R v Brennan (a pseudonym)

[2023] NSWDC 328

District Court

New South Wales

Medium Neutral Citation:

R v Brennan (a pseudonym) [2023] NSWDC 328

Hearing dates:

13 April 2023

Date of orders:

13 April 2023

Decision date:

13 April 2023

Jurisdiction:

Criminal

Before:

Haesler SC DCJ

Decision:

Aggregate imprisonment sentence of 4 years with a non-parole period of 2 years

Catchwords:

CRIME — aggravated breaking into the dwelling house and committing the serious indictable offence of robbery armed with a dangerous weapon — Deal with the proceeds of crime

SENTENCING — Relevant factors on sentence — guilty plea — factual dispute - role of offender — evidence contrary to the agreed facts tendered — a grave offence — victim impact — complicated history involving domestic violence trauma mental illness and substance use — demonstrated progress to rehabilitation — offender vulnerable in prison

Legislation Cited:

Court Suppression and Non-publication Orders Act 2010 (NSW)

Crimes Act 1900 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases Cited:

Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2013] NSWCCA 115; (2002) 56 NSWLR 146

Bugmy v The Queen [(2013) CLR 42; [2013] HCA 37

Burns v R [2010] NSWCCA 279

Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67

GAS v The Queen (2004) 217 CLR 198; [2004] HCA 22

Green v The Queen (2011) 244 CLR 462; [2011] HCA 49

Henry v R [1999] NSWCCA 111; (1999) 46 NSWLR 346

Magaming v The Queen (2013) 252 CLR 381; [2013] HCA 40

Moodie v R [2020] NSWCCA 160

Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39

Olbrich v The Queen (1999)199 CLR 270; [1999] HCA 54

Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26

R v Alcock [2023] NSWDC 326

R v Gee NSWDC 327

R v Millwood [2012] NSWCCA 2

R v Munn [2022] NSWDC 264

R v Simpson [2001] NSWCCA 534; 53 NSWLR 704

Ramos v R [2018] NSWCCA 206

Category:

Sentence

Parties:

Charlie Brennan (the offender)
Director of Public Prosecutions (the Crown)

Representation:

Counsel:
J Hibbard (for the offender)
N Keay (Director of Public Prosecutions) (the Crown)

Solicitors:
Maguire & McInerney Lawyers (for the offender)
Solicitor for Public Prosecutions (for the Crown)

File Number(s):

2022/207654

Publication restriction:

Order that the name of the offender, Brennan, is suppressed and any identifying features removed. A non-publication order is applied in relation to anything that identifies, or may identify, the offender. The suppression order is has an exception allowing for full publication to the legal advisers for the purposes of proceedings in relation to the co-accused. This judgment has been redacted: Court Suppression and Non-publication Orders Act 2010 (NSW)

sentence – ex tempore revised

Introduction – a violent robbery

1. In the early hours of the morning of 10 February there was a violent robbery at a home in Southern Wollongong.

2. Signed Agreed Facts were put before the Court. They note that four men forced entry into the home. The closed front door was pushed in as the two residents attempted to keep it shut. Each intruder had their face covered by a mask. One man held a firearm, he pointed it at both victims. Another man held a machete. Another man, said to have had blonde eyebrows, stomped on the female victim, kicking her back and ribs. He also kicked the family dog.

3. As the men entered, the male victim stumbled into the front bedroom. The door of that room was closed behind him and held shut by one of the intruders.

4. The man with the firearm held it to the female victim’s forehead. The man who had kicked her ran to an opal display in the lounge room. He started grabbing opals and putting them in a laptop bag. The man with the machete stood by the opal case.

5. The fourth man stood near the front door and front bedroom door, he appeared to be timing what was going on. Less than two minutes later he yelled out, “Time”. The man with blonde eyebrows scooped up the remaining opals and all four men ran from the house.

