R v Brock & Green
[2006] VSC 13
•8 February 2006
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1421 of 2005
| THE QUEEN |
| v |
| BARRY TREVOR BROCK ANTHONY SHANE GREEN |
---
JUDGE: | Hollingworth J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16 December 2005 | |
DATE OF SENTENCE: | 8 February 2006 | |
MEDIUM NEUTRAL CITATION: | [2006] VSC 13 | |
---
Criminal law – sentence – two accused – intentionally causing serious injury – theft of victim’s wallet – unlawful imprisonment in boot of car – accused and victim all heavily intoxicated – no permanent injury to victim – both accused having multiple prior convictions – total effective sentences of imprisonment of 4 years 3 months and 3 years 6 months respectively.
---
APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr T Gyorffy | Solicitor for Public Prosecutions |
For the Accused Brock | Mr T Sullivan | Leanne Warren & Associates |
| For the Accused Green | Mr L Thompson | Victoria Legal Aid |
HER HONOUR:
Barry Trevor Brock and Anthony Shane Green, you have both pleaded guilty to one charge of each of intentionally causing serious injury, theft and unlawful imprisonment. It is now my duty to sentence you for those offences.
The offences
The offences arise out of events that took place on the evening of Wednesday 5 September 2002. On that night, you both arrived at Leggies Hotel in Moe at around 8.00pm. There you met the victim, a man named Anthony McBride, who neither of you had met before that night. Mr McBride had been at the hotel for much of the day, drinking heavily and consuming cannabis. At various times during the evening, he had been loud and obnoxious and annoying other patrons; he had been warned by the manager that he should calm down or be thrown out.
The three of you drank together at Leggies until around 11.00pm. It seems that you left because the manager had finally had enough of the victim’s behaviour and wanted him to leave. You all went to a nearby house to smoke cannabis.
At some stage in the evening, the victim recognised the surname Brock, and accused one or more of your brothers of having raped a woman known to him. During the evening, the victim kept bringing up this topic of conversation in a fairly heated manner; each time it resulted in an argument. However, by the time the three of you were kicked out of the house in Newborough for being too loud, it seems that the mood was relatively amicable.
The three of you drove about 5km along Princes Highway, towards Traralgon. At this stage, the intention was that you would continue drinking once you got to Traralgon. However, somewhere along the highway, the car was pulled over, and both of you got out and pulled the victim out of the passenger side door.
The precise details of what occurred next are not clear, for several reasons. You were all heavily intoxicated with alcohol and cannabis at the time; indeed, the victim described himself as having been “blind drunk”. The victim conceded that there were gaps in his memory of events; he attributed some of those to his longstanding heroin and cannabis usage. The victim has numerous convictions for dishonesty offences and gave a version of events which I am satisfied was exaggerated in some respects. In your record of interview you, Mr Green, admitted some involvement in a less serious account of the incident, but sought to attribute more blame to Mr Brock than yourself. You, Mr Brock, gave the police a most unhelpful and false version of events, in which you denied even being at Leggies or meeting the victim.
The victim says that you, Mr Brock, bit his nose and tried to stab him with a stick. He says that you, Mr Green, hit his head and face with a weapon which he claimed was a steel bar; I am satisfied that it was in fact the broken wooden handle of a hammer. The victim says that he was lying on the ground, trying to block the blows, whilst the two of you were kicking and hitting him. I accept that he would have been in fear for his safety.
At one stage, you, Mr Green, asked the victim for his wallet, which he handed over. You took his wallet, containing Medicare and healthcare cards and approximately $50 cash. That conduct is the subject of the theft charge.
The unlawful imprisonment charge arises from the following. The victim says that after attacking him for about 10 to 15 minutes, both of you picked him up and put him in the car boot. As you tried to close the lid of the boot, he shoved his foot into the lock so it would not shut properly. He says that eventually you gave up trying to close the boot latch and told him to hold the boot down, which he did. The victim was frightened of what might happen to him next. At some stage, when the car slowed down, the victim jumped out of the boot and ran away. You got out and searched for him without success, before driving away. It is not clear for how long the victim was held in the boot, but it appears to be for some minutes, not hours.
Victim impact
The medical evidence shows that the victim received cuts to his face, which required extensive stitching, as well as a broken nose. He also suffered some superficial lacerations and bruising on his arms and torso. There were no internal injuries or fractures and no permanent physical injury.
In his victim impact statement, Mr McBride says that he was initially diagnosed with post-traumatic stress and still has occasional nightmares about the attack. He says that the incident has diminished his trust of others and his enjoyment of life. He says he is receiving ongoing counselling to deal with these issues.
The offences
The maximum penalty for intentionally causing serious injury is 20 years imprisonment. The maximum penalty for theft is 10 years. The maximum penalty for false imprisonment is 10 years.
But for the initial charge of attempted murder, which has since been dropped, this matter would have been dealt with by the County Court, not this court.
All counsel agreed that I should not differentiate between the two of you in terms of your roles in the incident or your moral culpability.
I accept that the offences were spontaneous and without any premeditation. Whilst I have no evidence as to exactly how much alcohol and cannabis had been consumed, I accept that you and the victim were all heavily intoxicated at the time of the offences. As is often the case in situations where participants are affected by alcohol or drugs, precisely what took place and why cannot be determined.
It seems that the victim’s repeated accusations against one or more of the Brock brothers were a constant source of aggravation throughout the evening. I have no evidence as to whether the topic was brought up again in the car, but it undoubtedly remained a source of background tension. To say that, is not to blame the victim for the incident. However, combined with alcohol and cannabis, and given your personality, it may well have triggered or motivated the involvement of you, Mr Brock, in the incident.
