Director of Public Prosecutions v Marks
[2021] VCC 1109
•2 August 2021
| IN THE COUNTY COURT OF VICTORIA | Revised Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 21-00054
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BRENDON MARKS |
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JUDGE: | HIS HONOUR JUDGE DOYLE |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 20 May 2021, 29 July 2021. |
DATE OF SENTENCE: | 2 August 2021 |
CASE MAY BE CITED AS: | DPP v MARKS |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1109 |
REASONS FOR SENTENCE
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Subject: Criminal Law
Catchwords: Sentence, guilty plea, application of Verdins principles 6, aggravated burglary, prior criminal offending, COVID-19, criminal damage, recklessly causing injury, family violence intervention order
Legislation Cited: 6AAA of the Sentencing Act
Cases Cited: R v Verdins & Ors [2007] VSCA 102; Bugmy v The Queen [2013] HCA 27; Laa v The Queen [2020] VSCA 136; Hatzis v The Queen [2021] VSCA 43
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr M. Keks | Office of Public Prosecutions |
For the Accused | Mr H. Moodie |
HIS HONOUR:
1Brendon Marks, you have pleaded guilty to one charge of damaging property for which the maximum penalty is 10 years, one charge of aggravated burglary for which the maximum penalty is 25 years, one charge of causing injury recklessly, for which the maximum penalty is five years, and one charge of contravening a family violence order intending to cause harm or fear for safety for which the maximum penalty is five years imprisonment.
2You were born on 25 February 1964 and you were therefore 56 years old at the time of the offending. You are now aged 57. The victim in this matter is your ex-partner. You were in a relationship with her for approximately two years between 2016 and 2018.
Background
3In September 2018, you assaulted the victim and as a result, in May 2019, a final family violence intervention order was made against you, which prohibited you from committing family violence against her, damaging her property, contacting her, approaching her, and attending her home.
4For that assault you were sentenced to 12 months with a non-parole period of six months. You were released in December 2019, having served the entirety of the head sentence.
5You did not contact with the victim until about a month before the offending. From then until the offending, the two of you were living together.
Circumstances of the offending
6The circumstances of your offending were set out in the prosecution opening which was tendered as an exhibit on the plea and read in open court by the prosecutor. I will summarise that offending.
7On 1 October 2020, you and the victim were together at her place in Sebastopol. You became upset about something and you argued with her. She told you to leave, but you refused and stayed that night.
8In the morning, you again refused to leave the house. Instead, the victim left because she was scared of you. When she returned at about 1 pm, you were still there. She told you to leave, and you did.
9At about 5.30 pm, you returned. Neighbours saw you walking up the driveway, and heard you yelling 'You better call a fucking ambulance because you’re gonna need it' and 'You fucking bitch'. A neighbour called the police.
10You knocked on the front door, but the victim did not answer, so you went around to the back of the house and smashed a window in order to unlock a door. (This is the basis of Charge 1- criminal damage).
11You then entered the property intending to assault her, knowing she was inside (this is the basis of Charge 2- aggravated burglary).
12After entering the property, you verbally abused her. She told you to leave. You punched her three times in the face. You then picked up a vacuum cleaner and swung it at her, striking her. You caused injuries to her face and arm. (This is the basis of charge 3- recklessly cause injury).
13This conduct contravened the family violence intervention order which had been made on 15 May 2019. (This is the basis of Charge 4).
14At about 5.49 pm, police arrived and heard yelling and screaming from inside the house. They heard you yell, 'don’t fucking lie to me'. You were calling
the victim a 'fucking bitch' and she was asking you to stop.15From the open back door, police saw you crouched over the victim who was on the floor. You then left the house at the direction of the police, and you were arrested.
16The victim was distressed. She had light bruising, swelling and lacerations to her face and bruising to her arms.
Gravity
17This was obviously serious offending. It was domestic violence offending committed in breach of a family violence order against a victim you have offended against before.
18You had been asked by the victim to leave her house because she was rightfully fearful of what you might do, but you would not abide by her wishes. You made a calculated decision to attend back at the victim’s house and break in, in order to assault her.
19The aggravated burglary, which is the major offence, was preceded by a nasty threat as you walked up the driveway and you affected your entry into the residence by smashing a window and opening a locked door. You had a clearly formulated intent to assault the victim which you did, immediately after you entered the house. The victim was alone and vulnerable inside the house when you entered, and this was a very frightening experience for her, and she was left injured and shaken by what you did. Your entry was not fleeting, as you remained in the house, until the police arrived.
