Director of Public Prosecutions v Spokes

[2024] VCC 1829

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-23-01213

DIRECTOR OF PUBLIC PROSECUTIONS

v

BRODY SPOKES

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JUDGE:	Judge Pillay
WHERE HELD:	Melbourne
DATE OF HEARING:	7 November 2024
DATE OF SENTENCE:	19 November 2024
CASE MAY BE CITED AS:	DPP v Spokes
MEDIUM NEUTRAL CITATION:	[2024] VCC 1829

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords:              Assault with weapon – Damage property – Unlicensed driving – Handling stolen goods  – Using threatening language – Affray –Aggravated attempted carjacking – Verdins principles 

Legislation Cited:      Crimes Act 1958; Road Safety Act 1986; Summary Offences Act 1966; Bail Act 1977; Sentencing Act 1991

Cases Cited:Bugmy v The Queen [2013] 249 CLR 571; R v Hennen [2004] VSCA 42; R v Mantini [1998] 3 VR 340; Worboyes v The Queen [2021] 96 MVR 344

Sentence:                  4 years and 6 months imprisonment, non-parole period of 35 months

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms J Cohen	Solicitor for the Office of Public Prosecutions
For the Accused	Ms R Greensill	Robyn Greensill & Associates

HIS HONOUR:

1Brody Spokes, you are to be sentenced in relation to the indictable offences as set out below, with the relevant maximum penalties:

Charge no.	No. of charges	Offence	Provision/s	Maximum Penalty
1	1	Theft of motor vehicle	s74(1) Crimes Act 1958 (“Crimes Act”)	Level 5 imprisonment – 10 years
2	1	Handling stolen goods	s88 Crimes Act	Level 4 imprisonment – 15 years
3 & 4	2	Damaging property	s197(1) Crimes Act	Level 5 imprisonment – 10 years
5	1	Affray	s195H Crimes Act	Level 6 imprisonment – 5 years
6	1	Attempted aggravated carjacking	s79A, 321M and 321P Crimes Act	Level 3 imprisonment - 20 years

2You are also to be sentenced in respect of related summary offences, being:

Charge No.	No. of charges	Offence	Provision	Maximum Penalty
3	1	Unlicensed driving	s18(1)(a) Road Safety Act 1986	60 penalty units or not more than 6 months imprisonment
6 & 10	2	Assault with weapon	s24(2) Summary Offences Act 1966	2 years imprisonment
21	1	Use threating words in public	s17 Summary Offences Act 1966	10 penalty units or 2 months imprisonment

3You have pleaded guilty to all charges.

Circumstances of offending

4The circumstances of the offending are set out in the Summary of Prosecution Opening, dated 1 November 2023.  You have agreed to the facts alleged in the summary.  Your offending involved four separate incidents which occurred over the course of the day on 13 September 2023.  At the time of the offending outlined below, you were on bail.

Incident 1

5On 13 September 2022 at approximately 3.10pm, you drove a stolen vehicle, a 2010 Mazda 3 (Charge 1 – Theft of Motor Vehicle, RSO Charge 3 – unlicensed driving) displaying stolen registration plates (Charge 2 – Handling of Stolen Goods) onto the front lawn of a residential property in Manna Gum Drive, Pakenham.  You were accompanied by two associates, Brock Stocker and Tehnee Stone.  Inside the Manna Gum Drive address was Chloe Moore, with whom you were in an “on again off again” relationship, as well her sister, Hope Moore, her, brother, Brendan Moore, and Brendan’s partner, Rebecca McNamara.

6You and Brock Stocker exited the vehicle and approached the residence.  Chloe Moore met you outside the front door.  You then struck Chole Moore to the head and held her by the scruff of her jumper with your left hand, pushing her against the closed front door.  In your right hand, you were holding a five-inch long knife with a serrated back and army-style grip (Related Summary Offence – Charge 6 – Assault with Weapon).  You continued to yell at Chloe Moore.

