Director of Public Prosecutions v North

[2014] VCC 1188

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 14-00367

DIRECTOR OF PUBLIC PROSECUTIONS

v

BRANDON NORTH

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JUDGE:	HIS HONOUR JUDGE PILGRIM
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	24 July 2014
CASE MAY BE CITED AS:	DPP v North
MEDIUM NEUTRAL CITATION:	[2014] VCC 1188

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 J. McWilliams
For the Accused	Ms A. Sharpley

HIS HONOUR:

1Mr North you have pleaded guilty to one count of aggravated burglary, one count of contravening an intervention order and one count of criminal damage.

2Further, you have consented pursuant to s.145 of the Criminal Procedure Act to seven summary offence counts being dealt with by this court.  Those seven counts are all counts of unlawful assault, that is they were the seven people that were in or about the premises at the time you went into those premises with the capsicum spray and sprayed them.

3The maximum sentence - as you heard Mr Hannan way back when it first came before this court - he spelled out that the aggravated burglary maximum sentence is 25 years' imprisonment.  Contravening an intervention order is five years, criminal damage ten years, and for each count of unlawful assault the maximum sentence that can be imposed is two years.

4Perhaps if I pause there for a moment because you heard me speaking to Mr McWilliams, and that is the aggravated burglary count.  Until reasonably recent times the maximum gaol sentence was 15 years.  Because of the prevalence of what is called 'run throughs' and this type of offending it was changed from 15 years to 25 years.

The contravening an intervention order, now I am relying on my memory and as I say I am getting a bit old and my memory is not as good as it should be, but when the Crimes Family Violence Act first came into being the maximum sentence was six months' imprisonment, that has now increased to five years.  They are substantial increases and I am simply mentioning those to try and get through to you that this is serious.

5Having pleaded guilty I will impose a lesser sentence than I otherwise would have imposed.  In other words you will receive a discounted sentence for having pleaded guilty.

6Mr North it was on 19 September 2013 that your ex-girlfriend - I will call her 'A' because I am not sure of her age - your ex-girlfriend A obtained an intervention order preventing you from having any contact with her.

7On 1 December 2013 A was at her friend's house in Wyndham Vale.  There are other young people present at this address together with two adults.  Mr North I quote directly from the prosecutor's summary when he opened this case here in this court.  He said this:

"Mr North you telephoned A 146 times in the morning of the 1st of December 2013.  At about 2 pm on that day you knocked on the door of the house in Wyndham Vale in an aggressive fashion.  You had with you a broken chair leg and a can of pepper spray.  The young man in the garage, James Dehne, heard you yell out to A "Get the fuck out of the house now."

8A 14 year old I will call 'SC' opened the door to you.  You were yelling out "Where is A?" in an angry tone.  A heard this from the bedroom and hid in the wardrobe as a result.  SC tried to shut the front door but was unable to as you had pushed the door hard enough to knock her over.  You then walked into the house carrying the weapons whilst SC groped at your ankles in an attempt to try and stop you.

9You walked into the house and began spraying the pepper spray at various occupants who all came running down the hall in an attempt to assist to remove you from that house.  You were shouting and said "I'll pepper spray you all you cunts."

10These facts constitute the aggravated burglary count, that is Count 1 on the indictment, and also the breach of the intervention order, that is you went into her presence when you should not have and made all those phone calls when you should not have.

11I am aware of the fact that there was disharmony and unpleasant things happening.  You make allegations that your private financial affairs were being interfered with and others were being made aware of material that you took offence about, and it was your understanding that it was A that was causing this sort of distress.  That is just as a background.

12The seven unlawful assault counts are all very similar and they are related in this way.  After a short time A left the wardrobe and went out into the hall where all this commotion was going on.  You sprayed the pepper spray at her and it hit her in the face, immediately causing severe pain to her throat and nose.  You also sprayed SC while she was on the floor after being knocked down, again this caused severe pain to her eyes and mouth.

13SC inhaled the pepper spray when she was in the hallway with everyone trying to get you out.  She described you as having your right arm out spraying at everybody.  Samantha Carrow, I believe she is older than being a young teenager and is different from the young SC.

