Director of Public Prosecutions v Whitehead
[2023] VCC 12
•20 January 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised (Not) Restricted Suitable for Publication |
Case No. CR-22-00528
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BRADLEY JAMES WHITEHEAD |
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JUDGE: | HIS HONOUR JUDGE TIWANA | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 30 November 2022 (Sentence Indication); 9 December 2022 (Plea) | |
DATE OF SENTENCE: | 20 January 2023 | |
CASE MAY BE CITED AS: | DPP v Whitehead | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 12 | |
REASONS FOR SENTENCE
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Subject:Criminal law – Sentence
Catchwords: Aggravated Burglary – Intentionally damage property – 30 year old offender – Offender forced entry into victims’ home with machete or cleaver – Believed one of the victims had stolen a cheque belonging to his mother – Caused damage to walls and front door – Entire incident lasted less than a minute – No relevant criminal history – Single parent to a 4 year old child – Good employment history – Pleas of guilty entered following sentence indication – Good prospects of rehabilitation – Verdins principle 5 enlivened
Legislation Cited: Crimes Act 1958 (Vic)
Cases Cited:R v Verdins (2007) 16 VR 269; Worboyes v The Queen (2021) 96 MVR 344
Sentence: 26 days’ imprisonment (time served) and a 2 year Community Correction Order
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr Z Menon (30 November 2022; 20 January 2023) | Director of Public Prosecutions |
| For the Accused | Mr L Barker | Leanne Warren & Associates |
HIS HONOUR:
1Bradley James Whitehead, you have pleaded guilty to an indictment containing two charges.[1] Charge 1 is an offence of aggravated burglary, contrary to s 77(1) of the Crimes Act1958. This offence carries a maximum penalty of 25 years’ imprisonment. Charge 2 is an offence of damaging property, contrary to s 197(1) of the Crimes Act1958. This offence carries a maximum penalty of 10 years’ imprisonment.
[1]The pleas of guilty followed a sentence indication given on 30 November 2022.
2An agreed prosecution summary of your offending was read aloud in Court.[2]
[2]Exhibit A.
3At the time of the offending, you lived with your mother and your son. Sometime prior to 15 July 2021, your mother received a cheque in the sum of $2,280. She placed the cheque in the glove box of her vehicle, a black Hyundai Getz.
4At around 10pm on 14 July 2021, you attended the home of your two victims, Tania Kerr and Thomas Briody in Kurunjang. You had known Thomas Briody for approximately eight years. You remained at their residence until about 3am on 15 July 2021. At one point, Tania Kerr borrowed the Hyundai.
5Later that morning on 15 July 2021, you returned to the victims’ residence in a Ford vehicle and had with you a large ridgeback dog. You had gone back because you believed that Tania Kerr had stolen your mother’s cheque.
6Having arrived outside the house, you remained in your vehicle. You were aggressive and abusive towards Tania Kerr. You grabbed the back of the dog’s neck, and said ‘Skitch them’ and ‘Get them’ while the dog was foaming from the mouth and growling. Tania Kerr retreated into her house.
7You then exited the vehicle holding a large machete or cleaver with a wooden handle and a hood on the blade. You walked towards your victims’ house and struck the front door several times, forcing your way into the house whilst Tania Kerr attempted to prevent your entry. She then retreated to the main bedroom. You struck the bedroom door several times and then struck the walls in the entry causing damage to both the door and the plasterboard. You forced entry to the bedroom door by breaking its hinges. The door struck Tania Kerr’s arm.
8Tania Kerr further retreated into the ensuite and closed a sliding door. You then struck the sliding door forcing it to break and connect with Tania Kerr’s right leg. Tania Kerr retreated to a spare bedroom and hid.
9Thomas Briody, who was initially asleep, woke after you had entered the house. He confronted you and a verbal argument ensued. You held the weapon up above your shoulder with a two-handed grip. During this incident, you spoke about the stolen cheque and demanded its return.
10Thomas Briody asked you to calm down and leave. Eventually, you settled down and left the house. The whole incident from the time you arrived outside the address and left the house, lasted less than a minute.
11Neighbours called triple zero and the police attended.
12You were arrested later that day. In your police interview, you made admissions to attending the victims’ address but denied being armed and entering the house.
13You were remanded in custody for 26 days until you were granted bail on 10 August 2021.
Personal circumstances
14You were born and raised in Stawell where you lived with your parents and three older siblings. Your parents separated when you were six years old. Your father moved to Western Australia and you and your siblings remained living with your mother. You had very little to do with your father and have developed no lasting bond.