20Mr Moodie on your behalf has pointed out that your entry into the premises was not in company, and that you did not have a weapon. These are common aggravating circumstances in aggravated burglary cases, that are not present in this case.
21Aggravated burglary carries a maximum penalty of 25 years and this aggravated burglary exhibits a number of serious features. Principles of general deterrence assume considerable importance for an aggravated burglary offence such as this, committed in the context of domestic violence.
22The assault you inflicted involved repeated punches to the face and the use of a vacuum cleaner as a weapon. Although the physical injuries do not seem to have been long lasting, this was a relatively serious example of recklessly causing injury and you have relevant prior convictions.
Personal Circumstances
23I turn now to your personal circumstances. Tendered on the plea was a psychological report from Ms Gina Cidoni, dated 9 March 2021. Additionally, I ordered a Forensicare report, and that report from Dr Victoria Jackson dated
15 July 2021 was also exhibited. Those reports set out your background and deal with your mental health issues.24You are an aboriginal man. Your childhood was a particularly difficult one. You have few memories of your parents from whom you were removed. You are the youngest of 10 siblings.
25At around the age of five, you were placed at Warrawee Ballarat Boys’ Orphanage. You remained there until the age of 13, after which time you lived with various foster families.
26You report you were abused physically and sexually in the orphanage and in the foster placements. You were eventually adopted by a family. You attended school until you were aged 13, at which time, you went back to Dimboola, which is where your family was from.
27You had employment at the local hospital, but the work became too traumatic for you and you left when you were around the age of 22. You report that you left that employment and moved to South Australia.
28At the age of approximately 30 years, you met a woman named Claire and started a relationship which lasted for approximately 20 years. You had three children together. This relationship ended in 2011.
29You have had long term problems with drugs and alcohol. Your prior convictions bear this out. The first phase of your criminal history was between 1984 until 1993, when you were almost aged 30. In that period, you have convictions for assault and for alcohol related offending. On my reading of the prior convictions, you did not receive an immediate term of imprisonment in that period, but in 1993, you were given a suspended sentence.
30You remained out of trouble until 2011, which coincides with the period of your relationship with your partner Claire. When that relationship broke down, you started using drugs, including methamphetamine, and you have been before the courts consistently since then. You have numerous relevant prior convictions since then, for assaults and breaches of family violence orders.
Bugmy Principles
31Your counsel Mr Moodie submitted that your deprived upbringing enlivens the principles enunciated by the High Court in the case of Bugmy.[1]
[1]Bugmy v The Queen [2013] HCA 27
32Mr Moodie argued that you have been profoundly damaged by your deprived upbringing. He submitted, based on the report of Ms Cidoni, that your background has left you ‘an agitated man with an acute mental illness’.
33There is an overlap in this case between the application of the Bugmy principles and the Verdins[2] principles, arising from the mental state issues set out in the report of Ms Cidoni and Dr Jackson.
[2]R v Verdins & Ors [2007] VSCA 102
34The two experts agree you suffer from post-traumatic stress disorder, resulting from your upbringing. Complicating the assessment of these issues, is the role of your substance use in the offending.
35Firstly, in relation to the submission that the Bugmy principles apply, I accept that the psychological and psychiatric material establishes deprivation in your formative years, resulting in ongoing and unresolved psychological/psychiatric issues. Those problems have contributed to your abuse of substances, but your abuse of substances has also exacerbated your psychological state.
36I have considered the deprivation in your upbringing, the lack of stability and the abuse you suffered, and I have moderated my assessment of your moral culpability accordingly in line with the principles set out in Bugmy.
Verdins
37I turn now to the application of the Verdins principles. Ms Cidoni gave evidence on the plea. In her report and in her evidence, she accepted there was not sufficient foundation to diagnose a borderline personality disorder, but opined that you have complex post-traumatic stress disorder (PTSD) and an affective disorder, which is a mood disorder. She suggested you may have been manic at the time of the offences. She accepted that the use of drugs at the time of the offending, would exacerbate your mental state.
As to the causal link between your mental state and the offences she said in her report:
'Considering the offending, and his high symptom presentation, his judgment would be highly compromised and clear thinking would be obscured. He clearly acted in disinhibited ways where there were also periods of loss of contact with reality. Substance use would intensify his mood disorder and mania.
Verdins should be considered in that his mental illness is severe and his ability to exercise appropriate judgement and to make calm and rational choices (to think clearly would be compromised in the offending period'.