14As soon as James Dehne ran out of the garage to investigate what this commotion was all about he too was pepper sprayed by you, again causing him pain, and he saw the others coughing and in distress within the house.  Ashley Cairns also received second hand exposure to the pepper spray as a result of entering the hall and trying to assist.

15Helen Cairns, who is the mother of SC, was present in the house at the commencement of this outrageous behaviour.  Mrs Cairns charged at you and said you, with the spray can in one hand and the wooden item in the other, assaulted her.  She was in fear.  You told her to "Get the fuck back," as she yelled at you to get out of the house.  You sprayed her as you were being motioned backward down the hall.  HC was in pain and found it hard to breathe.  Luke Kukeil was also sprayed by you in the hallway trying to assist in getting you out.  Again he described the pain and difficulty in breathing.

16Count 3 on the indictment, that is the criminal damage count, occurred when you, on your being forced out of the house, used the broken chair leg to hit a 1995 Commodore belonging to Ben Dehne that was parked out the front.  The car was dented and scratched and the duco on the bonnet, guard and the front windscreen was smashed.  The prosecutor's produced photographs indicating the damage that occurred to the vehicle.

17The police were called and arrived shortly afterwards.  Your phone records confirmed your presence in Wyndham Vale at the relevant times.  When interviewed by the investigating police officers you made no admissions other than to confirm your phone number.

18Mr North you have attended upon the forensic psychologist Dr Cunningham.  Dr Cunningham produced two reports and I am speaking to the first report at this time.  The report, dated 18 December, sets out your personal background and family life.  I quote from this report.  Dr Cunningham says:

"Mr North is a 19 year old male born in Victoria.  His mother and father raised him in Winchelsea with one older sister, Jacinta, who is aged 21, and one younger brother Nathan, who is aged 16."

19Dr Cunningham goes on to say:

"He stated that his mother and father separated when he was young.  He stated this his father moved to Ascot Vale to care for his own mother," that would have to be your grandmother.  "He stated that his father then remained living in Ascot Vale.  He stated his mother and father abused drugs and alcohol and he reported an unstable home environment with no support or structure.  When Mr North was aged 12 his father passed away from a heart attack.  He stated that he was told that his father's death was drug related however he stated that he did not want to explore this possibility due to the possibility of aggravating his feelings of grief and loss.

Mr North stated there were several negative influences in his neighbourhood.  He recently moved," this is at the time of the report of course, "to his Aunty's home in Newport to avoid these influences and cease drug and alcohol abuse.  He described his aunty as a really nice and supportive person.  Mr North reported one significant prior relationship with A.  He stated that this relationship was unstable and he also stated this relationship has now ended."

20Dr Cunningham reports on your education and vocational experiences.  I again quote directly from what that doctor said.  He said this about you:

"Mr North attended Winchelsea Primary School, Laverton Primary School and Glen Devon Primary School.  He stated he had integration aids throughout school and he was diagnosed with Attention Deficit Hyperactive Disorder (ADHD), however he stated that his prescribed stimulant medication made him irritable and restless.  He then attended Galvin Park Secondary College.  He left school during Year 7 after his father passed away.  He then worked as a painter and decorator for a short time.  He then worked as an apprentice bricklayer for Scorpion Bricklaying for 18 months.  He then injured his foot and was not able to continue employment.  He is currently attending a Certificate III in Civil Construction (Plant Operations) with foresight training.  He reported motivation to work in construction."

21Obviously your young family life has been dysfunctional.  You have encountered many difficulties in your life journey so far.  Ms Donna Asher has provided an extensive report touching upon your family life and many distressing occurrences visited upon you.  I do not propose to quote from Mrs Asher's report other than as a result of the second report she prepared, but I will exhibit those reports to any and all of my sentencing comments.

22Unfortunately your mother has a significant health issue.  It is understood that among these health problems she is burdened with emphysema.  This disease is advanced and is said to be terminal.  Your mother, as I understand it, is living with her mother, that is your maternal grandmother, in country Victoria, who mentioned earlier that young Nathan apparently is living there too.