6. The opals taken were valued at $500,000, approximately.

7. A thorough police investigation ensued. During the course of the investigation, it was discovered that a mobile phone associated with Brennan had contacted a number of opal dealers or jewellers on the day of the robbery.

8. After the robbery Brennan and another offender sold or pawned four opals for $300. These opals were identified by the male victim as coming from his collection.

9. The victim also identified a further 30 opals from a photograph taken by a store employee at the time of the exchange. They too, he said, came from the stolen collection.

10. Police telephone intercepts and other electronic surveillance captured Brennan and others discussing the stolen opals with other associates. They made attempts to sell them or exchange them for drugs.

11. Text messages were also exchanged. At one stage Brennan contacted a mate who lived at Lightning Ridge for help pricing the stones. Brennan received a text message:

“You sell the opals or something, need $500 ASAP. Fucking over it bro to be honest.”

12. Brennan replies:

“Yeah, should be gone tonight hopefully. I’m taking the rest of mine out now. They want as many as they can get so if you’ve got any more of them other two chuck them in more coin”.

13. The Crown case is that these discussions continued until 8 May 2021.

14. The men said to be the four robbers were all arrested. One of these people is Brennan. He was arrested on 15 July 2022. He participated in an electronically recorded interview, and he was granted bail.

15. When he was before the Local Court the offender indicated he would plead guilty to two serious offences:

1. Being in Company and Armed with a Dangerous Weapon, Breaking into the Dwelling House and Committing a Serious Indictable offence therein, namely Robbery Armed with a Dangerous weapon: s 112(3) Crimes Act1900 (NSW).

2. Deal with the Proceeds of Crime, a quantity of Opal Gemstones, in circumstances where he knew that the Opal gemstones were proceeds of crime: s 193B(2) Crimes Act 1900 (NSW).

Factual disputes

16. Brennan came before this Court for sentence on 4 April 2023. He gave evidence about his personal circumstances, adopting other material that was put before the Court. Those matters are, in the main, uncontroversial. However, he also gave a different version of what he said occurred during the robbery, and subsequent events, to those set out in the Agreed Facts: Exhibit A, tab 3.

17. Brennan accepted that he had signed those facts on 8 February 2023 and that he had signed them on the basis that they would be the facts upon which he was to be sentenced.

18. It is the Crown case that Brennan is the blonde-eyebrowed man who assaulted the female victim, entered the premises, and collected the opals. They contend that he was actively involved in the preparation of the crime and that he received a share of the opals and disposed of them for his own advantage.

19. Brennan told me in evidence that he did not enter the home or have any contact with the victims and that he was not masked. Although he accepted, he was aware of what the co-offenders were planning to do, and he was present for some of that planning, he said he had played no role in it.

20. He told me that he felt obliged to go along with what the others were doing because he was caught up and living with, and under the influence, of one of the co-offenders, in particular, Clayton Love. Love’s matter is for sentence later this year.

21. Brennan said he did attend an opal dealer, but it was in regard to a stone that had come into the possession of Love prior to the robbery. Obviously, given the timing, it could have had nothing to do with the robbery. He said he may have made a call about an opal.

22. He agrees he attended at a jeweller with Love, after the robbery. But apart from attending those premises, where $300 was paid for some opals, he said he had no other role in dealing with proceeds of crime.

23. As the High Court explained in GAS v The Queen (2004) 217 CLR 198; [2004] HCA 22, while there may be an understanding, between the prosecutor and the defendant, as to the evidence that will be led, including agreed facts, that does not necessarily bind the judge. Except in the practical sense that the judge’s capacity to find facts will be affected by the evidence presented.

24. In deciding on the sentence, the judge must apply to the facts as found, the relevant law and sentencing principles. The judge’s responsibility to find and apply the law is not circumscribed by the conduct of counsel, “It is for the sentencing judge alone to decide the sentence to be imposed”: Olbrichv The Queen (1999) 199 CLR 270; [1999] HCA 54. For that purpose, the judge must find the relevant facts: Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67.