38Dr Jackson diagnosed you as suffering from post-traumatic stress disorder, characterised by chronic affective instability, hypervigilance, hyper arousal, avoidance behaviours, intrusive memories, flashbacks and nightmares, persecutory expectations and an aggressive defensive personality style. She also said you suffer from chronic alcohol and illicit substance abuse and dependence. She said your personality problems are:
'Significantly potentiated by the presence of alcohol and other substances, creating some complexity regarding which problem begets the other'.
39As to your mental state at the time of the offending, Dr Jackson said that your mental state condition is chronic and it is likely that your actions were to some extent, influenced by difficulties with affective and behavioural self-regulation. She said there was insufficient information to comment on the precise role of alcohol or drugs in your offending, but that your general alcohol and amphetamine use is likely to have compromised your capacity for emotional regulation, rendering you more liable to conflicts with others.
40I do not accept that there is evidence in this case that at the time of the offending, there was a loss of contact with reality. Mr Moodie did not press this submission this morning. There is little direct evidence about your mental state at the time of the offences.
41However, whatever label is attached to your psychiatric issues, your capacity to think clearly and make calm and rational decisions is compromised by the symptoms of your post-traumatic stress disorder.
42Your admitted use of drugs and alcohol, in particular methamphetamine, has clearly played a role in your repeated domestic violence offending and has had an effect on your mental state. It is to be noted that between 1993 and 2011, when you were in a stable relationship and you were not using drugs and alcohol, you were able to stop offending. It is in this case difficult to disentangle your drug use from your mental state issues.
43The prosecution and your counsel, Mr Moodie, both submitted that there should be some moderation in the assessment of your moral culpability and some moderation of general deterrence, because of your mental state issues. I have allowed for this in formulating the sentences in this case.
44In my opinion, such moderation should be relatively modest, given the absence of evidence of an immediate link between your mental state and the offending; and because I am of the view, that your voluntary substance use played a role in the offending and in your mental state. Nonetheless, I accept that in the circumstances of this case, your psychiatric issues did play a role. They are a constant in your presentation and impair your decision making, and it is appropriate to apply the Verdins principles, relating to general deterrence and moral culpability.
45I am also satisfied on the basis of the reports tendered, that limbs 5 & 6 of the Verdins principles are also applicable. Dr Jackson says in her report that given the central issues of your presentation, a custodial sentence will weigh significantly more heavily upon you, than it would on a person without your conditions. Ms Cidoni in her report says that continued imprisonment will place you at a greater risk of mental harm, because you have fewer resources to manage such an environment. The prosecutor Mr Keks did not dispute the application or principles 5 and 6 of Verdins to your case and I have reduced your sentence, having regard to those principles.
Prospects of Rehabilitation
46I turn to your prospects of rehabilitation. Whilst your criminal history over the last 10 years is very discouraging, it seems to me that if you can address your substance abuse problems, you would have a reasonable chance of staying out of the criminal justice system.
47The period between 1993 and 2011, during which you did not offend, suggests that you are capable of defeating your substance abuse problems and staying out of trouble. However, in the last 10 years, you have not been able to achieve this.
48You will need some support and assistance when you are released from the sentence that I must impose today. I assess your prospects of rehabilitation as guarded.
Guilty Plea
49You pleaded guilty to the charges in this case at a committal mention, which was the earliest opportunity.
50I give you credit for the utilitarian value of your plea which has spared the witnesses, particularly the victim, the ordeal of giving evidence and has saved the court the time and resources involved in a trial. The utilitarian value of your plea is heightened in the current circumstances, where the court faces a very substantial backlog of trials, resulting from the suspension of jury trials during the pandemic. This increased utilitarian value of the guilty plea was recognised the Court of Appeal in the recent decision of Worboyes [2021] VSCA 169, where the court said:
'Given the unhappy state of the courts’ lists, the courts must, in an endeavour to alleviate the strain on the system, encourage those accused who are guilty to so plead. Such encouragement must come from an actual and palpable amelioration of sentence.[3]
[3]Worboyes [2021] VSCA 169 [35]
51I also accept your guilty plea, indicates remorse and a willingness to facilitate the course of justice.
COVID-19
52You have been in custody since you committed these offences in October last year.
53You have therefore, been in custody during the pandemic, where prison conditions have been restricted. You have had no visits or phone calls from family and friends in that time. I understand your mental health treatment has been restricted as well. I take these matters into account as increasing the burden of the time you have spent on remand and as factors which are likely to continue at some level into the future.