7At this time, Brendan Moore opened the front door, grabbed Chloe Moore and brought her inside, leaving you outside.  You responded by continuously kicking the front door and security door and slamming the security door against the brick wall, as well as using your knife to stab at the front door.  This created extensive damage (Charge 3 – Damaging Property).

8Brendan Moore yelled out to Rebecca McNamara to call police. You and Mr Stocker then returned to the stolen vehicle and continued to yell abuse. Chloe Moore then approached the vehicle with a kitchen knife and stabbed the front tyre, puncturing it.  Chloe Moore then ran towards the house while you pursued her holding your knife and yelling threatening words, until she reached the residence and shut the door.  You then returned to the vehicle and drove away.

Incident 2

9You, Brock Stocker and Tehnee Stone then drove the vehicle to the address of Daniel Montagu.  There, you caused damage to Daniel Montagu’s wooden front fence (Charge 4 – Damaging Property).

10Daniel Montagu confronted you and your associates and told you to stay away from his property.  You stated that he should come out so that you could “sort it out.”  When you said this, you were holding a hunting knife with an 8-10 inch blade (Related Summary Offence – Charge 10 – Assault with Weapon).  Daniel Montagu retreated to his residence.

11You and your associates then returned on foot to Manna Gum Drive.  You again began yelling while standing in the front yard.  Brendan Moore approached you, at which time you asked him for a jack so you could change the stolen vehicle’s damaged tyre.  Brendan Moore went inside to retrieve the jack. 

12At this time, police arrived on the scene.  Chloe Moore yelled out that you should come inside the residence to hide.  When police knocked on the door, Chloe Moore answered.  She told police to “fuck off” before shutting the door.  You and Chloe Moore then left the residence by jumping the back fence.

13The two of you ran towards a bus stop on Army Road, Pakenham, where you attempted to get assistance from a woman, Leonie, who lived nearby.  While you were away from Chloe Moore, Melissa Moore (presumably her mother) drove past and observed Chloe sitting alone.  You returned and approached the driver’s side door of Melissa Moore’s vehicle.  You stated, “I will pay for your fucking door but your sons fucked” and, “If you get out of this car, I will knock you out” (Related Summary Charge 21 – Use Threating Words in Public).  Melissa Moore immediately drove away from the scene.  As she did so, she drove over Chloe Moore’s foot.

Incident 3

14Later, at approximately 6.48pm, you and Brock Stocker were sitting at the front of Pakenham Marketplace Shopping Centre. You were approached by a group of unknown males.  A physical altercation occurred.  You walked off to a nearby Woolworths, where you entered the express checkout staff area.  You were approached by an unknown male and a verbal altercation occurred.  You produced a large knife. The Woolworths staff left the express counter area, as did the unknown male (Charge 5 – Affray).  After he was out of sight, you left the store.

Incident 4

15The same day, at approximately 6.58pm, you were in the carpark of Pakenham Marketplace Shopping Centre.   You began following Peter Barber, a 70 year old man, as he was returning to his vehicle.  Upon reaching his vehicle, he realised you were behind him.  As he opened the car door, you stated, “Give me your keys or I’ll stab you.” You confronted Mr Barber with a large knife, approximately 10 inches long, and again threatened to stab him. You then took Mr Barber’s keys and got into his vehicle (Charge 6 – Attempted Aggravated Carjacking).

16Mr Barber walked away and called 000.

17You attempted to start Mr Barber’s car.  You were unsuccessful in this, and walked away.

Background personal history

18You were born in July 2003 in Melbourne as the youngest of nine half-siblings born of different fathers.

19You had limited contact with you father, who spent periods of time in prison. You lived with your mother in Pakenham, but your home life was disturbed by your mother’s drug use, neglect and your fear of her sometimes violent associates.  Sadly, your mother died of a heroin overdose when you were 11. You were placed into state care before going to live with your sister, who has provided a more stable environment.

20You attended primary school until Grade 3, when you were asked to leave. You have received no formal education since that time.  You have described yourself as being illiterate.

21In early adolescence, you started drinking alcohol to the point of intoxication, which has continued over the years. 

