Director of Public Prosecutions v Proctor

[2014] VCC 1566

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

AT LATROBE VALLEY
CRIMINAL JURISDICTION

CR-14-01266

DIRECTOR OF PUBLIC PROSECUTIONS

v

BRADLEY PROCTOR

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JUDGE:	HIS HONOUR JUDGE PARSONS
WHERE HELD:	Latrobe Valley
DATE OF HEARING:	15, 17 September 2014
DATE OF SENTENCE:	17 September 2014
CASE MAY BE CITED AS:	DPP v PROCTOR
MEDIUM NEUTRAL CITATION:	[2014] VCC 1566

REASONS FOR SENTENCE
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Subject:
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Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P Davies	OPP
For the Offender	Ms B Nowak	Littleton Hackford & D'Alessandro

HIS HONOUR: 

1You, Bradley Proctor, have pleaded guilty before me to one count of armed robbery and one count of intentionally causing injury.  The circumstances of that crime were fully outlined in the prosecution opening which I have before me, and in brief compass, concerns your offending on 16 February 2014 or thereabouts. 

2At that stage you were 40 years of age, having been born 5 October 1973. 

3The actual offending occurred during the early hours of 17 February 2014 and you were arrested on 19 February.  At that stage, you were described by a witness as being "pretty pissed". 

4At approximately 1 am you were walking along Church Street when you came into premises, ultimately in the Drouin Newsagency.  At that stage, the worker there, the victim in this matter, was performing work duties and getting ready for newspaper deliveries.  Mr Ashley Rees heard voices, and ultimately you came inside, asked him for a newspaper which he provided to you, and then you returned outside.  You walked around the Holden ute that was utilised by Mr Rees for his work.  You then re-entered the building, approached him and said, "Give me the keys to your car".  When he refused, you grabbed a wooden stick from a plastic roll and threatened him, and then commenced to strike him with the stick.  You struck him in the head and he held up some newspapers to try and protect himself.  In continuing to hit him, ultimately the stick broke over him.  You threatened him with a steel dropper until ultimately Mr Rees had had enough and gave you the keys.  You also took his mobile phone.

5As a result of the injuries he sustained, he was driven to the hospital and was treated for a cut above the eye and a cut on the back of his head which he suffered as a result of the offending, and of course there are photographs in the depositions which depict his injuries. 

6Shortly thereafter, you surrendered to the police, and whilst you made a no comment record of interview, that was largely for purposes of following legal advice, and again you had very little, if any, memory of what in fact had occurred. 

7Whilst there is no victim impact statement tendered in this matter, Mr Davies who appears to prosecute this sitting of the Koori County Court sitting in Morwell, did point out, as is the fact, that the mere fact that there is no victim impact statement does not mean that the victim has not suffered, and indeed far from it.  It may mean simply that he is still unable to actually bring himself to describe the effect of the beating upon him.  Nevertheless, what is before me, as I say, are the photographs and the written description of the events, and it is clear from that, that I have no doubt he suffered as a result of what you did on that particular evening and would continue to do so. 

8Of course, as was pointed out by your counsel Ms Novak, you are entitled to have your plea of guilty taken into account in your favour and I will do so.  The community has, by your pleas, been spared the time and cost of a trial, and I have no doubt the witness, Mr Rees, has been spared the ordeal of giving evidence upon your trial.  As a consequence, I can tell you the sentence I intend to impose is far less than would have been imposed had you been found guilty after a trial. 

9Further, I take it into account in your favour that you intimated earlier intention to plead guilty to these charges.  You were apprehended; that is, you voluntary surrendered yourself, and whilst you did not readily admit your part in the crime, you did plead guilty, and in the circumstances, I accept that the letter which you read to the court expresses remorse, as does your plea of guilty. 

10I have been told a considerable amount about your personal history and your circumstances in the form of the two reports which are before the court.  There is the report Exhibit B which is from Mr Ball who is a psychologist and whose reports are regularly tendered in court.  That report is dated 11 September 2014.  There is also an earlier psychological report from a Ms Melissa Donati and that is dated 18 January 2013.  With respect to your personal history I think Ms Donati's report is most useful, and her section on background history, and I intend to reflect briefly upon the matters that she sets out in that manner. 

11As she notes - and bearing in mind of course these comments were made in January 2013, so clearly people will be older than she then describes them - she notes that you were born to a Koori mother and an Anglophile father.  You have two older brothers and one younger brother and a younger foster sister and brother.  Your early childhood was cohesive and stable, while you note that your father was an alcoholic.  You recall being close with both parents and siblings and your father was a hard worker and your mother was a respected Elder in the Aboriginal community, working as a Koori Aboriginal liaison officer until she died two years ago from heart disease and diabetes. 

12That death has obviously been an issue of great sadness for you and for your family, and in some sense, as I understand it, explains some of your offending. 