54I note that whilst you have been in prison, you have completed courses and you have been in employment in the prison kitchen, notwithstanding that you have been isolated within the system.
Current Sentencing Practices
55I have had regard to the Court of Appeal decision referred to by prosecution in the case of Laa v The Queen [2020] VSCA 136 and Hatzis v The Queen [2021] VSCA 43, dealing with this type of offending. I have also had regard to the comparative County Court cases referred to in the defence written submissions. These matters are relevant to the assessment of current sentencing practices, which are a guide, but not a controlling factor in sentencing.
Sentencing Principles
56I have already referred to the significance of general deterrence for offences of aggravated burglary, in a domestic violence context. Such offending is all too prevalent. Denunciation of such offending is also important.
57Further, given your substantial history for such offending, including against
the victim herself, considerations of specific deterrence and community protection are also of significance. Of course, general deterrence must be appropriately moderated, given my findings about the application of the Verdins principles and to an extent, the Bugmy principles.58Further, I must not lose sight of your rehabilitation and integration back into the community when you are released.
Concurrency and Cumulation
59The offences in this case arise from a single course of conduct. The various offences overlap. The conduct which constitutes the aggravated burglary, the reckless injury and the criminal damage, also constitutes the breach of the family violence order.
60The purpose of the criminal damage was to enter the house, which is the basis of the aggravated burglary. The assault you committed inside the premises, is relevant to the assessment of the aggravated burglary, because it informs your intent at the time of entry.
61Because of the overlapping nature of these offences, very substantial concurrency between the sentences for each charge is necessary and in some cases, total concurrency. The totality principle is also relevant. I must ensure that the overall sentence is just and proportionate. This principle also dictates that significant concurrency between the various charges is required.
Submissions
62Your counsel Mr Moodie submitted that a combination sentence of imprisonment and a community corrections order is within the range of appropriate sentences for your offending. The prosecution submitted that a sentence of imprisonment, involving a head sentence and a non-parole period, is the appropriate sentence.
63Given the gravity of the offending in this case and taking into account your history of committing offences of violence in breach of family violence orders, I have formed the view that a proper application of sentencing principles, requires a term of imprisonment with a non-parole period.
Sentence
64Mr Marks, I sentence you as follows. On Charge 1 of criminal damage, you are convicted and sentenced to period of imprisonment of six months. On Charge 2, aggravated burglary, you are convicted and sentenced to a period of imprisonment of three years. On Charge 3, causing injury recklessly, you are convicted and sentenced to a period of imprisonment of 12 months. On Charge 4 of contravening a family violence order, intending to cause harm or fear, you are convicted and sentenced to a period of imprisonment of 12 months.
65I order that four months of the sentence on Charge 3, that is the recklessly causing injury, is cumulative on the sentence for Charge 2, which is the base sentence. That makes a total effective sentence of three years and four months. I fix a minimum non-parole period of two years in this case.
66Pursuant to s6AAA of the Sentencing Act, but for your plea of guilty, I would have sentenced you to a period of imprisonment of five years, with a minimum non-parole period of three years and eight months. Pursuant to s18 of the Sentencing Act, I declare that 304 days is to be reckoned as already served and to be deducted from the sentence that I have imposed today. Now were there some ancillary orders in this Mr Keks?
67MR KEKS: Nothing required, Your Honour.
68HIS HONOUR: All right. All right, no questions about that, that's clear enough?
69MR KEKS: Your Honour, if I could? I apologise, my link broke down at the critical moment and I missed the sentences imposed on Charges 1 and 2.
70HIS HONOUR: That's key. One is six months, that's the criminal damage. The aggravated burglary, three years. Reckless injury, 12 months. The family violence offence, 12 months. Given the overlapping nature of the charges in this case, the order for cumulation is four months of the reckless injury on Charge 2, which is the base sentence. That makes a total effective sentence of three years and four months and I have fixed a minimum non-parole period of two years. The 6AAA is five years, with a minimum of three years and eight months and the PSD is 304 days.
71MR KEKS: Thank you, Your Honour.
72HIS HONOUR: All right. Did you follow all that Mr Marks?
73OFFENDER: Yep.
74HIS HONOUR: Yes. All right, thank you to both counsel for your assistance in this matter and I'll now adjourn.
75MR KEKS: Please the court.
76HIS HONOUR: Look if you need to stay on the line, you can Mr Moodie.
77MR MOODIE: Yes, Your Honour.
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