22You started smoking cannabis around the age of 14.  Initially, you smoked socially, but progressed to daily use of around three grams per day from the age of 15 or 16.  At the age of 15, you started smoking ice, up to one gram or more per day, and GHB at the age of 16.  You also abused prescription medication, Xanax, from the age of 17, every 1-2 weeks. 

23While involved in drugs, you were assaulted with some periods of loss of consciousness.

24You ceased all drug use when your then partner, Chloe Moore, became pregnant with your daughter in early-mid 2021.  You resumed your abuse of Xanax after your daughter was born and your use of GHB and ice in mid-2022.  It been said that the offending for which you are presently before this Court occurred at the peak of your drug abuse.[1]  After being remanded in September 2022, you seem to have abstained from alcohol and drug use until at least November 2023.

[1]Psychological report of Bernard Healey dated 25 June 2023 (“Report of Mr Healey”), at paragraph [3].

25Your relationship with Chloe Moore has ended.  At the time of plea in November 2023, you had fortnightly visits via video link with your daughter.

26Your only employment occurred between the ages of 15 and 16, when you worked with your sister’s ex-partner in bricklaying for 6 months.

27You have been assessed as having a low-level of intellectual functioning.[2]  You have also been found to have Alcohol Use and Drug Use at the Disordered level, Generalised Anxiety at the Disordered level and Persistent Depression.  You have ADHD.[3]

[2]Report of Mr Healey at paragraph [6].

[3]Ibid at paragraph [7].

28You have otherwise never been prescribed medication for depression, anxiety or any other problems.

29You were 19 years old at the time of offending.  You are now 21 years old.

Prior criminal history

30You have admitted your criminal history. Considering your relative youth, you have an extensive criminal history.  Some of your prior offending bears a strong resemblance as those that bring you before the court today, including numerous convictions for theft of motor vehicles and damage to property.  However, the matters for which you are to be sentenced today represent a significant escalation, particularly those that involve violence against other persons while armed with a large knife. You have so far escaped a sentence of imprisonment. You have not been deterred by bail, having repeatedly breached bail conditions, often by committing further offences. That conduct continued after the plea in November 2023 when your sentence was deferred.

Procedural history and subsequent offending

31Your matter first came before this Court for plea on 20 November 2023.  It was at that time that you pled guilty to the offences in question. I deferred sentence and bailed you to enable you to undertake the Uniting Care Gippsland Youth Residential Rehabilitation Program (“GYRRP”) for four months. Amongst your bail conditions were that you not leave GYRRP unless accompanied by a staff member of their nominee, and that you follow all reasonable directions by the program managers. GYRRP were to link you with a drug and alcohol program, a treating doctor and mental health support.

32On 3 January 2024 you absconded from GYRRP, thereby breaching your bail conditions. You remained in the community and could not be located by police until 22 January 2024, when you were remanded in custody.

33On 29 February 2024, I again bailed you to GYRRP under the same conditions to complete your rehabilitation.

34On 2 April 2024, the Office of Public Prosecutions contacted the Court seeking that your matter be urgently listed for an Application to Revoke Bail due to your failure to comply with directions given by program staff. In particular, you were said to have:

·        Not attended group sessions;

·        Not remained within view of staff when visiting public spaces away from the GYRRP facility; and

·        Not ceased a relationship with a co-client within the program when requested to do so by staff.

By the next day, you had again absconded from the GYRRP facility. On 4 April 2024, a warrant was issued for your arrest.  You were not arrested until 23 April 2024. 

35When you matter came before me again on 1 July 2024, I bailed you to the Galiamble Men’s Alcohol and Drug Rehabilitation Centre, a residential rehabilitation centre for Aboriginal and Torres Strait Islander men.  Your bail conditions included that you participate in the rehabilitation program for 16 weeks and that you not leave the premises unless for an authorised purpose.