25. Where there has been a plea of guilty, any facts beyond what is necessarily involved as an element of the offence must be proved by evidence or admitted formally as an agreed statement of facts. There may be a significant limitation in such circumstances of the judge’s capacity to find potentially relevant facts in a given case: GAS v The Queen.

26. In Olbrich v The Queen, the High Court at [24] made clear that while matters in mitigation could be established on balance of probabilities, matters in aggravation had to be established beyond reasonable doubt. The joint judgment also noted in that case:

“…it is enough to say that we reject the contention that a judge who is not satisfied of some matter urged in a plea on behalf of an offender must, nevertheless, sentence the offender on a basis that accepts the accuracy of that contention unless the prosecution proves the contrary beyond reasonable doubt.”

27. Having reviewed, the agreed facts, the circumstances in which those agreed facts were put before me, the other evidence, and having carefully considered the offender’s evidence, I must be blunt; I cannot accept everything he told me in evidence, particularly his evidence about the robbery. Overall, he was not an impressive witness. In some respects what he said was contradicted by other evidence, including what was witnessed by the two victims of the offence. And that material was not put in dispute when the agreed facts were agreed.

28. In all the circumstances I can safely proceed on the basis that this offender was one of the four men who entered the home and that he did so while masked as part of a joint criminal enterprise. It is understandable that the victims’ accounts might be subject to question, particularly when it comes to identification of the particular masked people who were in the house for less than two minutes.

29. I have seen Alcock in person. He has fairer hair than other offenders. The other offenders’ photographs are in the exhibits before me. There are the significant differences between; the descriptions given by the victims in the Agreed Facts, the photographs I was provided with and the actual appearance of the four offenders now identified.

30. Significant weight cannot be given to those particular descriptions, given the circumstances in which they were made. For example, each of the victims described the offenders as of “skinny build” but some appear “well-built”. One of the offenders who is still before the courts appears to be, at the relevant time, significantly overweight. Further, I could not safely proceed on the basis of eyebrow colour, or the other material relied upon by the Crown, said to corroborate who did what in the robbery.

31. Similarly, I cannot put too much reliance upon the intercepted communications when it comes to identifying who did what or who carried what.

32. But, having reviewed those communications and considering the logic of the events I found proved and admitted, particularly the agreed facts, it is impossible to accept that this offender was not aware of what was going to happen, or that he received no proceeds or that he did nothing, so far as preparation was concerned, or that he gained nothing from dealing with the proceeds.

33. There is still a hiatus in the evidence as to exactly what Brennan did receive, how much he did receive and the level of preparation he put into the crime. He did concede to helping disguise the car. Where his extensive involvement is alleged, in the absence of evidence, I will not make any adverse inference against him. But it is clear to me that he was aware what was going on, he did play some role in the planning of preparation for the matter and that he was one of the men who entered the premises.

Guilty plea

34. Brennan entered a guilty plea at the earliest opportunity. He participated in a police interview on arrest; a very early opportunity. He must receive a reduction in the otherwise appropriate sentence, of 25%, for the utilitarian value of the plea. His co‑operation, his willingness to assist the course of justice are all matters that I also take into account on sentence.

Objective Seriousness

Aggravated breaking into the dwelling house

35. As is obvious from the agreed facts, this offence, taking into account only its subjective features, was a grave one. A number of aggravating circumstances were set out as elements of the offence. Others were also present.

36. A home was invaded. This was a well-planned, well-executed crime. Four men were involved, and each played their assigned role. It was anticipated that victims would be present and, as was intended, the weapons were used to intimidate and subdue them. A firearm was held to a female victim’s head and a machete used; a machete is a fearsome thing.

37. The female victim was also assaulted, that is, subject to corporal violence. The male victim was held and isolated in the bedroom for a very short time. A substantial amount of valuable jewellery was taken.