23This first report of Dr Cunningham, that is the one dated 18 December 2013, sets out your alcohol and drug use.  Again I quote from Dr Cunningham's report.  He said this:

"Mr North seriously injured his foot in September 2012.  He stated that he caught his foot in the u-bolt of a trampoline and tore his ligaments.  Mr North began use of cannabis at the age of 13.  He began cannabis use after his father passed away.  He ceased use of cannabis seven months ago, he stated that it was time to give up cannabis.  He reported smoking one to two grams of cannabis per day.  Mr North reported use of methylamphetamine once or twice.  He ceased use of methylamphetamine stating that the drug made him do stupid things.  Mr North stated he would drink alcohol all the time.  He ceased regular use of alcohol after injuring his foot."

24At this time you had moved in with your aunt and Dr Cunningham reports in terms of that move:

"Mr North appears to have several current protective factors that may reduce his risk factors, stabilise him within the community and improve his psychological functioning.  Mr North presents with significant support in the community in the form of his sister and aunty.  He has engaged with psychological treatment and job training.  He has ceased use of drugs and alcohol and he has gained stable accommodation and support," this is back in December.

25In addition to Dr Cunningham assisting you you have also attended upon Dr Linda Troselj, a clinical psychologist.  This psychologist is treating you for anger management.  Dr Troselj provides a report dated 12 December 2013 to this court.  Amongst other things this doctor reported, and I quote her:

"Mr North presented in therapy reporting always feeling angry, which reportedly started when his father died of a heart attack six years ago.  He presented with a low mood.  His mother had been unwell with emphysema since 2011 and is currently in a critical condition.  Mr North's recent breakup with his girlfriend has caused him significant distress.  Mr North presented with risk issues of self-harm and suicide.  He reported past acts of assault, reported having intention to harm his ex-girlfriend and her boyfriend when they harassed him.  Treatment has involved assessing and managing Mr North's risk issues and increasing his supports."

26This doctor says:

"In my opinion Mr North's anti-social tendencies appear to be linked to his trauma experiences which include the loss of his father, his mother's substance use and critical ill health and possible parental neglect.  A diagnosis for Mr North has not been made," that is by Dr Troselj.

27Dr Troselj further reports, and I again quote:

"Mr North appears to respond well to his supports which have included myself, his aunty Nicole and his general practitioner.  He has been friendly and cooperative with me in therapy.  He has a trusting and close relationship with his aunt.  Mr North has life goals that he is reportedly keen to achieve.  He stated that his goals are to have a family, a car, a job and obtain his crane licence.  Mr North expressed a strong desire to want to work and was excited about engaging in further training."

28Mr North both of these reports, that is Dr Cunningham's and Dr Troselj's, were prepared whilst you were living at your aunt's home.  As I said these reports were prepared in December 2013.  Dr Cunningham, as I said earlier, provided the second report, that report is dated 12 June 2014.  As you well know you have moved from your aunt's home to that of your girlfriend's, a Miss O'Brien.  I again quote Dr Cunningham when he reports:

"Mr North moved to live with his girlfriend Courtney O'Brien.  The couple have maintained a relationship," at that time for sixth months.  "He describes Miss O'Brien as stable and supportive.  Miss O'Brien is employed as a hairdresser.  He lives with Miss O'Brien and Miss O'Brien's mother, stepfather and sister in Wyndham Vale.  He stated that he has support and structure in Miss O'Brien's home.  He stated that Miss O'Brien's family is supportive and wonderful."

29I pause there for a moment.  As you well know your girlfriend, and on occasions Mrs O'Brien, have been in court to support you in the number of times you have been here.

30I move on.  Your health has improved between 18 December 2013, reports Dr Cunningham, and the report dated 12 June 2014.  In the December report Dr Cunningham had advised, and I quote:

"You began to smoke cannabis after your father's death.  You reported subsequent trauma four months ago when your mother was placed into a coma, and two months ago when your friend was killed."  That was a motorbike accident and apparently Nathan was lucky to survive that accident.  "In my opinion Mr North's persistent depressive disorder is expressed in a chronic depressed mood.  In my opinion Mr North's generalised anxiety disorder is evidenced by symptoms of excessive worry, difficulty controlling the worry, irritability, tension, sleep disturbance and fatigue.  In my opinion Mr North's persistent depressive disorder and generalised anxiety disorder have recently been aggravated by his mother's terminal illness.  He reported chronic worry over his mother's health."

31That was the 18 December report, then when we come to the June report Dr Cunningham says this:

"In summary Mr North no longer meets the diagnostic and statistical manual of mental disorders for diagnosis of persistent depressive order and general anxiety disorder," that is because of what has happened in that six month period where there has been stability returned to your life.