36Around 26 August 2024 the OPP made application to revoke bail on the grounds that you had left Galiamble, breaching your bail conditions. A warrant was issued. You remained at large on 13 September 2024 when your further plea was listed for hearing. On about 17 October 2024 the warrant was executed. You have been on remand since. By reason of the deferral of the sentence the matter was then set down for further plea on 7 November 2024 with a view to sentencing by 20 November 2024 to comply with s. 83A of the Sentencing Act.

Gravity of offending

37The Director submits that the offending can be grouped together as it occurred all on one day and in a reasonably short time. Defence did not quibble with that. Taking the most serious example of the attempted aggravated carjacking. While a weapon was brandished and was no doubt terrifying for the elderly gentleman, no use of it was made beyond that, either to harm him or damage his property. But it is a serious event and this cannot be downplayed: a senior citizen held at knifepoint in a public place and threatened with being stabbed in an entirely unprovoked manner. Your actions had a degree of malice about them because you followed him, brandished the knife and spoke words to intimidate him into submission. When he turned he was confronted with a large bladed knife and you spoke words of threat to him again. Terrifying behaviour.  I consider this a moderate to serious example of offending of this kind.

38As for charge 5 – affray I consider this a moderate example of the offending as while a knife was present it is not clear it was used to threaten.

39As for Charge 4 – damage of the Montagu fence – I consider this was a moderate example of the offending. A car was used to cause the damage.

40As for Charge 3 - I consider this was a moderate example of the offending. The use of a large knife to do the damage at the front door was threatening and confronting.

41As for Charge 2, Charge 1 and RSO Charge 3 – theft of motor vehicle, drive unlicensed and with stolen plates I consider this was a low to moderate example of the offending.  

42As for RSO Charge 6 – assault of Chloe Moore with weapon I consider this was a moderate example of the offending. The knife was brandished but not used while the assault occurred.

43As for RSO 10 – assault of Montagu with a weapon I consider this was a moderate example of the offending.

44As for RSO Charge 21 – use threatening words to Melissa Moore I consider this was a moderate example of the offending as a member of the public was stopped from going about her business and threatened with direct physical violence and her family was threatened.

Plea in mitigation

45You entered an early plea at the earliest opportunity and are entitled to an appropriate discount in this regard.

46A consideration of the principles in Worboyes also applies given the time the plea was entered in mid-2023, however the effect of that discount is lessened given the state of the prisons and the pandemic at that stage.

47Your solicitor submits the principles from Bugmy v The Queen[4] apply.[5] I accept that the profound childhood deprivations and your own intellectual limitations have an ongoing effect and inform the moral culpability of your offending.[6]

[4][2013] 249 CLR 571.

[5]        See the history taken by Mr Healey Report 25 June 2023 at pages 4-6, 8-9.

[6]I use the term “profound” as it represents my assessment of Mr Spoke’s early life situation. I do not need to enter into the debate as to whether some other phrase might be used because it was accepted by the Prosecution that the principles in Bugmy apply.

48Your solicitor submitted that Verdins limbs 1, (perhaps 2) and 6 apply. No particular medical evidence was cited in support of this submission. I note the Justice Plan. Your solicitor  filed a further report of Mr Healey (undated) on 11 November 2024. Mr Healey had spoken to Mr Spokes that day via videoconference. No submissions were made regarding that report from either Prosecution or Defence. Dealing with the submission as best I can.

49Limb 1: The conclusion of Mr Healey supports a finding that your moral culpability is reduced because your condition was operative at the time of the offending. While punishment and denunciation remain relevant sentencing principles they are of less weight.

50Limbs 3 and 4: Given the significant cognitive deficit and psychological diagnoses I consider that you are limited candidate to express general deterrence. Specific deterrence is of almost no utility because of your limited insight into your own behaviours and the rules which are said to govern it.

51Limb 5: I accept this has a role to play.

52You chose to have your plea heard in the County Koori Court. Your willingness to participate in Koori Court and undergo questioning by your elders in an open and honest way indicates to me your willingness to take responsibility for your actions and to begin on the path of rehabilitation.

53I also consider given the very sporadic offending, over hours, involving brazen serious public acts raises the need for public protection to be given greater consideration in your sentence. This is also because there has been such little effect of rehabilitation to date and those opportunities have been spurned by you.

