Director of Public Prosecutions v Neil

[2014] VCC 1888

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 14-01619

DIRECTOR OF PUBLIC PROSECUTIONS

v

BRADLY NEIL

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JUDGE:	HIS HONOUR JUDGE MASON
WHERE HELD:	Melbourne
DATE OF HEARING:	13 November 2014
DATE OF SENTENCE:	13 November 2014
CASE MAY BE CITED AS:	DPP v NEIL
MEDIUM NEUTRAL CITATION:	[2014] VCC 1888

REASONS FOR SENTENCE
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Subject:Plea – sentencing

Catchwords:             Attempted aggravated burglary

Legislation Cited:     Sentencing Act 1991

Cases Cited:

Sentence:13 months' imprisonment, non-parole period of 4 months. 

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D Porceddu	Office of Public Prosecutions
For the Accused	Mr J Mortley	Revill & Papa

HIS HONOUR:

1Bradly Neil, you have pleaded guilty to one charge of attempted aggravated burglary.  This charge carries a maximum penalty of 20 years’ imprisonment. 

2You are currently aged 21, having been born on 18 April 1993, and you were just four days shy of your 21st birthday at the time of this offending last April. 

3You have an extensive criminal record for one so young, about which I will go into more detail later. 

4The circumstances of your offending are as follows. 

5On 14 April 2014 Aaron Sanderson was in a bungalow at the rear of 23 Dumbarton Circuit, Melton.  You and Mr Sanderson had become ‘enemies’ by that stage, having earlier been friends.

6At about 4.15 pm, Darren Borg drove you to that address.  Mr Sanderson was in the bungalow having a cigarette.  When the car arrived you quickly exited, armed with a steering club lock. 

7You smashed a window to the bungalow with the club lock, attempting to get inside so that you could assault Mr Sanderson.

8Mr Borg then smashed a second window to the bungalow. 

9You tried to open the door to the bungalow, and then struck it with the club lock several times in an attempt to gain entry so that you could assault Mr Sanderson. 

10You were yelling out angrily and aggressively.  In the course of your yelling you said something along the lines of "You threatened to kill one of my sisters, and I'm going to kill you". 

11Aaron Sanderson's father, Colin Sanderson lived close by.  He saw Mr Borg's car arrive at 23 Dumbarton Circuit and drove himself over there. 

12Colin Sanderson saw you “hammering” on the door of the bungalow with the club lock, while screaming and yelling. 

13Colin Sanderson confronted Mr Borg, and shortly afterwards Mr Borg told you to get into the car, which you did.  Mr Borg and you then drove away.

14You were arrested on 16 April 2014 by Detective Constable Chris Jackman.  In a recorded interview with police carried out that same day you made various admissions, including:

·    you were told that three armed men with masks had confronted your sister, which made you angry

·    you went to Aaron Sanderson's bungalow and tried to kick the door open

·    you punched your way through a window

·    you kicked the door but it did not budge

·    you said "…If I get my hands on, I'm going to kill you". 

·    “I just wanted him in my hands” 

·    "I was only protecting kids mate.”

·    “Yes I very fuckin angry, like my blood's boiling now". 

·    Mr Sanderson ‘screamed’ that he did not do it - that is confront your sister

·    Colin Sanderson arrived telling you to leave Aaron alone "because he's got mental issues"

·    you continued to confront Aaron Sanderson about this ‘incident’ about your sister's place.

15You went on to describe how your dealings with Aaron Sanderson had broken down, and that you were aware of Mr Sanderson's mental issues and bizarre thoughts - for example, that Mr Sanderson had sent you messages asking you to get your red and white dragons away from his house.

16I now turn to your personal circumstances. 

17As I noted earlier, you are currently aged 21 and you were just under 21 at the time of the offending. 

18Your criminal record commenced when, at the age of 16, you appeared at the Sunshine Children's Court for theft, property damage, driving and weapons offences and were given 12 months' probation.

19You appeared again some four months later on theft, assault and using indecent language charges, and your probation was continued, this time with a reporting condition. 

20When you appeared again six weeks after that on theft and assault charges, a report was requested from the Department of Human Services and you were subsequently put again on probation, this time for nine months, again with a reporting condition.

21Your first appearance at the Sunshine Magistrates’ Court was in 2012 at the age of 19, when you were fined $300 without conviction for possessing a dangerous article in a public place.  In April 2013 at that Court you received a Community Correction Order, without conviction, for 12 months for burglary and theft.  In December 2013 at that Court you received a Community Correction Order, with conviction, for eight months for recklessly causing injury and unlawful assault. 

22I note that the current offending breaches this Community Correction Order.

23On 19 December 2013 you appeared at both the Sunshine Children's Court on driving and property damage offences, for which you received a 9-month Good Behaviour Bond, and at the Sunshine Magistrates’ Court for the breach of the first Community Correction Order.  That order was varied to last for 16 months from 4 April 2013. 

24I note that the current offending also breaches this Community Correction Order.

25You have experienced a very disrupted life, never getting to know your natural father and moving home many times.  This had an immediate impact on your schooling, resulting in you having attended some 13 schools before leaving school in Year 8. 

