R v Brien
[2013] VCC 910
•12 June 2013
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No.
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SHANNON BRIEN |
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JUDGE: | HIS HONOUR JUDGE SMALLWOOD | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 12 June 2013 | |
CASE MAY BE CITED AS: | R v. Brien | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 910 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms K. Voulanas | |
| For the Accused | Ms N. Karapanagiotidis |
HIS HONOUR:
1 Shannon Brien, you have pleaded guilty on indictment ending 392, to one count of burglary and one count of recklessly causing serious injury. Those crimes carry maximum penalties of 10 years and 15 years respectively. You have pleaded guilty on indictment ending 432 to one charge of persistent sexual abuse of a child under the age of 16. That crime carries a maximum penalty of 25 years.
2 You have very few prior convictions and they essentially revolve around stealing a car. You certainly have no prior dealings with police for any form of sexual offence.
3 You are still only 22 years of age and I regard you as obviously young. Your plea of guilty, I accept, is accompanied by appropriate remorse and you made a confession to the police in regard to the sexual matter which is of great assistance to the Crown and convictions in that sort of situation are often difficult to obtain. You must also, of course, get the benefit of the utilitarian effect of your plea of guilty. Insofar as the reckless serious is concerned, you made admissions but essentially in your record of interview said, self defence.
4 Firstly, because of the conviction for persistent sexual abuse, you will be placed on the Sex Offenders Register and the reporting condition will be for life. If you can get him to sign that, please?
5 MS KARAPANAGIOTIDIS: Yes, Your Honour.
6 HIS HONOUR: Further, because of the nature of that charge, you are to be sentenced as a serious sexual offender. The Crown does not seek a disproportionate sentence and I would not have given one in any event. I am aware that community protection becomes the principal sentencing matter. I might point out that in your situation I regard it as neither predatory nor exploitive, and for you to be sentenced as a serious sexual offender and to be on the register for life, I think is ridiculous, for what it is worth.
7 In any event, the circumstances of the offending - we are dealing firstly with the sexual matter - it relates to a relationship that you were involved in between 1 July 2012 and 3 December 2012. At the time of the offending the complainant was 14 years of age. You were aged between 21 and 22 and are currently 22.
8 You first met on a suburban train in mid-July 2012. You had a conversation where she told you she was 14 so you have always known that and you made it clear to police that you knew that. You exchanged phone numbers. A few days later you rang her and asked for her to go out with you. You met at the Southern Cross Station and drank cask wine, together with two friends. You took her to an abandoned building in Yarraville where you both spent the night.
9 Over the next six months sexual intercourse took place on a very significant number of occasions. I do not propose to go through each and every one of them. They were often in public places and there would appear to be one occasion involving a threesome. When speaking to the police you were cooperative and made full admissions to the conduct that you had engaged in. You said that you knew the legal age of consent was 16 and you had known that for about three years. The complainant, as you have been, was herself a client of DHS, and whilst I am not seeking to go into the background, it is clear from the materials that she was streetwise. There is nothing here to suggest anything other than a consensual relationship, the problem being, Mr Brien, that she was 14 and you were 22 and you knew it was wrong. As your counsel said, you simply gravitated to each other.
10 This crime can cover a vast array of offending. It can involve the situation of a mature adult literally abusing someone under the age of 16. I think the description of it in your case is something of a misnomer. I think the old description of maintaining a sexual relationship would be more appropriate. As I have indicated, I do no think it was exploitive, I do no think it was predatory. Indeed, when you were spoken to by police in regard to having a relationship over that period of time with a 14 year old and you were asked, why would you have a relationship with a 14 year old, you said, "To help me cope" and "keep me out of trouble". I think that was your response and that was how you saw it.
11 You then went on to say to police, and this is also of importance because of what the neuropsychologist has reported, that, "I don't think - I don't think - I always make stupid choices". The neuropsychologist carried out intelligent quotient testing upon you and arrived at a full scale IQ of 77. Significantly, bearing in mind what you said about making bad choices, he said - and this is Mr Burke, I think - yes, Dr Burke, "Significant relative weaknesses were noted on all tasks involving verbal abilities with performances on measures of word knowledge and general knowledge for and within the borderline range. He also showed evidence of a rigid and inflexible thinking style on measures of verbal, abstract reasoning", and that in that area you came down in the extremely low range.
12 It is not really a direct application of Verdins in that situation but I just say that were it not for the reckless serious charges I will deal with in a moment, I do not believe I would have gaoled you for this. I think that a Corrections order would have been far more advantageous to both you and the community. However, that is impossible because of the nature of your other offending and there must be a punishment for this crime, if only to potentially, at least, deter others, but I think in your situation, as will become evident, the need for specific deterrence/general deterrence, should be, in my view, moderated.