32A significant new development in your life has occurred in that you have moved, as I said earlier, from residing with your aunt to now residing with your girlfriend, as reported by Dr Cunningham.  Ms Asher also said in her report, that is dated 4 July, only a fortnight ago:

"Brandon has expressed to the writer that he likes and responds to structure in his life, which was absent during his developing years.  He now has a true sense of normal family living in a loving, supportive environment.  Brandon has been welcomed by all of Courtney's family to the point he is no longer taking any antidepressants or other such medications as his psychological well-being is now stable.  Brandon does however still continue his counselling with his psychologist," that is Dr Troselj.

33These events Mr North are all indicative of your positive prospect of rehabilitation.  It is the opinion of Dr Cunningham, and I quote:

"From a psychological perspective Mr North would benefit from a disposition that facilitated his rehabilitation.  In my opinion Mr North would benefit from maintaining his community supports and engaging with employment.  Mr North has made significant progress in the community in the context of these supports."

34Mr North whilst you have no prior convictions you indeed are presently on a Community Corrections Order from the Magistrates' Court, I believe that was at Sunshine.  You have yet another outstanding offence to be dealt with in the Magistrates' Court in the near future.  This offence was committed prior to those and therefore they are not prior convictions so you are to be dealt with as though you had no prior convictions.

35As you heard me confirm again today despite the number of people involved there are no victim impact statements filed in this case.

36So far Mr North really all we have been doing is speaking about yourself.  You heard me also say to the prosecutor it is not for either the prosecutor or myself, or indeed Ms Sharpley, to say anything about those victims.  I suspect there is mischief afoot amongst them but they are not to be dealt with by me for committing any offences.  I will say a little bit more about possible provocation in a moment, but still the offending is very serious and one must not forget that those victims are real, that they were extremely discomforted by what occurred, and again I say that they have all chosen to file no victim impact statement.

37Your plea of guilty is an indication of your remorse.  Your counsel on your behalf again expresses your remorse to this court.  Ms Asher in her report dated 4 July said among other things, and I again quote from that report, although I have avoided too much reference to it as it is so voluminous, but she did say this in fairness about you:

"Brandon became overwhelmed by an accumulation of stressors that brought him to his peak of tolerance and Brandon snapped and lost control," that is consistent with what Dr Cunningham was writing about you.  Asher goes on to say:  "Brandon regrets his behaviour he inflicted on others, both physically and emotionally.  He stated for the writer that the level of violence he displayed on this day frightens him.  Brandon stated that as soon as he got into the car to leave after the offence he questioned himself about why he acted in that manner.  Brandon was able to recognise how his behaviour would have made his victims very fearful.  Brandon stated he made personal apologies to the people present for his behaviour shortly after which demonstrated victim empathy," that is Asher's opinion of course, "demonstrated remorse and insightfulness.

Brandon has worked hard in an attempt to redeem himself and embrace the opportunity afforded to him to demonstrate to the court that this is an episode of his life that he regrets and wishes to put behind him.  Brandon's period on remand was a catalyst for change as he had never been in custody prior to that occasion.  It was a very sobering experience for him."

38Mr North I also assure you that I have taken into account all that was said by both Dr Cunningham and Dr Troselj in their respective reports.  I have further taken into account the information provided by Ms Madigan from Anglicare.  Ms Valacos from the Office of Corrections reports she has seen you recently and she has something to do in terms of supervising your attendance on the Community Corrections Order that you are currently on.  Ms Valacos says this:

"To Mr North's credit he had been responding well to his Community Corrections Order and his compliance to date has been satisfactory.  Mr North's case manager knew of this County Court matter and was advised that the current matters before the court today pre-date the imposition of that Community Corrections Order that you are currently on."

39You have no other history with the Office of Corrections, that is obvious because you have got no prior convictions and apparently have not been in trouble before.

40Mr North your offending on this occasion is particularly offensive and violent.  It is clear, as has been reported by Ms Asher, that you lost control completely and committed these very serious offences.  The fact that your ex-girlfriend may have provoked you in some way did not call for this level of violence.

