R v Braddick, Brian; R v Braddick, Robert

[2018] NSWDC 407

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:	R v BRADDICK, Brian; R v BRADDICK, Robert [2018] NSWDC 407
Hearing dates:	Trial: 19 February 2018 – 26 February 2018; Sentence: 4 May 2018; 27 July 2018
Decision date:	28 September 2018
Jurisdiction:	Criminal
Before:	KING SC
Decision:	B. Braddick: Convicted. Sentenced to a term of imprisonment of 2 years to commence today to be served by way of an Intensive Corrections Order. The conditions of the Intensive Corrections Order are: You must not commit any offence, and you must submit to supervision by a Community Corrections Officer. In addition you are to comply with all reasonable directions in respect of counselling and/or treatment for alcohol, drugs and anger management. R. Braddick: Convicted. Sentenced to a term of imprisonment of 2 years to commence today to be served by way of an Intensive Corrections Order. The conditions of the Intensive Corrections Order are: You must not commit any offence, and you must submit to supervision by a Community Corrections Officer. In addition you are 1. to comply with all reasonable directions in respect of counselling and/or treatment for alcohol, drugs and anger management.
Catchwords:	CRIMINAL – Sentence – aggravated break & enter & commit assault occasioning actual bodily harm – in company – joint criminal enterprise - subjective matters
Legislation Cited:	Crimes Act 1900
Category:	Sentence
Parties:	Regina Brian Braddick Robert Braddick
Representation:	Counsel: B. Braddick: Ms L Rowan R Braddick: Mr D Roff       Solicitors: Crown: Mr J Gibson
File Number(s):	2015/00188536 – B. Braddick2015/00188571 – R. Braddick

Judgment

1. HIS HONOUR: Brian Braddick and Robert Braddick each appear for sentence in respect of an offence that on 31 January 2015 at Nowra in New South Wales they did break and enter the dwelling house of Glenda Dixon situate at 98 Salisbury Drive, Nowra, and then in the dwelling house did commit a serious indictable offence, namely an assault occasioning actual bodily harm upon Joseph McMahon in circumstances of aggravation, namely being in the company of each other and other male persons.

2. The maximum penalty provided for this offence is 20 years’ imprisonment and there is a relevant standard non‑parole period of five years. The matter commenced as a trial on 19 February 2018 with an alternative count. On 2 March 2018 each of the offenders was convicted in relation to Count 1, which is as I have just stated.

3. The facts I find beyond reasonable doubt are as follows:

4. In the afternoon of 31 January 2015, Joseph McMahon was in his bedroom at his mother’s home in Salisbury Drive, Nowra. His mother, Glenda Dixon, and his sister, Casey Sharpley, were in the lounge room watching television. The front door of the house was open, however the screen door was closed.

5. According to Glenda Dixon, about four males walked in. According to Ms Sharpley, about five males. I accept that at least three males entered; however, only two of those entered the bedroom of Joseph McMahon.

6. As the males entered, the first one said “Where’s Joey?” and Glenda Dixon replied “Who are you, I don’t know youse, get out of my house”. The male replied “Sis, I don’t want to disrespect you in your own home but I’m looking for your son”. She then said “Get the fuck out of my house, I don’t want trouble here”. They then went into her son’s bedroom.

7. She heard Joey screaming, and loud bangs. The loud bangs sounded like someone smashing up a bedroom. Casey Sharpley heard one of the males say “I’m Joey’s killer”. She heard her brother screaming and heard things hitting the wall. Both Ms Dixon and Ms Sharpley stayed in the house for a short time, a few minutes, before they both went into the backyard of the house and Ms Dixon rang Triple 0. Police and an ambulance came, and Joseph McMahon was taken to hospital.

8. When the police arrived, they found Mr McMahon lying on the floor of his bedroom, drifting in and out of consciousness.

9. He was examined by a doctor at about 5pm at the hospital. The doctor found that there was a laceration to the scalp which required staples. He had a bruised thumb and a small fracture at the base of the metacarpal and a bruise on the left thigh.

10. After leave was obtained to cross‑examine him under s 38 and his previous statement was put to him, that Brian Braddick had hit him over the head with something hard that he was holding that was about 30 centimetres long. Then Robert Braddick started hitting him with something hard that he was holding. He said it was solid wood and similar in size to the weapon that Brian Braddick was holding.