38. Each of the offenders must be regarded as equally liable for the crime in which they each participated.

Proceeds of crime

39. There is no agreement as to how many opals Brennan had in his possession. I cannot resolve that difference today. All I can do is identify the matters which indicate the serious of the possession offence.

40. The evidence is that he dealt with some opals, along with Love, at the jewellers on one occasion. He was also making phone calls and engaged in text conversations to facilitate the processing of the opals from jewellery into cash and drugs. There was no particular sophistication involved in his dealings.

41. I, of course, take into account, but not double count, the underlying criminal conduct from which the proceeds were derived. It is clear that four people were involved and would have expected, as a reasonable inference to get some benefit from it. I could not believe the offender when he said he gained no real benefit.

42. The harm that was occasioned by the dealing was consequent on the robbery. Although there may have been some consequential economic harm to jewellers who received stolen goods, there is no evidence of that.

43. I have to identify the matters which indicate the seriousness of the offence. In doing so I look at:

• the manner of dealing;

• the level of planning;

• any sophistication involved in the dealing;

• the underlying criminal conduct from which the proceeds were derived;

• the value or amount of the proceeds; and

• any harm that may be occasioned: Ramosv R [2018] NSWCCA 206.

44. It is inevitable that, following a jewellery robbery, the goods will be converted to cash or other saleable commodities and that is one of the reasons why heavy penalties are imposed for the principal offence. Heavy penalties are also imposed on those who seek to dispose of the proceeds of crime. There is a need to punish offenders for the individual criminality involved with the dealing of the goods: Burns v R [2010] NSWCCA 279.

45. Here, however, the evidence in relation to the actual dealing by this offender is sparse. Accordingly, I cannot, as I did when I had significant material as to the extent of the dealing, treat him as seriously as I did when I dealt with Alcock, although that matter was on a Form 1, or with other people who dealt with Alcock’s proceeds: R v Alcock [2023] NSWDC 326. Those men, Munn and Gee, have previously been sentenced: R v Munn [2022] NSWDC 264; R v Gee NSWDC 327.

Other guidance

46. The maximum penalty for the principal offence, specially Aggravated Break and Enter, is 25 years imprisonment. There is a standard non-parole period of 7 years. For Knowingly Dealing with the Proceeds of Crime the maximum penalty is 15 years. Careful attention to those penalties and, where applicable, the standard non-parole period, is required. They both provide sentencing measures to be balanced with all other relevant factors.

47. I also have to take into account the Court of Criminal Appeal decision and guideline judgment in Henry v R [1999] NSWCCA 111; (1999) 46 NSWLR 346. That guideline referred to what the Court there said was an ordinary case of armed robbery. While not prescriptive that guideline must be taken into account: s 42A Crimes (Sentencing Procedure) Act; Moodie v R [2020] NSWCCA 160.

48. I am required to give content to the standard non-parole period. In doing so am required to assess objective seriousness without reference to matters personal to the defendant, solely by reference to the nature of the offending: Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [27]. I do not engage in a staged approach to sentencing nor am I required to fix this matter on some notional scale.

49. It is clear from all the material that was put before me that this robbery was objectively far more serious than those referred to in the Henry guideline. I have used the adjective ‘grave’ in describing it. In the ordinary course, as a starting point, it would call for a considerable number of years in custody.

Victim impact

50. There is no victim impact statement from the male victim. A statement was prepared and provided to the Court by the female victim. She says she now suffers mentally. She refers to diagnoses of PTSD, social anxiety and depression. She has anger issues. She is terrified to leave her house. She has had to change her house. She has been seeing a counsellor.

51. She was subjected to both physical and emotional violence. She referred to a permanent back injury. In the absence of medical evidence to connect that with the injury in the agreed facts, while I accept she was subject to violence, it is hard for me to make any finding in relation to it.