41True it is that the weapon of choice was not lethal, a non-lethal choice, although I am not too sure about the stick, some sticks can cause terrible injuries. When I say stick broken chair leg or whatever it was, table leg, that might fall into a different category but the spray is not non-lethal, but having said that capsicum spray causes significant discomfort to the persons affected by that, and these six or seven individuals were all certainly affected by the spray that you sprayed upon them or amongst them on that day.

42Mr North as you have heard we have been discussing, the prosecutor and I in particular, the Victorian Court of Appeal case of Adam Hogarth v R.  That involved a number of young men who deliberately set out to - I think I can call it a run through of a different nature to what you were up to - and a very, very serious matter, and that is the case where Mr McWilliams and I were speaking earlier this morning about the court looking at the adequacy of sentencing being changed from 15 years as a maximum to 25.  You heard that and I hope you understood it.

43Home invasions such as this committed by you is very serious indeed.  In Hogarth's case there was a quote from Hansard, that is the report from Parliament.  At the time the maximum penalty, as I say, was changed from 15 to 25 years.  I quote a little portion of what was said in Parliament:

"The prevalence of burglary and home invasion style offences has caused great disquiet in the community.  These crimes undermine the sense of security that people feel in their homes and workplaces.  The government wishes to send the message to offenders that these crimes will not be tolerated."

44Mr North you were born, as I understand it now, on 26 September 1994.  There were some records saying 1993 so that might be a typographical error.  Born in 1994, that means you are classically within what is described as a young offender, and at this time of the commission of this offence you were a young offender with no prior convictions.  As mentioned earlier you have been dealt with subsequently for subsequent offences but they are not prior convictions for this offence.  You have one further matter to be dealt with as I mentioned earlier.

45In the case of R v Mills [1998] 4 VR 235 Mr Justice Batt examined at length what the courts must turn their minds to in sentencing young offenders. I unashamedly quote from the headnote which is probably lazy but somebody else has certainly summarised, very adequately in my view, what the principles of that case were. They are these:

"Youth of an offender, particularly a first offender, should be a primary consideration for a sentencing court where that matter properly arises.  In the case of a youthful offender rehabilitation is usually far more important than general deterrence.  This is because punishment may in fact lead to further offending, thus for example individualised treatment focusing on rehabilitation is to be preferred, and thirdly a youthful offender is not to be sent to be an adult prison if such a disposition can be avoided, especially if he is beginning to appreciate the effect of his past criminality."

46Mr North I assure you that I have taken into account the many things that have been spoken of, particularly by Dr Cunningham, Dr Troselj and Ms Asher.  You certainly had mental health problems at the time of the offending.  It seems that you have recovered from those by the time six months have passed and you have got your life into some sort of order.

47After much thought and much heartache in terms of what I should do with a young offender such as yourself I have decided that you will be convicted on all offences and released on a Community Corrections Order for a period of 12 months.  Pursuant to that you are ordered to perform 50 hours of unpaid community work.

48Now I pause there for a moment.  That is a very light number of hours but I take into account that there has been in excess of 400 hours imposed by the previous Community Corrections Order.  I do not think I can ignore that because that is going to take a long time to discharge that without this extra 50 hours.  I will come back to that in a moment.

49Pursuant to s.48D(3) you are to attend for assessment and treatment, if necessary, for drug and alcohol abuse.  You are to attend for assessment and treatment if necessary as a result of that assessment for mental health problems.  There are no other special conditions of the Community Corrections Order other than the base or core conditions.

50You are to pay compensation of $1,765 to James Dehne and pursuant to s.464ZF of the Crimes Act you are to provide a forensic sample.  I pause there for a moment.  I understand you are consenting to that but I must tell you that reasonable force can be used to take that sample if necessary.

51Pursuant to s.6AAA of the Sentencing Act I believe that I would have imposed a sentence of at least two and a half years in total to be served by way of Youth Training Centre had it not been for the plea of guilty.

52Now I want to say a bit more about that.  If you come back for breach in 12 months' time it may well be that you have disqualified yourself from going to Youth Training Centre because of your age.  Once you turn 21 you cannot be sentenced to Youth Training Centre so if you breach it is highly likely if you do it in about 12 months' time you will be looking at a significant gaol sentence.  I do emphasise this is an alternative to prison.  Are there any other orders sought?  Excuse me a moment please.

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