11. His evidence was that Brian picked up a chair and hit him over the back with it. The chair broke into pieces as it hit him. Brian then picked up a fan that was in his room and hit him over the back with it. He said they both continued to assault him and he ended up getting knocked out.

12. This was clearly a joint criminal enterprise to commit the break and entry for the purpose of assaulting Joseph McMahon. I accept that the motivation behind the assault was as alleged by the Crown, that there was some perceived misconduct between a female relative of the offenders and Joseph McMahon earlier that day. That perceived misconduct had been communicated to them although there was no evidence in the trial of it having been done so, and that as a result they attended what can be reasonably described as a vigilante action to obtain retribution on behalf of the female relative.

13. The injuries occasioned to Joseph McMahon were relatively minor. He gave no evidence of any significant sequelae arising from the assault. It is clear from the photographs taken of him that day by the investigating officers that he was struck several times with a pole or cylindrical implement, leaving an outlined bruise in red on his back indicating that considerable force had been used in striking him. As well as that, he had the other injuries that I have referred to. Whether the mark on his back was caused by the chair leg or some other implement such as the upright stand of the fan cannot be determined on the evidence, but it is clear that he was hit with something of that nature.

14. In the circumstances, I am of the view that the matter falls below the mid-range of objective seriousness, although not at the lowest end of the range. There are some relevant aggravating factors: that is, the offence was committed in the home of the victim where he resided with his sister and mother at the time. He was entitled to feel safe in the home of his mother, and of course that safety was breached by the forceful intrusion into the house by a number of men, including the offenders.

15. Clearly, the offence was planned at least to a limited degree, after what I accept must have been some communication as to the alleged misconduct to the female relative of the Braddicks. However, there was only the passage of some hours between her departure from the premises and the attendance of the Braddicks and others.

16. As to subjective matters, in respect of Brian Braddick, there is before the Court his criminal history, a New South Wales Department of Corrective Services Conviction Sentence and Appeals Report, a Pre-Sentence Report dated 30 April 2018 under the hand of Zanna Elliott, and An Intensive Correction Order Assessment Report under the hand of Terence Taylor, dated 26 September 2018. In addition, there are two references, one from Nathan Deaves, dated 3 May 2018, Mr Deaves being a senior manager for Social Health Services with the South Coast Medical Service Aboriginal Corporation and a nephew of the offender. He asserts that he has always seen the offender as a positive role model, which would seem to me to be somewhat inconsistent with his past criminal record. He is referred to as an extremely kind hearted and caring man, coming from a large family and being the youngest of ten, and family-oriented and supportive of his various large number of nieces and nephews. He is said to currently have full custody of his three young daughters aged 7, 14 and 17. He states that the matters are out of Brian’s character. As I have previously observed, that appears to be very inconsistent with his past record of criminal offending, which includes at least one previous period of imprisonment.

17. There is a further reference from Kaleena Braddick. She is the eldest daughter of the offender, and indicates that he has been her major carer from the age of 12 as well as the carer of her younger sisters that reside with him in Nowra. I accept that he has encouraged her to advance herself in life by endeavouring to do well at school, and encouraging her to go to a boarding school and remain there until she finishes Year 12, which is something that neither he nor her mother was able to achieve. At the time of writing her letter in July 2018, she was approximately one week before starting the High School Certificate trials for the final exams which will commence on 18 October this year. She stresses in her letter that if the offender is sentenced to a period of imprisonment it will significantly impact on her life, as she would have to become the primary carer for her younger siblings. I have no doubt it would significantly interrupt her preparation for the Higher School Certificate and probably cause her to have to return to Nowra for the purpose of looking after the younger siblings.

18. As to the offender’s previous criminal history, he has been previously convicted of an aggravated break and enter offence committed on 14 July 1999, contravening an AVO on 14 January and also on 31 January 2016, supply offences in relation to small quantities of prohibited drug in April and May 2015, and common assault on 19 to 20 December 2015 and 31 January 2016. As I have previously indicated, he has served a period of imprisonment in the past between 16 March 2000 and 15 March 2001, when he was released on parole.

19. The Pre-Sentence Report indicates in relation to past supervision that he first came in contact with Community Corrections in 2001, when on parole. He completed the parole order with case management, focusing on drug and alcohol intervention and employment. He subsequently received a 250 hour Community Service Order in 2010, although his response was initially considered unsatisfactory as he failed to attend the worksite regularly. The order was extended and he managed to complete the required work hours.