26Your step-father was an alcoholic and you have also been diagnosed as such, consuming up to a slab of beer on a daily basis. 

27You have managed to reduce that consumption somewhat, but have replaced it by consuming high quantities of cannabis.  You have been a cannabis user for many years now, and I note that you have never been employed.

28In mitigation, I take into account the matters urged upon me by your counsel, including:

·    your youth - you were aged 20 at the time of offending and are 21 now,

·    your issues with alcohol and cannabis dependency - I take into account the likelihood that they are perhaps related to cognitive damage,

·    your disrupted early development without your natural father, and having an alcoholic step-father,

·    your disrupted and truncated education,

·    your early plea of guilty,

·    your co-operation and frankness with the police enquiry, and

·    that your acts were spontaneously responsive to threats to your sister and were not planned.

29However, the offence that you have committed is obviously serious.  It was a vigilante-type behaviour where you intended to take the law into your own hands.  You were armed with a weapon, and if you had managed to make entry there could have been much more serious consequences.

30Notwithstanding that, although perhaps fortuitously, you did not enter the bungalow or assault the victim, but your actions were aggressive and violent, involving damage to property with screaming and threats. 

31This type of behaviour is terrifying to victims, and has the effect of undermining the sense of security people are entitled to feel in their homes.  You were also aware that the victim was mentally vulnerable. 

32Your counsel submitted that a Community Correction Order is an appropriate sentencing option to allow rehabilitative programs.  Whilst I have given careful consideration to this submission, particularly in view of your age, I consider that it is an inappropriate disposition given the serious nature of the offending, your previous breach of a Community Correction Order, the fact that this offending was committed whilst you were subject to another Community Correction Order and your developing history of offending.

33In light of that history, I do not consider that there can be any confidence that you would comply with the conditions of such an order.  Specific and general deterrence, denunciation and the protection of the community are prominent sentencing considerations. 

34In my view, I am satisfied that the purposes for which the sentence is imposed cannot be achieved without your confinement.

35I do, however, intend to impose a significantly shorter non-parole period than I might otherwise have ordered to allow for rehabilitative programs and supervision whilst on parole. 

36On Charge 1 of attempted aggravated burglary, you are convicted and sentenced to 13 months’ imprisonment. 

37I direct that you serve a minimum period of four months’ imprisonment, before being eligible for parole.

38Pursuant to s.6AAA of the Sentencing Act 1991, but for your plea of guilty, the sentence that would have been imposed is 18 months’ imprisonment, with a minimum period of 12 months to be served before eligibility for parole.

39At the plea hearing, the Crown sought compensation and disposal orders which you did not oppose, and I have made those orders today. 

40The Crown also sought a forensic sample order which you did not oppose, and I have also made that order today for the reasons noted on the order, namely, the seriousness of the circumstances of the offending ….

41OFFENDER:  You're making it look bad for me, stop.  You're making it worse for me.  Sorry, Your Honour.

42HIS HONOUR:  It is not your fault, it is all right.  I will just complete these formal orders.  You can take a seat if you would like at this stage.

43

The Crown also sought a forensic sample order which you did not oppose, and I have also made that order today for the reasons noted on the order.       

[To others in the court:  Excuse me, if you really cannot manage yourselves, please leave.]

44I have made that order today for the reasons noted on the order, namely, the seriousness of the circumstances of the offending warrants the order, your prior convictions are such as to warrant the making of the order, the order is not opposed and the granting of the order is in the public interest.

45I must also warn you, Mr Neil, that if at the time of the request you do not consent to the taking of a mouth scraping, then the sample to be taken will be a blood sample and police may use reasonable force to enable that forensic procedure to be conducted.

46Now those orders will be provided now, I have signed them already. 

47MR PORCEDDU:  Thank you, Your Honour.

48HIS HONOUR:  Is there any other matter from either counsel?

49MR PORCEDDU:  No other matters, Your Honour.

50MR MORTLEY:  Nothing further, Your Honour.

51HIS HONOUR:  All right.  Mr Neil, just stand up for a moment.  A lot of that you have to take in very quickly.  The eligible period for you to get parole is four months.  The sentence of imprisonment in its head term, and your barrister will explain this, is the 13 months.  It gives you a considerable period on parole should you be given parole, and if you behave yourself in prison, then you will be most likely.  You have only got four months to serve, but it does provide you with a basis for getting supervision and rehabilitative programs once you leave prison.  Do you understand that?

52OFFENDER:  Yes, Your Honour.

53HIS HONOUR:  What you have to appreciate is that this is a very serious offence: you cannot go out and take the law into your own hands. 

54OFFENDER:  I understand, Your Honour.

55HIS HONOUR:  You have been given opportunities before with Community Correction Orders.

56OFFENDER:  I know that.

57HIS HONOUR:  And that's why, in these circumstances, it is not appropriate that you get another one of those orders in my view, and that is why you got a sentence of imprisonment.  But for an offence of this nature, you have got to realise, they are very seriously looked at and viewed by the courts.  Do you understand that?

58OFFENDER:  Yes, Your Honour.

59HIS HONOUR:  All right, thank you.

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