Director of Public Prosecutions v Studd

[2018] VCC 2216

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-00550

DIRECTOR OF PUBLIC PROSECUTIONS

v

BRETT STUDD

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JUDGE:	HIS HONOUR JUDGE LYON
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	21 December 2018
CASE MAY BE CITED AS:	DPP v Studd
MEDIUM NEUTRAL CITATION:	[2018] VCC 2216

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms A. Cooney
For the Accused	Ms A. Sutherland

HIS HONOUR: 

1Brett Studd, you have pleaded guilty to the following offences, which carry the following maximum penalties;

·attempted aggravated burglary carries a maximum penalty of 20 years' imprisonment;

·cause injury recklessly carries a maximum of five years' imprisonment; and

·two counts of damaging property pursuant to s.197 of the Crimes Act carries ten years' imprisonment each.

2You have admitted a number of prior criminal convictions.  I will return to the significance of those matters later in these sentencing remarks.

3The prosecution tendered a summary prosecution opening on plea as Exhibit A. A brief summary of your offending is as follows.  The victims Field and Bailey shared a house in Crockett Avenue, Craigieburn.  Both men were known to you.  It appears that there may have been some previous drug connection between you, however on the plea, I was told that you went to their house on the night in question because you were offended by some exchange with Field earlier in the day.

4At about 10 pm on 11 June 2017, you approached that house, yelling loudly, knocking and kicking at the door.  Bailey met you at the side gate; he told you to go away.  You yelled at him and tried to enter the gate.  Bailey kicked at your hand as you placed it on the gate.  You continued moving in and tried to enter the house, moving towards Field. That is the basis of Charge 1, the attempted aggravated burglary.  It is important to note that you did not carry any weapon to the house and you were not armed at the time you attempted to enter the house.

5Field rushed at you and pushed you onto the front lawn where you began to wrestle and punch each other.  Bailey intervened and hit you with a spirit level which you picked up after he first confronted you.  I conclude that it was you who was heard by neighbours to yell "I'm going to kill you all." 

6You continued to struggle with Field on the ground outside his house. 
During this struggle, Field sustained a superficial wound to his chest area, that is Charge 2 of recklessly cause injury.

7Field was treated in hospital but the wound was treated with bandages and glue rather than sutures.  Neither Bailey nor Field made a victim impact statement.

8After the fight between you and Field broke up, you left the area of the fight and you went to a nearby carpark.  You jumped on the roof of one car and hurled a wheelie bin at another car.  These actions are the bases for Charges 3 and 4.

9You were arrested shortly after that at the scene.  You have been remanded in custody ever since.  Although you have now spent about 18 months in custody, only 405 days can be attributed to this offending, as over 150 days were used when you were sentenced for another unrelated offence.

10The matter was originally listed for trial.  Although the matter resolved only relatively recently, you had offered an early plea and did ultimately plead guilty to attempted aggravated burglary rather than aggravated burglary, that is the competed offence.  In this way, I am satisfied that you should be given credit for your early offer.  In other words, I give you credit for your intention to resolve the matter from the outset or close to.

11I turn now to consider the objective gravity of the offending and to your moral culpability.  The offence of aggravated burglary, even in attempt, is a serious offence which ordinarily attracts condign punishment.  The seriousness of the offence may be gauged by a number of factors including the maximum penalty which attaches to it. 

12I have considered the circumstances in which the offending occurred on this occasion.  Notwithstanding the observation I have just made, I consider the circumstances of this matter are tempered by the following matters.  First, the offence charged here is an attempt rather than a completed offence.  
The attempt was constituted by the attempt to open the front door of the premises.  This was wholly unsuccessful.  Secondly, you were not armed before or at the time of entry.  Overall, I find your conduct as unsophisticated and largely unplanned.

13This is not to say that your conduct did not have serious elements to it. 
Your counsel on the plea, Mr Cronin, readily conceded that you were drug affected at the time.  Witnesses to your behaviour describe your conduct as extremely loud and violent.  It was only met by the bravery and tenacity of your victims Bailey and Field who thwarted your efforts to enter the house and were prepared to wrestle, fight and tackle you to the ground.

14The offence of recklessly cause injury must be seen from the fact that you did not bring a weapon to the premises or indeed into the fight.  Rather, it appears that Mr Field, in his effort to stop you from entering the house, took a knife to the fight from the premises and approached you with it.  Moreover, I have seen in the photographs of the wound caused to Mr Field, and I have read the medical report.  The wound was, as I have said, described as superficial and was treated with bandages and glue rather than sutures.  It was expected to heal without further complications.

15In the circumstances, it is sufficient to say that although your crimes are all objectively serious, none of them constitute high end instances of this type of offending.  As I said, neither victim made a victim impact statement.  That is not to say that they were not affected by what occurred, rather both men have simply chosen to get on with their lives.

16Your conduct in damaging the two cars was simply gratuitous, wanton, antisocial behaviour, probably emanating from your drug-fuelled rage. 
I also note that you have multiple convictions for violent offending and at the time of this offending, you were on a community corrections order for violent crimes.