15You attended the local primary and secondary school in Stawell. You completed Year 10. Upon leaving school, you commenced a two year spray-painting apprenticeship. You then moved to the Gold Coast with your girlfriend. You worked in a number of jobs simultaneously, including carpet laying, telemarketing, and nightclub promotions. Your four year relationship with your girlfriend ended when she left you for another person. You returned to Victoria and were utterly devastated. You attempted suicide and were admitted to Stawell Hospital. You underwent counselling three times over two weeks and were prescribed anti-depressants which you took between the ages of 21 and 23.
16Following a period of unemployment for about three months, you commenced working at Stawell Abattoirs. You worked there for about twelve months before moving to Wodonga with a new partner. In Wodonga, you undertook disability support worker courses and then began working for BUPA retirement village in 2018. That same year, your then partner gave birth to your son. Your son is now aged four. Your relationship with your son’s mother ended due to her drug use. Since then you have remained single and have been the sole parent to your son. Around the time of the offending, you were living in Melton with your son. You were working as a home nurse and undertaking community access work.
17I was told by your counsel that you smoked cannabis on a regular basis between the ages of 21 and 29. Around the time of the offending, you were also drinking excessively. You have never used any other illicit substances. You have abstained from cannabis use and drinking since your arrest on 15 July 2021.
18Upon your release from custody on bail, you have continued to be the primary carer of your son whilst working full-time. You are currently employed by an asbestos removal business. I have had regard to the reference from your employer who speaks highly of your work ethic.[3]
[3]Exhibit 5.
19You currently reside in Ballarat with your son. The Department of Health and Human Services has been involved with you and your son but have recently closed their file having been satisfied that you are capable of acting as a responsible full-time carer to your son. You maintain a close relationship with your mother. Shortly prior to the offending, your mother lived in Western Australia. She currently lives in Melton and works in disability support. She travels to Ballarat regularly to provide you and your son with much needed support. I have had regard to the character reference written by your mother.[4]
[4] Exhibit 4.
Matters in mitigation
20You were 28 years old at the time of the offending. You are now aged 30. You have no relevant criminal history.[5]
[5]One appearance before the Horsham Magistrates Court on the 11 July 2019 for an offence of driving whilst disqualified. You were convicted and fined $750.
21Your 26 days in custody was your first experience of prison. It coincided with onerous conditions due to the pandemic. This involved periods of lockdown and no personal visits. It involved you being separated from your son. I am told that you found the experience harrowing. I have had regard to the psychological report dated 26 October 2022, authored by Jeffery Cummins tendered on the plea.[6] You told Mr Cummins that you found your time on remand to be a ‘massive wake-up call’.[7] You also told him that you were ‘absolutely petrified’ about the prospect of being returned to a custodial setting.[8] You expressed similar sentiments to your counsellor, Dr Lisa Ciechomski.[9] It is hoped that your experience of custody will deter you from committing any further criminal offending.
[6] Exhibit 2.
[7]Ibid, [28].
[8]Ibid, [31].
[9]See Exhibit 3, report dated 1 June 2022, paragraph 3.
22Although not at the earliest opportunity, you have pleaded guilty in this Court, following a sentence indication. Your pleas of guilty have avoided the need for a trial and saved valuable court time and expense. Pleas of guilty entered during a period when this Court is facing a significant backlog of trials entitles you to a further and palpable discount.[10]
[10]Worboyes v The Queen (2021) 96 MVR 344.
23I further accept that your pleas of guilty demonstrate some remorse.
24You are now aged 30. You have no relevant prior convictions, nothing subsequent and no other pending matters. This offending was plainly out of character. Since being granted bail you have resumed your life, living and caring for your son and maintaining employment. You are fortunate to have the support of your mother. You no longer consume alcohol or smoke cannabis. Upon your release from custody, you saw your doctor who prescribed you with antidepressant medication. You have also undertaken counselling with Dr Lisa Ciechomski. I have had regard to the two letters written by Dr Ciechomski dated 1 June 2022 and 28 November 2022.[11] You commenced counselling on 24 September 2021. You have engaged in at least seven counselling sessions which have focused on managing your depression and stress.
[11]Exhibit 3.
25It is hoped that you maintain the progress you have made. If you do so, then your prospects of rehabilitation are good.
26I have also taken into account Mr Cummins’ professional opinion in relation to your psychological make-up. Mr Cummins opines that you are psychosocially immature and someone who is easily led and relatively unassertive. Mr Cummins is of the opinion that you were suffering from symptoms of a Major Depressive Disorder of at least a moderate severity at the time of the offending. You currently report some residual symptoms of a Major Depressive Disorder and of reactive anxiety to your current legal predicament. Mr Cummins opines that your psychological presentation and the fact that you look and sound mildly interpersonally inadequate would make more onerous any time you spent in custody.[12] You would be assisted by mental health treatment to make you become more assertive and to learn more about your feelings and how to act appropriately in response to those feelings.[13]
[12]R v Verdins (2007) 16 VR 269, principle 5.