20. In 2016, he was sentenced to an Intensive Correction Order and a supervised s 9 good behaviour bond. Case management focused on domestic violence and mental health together with co-existing substance abuse issues. His response to supervision was frequently considered unsatisfactory with the records showing the breach actions were initiated on multiple occasions for failing to comply with supervision and targeted interventions.

21. In March 2017, the Intensive Correction Order was revoked after he consistently failed to attend community service work and failed to follow reasonable directions given to him.

22. He resides with his de facto partner and her two children and his two youngest children in Shoalhaven. His eldest daughter returns during school holidays and on some weekends. There is a history of some domestic violence between him and his partner: however, that is said to have greatly reduced, and that they are presently mutually supportive. He is the youngest of some ten children. Both his parents and two of his sisters are deceased, but he is said to have supportive relationships with the remaining siblings and extended family.

23. He has some history of employment in the civil constructing industry but for the last five years has not been participating in the workforce. He has been in receipt of government benefits for parenting and unemployment payments.

24. His criminal history reveals a history of violence, and in the past he has correlated that aggression with poor mental health and substance abuse, mainly in respect of methamphetamine. Having defended the matter at trial, he continues to deny responsibility for the offence, although he has expressed some willingness to comply with supervision, and has signed a community service order undertaking.

25. He was, however, inconsistent with his reporting to Community Corrections through the assessment period and failed to attend his final scheduled interview for the purpose of the provision to the Court of the Pre‑Sentence Report under the hand of Zanna Elliott, dated 30 April 2018.

26. He is reported to have been dependent on methamphetamine until approximately two years ago. For the past two years he has participated in alcohol and other drug counselling, and managed to reduce his methamphetamine to infrequent use.

27. He is assessed as being a medium risk of reoffending, an assessment with which I do not cavil. The report contains the following:

“Mr Braddick was marginally co-operative throughout the assessment process, displaying some difficulties in attending scheduled appointments and maintaining contact with Community Corrections... Mr Braddick indicated a willingness to comply with supervision and participate in interventions if required.

Whilst Mr Braddick’s sporadic reporting throughout the assessment process is in contrast to his stated intention to comply with Community Corrections supervision, it may be contributed to by his intention to appeal the conviction.”

28. When the matter was last before me on 27 July 2018, it was adjourned for the purpose of an Intensive Correction Order Assessment Report, much of which is a repetition of what I have already referred to. He was, however, assessed as being suitable and signed the appropriate undertaking.

29. It was recommended that if given the benefit of an ICO, the factors which would be targeted are:

• participation in the Practice Guide for Intervention worksheet addressing behaviour change,

• completion of the EQUIPS Foundation Program addressing decision making, and

• referral to local drug and alcohol counselling services and

• referral to a psychologist for a mental health care plan to address mental health and violence.

30. On the last occasion that the matter was before me, and on the basis of the previous pre-Sentence Report, I indicated that although it was in my view pushing the envelope of appropriateness, I felt the matter could be dealt with within the range of an ICO: that is, I had determined that the matter had passed the s 5 threshold and that there was no alternative to a sentence of imprisonment, particularly in the circumstances where there was no evidence of remorse or contrition, and a medium risk of reoffending, and considering the objective seriousness of the offence as well as the personal circumstances of the offender.

31. When I referred to “pushing the envelope” it was on the basis that I had determined that a sentence of two years’ imprisonment was appropriate. I will indicate now, before continuing with the subjective circumstances in relation to Robert Braddick, that at the conclusion of these reasons on sentence I will impose a sentence of two years’ imprisonment to be served by way of an ICO order.

32. I now turn to the subjective circumstances in respect of Robert Braddick. Before the Court is a copy of his criminal history in New South Wales and Queensland, which can be appropriately summarised as being that he has been convicted of resist or hinder a police officer in April 2011, and possession of a prohibited drug in January of 2015.

33. There have been a number of other offences in relation to the driving of motor vehicles ,which I regard as not being relevant for present purposes, and in Queensland, although he was charged with offences of assault or obstruct police officer and urinating in a public place in 2012, I note that in each case no conviction was recorded, and I will disregard those matters.