54Overall a combination sentence was sought. I do not accept that such a combination sentence in these circumstances is appropriate. This is primarily because of your behaviour over the last year. That has shown a disregard for orders of the Court, your bail conditions and ability to participate in quality rehabilitation programs. All that supports my finding that your compliance with the conditions of a CCO is highly unlikely. I propose to sentence you on the basis of a head sentence with a non-parole period.

Assessment

55Remorse. You have displayed some remorse for your actions both in Koori Court and as recorded by Mr Healey in his report of 24 October 2023.

56You have limited family support with it seemingly limited to your sister.

57I am mindful of the objective seriousness of the offending.  There were no victim impact statements.

58It was accepted that as at 7 November 2024 there were 559 days of pre-sentence detention not including today. As of today, there are 571 days of pre-sentence detention.

59The Crown submitted that as the offending occurred while you were on bail the sentences must cumulate, subject to a general discretion which is guided by principles of totality and parsimony.[7]

[7]Section 16(3C), R v Hennen [2004] VSCA 42, R v Mantini [1998] 3 VR 340 Callaway JA at 348

60I consider that you are a young offender and there remains a role for rehabilitation in your future.

61Mr Spokes, on the charge of, you are convicted and sentenced to a term of imprisonment of 4 years and 6 months (54 months)  with a non-parole period of 35 months. Charge 6 is the base sentence. In coming to the sentence I have  stepped back after considering the individual charges and considered the principles of parsimony and totality in light of Mantini and Hennen. That has resulted in some moderation of the sentence, reflected in the base sentence imposed. Having done that and conducting the intuitive synthesis, as I am bound to do, I have arrived at the sentence set out below.

CHARGE	OFFENCE	MAX	SENTENCE	CUMMULATION
Indictment Charge 6	Aggravated attempted carjacking	20 Years	3 Years	36 months
5	Affray	5 years	6 Months	6
4	Intentionally damage property [fence at Montagu’s]	10 Years	3 Months	3
3	Intentionally damage property [front door]	10 Years	2 Months	2
2	Handling stolen goods   [car registration plates]	15 Years	2 Months 2 months concurrent with Charge 1	0
1	Theft of a motor vehicle	10 Years	2 Months	2
RSO 3	Unlicensed driving	60 PU 6 months	1 Month 1 month concurrent with Charge 1	0
RSO 6	Assault with weapon	2 years	3 Months	3
RSO 10	Assault with weapon [Montagu knife]	2 years	2 Months 1 month concurrent with Charge 4 1 month cumulative with Charge 4	1
RSO 21	Use threatening words in public	10 PU 2 months	1 Month	1

62As can be seen from the above in respect of Incident 1, due to Crown concession and the fact that the offending is limited in time and revolves around the motor vehicle I will order the sentence for Charge 1 – theft of a motor vehicle, RSO 3 – driving unlicensed and Charge 2 – use stolen license plates to be served concurrently.

63As can be seen in respect of Incident 2 Charge 4 – damage property being the Montagu fence and RSO – 10 assault by words spoken to Montagu - I consider the interaction with Daniel Montagu similarly warrants some cumulation due to the fact that the damage to the fence and the assault with weapon by threatening words said to Daniel Montagu occur in a short space of time. However the acts themselves are separate – a property and then a personal crime. I will cumulate 1 month of RSO 10 and one month to be concurrent on Charge 4. This totals 4 months to be served in respect of these two charges.

64I have otherwise cumulated the sentences. I repeat that I sentence you to a term of 54 months (4 years and 6 months) with a non-parole period of 35 months.

65In accordance with s6AAA of the Sentencing Act I declare that but for the plea of guilty I would have sentenced you to 75 months with a non-parole period of 50 months.

66I will make the ancillary orders in respect of s 89(4)(c) and disqualify you from obtaining a drivers licence for 2 years with conviction.

67I will not make the order sought in respect of s89C as there is insufficient evidence of the levels of intoxication or drugs that were effecting the accused at the time of the offending.