13 There is no victim impact statement, unsurprisingly.
14 The other offending involves you and two others attending at a vacant property with the intention of stealing scrap iron. You both had backpacks when you set off and how much you thought you were going to be able to carry away in backpacks, but you also then took a shopping trolley to carry things. The three of you arrived at a property around 12.30 am. You entered the yard and collecting metal and batteries from the yard area and put them in the trolley. You then smashed a window to a house on the property and gained entry. You and your co-accused, Marsh, then entered the house and stole items from inside, including some toys. So it is pretty indicative of what this is all about, for that point at least.
15 I accept that you thought that the house was abandoned and again, whilst that gives rise to the charge of burglary, were it not for what follows, I would not have imposed a custodial sentence for that either.
16 However, while you were at the property a neighbour called the owner of the property to alert him there was a burglary taking place. Mr Zaraffa, the owner, collected a torch, a hammer and his mobile phone from his house and drove to the property. On the way he called Police Emergency Services on 000 to report the incident. A few minutes later he arrived at the property and parked his car across the road. He then walked around to the rear yard while the neighbour stayed out the front. The three of you then tried to leave by the front of the property but were confronted by the neighbour. Mr Zaraffa then ran from the rear yard and told you not to move.
17 An argument ensued. Mr Zaraffa tried to call Triple 0 again on his phone. As he was doing this you took a knife out of your pants pocket and stabbed him forcefully in the face. He took a few steps back and you came at him again with a repeated stabbing motion. You stabbed him in the right bicep. You swung the knife at him about six times. You claim that you found the knife on the property. I have got grave doubts about that but make no finding as to whether you took it with you or not. In any event, Mr Zaraffa was able to retrieve the hammer from his back pocket and struck you to the left shoulder. He dropped the hammer as he did it. You fell to the ground and you were then kicked twice to the head and shoulder. Mr Zaraffa then again tried to ring Triple 0 on his mobile phone. At that point you got up off the ground holding the hammer and the knife and came towards him, saying, "I'm going to fix you now". Your co-offenders ran off and you called Mr Zaraffa, "A weak fucking maggot", before walking off after the other co-offenders.
18 Mr Zaraffa was taken to the Royal Melbourne Hospital where he was treated for his injuries. He suffered a 1.5 centimetre penetrating wound to the right side of his face, just below his right eye, causing a fracture to his cheekbone and sinus. He also received a three centimetre and deep wound to his right bicep. Those injuries give rise to a charge of causing serious injury recklessly. He was in hospital for some days and continues to suffer ongoing pain and numbness.
19 Aware that the police were after you, you attended at a police station and gave an interview where you essentially, at that point in time, claimed self defence.
20 There is a victim impact statement from Mr Zaraffa. In that victim impact statement he describes the effect that this has had on him. He points out that the injuries are ongoing, both psychological and physical. He said that he has three teeth in his mouth that feel like they do not belong there. He said, "The right-hand side of my face feels like someone has a high heel pushed up against it, just below my right eye. My right eye gets little spasms when I get tired, which I never did previously. All the above are from the nerve damage I have suffered". He has been told that because it is nerve damage there is nothing that can be further done for him.
21 That is a particularly ugly crime, Mr Brien, no matter how old you are and no matter what difficulties you may have had in life and it calls for a significant custodial sentence.
22 The offending clearly, insofar as that charge is concerned, is serious, and calls for the application of specific and general deterrence as well as appropriate punishment and denunciation. I have considered carefully the material contained in the psychological reports and whilst I can accept that you make poor errors of judgment, it is hard to see how stabbing somebody in the face and then going after him again repeatedly is an error of judgment. It is an attempt to hurt somebody, and in this case recklessly, seriously.
23 A custodial sentence is inevitable. Yours is a very difficult sentencing situation. I have already indicated that I most probably would not have incarcerated you for the offending that did not involve the attack with the knife. I have to look at it, I think, on that basis.
24 Tendered on your behalf was a report from a neuropsychologist, Mr Burke, a psychological, Dr Cunningham, and a letter from the City Mission, who have been dealing with your family.
25 You went into care at a very early age. Your family has had significant problems over a long period of time. It is clear, because they have been here to support on each occasion, that they are endeavouring to do that within their limitations. The letter from the City Mission describes the extreme difficulties that both your mother and father have, and the guilt that they feel about what has happened to you. That letter can remain on file. I do not think there is any need to go into any more detail as to what is described in there. They are quite personal matters.
26 The situation is, as I have said, that you went into care at about the age of five, and the reports contain your history after that.
27 Dr Cunningham's report indicates that you, whilst in foster care, were essentially abused and were beaten with straps. When you were about 13 you were able to come out of foster care to live with an aunty in Victoria. When you were 15 you moved to live with your mother and father. You had a relationship over the six months leading up to your incarceration, which had gone fairly well. You had attended a special school due to having learning disabilities. You have not had significant periods of employment but you would love to work as a mechanic. It is clear from the material that you have previously overdosed and engaged in self harm and have indeed done so in gaol. You had used cannabis for a couple of years but you do not have an alcohol problem. It is encouraging in terms of your ultimate rehabilitation that you do not have the chronic drug addiction what one often deals with even with one so young in these situations.