34. Before the Court in addition is a Pre-Sentence Report under the hand of Rhys Jones, dated 1 May 2018, and a further Intensive Correction Order Assessment Report, dated 14 September 2018. In addition, tendered on his behalf is a Psychological Report from Mr Borenstein, dated 24 July 2018, and a number of references, being from: James Tracey, a director of JWT Carpentry at Falls Creek, he being the brother of the offender’s current partner, a letter from Julie Gauci, being a real estate agent, a letter from Francis Tracey-Payne, unsigned and undated, she being the mother of the offender’s current partner, and a letter dated 26 July 2018 from Penelope Tracey, the offender’s partner.

35. In short, in relation to all of the references, each of them holds the offender in good regard, and has noted that since the commission of this offence at Nowra he has moved to West Wyalong with his partner and children, and each has noted a significant change in him, being an improvement particularly in relation to his caring for the young children of the relationship while his partner works as the breadwinner.

36. The subject matters are drawn from that material. He is now 36 years of age. He first came into contact with Community Corrections for the purpose of the Pre-Sentence Report ordered in respect of an offence of drive motor vehicle while disqualified in 2018. He received a 150 hours Community Service Order and there were some concerns relating to his overall performance, there was some difficulty in relation to the unavailability of supervisors at the worksite, and some extended leave of the supervisors. As a result, although there was some difficulty with his attendance, there was a no fault revocation.

37. He had a supportive and positive upbringing. He continues to have contact with his father and less frequently with his mother. He is the carer of his three children, a son aged two and twin daughters aged approximately one. His de facto partner worked in a café, and previously as an assistant in nursing. As a result he has become the full-time carer of the children. He has had a variety of jobs in the past,namely tree lopping, lawn mowing, NAIDOC initiatives, and demolition and asbestos removal, for which he has the appropriate ticket.

38. His paternal grandfather with whom he had a very close relationship died in 2014. After his grandfather’s death, the offender could not work for a period of time and unfortunately commenced using “Ice”.

39. He was eventually consuming one to one and a half grams of ice per week. However, after the birth of his son and twin daughters, he is said to have ceased all illicit drug use. His use of ice had been basically as a recreational user in social situations rather than as a full-blown addict.

40. He has one older brother and two younger brothers. His father worked as a landscaper and his mother in homecare and disability services. His parents separated approximately nine years ago. There was no history of trauma or abuse during his childhood. His father was of Aboriginal descent and his mother Caucasian.

41. He was raised in Nowra, and had a close relationship with his siblings. He attended Nowra East Primary School and Shoalhaven High School. He left in Year 10 before the final exams. He states that he was average in class but had difficulties with reading and writing, for which he required extra assistance. He was, however, not a behavioural problem at school, socially competent and played a variety of sports. After leaving school he immediately commenced employment.

42. He subsequently had a workplace accident requiring extensive surgery on his leg, rendering him unable to work. As I have previously indicated, he moved with his wife and children to West Wyalong which is the area where his wife’s parents reside. He is currently in receipt of a parenting benefit via Centrelink.

43. There is no suggestion of any serious psychiatric disorder or psychosis, and although Mr Borenstein did not administer any relevant intelligence test, he assessed him from his observation and consultation as being no better than low/average intelligence. He is said to be currently supported by his de facto partner, and because of his ceasing the use of the prohibited drugs, to have demonstrated an ability to self-correct.

30. He was assessed as being a low to medium risk of reoffending by the pre-sentence officer, an assessment that I accept. The Pre-Sentence Report of 1 May 2018 contains the following:

“Given Mr Braddick maintained throughout the assessment period that he had not committed an offence, it was difficult to fully ascertain the factors relating to his offending behaviour. For this reason it is unlikely that any further interventions or supervision with Community Corrections would be of any benefit.”

45. He was assessed as unsuitable for a Community Service Order Assessment due to there being no current available supervisions at West Wyalong.

46. On 27 July 2018, for the purpose of progressing the matter, I formed the conclusion that the s 5 threshold had been passed, and that it was necessary to impose a period of full-time imprisonment. However, I was of the view that the offender’s past history and the assessment of him being a low to medium risk of re-offending left him in a better position than his co-offender.

47. This was a joint criminal enterprise, and each is responsible for what the other did, however, I am of the view, on the evidence, that it was Brian Braddick who was essentially the principal offender, being assisted by Robert Braddick. That is, although Robert Braddick also participated in the violence and struck the victim, Mr McMahon, I am of the view that some distinction in his favour can be made from that of Brian Braddick.

