Pardon?

104OFFENDER:  They had done it when they arrested me (indistinct words).

105HER HONOUR:  Did you lose it?  Is that everything?  Look, do not worry about it too much.  You can have two samples.

106MR ROPER  As Your Honour please, thank you.

107HER HONOUR:  All right.  Anything else that I need to deal with?  I will hand back the original materials.  Thank you for your assistance, Mr Brennan.  Thank you for your assistance, Mr Roper, in checking my ‑ ‑ ‑ 

108MR BRENNAN:  Thank you, Your Honour.

109MR ROPER:   have them here.

110HER HONOUR:  All right, so that can all go back.  Yes, thank you.  We will adjourn the court.  Good luck, Mr Knott.

111OFFENDER:  No worries.

112HER HONOUR:  Good luck, Knott family.

113VOICE (from body of the court):  Thank you.  Thank you very much.

114HER HONOUR:  Pardon?

115VOICE (from body of the court):  Thank you very much.

116HER HONOUR:  It is a pleasure, no problem.  Good luck.  Right, thank you.

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