28 You reported episodes to Dr Cunningham, as I have said, of self harm, and you have auditory hallucinations during periods of stress. You told him that those voices tell you to either commit suicide or to hurt people. He diagnosed you as having a borderline personality disorder. He went through the problems that that causes. He described you as a moderate risk of future violent offending even though this was your first court appearance, certainly of violence of this nature.
29 He said, "In my opinion, Mr Brien's borderline personality disorder impairs his thinking and reasoning skills through symptoms of identity disturbance, impulsivity, recurrent self mutilating behaviour, effective instability, chronic feelings of emptiness and inappropriate and intense anger and transient stress related paranoid ideation. In my opinion, Mr Brien's borderline personality disorder would have impaired his ability to exercise appropriate judgment with respect to his offence behaviour and their consequences". That is what he says and I have indicated my view of that insofar as the stabbing is concerned, at least.
30 He went on to say that you have a more onerous experience of imprisonment relative to an individual without a borderline personality disorder. I accept that and take it into account. He also said that the stress of imprisonment may aggravate your symptoms of self harm and auditory hallucinations and I accept that it would appear that you have endeavoured to self harm on a couple of occasions while in prison. He has indicated that you have a severe psychological disorder that requires long term treatment engagement. I have no difficulty with that proposition.
31 The neuropsychologist's report again goes through your history, pointing out that you went to something in the order of ten primary schools. I take judicial notice of the effect that that has on young people. Indicated that you have been diagnosed previously with depression, indicated that you appear at the present time, at least, not to have a significant alcohol or drug problem. He said that you, "on a questionnaire relating to his mood over a week prior to the assessment Mr Brien endorsed responses consistent with severe depression and extremely severe anxiety. He denied any thoughts of self harm". That is at that point in time when you are talking to him. I think that clearly insofar as you being in gaol is concerned, they are matters I take into account insofar as it being harder on you to undergo a sentence and the risk of the sentence exacerbating your problems.
32 He also went on to say, as I have indicated, I think, that you have a full scale IQ of 77. He also indicated what I mentioned before about the extremely low range in terms of abstract reasoning. Seventy-seven is not intellectually disabled but it certainly remains a very low intelligence quotient.
33 Your literacy skills were found to be a Grade 1 to Grade 5 equivalent. You have reduced language abilities, have difficulty understanding people and misinterpret what people are saying. You also, as I have indicated, can be rigid and inflexible in your thinking.
34 You have come from an extremely troubled background. Whilst you were on bail you were placed in a CISP program and you - this is where Dr Burke's report comes from - and you, I accept, endeavoured to comply with that. You attended all six case management reviews that were scheduled, attended on time and improved in your engagement with others. Insofar as a work situation was concerned, you came into dispute with others and were unable to continue it, but it is clear that you have made an effort.
35 You are presently and will remain so, I would imagine, in the Marlborough Unit, which is effectively for intellectually disabled people, which gives an indication of even though you are not defined as intellectually disabled, that the gaol must regard you as very close to it. You have done so far, 226 days in protection and the balance of the sentence will also be served in protection. That can deprive you of certain courses, I understand all that, and I take that into account.
36 In the matter of Tomguerren in the Court of Appeal there referred to the DPP v. Leach where it was said:
"It is particularly important that this court should not devalue or deny the right of a sentencing judge to act mercifully in a case where it seems to the judge to be an instance where an opportunity for reformation of an offender ought be grasped. That after all may be a decision which redounds very much to the benefit of the community".
37 You have to get a significant custodial sentence. There is no way around that but I think that the matters described there are very apt here. What I propose to do is to sentence you accordingly, bearing in mind what I said about not being able to place you on a Community Corrections Order, and to give you an opportunity for parole at an earlier date than would otherwise be the case.
38 The prospects of your rehabilitation are up to you. It is comforting that you have limited prior history, that you have seemed able to not be dependent upon drugs and that if your difficulties in negotiating this world can be dealt with on parole then you may do well. If you can be rehabilitated the risk of you re-offending would obviously go from moderate down to low. That is, I think, up to you and the Parole Board, Mr Brien.
39 In any event, taking all those matters into account, which I do stress is a particularly difficult sentence proposition here because of the seriousness of the stabbing, on Indictment 935 on the charge of burglary, two months. On the charge of reckless serious, three years and six months. On the Indictment 536 of persistent sexual abuse, 18 months. I direct that six months of the sentence imposed on Indictment 536 receives cumulatively. Upon the sentence imposed on Indictment 935, giving an effective head sentence of four years. I direct that you serve a period of 21 months before becoming eligible for parole and I direct that 226 days be reckoned as having been served under this sentence.
40 Pursuant to s.6AAA of the Sentencing Act I say that but for your pleas of guilty you would have sentenced to an overall term of imprisonment of six years with a minimum of four. Lest there be any dispute as to the cumulative aspects of the sexual abuse charge, I make it clear that I am making six months cumulative or twelve months concurrent, whichever way the reader wants to take it. The end result is the same, four years on top.
41 Are there any other orders I have to make?
42 MS VOULANAS: No, Your Honour.
43 HIS HONOUR: No.
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