Director of Public Prosecutions v Williams

[2022] VCC 266

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-21-01498

DIRECTOR OF PUBLIC PROSECUTIONS

v

BRODIE WILLIAMS

---

JUDGE:	Her Honour Judge Hassan
WHERE HELD:	Melbourne
DATE OF HEARING:	24 February 2022
DATE OF SENTENCE:	10 March 2022
CASE MAY BE CITED AS:	DPP v Williams
MEDIUM NEUTRAL CITATION:	[2022] VCC 266

REASONS FOR SENTENCE
---

Subject:CRIMINAL LAW

Catchwords:              Sentence — aggravated home invasion — damaging property — theft — theft of car — theft of petrol — drive whilst disqualified — plea of guilty — category 1 offence — mandatory term of imprisonment — minimum non-parole period — offensive weapon — knife — offending in company — vulnerable victim — moral culpability — criminal history — disadvantage in childhood — mild intellectual disability — reactive attachment disorder — attention deficit hyperactivity disorder — generalised anxiety disorder — conduct disorder — substance abuse — alcohol — cannabis — methamphetamine — youthful offender — prospects of rehabilitation

Legislation Cited:      Sentencing Act 1991 (Vic)

Cases Cited:Bugmy v The Queen (2013) 249 CLR 571; Director of Public Prosecutions (Vic) v Drake [2019] VSCA 293

Sentence:                  Total effective sentence of four years and nine months with non-parole period of three years and three months

Section 6AAA declaration: total effective sentence of seven years with non-parole period of five years

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms E Rutherford	Office of Public Prosecutions
For the Accused	Mr M Page	Greg Thomas Barrister & Solicitor

HER HONOUR:

1Brodie Williams, you have pleaded guilty to one charge of aggravated home invasion (charge 1), for which the maximum penalty is a term of imprisonment of 25 years. You have also pleaded guilty to a charge of damaging property (charge 2), for which the maximum penalty is a term of imprisonment of 10 years, and two charges of theft (charges 3 and 4), for which the maximum penalty is a term of imprisonment of 10 years.

2You have also pleaded guilty to the summary charge of driving while disqualified, which carries a maximum penalty of 240 penalty units or two years’ imprisonment.

3The charge of aggravated home invasion is a category 1 offence under the Sentencing Act 1991 (Vic) and, accordingly, a custodial sentence must be imposed unless the Court finds a special reason exists.[1] Furthermore, the charge of aggravated home invasion requires that a term of imprisonment be imposed and that a non-parole period of not less than three years be fixed unless the Court finds a special reason.[2] There was no submission made on your behalf that a special reason exists to avoid the mandatory application of the relevant sections.

[1] Sentencing Act 1991 (Vic) ss 5(2G), 10A.

[2] Ibid ss 10AC, 11.

4Tendered on the plea as exhibit 1 was a ‘Summary of Prosecution Opening’.

5In brief, the circumstances of your offending were as follows.

6At the time of the offending, you were 19 years old and resided at 3/10 Larnoo Avenue in Brunswick West. David George, the victim, was born on 4 August 1938. At the time of the offending, he was 81 years old. Mr George lived next door to you at 4/10 Larnoo Avenue in Brunswick West.

7Mr George owned a blue 2009 Hyundai i30 hatchback bearing registration YDO 065.

8At approximately 6:40pm on 3 December 2020, Mr George was at home and went outside to his bin area to dispose of some newspapers. He left the back door open. After Mr George had disposed of the papers, he walked back to his house to go back inside. He walked back in through his back door and was pulling it closed behind him when you appeared, grabbed the door, and pulled it open. Mr George recognised you as the person who lived next door.

9You pushed through the door, damaging its frame (charge 2) with your unidentified co-offenders, two females and another male. You were armed with a kitchen knife (charge 1).

