DPP v Brooks
[2008] VSCA 253
•9 December 2008 (Date or reasons: 9 December 2008; Date of Orders: 6 December 2008)
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No 77 of 2008
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ASHLEY WAYNE BROOKS |
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JUDGES: | MAXWELL P, BUCHANAN and VINCENT JJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 18 September 2008 | |
DATE OF ORDERS: | 6 November 2008 | |
DATE OF REASONS: | 9 December 2008 | |
MEDIUM NEUTRAL CITATION: | [2008] VSCA 253 | |
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CRIMINAL LAW – Sentence – Director’s appeal – Sentence manifestly inadequate – Theft – Burglary – Attempted burglary – Aggravated burglary – Intentionally causing serious injury – Additional matters pending not brought to the attention of the judge – Sentence imposed based upon factual error – Rehabilitation weighed against societal expectations and deterrence – Appeal allowed – Sentence inadequate appellant re-sentenced.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr T Gyorffy | Mr S Ward, Acting Solicitor for Public Prosecutions |
| For the Respondent | Mr P F Tehan QC with Mr C B Boyce | R V Tait & Co |
MAXWELL P
BUCHANAN JA
VINCENT JA:
The judgment of the Court was delivered by Vincent JA.
This matter was first considered by the Court on 10 October 2008. A further hearing took place on 5 November 2008 and the appeal by the Director of Public Prosecutions against sentences imposed upon the respondent in the County Court on 18 February 2008 was allowed.
The Court then re-sentenced the respondent, indicating that the formal statement of our reasons for doing so, which had been discussed in the course of the hearing, would be handed down at a later date.
The respondent pleaded guilty before a judge in the County Court, on 10 December 2007, to two counts of theft (counts 1 and 4), one of attempted burglary (count 2), one of aggravated burglary (count 3) and one of intentionally causing serious injury (count 5).
He was on 18 February 2008 sentenced by his Honour to detention in a Youth Justice Centre as follows:
On count 1 - 3 months
On count 2 - 3 months
On count 3 - 12 months
On count 4 - 18 months
On count 5 - 24 months
His Honour directed that the sentences were to be served concurrently, thereby creating a total effective period of detention of 2 years.
At the hearing, the respondent admitted 42 findings of guilt in the Children’s Court from four court appearances between 25 November 2003 and 16 November 2005. For the most part, they related to the commission by him of offences of dishonesty and only one involved violence, a charge of affray. With respect to that offence, his counsel initially submitted –
… that [occasion] in my submission is the only prior appearance that gives any indication of Mr Brooks having ever been involved in anything of a violent or physical nature and in my submission his other prior matter actually highlights the fact that he has not previously had a violent disposition.
When the matter returned before the judge, on 4 February 2008, on the receipt of a report concerning the respondent’s suitability for detention in a Youth Justice Centre, he further submitted –
Your Honour on the last occasion did accept my submission that there was no evidence before the court of Mr Brooks having had a past violent disposition, that he doesn’t come before the court as somebody who has used violence in the past as a way of dealing with anger and frustration or a way of intimidating others to put himself in a position of power or to affect any other criminal offence. The affray took place when he was 15 years of age and the disposition that he received on that occasion reflects the very low level of his involvement in that situation …[1]
[1]Plea 32-33.
As it transpired, there were other matters pending at that time about which the judge was not informed.
First, according to the Summary of Charges with which we have been provided, on 26 August 2006 -
At approximately 2AM, on Saturday the 26th of August, 2006, the [respondent] was riding a bicycle through a park in Thexton Street, Traralgon. As he approached the victim in this matter, who was on foot, the [respondent] slowed down and stopped and asked for a cigarette and lighter from the victim. He allegedly said to the victim, that he should not be scared of him because he was black. He said that he appreciated people who treated him as an equal. The [respondent] was in the victim’s presence for approximately five minutes.
Very shortly afterwards, a girl came waking down a hill and almost walked past the victim, but then hit the victim with her fist.
At this stage, the [respondent] punched the victim with his right fist, on the left side of the victim’s mouth. The victim sort of spun around but did not land on the ground. The [respondent] then punched the victim again, as the victim was running away.[2]
[2]Summary of charges, date 21 November 2006.
He had been arrested in relation to this matter on 21 November 2006, but for some reason was not brought before the Magistrates’ Court until 12 June 2008. He was then convicted and ordered to be detained in a Youth Justice Centre for five months on a charge of intentionally causing injury.