13Your family grew up in Gippsland with both paternal and maternal family members.  Your parents were not drug users, nor involved in criminal activity, although was a common occurrence amongst extended family members.  You followed that trend in your mid-teens.  You did, however, remain in school, enjoying sports, and that enabled you to stay out of some trouble as a result of your sporting commitments, although ultimately you left school mid-way through year 11 to complete a trade school qualification working as a labourer and painter in various positions after that time. 

14You have had two significant relationships.  When you were 19 you had a relationship with Leanne and you have two boys who are now aged I think 19 and 17, Beau and Jesse.  That was a volatile relationship due to polysubstance abuse and the circumstances of that are explained in the report that I am reading from. 

15You then met Kerry, the mother of your youngest daughter, Mia, who is now six, and you remained together until late in 2012 when you were incarcerated at the Melbourne Assessment Prison in September 2012.  At that stage, you and your then partner were heavy heroin users, and again that relationship was volatile and at times violent.  That again is also explained in the report from which I am reading. 

16You then moved back to Gippsland with your father in Bairnsdale and it was in those situations of course, as I say, when this report was written in early 2013. 

17It is also useful to refer briefly to the report of Mr Ball and I note that in the circumstances his conclusion was he could find no evidence of cognitive impairment in clinical interview, and he would estimate your IQ to fall within the normal range. 

18Again, he talks about your family of origin and again, in a relatively brief way compared with the other report from which I read.  Particularly he refers to your drug and alcohol history, and again that has been a matter that has been explored in some way, both in the sentencing conversation and also in these various reports. 

19I particularly notice the diagnosis, that it was his view that you do not meet any of the diagnostic criteria for mental illness, personality disorder, mood disorder or other clinical syndromes or psychopathology, but rather all of your difficulties in that sense are explained by your drug and alcohol dependence, and it is those matters obviously that need to be addressed and that was a matter that very fully and appropriately occupied the time spent in the sentencing conversation, and particularly the remarks from Uncle Lloyd Hood and Aunty Di Hurran directed as it was to opening up those particular significant aspects of your life, and until - as they pointed out - you resolve to do something about your drug and alcohol problems, then the sad cycle of behaviour leading to your imprisonment will continue. 

20There is some real prospect of change in that regard, and particularly obviously in the letter that you read to the court where you expressed your own desire and your own commitment to doing something about breaking that cycle so you can be the role model to your children and grandchildren that Uncle Lloyd and Aunty Di are to their children and grandchildren, and we can all hope that you are ultimately successful in that regard when you are released from prison.

21Of course you have a number of prior convictions, all of which were before me.  That prior criminal record began in 1990.  It is clear that there are many regular attendances before the courts up until 2009, and that again was a matter that was explored in the sentencing conversation.  What became apparent from it was that you were very successfully treated and you obviously also made commitment to your rehabilitation when you went to Wulgunggo Ngalu as part of that sentencing option back in 2009.  It was Uncle Lloyd's observations of you at that time, and indeed of others, that you had successfully dealt with a number of your difficulties at that time, and it is to be hoped obviously that that can happen again as you embark on this new part of your life. 

22Realising that in the end, that 2012 was a particularly difficult time for you, given the deaths in the family and the difficult circumstances in which you found yourself.  But ultimately, as both Aunty Di and Uncle Lloyd pointed out, it is you who needs to deal with these problems in your life.  Ultimately, the decision will all be yours; you are the only one who can change things for you. 

23As I say, reports were tendered by consent and I have read them both and take those matters into account. 

24I have been informed of a number of subsequent matters, I think 28 in all, which are before the learned magistrate on 13 October next month.  While some attempt was made to work out whether or not they could be dealt with in this court, it became clear that that was not able to be done for a range of technical matters, and of course all of those matters will be properly before the magistrate.  I understand the magistrate took the view that it was preferable that the Koori County Court sentence you on these matters before she dealt with you on those other matters, and accordingly I have proceeded on that basis.  Though perhaps it might be observed, the greater sentencing difficulties may attach to her sentencing of that number of matters, although as I have been informed, ultimately a number of those will be withdrawn if you plead guilty to other matters. 

25I am satisfied that the chances of your rehabilitation at this stage are reasonably good, given your commitment to your rehabilitation, the fact that, as you have described, the time on remand you have utilised very positively.  There has been no suggestion you have used drugs in gaol.  There has been also very positive engagement by you with the Koori officers in court, in the Koori men's group.  You have been working very hard in the kitchen and clearly you have utilised that time very positively. 

26Again, as I say, it gives the hope that your rehabilitation has begun in gaol, although of course we all understand the real test will come for you when you are released back into the community, hopefully living with your father in Bairnsdale.  Of course it is then that the difficulties will confront you, and your resolve to not give in will be tested. 