10You asked Mr George for his car keys. He did not tell you where they were but you subsequently found them in his bedroom. When you were in Mr Georges’ bedroom, he tried to walk out the front door. However, the unknown male placed himself in front of the door. Mr George attempted to pull the male away from the front door, however, he was not successful. Mr George realised he could not get out of the house and stood in his living room. During the offending, he observed one of the unknown persons take his portable home phone which was sat in the base unit near the front door.

11You returned to the lounge room with Mr George’s car keys and made demands for his mobile phone. Mr George would not tell you where it was, at which point you and your co-offenders left. You made your way to Mr George’s car in the driveway and drove it away (charge 3).

12Mr George made his way to a neighbour’s home and police were called.

13On 6 December 2020, police located Mr George’s vehicle at an address in Craigieburn. The resident at this address told police you had sold him the vehicle two days earlier for $500.

14You were located at the Craigieburn address and arrested. You participated in a record of interview and admitted you had taken the car.

15You said of your actions:

I was sitting at home, bored, I was like, I want a car. So I went in through his back gate, kicked in his fuckin’ back door … And then walked in his house, went … into his bedroom — well, I looked in the loungeroom first, walked into his bedroom … Grabbed the car keys and drove off.

16You denied you were armed with a knife. You said you removed the vehicle’s registration plates so you ‘could drive past coppers, like, drive normally without them thinking it was stolen’.

17Police obtained footage from a CCTV camera located at an address in Altona. That footage captured you at approximately 6:11am on 4 December 2020 driving Mr George’s vehicle with an associate to the associate’s address.

18Police also obtained footage from a CCTV camera located at the Caltex service station at 62-82 Gordon Street in Footscray. That footage captured you at approximately 7:00am driving Mr George’s vehicle to a petrol bowser. Your associate exited the vehicle and placed $22.69 worth of fuel into the car. The footage further captured your associate return to the vehicle and you drove off without paying for the fuel. At the time of the offending, you were disqualified from driving a motor vehicle (charge 4, theft, and related summary charge 6, drive whilst disqualified).

19On 10 January 2021, while on remand for this offending, you spoke to your mother on the telephone. Your call was recorded. In your conversation, you told your mother that you went into your neighbour’s house because he had ‘lagged’ on you. You said you got a complaint about noise you were making, playing music between 5:00pm and 6:00pm.

20You pleaded guilty to the charges on the indictment and the related summary offence on 17 December 2021. This was after a contested committal which took place in June 2021. This is not a plea entered at the earliest opportunity, but it nevertheless carries significant utilitarian value in the ongoing circumstances of delay and uncertainty in listing and running criminal trials in the context of the COVID-19 pandemic. By virtue of your plea of guilty, you have acknowledged criminal responsibility for your actions.

21There was no submission to me that I should find you remorseful. Rightly so — there is no evidence of full and insightful remorse on your part.

22There was no victim impact statement in this matter as Mr George sadly died on 3 December 2020.

23None of your co-offenders have been identified and there are no issues of parity arising in sentencing you.

24I will turn now to the objective gravity of your offending. Your offending was very serious indeed, Mr Williams. In her written submissions, Ms Rutherford, who appeared to prosecute, relied upon the following matters as going to the seriousness of your conduct, none of which were disputed by Mr Page, who appeared on your behalf, and all of which I accept.

25First, your offending was in company. You and your co-offenders forcibly entered Mr George’s home, damaging the door.

26Secondly, you were armed.

27Thirdly, you entered with an intent to steal Mr George’s car.

28Fourthly, your motive, in part at least, was revenge for a perceived wrong of a very minor nature — that is, your belief that Mr George complained about your loud music.

29Fifthly, Mr George at 81 was a vulnerable person who was entitled to feel safe and secure in his own home.

30Further, and finally, you had only been released from your last stint in custody some days before you committed these offences. In my view, the fact that you have resorted to offending, and serious offending at that, yet again, and so soon after your release from custody, is not only relevant to my assessment of your prospects of rehabilitation, and engages the sentencing principles of specific deterrence and protection of the community, but it is also directly relevant to my assessment of your moral culpability.