52. However, when she speaks of, the economic and financial loss of having to relocate, the social harm caused to her, how she became isolated and pushed away her family and friends, how the home invasion nearly destroyed her, I have no trouble at all in accepting and taking into account what would be a natural and automatic reaction to the serious crime that was committed against her. She says:

“I am not your victim. I am always and always will be a survivor. This will haunt me for the rest of my life, yes, but I have a home again, I have my fiancé and every day I’m finding myself a little more. I never thought this would happen, but now that it has I’ve got to learn how to live with it. Karma’s on my side.”

Parity

53. I have already sentenced Munn and Gee but they were not directly involved in the proceeds matter so far as this offender is concerned.

54. Yesterday I sentenced Mr Alcock. He had a more extensive criminal record, although not for matters such as this. I also had to sentence him on the basis that his proceeds of crime matter, which in his case was extensive, was on a Form 1. I indicated in that sentence, that in some cases, as the Court of Criminal Appeal made clear in their guideline judgment, the Form 1 can lead to a greater sentence: Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2013] NSWCCA 115; (2002) 56 NSWLR 146.

55. Alcock’s personal history required the application of the principles discussed in R v Millwood [2012] NSWCCA 2 and Bugmy v The Queen (2013) CLR 42; [2013] HCA 37. My starting point for him was a sentence of 9 years, before the plea of guilty, but that took into account the Form 1.

53. The principle of parity applies when I come to formulate appropriate sentences, but different personal and criminal histories may justify a real difference in the time a person will serve in prison, regardless of whether they are party to a joint criminal enterprise or not: Magaming v The Queen (2013) 252 CLR 381; [2013] HCA 40 at [51]; Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26; Green v The Queen (2011) 244 CLR 462; [2011] HCA 49.

54. In some joint criminal enterprises where there is clear evidence that one offender is less objectively culpable than the others, that evidence can justify a distinction being made between them. But here, having rejected the offender’s assertion that he played a lesser role, I must treat each offender as equally liable for what occurred inside the premises.

55. That conclusion does not mean they automatically get the same sentence, but the sentence imposed must be proportionate between them, in the sense that it properly reflects their differing personal circumstances and the conduct that they engaged in. Like, must be compared with like.

56. I can also take into account what occurred after the offence.

The case for the offender

60. Turning now to the offender. He has a criminal record in New South Wales and Queensland. He has served a custodial sentence subject to an Intensive Correction Order. He suffered punishment for a breach of that order. His record does not entitle him to the leniency often given first offenders. But I take it into account he has spent only short times in custody.

61. He has never been in trouble for anything like this and is unlikely, from all the material I have received, that he will be in such trouble again.

62. The offender gave evidence. Despite my concerns about his veracity so far as the factual matters are concerned, I accept his evidence about his personal history. It is relatively uncontroversial and is supported.

63. It appears that he has made a concerted effort to distance himself from his past associates, to work in the community and prove himself in the community. Those matters are particularly important when I come to consider his prospects for the future and in the finding of special circumstances that I will make reducing the period of time that he must spend in custody.

64. That period must be the minimum period necessary, taking into account all relevant factors, that reflects the purposes of sentencing: R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 at [59].

65. There is a Sentence Assessment Report before the Court. It notes Brennan’s present stability and his close and supportive relationship. It reiterates that at the relevant time, drug use and loss of stability in his life meant that he felt trapped and went along with others. That may have been, and I suspect was, exacerbated by his use of methylamphetamine and his spending all his money.

66. He has benefitted in the past from attending the Illawarra Drug and Alcohol Service for counselling. He has been abstinent from drugs for a lengthy period of time, a matter to his credit. There is no evidence that, other than the commission of this offence, he is an aggressive person.

67. I also have the benefit of a comprehensive report from a clinical psychologist, Ms Cornell. That report sets out in detail Brennan’s personal history. It is a complicated history involving, trauma, mental illness and substance use.