Secondly, on 27 January 2008, the respondent was in a group of aboriginal males gathered outside the Old Colonial Inn Hotel in Brunswick Street, Fitzroy when another aboriginal man who was standing in the middle of the roadway was struck by a car driven by a man named Anthony Roche. When Roche stopped his vehicle, his two passengers and he were set upon by several men, including the respondent. All three sustained bruising or lacerations in consequence.
This matter came before the Magistrates’ Court at Melbourne on 18 June 2008 and the respondent was sentenced to an effective period of detention of five months on a charge of affray and one of recklessly causing injury.
As earlier indicated, the Director of Public Prosecutions appealed against the sentences handed down, in the County Court on 18 February 2005, on the ground that the periods of detention imposed on counts 3, 4 and 5 and the total effective sentence were all manifestly inadequate.
Although this claim was disputed, it was accepted by counsel appearing on behalf of the respondent in this Court that, as a consequence of the statements made to the sentencing judge to the effect that the respondent had no history of violent behaviour, his Honour proceeded to impose sentence on a factual foundation that was incorrect in an important respect and, accordingly, that it was open to the Court to re-sentence his client.[3]
[3]R v Kane [1974] VR 759; R v Nagul [2007] VSCA 8.
The circumstances relating to the offences
It is sufficient for present purposes to outline the circumstances of the offences with which we are directly concerned, as described by the prosecutor in the Court below:
His [the respondent’s] date of birth is 11 December 1988. On 16 March 2007, Brooks was drinking with relatives at their home in Traralgon. At about 10 p.m. he and his cousin, Joseph Wandin, walked to a pizza shop and bought some food. They then walked to the elderly residential flats in Gwalia Street. Brooks knocked at his grandmother’s door but she was not home.
He asked to stay the night at another flat but was refused. Brooks and his cousin walked on. They found an unlocked silver Ford sedan parked outside the flats. Brooks got into the driver’s seat and his cousin pushed the vehicle backwards onto the street. Brooks tried but was not able to start the motor with the dipstick. The two males abandoned the vehicle in the middle of the street. Wandin went home but Brooks returned to the flats and that is Count 1. Brooks went to Flat 10 where he removed the flywire to a window and tried to slide it open. It was locked and he could not gain entry, Count 2.
Brooks then noticed that a window in Flat 1 was slightly open. He removed the flywire as well as some ornaments from the windowsill. These he threw over a fence. He removed his jacket to reduce any noise and climbed inside the window into the kitchen of Flat 1. His intention was to steal money for more alcohol, and that is Count 3. Brooks looked around the flat and discovered [the victim’s] handbag on the bed in which she lay asleep. He removed a purse from the handbag and took from it the $60 it contained and that is Count 4.
At this point [the victim] woke up. Not wanting her to see him, Brooks punched the 75 year old victim repeatedly in the head and throat, causing multiple serious injuries … Brooks then left the flat by the front door and returned to his cousin’s home at about 4 a.m. (Count 5). The victim managed to telephone her daughter-in-law, at 4.30 a.m. saying she had been bashed.
Her daughter came around to the flat and found her mother beside herself, shocked, and bleeding profusely from the facial area. There was blood all down her nightgown and all over her bed and the pillows were drenched in blood. Police and ambulance services were contacted and the victim was taken Traralgon Hospital. There she was examined by Dr Edward Morgan of the Victorian Institute of Forensic Medicine.
Dr Morgan states that her injuries included one centimetre lacerations to the area above the left eyebrow and the right ear, extensive swelling and bruising to the left and right periorbital regions with left subconjunctival haemorrhage, extensive swelling and bruising to most of the face and jaw, pain and swelling of the nasal bridge indicative of nasal fracture confirmed by a CT scan, extensive bruising and laceration of the upper and lower lip and the inner mucosal surfaces, red bruising to both ears, red bruising to the right and left hand suggestive of defensive type injuries and purple bruising overlying the left knee.
The victim had to be transferred to the Intensive Care Unit at Royal Melbourne Hospital. There she was put into an induced coma for some days. She had to have a tube inserted in her throat to help her breathe. She was in hospital for 12 days and was subsequently cared for by her daughter. In her victim impact statement declared on 27 September 2007 [she] also deposes to suffering a dislocated jaw. As a result of this injury she had to have her false teeth refitted, surgery to replace a smashed lens in her right eye and further surgery to the eye because it would not open, very bad bruising to her arms, legs and stomach, very bad headaches and stitches to repair an eyebrow which was split open.