31I regard the objective gravity of your offending as high. Before I turn to the question of your moral culpability, it is necessary for me to consider your background and your personal circumstances, as you relied upon your experience of a deprived childhood and formative years as enlivening Bugmy principles and therefore bearing upon my assessment of your moral culpability.[3]

[3] Bugmy v The Queen (2013) 249 CLR 571 (‘Bugmy’).

32Your background is one of difficulty and disadvantage from the time of your birth. In outlining your background, I refer in the main to the ‘Risk Assessment Report’ prepared by Mr Simon Brown, senior practitioner at SALTIE, a psychological clinic in Watsonia, dated 14 August 2019. This report contains an overview of multiple reports prepared in 2018 and 2019 by the very many services engaged in supporting you and which detail your history and antecedents, and also the various psychological and neuropsychological assessments you have undertaken. It is reflective of your very complex needs.

33Your mother was a heroin addict when you were born on 17 June 2001. You were born substance-dependent. You were put into care for the first time when you were only six months old due to reports of maternal physical abuse and neglect. Although your mother was unable to properly care for you herself, she continued to sabotage your foster placements. You were returned to her care aged five for around 18 months but were taken back into protective care due to reports of drug use, exposure to family violence, and physical abuse.

34Despite her inadequacies, you have a history of absconding from residential placements to return to your mother. You love your mother and remain attached to her, although you complain about her unreliability. You have a younger half-sister and you are attached to her and you hope you and your sister will develop a positive relationship.

35Your father has never been a part of your life. Indeed, you do not know who he is. Your mother has been in a series of abusive relationships. You have had no positive male role models during your childhood and formative years.

36You have exhibited behavioural difficulties from an early age. Your schooling has been constantly disrupted due to you moving from residential placement to placement. You have suffered not only educationally, but developmentally, not having had the opportunity to establish a stable circle of friends, which has hampered the development of your social skills and your ability to form social connections. You have a history of socialisation difficulties.

37In 2019, while in the Parkville Youth Justice Centre, you enrolled in the Victorian Certificate of Applied Learning (‘VCAL’). At the time of Mr Brown writing his report, you were doing well on this course. I am unclear whether you have completed this course.

38You have never held employment.

39You have diagnoses of mild intellectual disability, reactive attachment disorder, attention deficit hyperactivity disorder, generalised anxiety disorder and conduct disorder. You have a history of substance abuse including alcohol, cannabis and methamphetamine, the latter of which has been linked with your episodes of violent behaviour.

40From 2017 onwards, you have spent much of your young life in youth detention.

41You report that you were sexually abused by a male peer at Parkville in 2018. You received psychological support from the Gatehouse Centre at the Royal Children’s Hospital and from a psychologist as a result of this assault.

42I accept that the violence you witnessed as a child and the deprivation you endured during childhood and your formative years engages Bugmy principles. The prosecution did not dispute this. As the Court of Appeal said in the case of Director of Public Prosecutions (Vic) v Drake,

the profound dysfunction, disadvantage and abuse experienced by the respondent during his formative years were relevant to an appropriate evaluation of his moral culpability. As recognised by the High Court in Bugmy, those experiences, none of which were of his making, all played a significant role in shaping the respondent’s personality and his responses. As a consequence, his subjective culpability, for the offending in which he engaged, could not be equated with that of a person who committed the same offence but had had the advantage of a normal, stable and regular home environment during his or her childhood years. In that way, those factors constituted an important mitigating circumstance in the determination of the respondent’s sentence.[4]

[4] [2019] VSCA 293, [32].

43I find that your moral culpability is moderated pursuant to Bugmy principles. However, weighted against this is the gravity of your offending and its many aggravating features. Furthermore, your inability over the years to refrain from offending enlivens the sentencing principles of specific deterrence and community protection.