68. At the age of 18 he was “king hit,” as he said, and suffered a brain injury which resulted in neurocognitive damage. It is important to note that where someone is going into custody having previously been assaulted, and having previously had a brain injury, they will be, understandably, hypervigilant about future assaults. He will need as much protection as can be offered to him.

69. There was domestic violence in his home. He suffered at the hands of his father. There is evidence of a lack of emotional support and neglect as a child, as his mother could not cope with the domestic violence and the strains of raising a child.

70. Brennan was “kicked out” of home when he was 15 years old. And, although he had supportive grandparents, a negative self-perception remained. His time at high school was disrupted. He was moved interstate and obtained work, although that was interrupted by the incident that led to the brain injury. That injury resulted in increased memory problems, irritability and impulsivity.

71. Drugs were used as a coping mechanism. There were other losses in his life, including the premature death of a child, and his partner refusing to allow him access to a child. At the same time, he was able to work, set up his own business, although that fell apart during the COVID pandemic. That seemed to precipitate his relapse into drug use and an association with antisocial peers.

72. There are a number of other matters associated with the brain injury. I have referred to hypervigilance, there are also dissociative states and some suicidal ideation.

73. The impact of all these traumas is described by Ms Cornell as “catastrophic”. Having reviewed him and gone through and applied her testing, experience, and professional judgment, which is, I note, not in dispute, she says:

“He impresses as a compassionate man who has positive potential, but one who relied heavily on methamphetamines and antisocial peers in the context of poor impulse control, repeated trauma, loss and poor coping.”

74. As a consequence, his involvement within the community and prosocial influence is weakened. Ms Cornell notes:

“Fortunately, with the reintroduction of positive social supports Mr [Brennan] has improved his overall functioning, increased his hopefulness for his future and is motivated to maintain his improvements. Mr [Brennan] has demonstrated an ability to create a more structured and productive life inclusive of a stable relationship and full-time employment which has ultimately led to more effective coping of stresses over the past one or two years. However, Mr [Brennan] acknowledges ongoing avoidance of negative effect, high arousal states and pervasive feelings of worthlessness which became exacerbated particularly in the context of perceived abandonment or rejection. Mr [Brennan] has had a tough life which has exposed him to multiple challenges. Mr [Brennan] is a motivated man who has positive future potential as well as prosocial future goals. However, Mr [Brennan] is also a vulnerable man who experiences high level emotional distress and disturbance particularly with interpersonal relationships”

75. Ms Cornell goes on to say:

“I am of the view that Mr [Brennan]’s reported symptoms, behaviours and earlier poor functioning are a consequence of personality vulnerabilities developed from catastrophic loss of coping and long-lasting unresolved chronic trauma.”

76. Those matters have to be addressed. Brennan will need some assistance while he is in custody if that assistance can be provided to him. It is also clear, from my experience, that while Justice Health and Corrections will do what they can, that can best occur in the community.

Synthesis

77. Too long a period in custody might break prosocial supports. Too long a period will make him vulnerable for the reasons I have set out. But courts must return to what was done and the seriousness of the crime he committed. The crime was a particularly serious one, not just for the victims but for the community in general and it requires significant punishment. For the reasons outlined, that punishment can be moderated, but matters in mitigation can go only so far.

78. It was submitted that an Intensive Correction Order could meet all the purposes of sentencing. While that submission had merit, the first pre‑condition for the imposition of such a sentence is the term of the sentence. And for the reasons I have outlined, I could not get to a sentence that met that requirement.

Orders

79. Synthesising all those matters and taking into account reductions earlier noted, there will be an indicated sentence for the principal offence of 3 years and 10 months, non-parole period one year 11 months. For the proceeds matter there will be an indicated sentence of 1 year and 1 month.

80. There will be an aggregate sentence in this matter of 4 years imprisonment. The non-parole period is 2 years, which will commence today, which means Brennan will be eligible for consideration for release to parole on 12 April 2025. There will be a 2 year parole period from that date.

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Decision last updated: 21 August 2023