…
I’m advised today that she, is still unable to properly open her right eye and anticipates further surgery to her nose and the eye Your Honour. … The prisoner was arrested at Morwell on 20 March 2007. He initially gave police a false name. In a record of interview on this date he made full admissions. In respect of the serious injury count he said he was pretty drunk and needed money. He thought he would hit the victim, knock her out and go so she wouldn’t have a chance to see him. He kept punching her because he got scared.[4]
[4]Discussion 2-5.
In support of the claim that the sentences imposed on counts 3, 4 and 5 were manifestly inadequate, counsel appearing for the Director stressed the nature of the aggravated burglary, which involved the entry into the home of an elderly and vulnerable person; the violence of the attack made upon the victim; and its very serious consequences to her both in terms of the injuries sustained and the effect that it had upon her capacity to live independently thereafter. The respondent, he pointed out, unlawfully entered her unit at night in order to steal and then, for no better reason than that he feared that he might be subsequently recognised or identified and held accountable for his criminal conduct, struck her savagely. Acknowledging the importance of his youth as a sentencing consideration, counsel submitted that the seriousness of this behaviour was simply not reflected in the sentences imposed. This would have been the case, he submitted, even if the respondent had no history of violence, as the judge was informed. When that history was taken into account, their inadequacy became even more apparent. Insufficient weight could be seen to have been attributed to the importance of general deterrence in such a case in order to protect the elderly and vulnerable, to the seriousness of the offending itself, the need for specific deterrence of the respondent and the very serious and continuing harm done to the victim, he continued.
Counsel for the respondent, as we have mentioned, accepted that the sentencing judge had been misinformed in an important respect. However, he argued, it did not follow that the approach adopted by his Honour was inappropriate in view of his client’s age and background even when the additional matters were taken into account. The central thrust of his argument was encapsulated in the following passage from the written submissions with which the Court was provided –
2.1The learned sentencing judge was aware that the respondent had arrived at an important (perhaps a watershed) moment in his life. The respondent’s present offending when combined with his age, upbringing, lifestyle and criminal history, revealed that unless the opportunity was taken to educate and rehabilitate the respondent, it was likely that he would face a very bleak future indeed. If such future was realised, the community would, in the long run, have been left in greater danger. The judge determined that the appropriate means of insuring against this eventuality was to order that the respondent be confined pursuant to a Youth Justice Order. (Footnote omitted)
…
2.3The respondent, who was 18 in March 2007 and 19 when sentenced, was born into a world of dysfunction. His mother was 14. She was unable to care for him properly because of heroin addiction. The respondent grew up away from his father. In some respects this might have been a good thing. He also abused drugs and was very violent. Needless to say, the respondent grew up without a positive male role model. The life that surrounded the respondent in his formative years was one characterised by abuse of alcohol and drugs and the commission of crime. The respondent is a young aboriginal man. His family lineage appears to be lost. His partner was expecting their first child at the time of sentence. The respondent is of slight stature. The judge found that the respondent would be particularly vulnerable in an adult jail setting. The respondent is virtually illiterate, and, at the time of the offences, was itinerate with no income. (Footnotes omitted)[5]
[5]Respondent’s Submissions 1-2.
The task confronting the judge in this case was, as is so often the situation, extremely difficult. On the one hand, for the reasons advanced on behalf of the Crown in this Court and which were well understood by his Honour, the conduct of the respondent would almost always result in the imposition of a term of incarceration considerably longer than that handed down. Only a moment’s thought is required to appreciate why this must be so. On the other, there were powerful considerations relating not only to the rehabilitation of the respondent but to the long term interests of society to which attention was required. With regard to this latter aspect, it is well to remember that a primary objective of the criminal justice system is the reduction of the damage suffered by individual victims and the community generally as a consequence of the engagement by offenders in anti-social conduct. Sometimes in pursuit of that objective and in order to emphasise the seriousness with which particular conduct is viewed, the responses of the Courts must be seen to be stern but it is not always to society’s advantage to act in this way. A heavy punitive response, whilst seeming to be just when considered in the context of the particular behaviour and circumstances, may actually occasion greater damage in the long term. Striking a proper balance is seldom easy and certainly was not so in this case.