[13]Exhibit 2, [50] – [51].
Gravity of the offending
27The maximum penalty in respect of charges 1 and 2 make plain the seriousness with which Parliament views these offences. The fact that you believed that one of the victims had stolen your mother’s cheque provides no excuse for your violent and aggressive offending. You could and should have handled any alleged taking of the cheque in a lawful manner. You could quite easily have had the cheque cancelled and reissued. Instead, you chose to travel to the victims’ home and confront them in a manner that would have been terrifying for them. I accept that the offending did not involve any careful planning. I was told that the weapon that you utilised was already present in the Ford vehicle. The offending was short lived, lasting less than a minute, which included your arrival at the address, entering the house and then leaving. At the time of entering the house, you intended your victims to apprehend violence rather than inflict actual violence. Upon being asked by Thomas Briody to calm down and desist, you did and left.
28While there are no victim impact statements, as I have said the incident would have been frightening. You were armed with a large machete or cleaver which you utilised to cause damage to the front door and gain entry. Having entered the house, you caused damage to walls.
29In sentencing you, I must adequately punish you and denounce your conduct. Deterring others from committing similar offending is also an important consideration.
30Recognising the seriousness of your offending conduct, your counsel submitted that in all the circumstances of this case, including matters relating to the objective gravity of the offending, matters in mitigation and personal to you, a disposition, not involving any further incarceration along with a Community Correction Order (‘CCO’) could rightly be considered.
31The prosecution conceded that such a disposition was open and would adequately deal with all sentencing objectives.
32At the sentence indication hearing on 30 November 2022, I indicated that if you entered pleas of guilty, I would impose a sentence consisting of time served in combination with a CCO.
33I have had regard to the pre-sentence assessment report from the Department of Justice dated 12 December 2022.
34On charge 1, you will be convicted and sentenced to 26 days’ imprisonment.
35In addition, on charges 1 and 2, you will be convicted and sentenced to a CCO for a period of 2 years commencing today.
36Every CCO has core conditions that you must comply with. They are as follows:
· You must not commit any offence punishable by imprisonment.
· You must comply with any obligation or requirement prescribed by the regulations.
· You must report to and receive visits from the Secretary.
· You must report to the community corrections centre within two clear working days.
· You must notify the Secretary of any change of address or employment within two clear working days of the change.
· You must not leave Victoria except with the permission of the Secretary.
· And, finally, you must comply with any direction given by the Secretary that is necessary for the Secretary to give to ensure your compliance with the order.
37In addition to the mandatory core conditions, the CCO will also include the following special conditions:
· First, you will have to perform 250 hours of unpaid community work as directed.
· Second, you must undergo assessment and treatment (including testing) for drug abuse or dependency as directed.
· Third, you must undergo assessment and treatment (including testing) for alcohol abuse or dependency as directed.
· Fourth, you must undergo any mental health assessment and treatment as directed.
· Fifth, you must engage in programs that address factors relating to your offending behaviour.
· Sixth, you will be subject to supervision as directed for the duration of the CCO.
38You must report to Ballarat Community Correction Services within two working days from today.
39Pursuant to s 48CA(2) of the Sentencing Act1991, I direct that treatment and rehabilitation successfully undertaken is to be counted as hours of unpaid community work for the purposes of the unpaid community work condition.
40Mr Whitehead, you need to understand that if you were to breach the CCO in any way, either by committing another offence or by not complying with any of the core or special conditions, then you could be charged with the offence of breaching the order.
41The offence of breaching a CCO itself carries a maximum penalty of three months' imprisonment. So were you to breach the order, you would need to come back to Court and face sentencing for that breach offence. In those circumstances, you could also be re-sentenced for the offences for which you were placed on the order originally, namely the charges of aggravated burglary and damaging property. You would then face the very real possibility of being sent back to prison.
42So, there are serious consequences attached to any breach. Do you understand that?
43OFFENDER: Yes, I understand that Your Honour.
44HIS HONOUR: Do you also understand all the conditions of the proposed CCO?
45OFFENDER: Yes, I do.
46HIS HONOUR: Do you consent to being placed on a CCO in the terms I have outlined and to abide by all of its conditions?
47OFFENDER: Yes, yes, I do Your Honour.
Pre-sentence detention
48Pursuant to s 18 of the Sentencing Act 1991, the period of 26 days of pre-sentence detention, is declared as having already been served in respect of this sentence, and I order that such declaration and its details be entered in the Court’s records.
Section 6AAA declaration
49Pursuant to s 6AAA of the Sentencing Act 1991, I indicate that had you pleaded not guilty and been convicted I would have sentenced you to a term of 2 years and 3 months’ imprisonment with a non-parole period of 18 months.
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