48. Again, in relation to this offender there is no evidence of remorse or contrition. In relation to each of the offenders, rehabilitation is something of a moot question in the circumstances where neither admits to the offending, but I am of the view that in each case it cannot be said that there is no potential for rehabilitation.

49. As a result, on the last occasion I assessed in respect of this offender an appropriate sentence, taking into account the factors I have previously referred to, including the aggravating circumstances and his lack of previous offences of violence, that a sentence of full-time imprisonment of 18 months was the appropriate sentence. In view of those circumstances, the matter was referred for an Intensive Correction Order Assessment Report.

50. That report, under the hand of Anthony Towney, dated 14 September 2018, contains the following, under the heading “Recommendation Unsuitable”:

“Community Corrections has assessed Mr Braddick as unsuitable for an Intensive Corrections Order due to the current community service work requirements. If an order is made on or after 24 September 2018 it may be made without a community service work condition.”

51. It is not Mr Braddick’s fault that there is no community service work available at West Wyalong, and in the circumstances, I intend to give him the benefit of an Intensive Correction Order despite that unavailability.

52. I note in respect of the offending that it was an attack in company involving the application, in my view, of a considerable force to the victim who was some 19 or 20 years of age at the time, each of these offenders being substantially older. I have not previously referred to Brian Braddick’s age, but he was approximately 39 years of age at the time.

53. I intend now to do what I have indicated which is to impose the term of imprisonment in each case.

54. In respect of Brian Braddick: you are convicted. There being no other appropriate penalty, you are sentenced to a term of imprisonment for a period of two years. The sentence imposed on you is to be served by way of an Intensive Correction Order. The sentence will commence today. You must report to the Community Corrections office at Nowra no later than seven days from today.

ROWAN: Well, Monday’s a public holiday.

HIS HONOUR: Within seven days. Sorry?

ROWAN: Monday’s a public holiday.

HIS HONOUR: Yes, I am making it seven days.

ROWAN: Thanks, your Honour.

55. HIS HONOUR: The Pre-Sentence Report refers to one day, but the usual provision is, in fact, seven days.

56. ROWAN: Thank you, your Honour.

57. HIS HONOUR: The standard conditions of the order apply. You must not commit any offence, and you must submit to supervision by a Community Corrections officer. The following additional condition is to apply: that is, you are to obey all directions from Community Service for attendance and/or treatment in respect of prohibited drugs, alcohol and anger management. Very well, yes, thank you, can sit down.

58. In respect of Robert Braddick: you are convicted. There being no other appropriate penalty, you are sentenced to a term of imprisonment for a period of 18 months. The sentence imposed on you is to be served by way of an Intensive Correction Order. The sentence will commence today. You must report to the Community Corrections office as soon as practicable, but no later than seven days from today. The officer of Community Corrections that you must report to is Anthony Towney of the Forbes Community Corrections office.

59. The standard conditions of the order apply. You must not commit any offence, and you must submit to supervision by a Community Corrections officer. In addition, you are to obey all reasonable directions in relation to treatment and/or counselling in respect of consumption of prohibited drugs and/or alcohol and/or anger management.

60. If you fail to comply with the conditions of this order, sanctions may be imposed on you by the Commissioner of Corrective Services or State Parole Authority, and that applies to each of you. Those sanctions may include a formal warning, imposing more stringent conditions, or it may include revocation of this order.

61. If the order is revoked, you may be required to serve all or some of the period of your sentence in full-time custody. Finally, you are now directed to attend the court registry on level 3 where a copy of the order will be explained and provided to you.

Thank you, you can sit down.

62. You need to be cognisant of the fact this is actually an order for imprisonment, and if you are in breach of the Intensive Correction Order during the period, that it is in effect whatever may be the penalty in relation to that breach, the order may well be revoked, and as a result you may find yourself serving the term of imprisonment. So it is important that you abide by it and commit no further offences and obey the directions given to you by Community Corrections.

63. I hope you both understand that, and I am sure your counsel will explain the significance to you. Right now is there anything I have omitted Mr Crown?

GIBSON: Nothing further, your Honour.

HIS HONOUR: Mr Roff?

ROFF: No your Honour.

Amendments

18 February 2019 - Hearing dates amended - punctuation only.

Decision last updated: 18 February 2019