17Overall, your conduct must be met by principles of general deterrence and, given your history, specific deterrence.  Principles of denunciation and protection of the community must also figure in a sentence I impose.

18I turn now to your personal circumstances.  You are 28 years old and you were born in  January 1990.  You are the youngest of three children.  Your parents raised you in a happy and positive family environment.  Your parents supported you in court.

19Your schooling was interrupted by your behavioural issues.  You left school in Year 8 but then completed Years 9 and 10 in a learning centre.  From a relatively young age, you were prescribed medications for ADHD but stopped when you were 15 years of age.

20You have been abusing alcohol and drugs since the age of 13 and you have been using methylamphetamine, that is ice, since you were about 17 years of age.  I have already referred to the fact that you have a number of prior convictions, which include burglary, robbery, assaults and breaches of court conditions.  As I noted earlier, you were still on a CCO for intentionally cause injury and assault when you committed these offences.  In fact, you have been placed on a community corrections order on two occasions.  You have twice been convicted of committing offences on bail and a further time with breaching conditions of bail and on another occasion, with breaching a family violence intervention order.  Quite frankly, your record for complying with court orders is poor.

21You were assessed by a psychologist, Gina Cidoni.  Ms Cidoni noted as follows.  First, you have never been involved in any intimate relationships of significance.  Second, your intellectual functioning is indicative of cognitive functioning on the borderline to average range with low scoring for working memory tasks, with a score of 93, of the 37th percentile.  You also had a very low score for verbal comprehension, this was borderline, at 78 which places you in the seventh percentile, where 93 per cent of people do better than you.  Third, she noted you have impulsive tendencies and have difficulty planning ahead or considering consequences of your actions.  She concluded from what you told her that you suffered from impatience and felt easily frustrated.  Fourth, she concluded that you have poor judgment that can result in risk-taking behaviour, that you are prone to temper outbursts and you have difficulty concentrating and find it hard to settle down or calm yourself down.

22Fifthly, she concluded that your violence risk score is medium but if you continue to abstain from using drugs and alcohol, this should reduce your disinhibition, it should aid the production of clear thinking and better judgment of situations in which you find yourself.

23Mr Cronin on your behalf submitted that your sentence should be mitigated by both your plea of guilty and your prospects for rehabilitation.  I have already stated that I consider the plea of guilty has utilitarian benefit in this case.  Mr Cronin submits that your prospects of rehabilitation should be viewed as optimistic on the proviso that you abstain from drugs.

24I note that you have returned negative urine screens whilst in custody and you have completed a number of courses whilst on remand.   Furthermore, you were working as a billet which indicates that you have kept out of trouble whilst in custody.  Also whilst in custody on this occasion, you have expressed a desire to remain drug free upon your release.  I note you have the protective factors of family support available to you on your release, which you did not have at the time of this offending.

25At the time of this offending, you were in effect homeless and couch surfing.  This has changed as you have now reconciled with your family.  Moreover, your childhood friend, Mr Onare, understands your plight and has nevertheless offered you the prospect of working for him as a labourer in his rendering business upon your release.  Mr Cronin submitted that I should have you assessed for a further community corrections order.  Given the history I have outlined and circumstances in which you breached the order existing at the time of this offending, I have decided that a community corrections order after your imprisonment is not appropriate.

26Ms Bate on behalf of the prosecution recognised the utilitarian effect of the plea of guilty but submitted in all the circumstances a period of imprisonment with a non-parole period was appropriate in all the circumstances.

27I have considered all of the circumstances in this case and I consider that your prospects of rehabilitation are guarded.  This has ultimately led to the conclusion that I consider a period of imprisonment with the opportunity for parole as the appropriate sentencing disposition in this case.  I will however take into account the overall sentence of imprisonment that you have already served and the fact that since your imprisonment on this occasion, you appear to have a new determination to overcome your difficulties with drugs and to commence leading a productive, crime free life.

28Mr Studd, it may not be easy for you to get parole.  Nevertheless, you have indicated to me that you are on the right track.  If you are granted parole, you are going to have to work hard when you are released into the community to ensure that you remain drug free and that you comply with the conditions imposed upon you.

29Ms Cidoni considers that you will need considerable structure around you once you are released to provide both support and also clear bright lines in which you must live to give you the hope of progressing and to remain out of gaol.

30So in the circumstances, I have decided to impose a slightly longer than normal non-parole period to give you this opportunity.

31On the charge of attempted aggravated burglary, you are convicted and sentenced to a period of imprisonment of two years and one month, so that is 25 months.  On the charge of recklessly causing injury, you are convicted and sentenced to a period of nine months' imprisonment, two months of that sentence is to be served cumulatively on the sentence on Charge 1.  On each of the charges of criminal damage, you are convicted and sentenced to three months' imprisonment.  One month of the sentence on Charge 3 is to be served cumulatively on all other sentences.  So that produces a total effective sentence of two years and four months, that is 28 months' imprisonment.  I order that you serve a minimum period of 17 months before you are eligible for parole.  I declare the period of 405 days excluding today pre-sentence detention as already served. 

32The 6AAA declaration is, all things being equal, but for the plea of guilty, I would have imposed a sentence of three years and nine months with two years nine months to serve.

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