The sentencing judge was acutely conscious of the tensions between the competing values and objectives to which he was required to have regard, as he made clear in his sentencing remarks. At one point he stated –
The facts in this case are, no doubt as you realise, sickening, given the extraordinary pain and hurt that you inflicted on a very elderly woman. As I have noted, there is a victim impact statement in this matter. I have read that and take its contents into account in determining an appropriate disposition. I accept that the victim suffered considerably as a result of your actions and particularly, in addition to the physical injuries which I have noted, your victim as a result of your actions has had to move into a nursing home as she no longer feels safe living on her own. She has had counselling and feels that her whole life has changed dramatically as a result of your violent attack. As she concludes in one of her answers, ‘I am the one who feels like a prisoner while the young man has his freedom, it’s just not right’.[6]
[6]Sentence 48.
However, he recognised the need to take into account the respondent’s plea of guilty and the stage at which it was entered, his full admissions to the police, expressions of remorse which his Honour accepted were genuine, as well as the respondent’s background concerning which he said (inter alia) –
The history of you, your mother and those around you is sadly redolent of that which this court hears on so many occasions, particularly with respect to indigenous families. The dislocation, the substance abuse, the domestic violence, are all matters which are set out in the report prepared for me by the Department of Human services and explained further by your counsel. You are functionally illiterate, having had no real schooling of substance. You clearly have issues with respect to alcohol and cannabis. As it was explained, you drink to get drunk. Since 2004 your mother has lived in Melbourne and you have had only recent contact with your father. You received no benefits and you are what you describe as a couch surfer, floating between family and friends.
…
Your partner is very young and your relationship with her is described in the report. Clearly it is a very problematic relationship and she is about to give birth to your child. Under the heading, ‘Health, drug and alcohol’ in the report prepared for me, your use of chrome aerosol paint, cannabis and alcohol, amphetamines and methylamphetamine is described. You began drinking at the age of 13 and associated with your drinking is anger and violent behaviour. As I have noted, your situation is sadly typical of that which comes before this court. In a sense you were born into a disastrous situation and, sadly for you, you have been unable to deal with that or turn it around in any meaningful way.
I must pause to point out, of course, that to expect someone of such tender years in such a difficult situation to extract themselves from that situation and turn their lives around is really asking for what in essence amounts to a minor miracle.[7]
[7]Sentence 49 and 50.
It is also apparent from the sentencing remarks that the judge was influenced by his belief that the violence in which the respondent engaged on this occasion was out of character. It is quite likely that, had he been correctly informed, a heavier penalty would have been imposed.
By the time the matter came before us, the respondent has been detained for almost a year and was being considered for release from custody on a Youth Parole Order. It appeared that he had used his period of detention constructively and had a reasonable expectation that he would be released within a matter of days.
The Court accepted the contention of counsel for the Director that, notwithstanding the obvious care with which the judge approached his task, the sentences imposed by him were inadequate to the extent that the intervention of the Court was required, and would have been so even if the respondent’s background with respect to violence was as he had been informed. When the additional matters were taken into account, the sentences could not be seen to reflect the seriousness of the offending involved or the significance of general deterrence in cases of this kind or the specific deterrence of the respondent.
The violation of the privacy and safety of the home of any person, whatever be their age or situation, must be seen to be regarded as extremely serious by the Courts. As the present case demonstrates, the financial loss occasioned by the victim will often be its least serious consequence. Where the entry is effected for the purpose of violence or intimidation, or where the perpetrator engages in such behaviour whilst there, the level of criminality is clearly aggravated. Put at its simplest, the members of this community are entitled to feel and remain safe in their homes and the Courts must play their part through the sentencing process to ensure that this right is vindicated.
Bearing in mind, in particular, the age of the respondent, the importance of enhancing his prospects for rehabilitation and the progress that he has made since sentence was handed down, as well as the principle of double jeopardy, we concluded that the sentence on count 5 should be set aside and substituted by an order for his detention in a Youth Justice Centre for a period of three years.
The orders were accordingly –
The appeal is allowed.
The sentences imposed in the Court below are set aside and save for that on count 5 are re-imposed.
On count 5, the respondent is sentenced to detention in a Youth Justice Centre for a period of three years.
All sentences are to be served concurrently. This creates a total period of detention of three years.
It is declared that the 302 days of detention already undergone be reckoned as having been served under this sentence and it is directed that this declaration be entered in the records of the Court.
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