44You have a relevant and significant criminal history. You have been before the courts persistently since 2014 and have received periods of detention since 2017. You have relevant prior convictions for aggravated burglary, aggravated carjacking, attempted aggravated carjacking, armed robbery, attempted armed robbery, theft, intentionally damaging property, criminal damage and burglary. Most concerningly, Ms Rutherford tendered at the plea two summaries of offending committed by you in 2018 and 2019. In both cases, you and your co-offenders targeted an older person and stole his vehicle. In other words, you have a pattern of offending which involves targeting vulnerable people and the offending for which you now fall to be sentenced is yet another serious example of this behaviour.

45On behalf of the Director, Ms Rutherford referred me to authorities which discuss the egregious nature of the crime of aggravated home invasion. She referred me to your criminal history and the application of the sentencing principles of specific deterrence and community protection.

46Ms Rutherford acknowledged that you are a youthful offender and the weight that must be given to rehabilitation, but submitted consideration had to be given also to the obvious seriousness of your offending and to your criminal history.

47Mr Page on your behalf acknowledged the gravity of your offending and the relevance of your criminal history. He acknowledged that on charge 1 you were caught by the mandatory application of the Sentencing Act 1991 (Vic) and must receive a sentence of imprisonment with a non-parole period of no less than three years. However, he submitted that given your youth, your plea of guilty, your background and the application of Bugmy principles, and to give effect to your rehabilitation, as much as I am able, sentencing within the confines of the statutory mandates, I should fix a non-parole period of three years. He urged me to order all other sentences be served concurrently.

48Mr Page submitted that your prospects of rehabilitation were positive. He submitted and tendered material to show that there were a number of services in place to support you upon your release. However, he acknowledged that, because of your low intellectual functioning, you can become easily overwhelmed and disengaged from interventions designed to help you.

49Mr Williams, your offending is very serious and you should be ashamed of yourself for targeting older, vulnerable people. This is not the first time that you have behaved liked this.

50This is your first time in adult prison and prison is a very difficult place for a young person like you, especially with COVID-19 restrictions still in place. But you have left the Court with no other options. I must impose a sentence that sends a warning to others who would behave as you did, that if they behave this way, they will be punished, and punished sternly. I must also try and get the message through to you that if you continue to commit serious criminal offences, you will be punished and that punishment will in all likelihood involve prison. I must also denounce your conduct and strive to protect the community from you.

51I regard your prospects of rehabilitation as sadly demonstrably poor, but I must, as far as I am able, attempt to promote your rehabilitation, given that you are still only a young man, only 20 years old.

52Weighing up all the various sentencing considerations as best I can, I intend to sentence you as follows. You are convicted on all charges, indictable and summary. On charge 1, you are sentenced to four years and six months’ imprisonment. On charge 2, you are sentenced to one month imprisonment. On charge 3, you are sentenced to 10 months’ imprisonment. On charge 4, you are sentenced to one month imprisonment. On the summary charge, you are sentenced to one month imprisonment.

53Charge 1 is the base charge. I order that three months of the sentence on charge 3 be served cumulatively on the sentence on charge 1.

54That makes a total effective sentence of four years and nine months. I direct you serve a non-parole period of three years and three months.

55Pursuant to s 6AAA of the Sentencing Act 1991 (Vic), had you pleaded not guilty, you would have been sentenced to a total effective sentence of seven years with a non-parole period of five years.

56Pursuant to s 18(4) of the Sentencing Act 1991 (Vic), I declare that you have served 459 days, not including today, of the sentence I have passed upon you and I direct that this be entered into the records of the Court.

57Pursuant to s 89(4) of the Sentencing Act 1991 (Vic), having been convicted on charge 3, that is the theft of a car, I must cancel your driver’s licence. That is mandatory and the minimal period that I can cancel your licence is three months. So, I make that cancellation of three months starting today. So, in reality, it has no real effect, but it is a mandatory provision.

- - -