27Of course, as well as those matters personal to you to which I have referred, including the question of rehabilitation, I must take into account such matters as deterrence, and of course general deterrence is of importance in a case such as this, involving, as it does, as was described by Mr Davies, an opportunistic attack on an unarmed man, best described as a soft target, who suffered injuries as a result of your attacking him with that stick. 

28Specific deterrence will also be of importance, given the prior criminal history. 

29Also, the question of the protection of members of the community is something I must bear in mind, and the likelihood of your offending, which I find to be diminished in view of the very positive steps you have taken whilst in gaol to deal with your alcohol and drug problems.  It is clear you are a man of intelligence, as assessed by the psychologist, and you are able to make decisions in your life, as you have exhibited before, in 2009, in a positive way, and you have got this opportunity again, because after a short period of further gaol you will also have the opportunity of a community corrections order in which you can begin your life afresh. 

30Yes, if you would stand, please.  Thank you, Mr Proctor. 

31Now these are without doubt serious offences, and in all the circumstances, I have no alternative to the imposition of custodial sentences.  You are convicted and sentenced as follows: 

32There will be a sentence of two months to be served on Count 1 and one month on Count 2, and those sentences will be concurrent.  I order that the sentence on Count 2 be served concurrently with the sentence imposed on Count 1. 

33So that will be a total effective sentence of two months' imprisonment, and that sentence will begin today, but as prescribed by the Sentencing Act I declare that you have already spent by way of presentence detention a total of - how many days is that?

34MR DAVIES:  One hundred and eighty-seven, Your Honour. 

35HIS HONOUR:  One hundred and eight-seven days. 

36Now as to the wording of that, just so that again it can become clear in the sentence, I simply make that declaration and that is all.  Is that the case?

37MS NOVAK:  That is my understanding, Your Honour, yes. 

38HIS HONOUR:  All right.  So in making that declaration I am simply noting for the records of the court 187 days has been spent by way of presentence detention in respect of these two matters and nothing else.  But there will be, from today, a sentence of two months' imprisonment to be served in respect of these two matters, and that sentence will begin today. 

39At the end of that sentence of serving two further months' imprisonment in respect of these matters, there will be a community corrections order with conviction for a period of 18 months to be served with respect to these matters.  That commences on 17 November and will last for a period of 18 months and end on 16 May 2016.  There will be the usual mandatory terms which have been explained to you and which you have agreed to.  In addition to that, you must perform 100 hours of unpaid community work over that period of 18 months, as directed by the regional manager.  You understand if you fail to comply with the order, the Secretary to the Department of Justice or delegate may give you a direction to perform additional hours of unpaid community work.  There will also be supervision from a community corrections officer for a period of 18 months and there will be treatment and rehabilitation as ordered by that community corrections order document, and I note that you have had that document explained to you, you understand the effect and conditions of that order and you consent to it being made.  Is that the case, Mr Proctor?

40OFFENDER:  Yes. 

41HIS HONOUR:  All right, thank you.  Now I would ask you to sign that document please. 

42I should note that for the purpose of s.6AAA had you not pleaded guilty to these matters then I would have ordered a total effective sentence of two and a half years and there would have been 18 months to serve before being eligible for parole. 

43MS NOVAK:  Your Honour, if I could just raise a matter, and that is with the judicial monitoring, I do not know whether Your Honour wanted to impose ‑ ‑ ‑

44HIS HONOUR:  I did not, no. 

45MS NOVAK:  You did not.  Because I - thank you. 

46HIS HONOUR:  No.  I think until somebody can suggest a way that we can effectively monitor such an order, I think without incurring expense and inconvenience simply for what usually amounts to just a ten minute reflection on how things are going.  So I just do not want to - as I say, I just did not want to be in the position of having everybody together in court in Melbourne for ten minutes to hopefully hear things are going well. 

47MS NOVAK:  Yes. 

48HIS HONOUR:  But as I say, I certainly remain very interested in how things are going and would be delighted to hear. 

49MS NOVAK:  Thank you, Your Honour. 

50HIS HONOUR:  All right, thank you.  They are all signed. 

51All right, Mr Proctor, so all that remains now is obviously there is a further two months to be served with respect to this matter.  Obviously you will need to go before the magistrate and what the magistrate determines will be then a matter for the magistrate, but as far as I am concerned obviously, and the court is concerned, on this occasion, and because of what you have done during the six months that you have spent in custody, and because of the things that you have committed yourself to by way of your rehabilitation, has given you the chance to keep doing that, and because you have shown such strong commitment in the prison environment, working, to staying off drugs and to earning the respect again of your family as a leader of the family, then that is why you get this chance. 

52As I say, and as the Elders Aunty Di and Uncle Lloyd have made very plain to you, I can do nothing more than remind you of what they had to say.

53All right, thank you.  That concludes this sitting.

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