Mr Green, your involvement seems to have come about due to your intoxication and a misplaced sense of loyalty towards Mr Brock, somebody with whom you had some prior acquaintanceship in prison.
The fact that you were both intoxicated does not excuse the fact that two of you intentionally assaulted an intoxicated and unarmed victim with weapons, before putting him in the boot of your car and driving off with him. Fortunately, the victim has sustained no long term physical injury. I have no doubt that he has suffered some psychological trauma as a result of the incident, although whether it was as serious as he says has not been the subject of any evidence and seems rather doubtful given his own violent past.
In my opinion, your conduct is somewhere around the middle of the range for the offence of intentionally causing serious injury.
The Crown concedes that the theft is clearly at the bottom end of the range of thefts.
The false imprisonment lasted for an unspecified, but relatively short time, until the victim leaped out of the boot. Although the victim co-operated in his imprisonment, in the sense of holding the boot closed, I am satisfied that he felt he had no option but to do so when faced with two assailants and in real fear of further assault. Your conduct is somewhere just below the middle of the range for this offence.
There is clearly a need for some general deterrence in a case such as this, particularly in relation to the charges of intentionally causing serious injury and unlawful imprisonment.
Pleas of guilty
You were both initially charged with numerous additional charges, including the more serious charges of attempted murder, threat to kill, armed robbery and kidnapping. When those charges were dropped shortly prior to trial, you both offered to plead guilty to the current charges.
You are both entitled to a discount on the sentence to be imposed upon you in recognition of your pleas of guilty. The community and your victim have by your pleas been spared the time, cost and stress of a trial.
Whilst your pleas were not technically offered at the earliest possible time, due to communication problems between lawyers, the Crown agrees that you should be treated for sentencing purposes as having pleaded guilty at the earliest possible opportunity.
Delay
Delay can be a mitigatory factor in sentencing. Where a matter has been hanging over an accused person’s head for some time, they are left in a state of suspense as to what will happen to them.
These offences occurred in September 2002. The committal hearing took place in February 2005. These matters were not listed for trial until late 2005. Not only has there been delay, but until a few weeks before the trial, you both had very serious, unresolved charges hanging over your heads, which have subsequently been dropped.
Personal circumstances - Brock
Barry Brock, you are now 45 years old.
You were born in Daylesford, but grew up in many different country towns, as your father moved around for his itinerant work as a rabbit trapper and woodcutter. Your parents both died when you were in your early 20s. You had seven sisters and seven brothers, one of whom died in a car accident in 1996. Apparently you and most of your siblings were at various times during your childhoods placed in foster care; you were a ward of the state for some period of time before you were 18.
You left school aged 14½, to help the family. Since then, you have variously worked as a factory hand, carpet layer, cleaner and furniture removalist, as well as other seasonal work, in a variety of country towns.
Prior to and since these offences, you have completed various TAFE certificates in basic welding, occupational safety and asset maintenance.
You seem to have led an itinerant life, spending lengthy periods either homeless or of no fixed abode. Since May 2005, you have been living with one of your brothers in Ballarat.
You have had serious and ongoing problems with alcohol abuse, which has played a role in some of your previous convictions. Your alcohol abuse has continued notwithstanding undertaking a number of courses or programmes to deal with it, as well as almost 2 years on the Antabuse medication. It has also prevented you from obtaining a driver’s licence. According to your psychologist’s report, you continue to drink at the level of an alcoholic and engage in binge drinking when you are working and have the money to do so. Indeed, you attended your appointment with him obviously affected by alcohol. You have also consumed cannabis on an almost daily basis since the age of 16.
You have never been married, have trouble trusting people and have been unable to maintain any long term relationships with women.
A report was tendered on your behalf from Jeffrey Cummins, psychologist, who assessed you in early December 2005. He believes your dissociated personality style to be reflective of alcohol and cannabis abuse, as well as a paranoid personality.
Mr Cummins also noted that you hold very firm, moralistic views about particular issues and become argumentative and angry when your views are challenged. Because you hold very concrete views, Mr Cummins believes you are unlikely to benefit from insight-oriented psychotherapy. However, he believes you could benefit from supervision and guidance. He also believes you should refrain from drinking alcohol under any circumstances and that your level of paranoia is such that you should be directed to participate in an anger management programme. It seems that you have limited insight into your mental state and are in denial of both your alcohol and anger management problems.
Given your state of intoxication on the night of the offences, your concrete thinking style and your unerring loyalty towards your brothers, it seems that you regard these offences as having been provoked by the victim’s rape accusations. It is not clear to me that you have any genuine remorse for what occurred that night.
You are no stranger to the criminal justice system and since the age of 18 have spent considerable time in prison. You have prior convictions for 36 offences, from 10 different court appearances, the majority of which relate to matters heard in various Magistrates’ Courts in this state, including multiple convictions for burglary, theft, assault, firearms offences, and drug possession and usage offences.
Most seriously, in 1988 you were sentenced to 8 years imprisonment for manslaughter, with a minimum term of 6 years. You and one of your brothers were both convicted of the manslaughter of a man named Moss, who was a boarder in the house of another brother. You and your brother had beaten Moss on several earlier occasions, in the belief that he had sexually assaulted one of your nieces and nephews. On the final, fatal occasion, Moss was imprisoned in his own bedroom, whilst being beaten and assaulted by the two of you for some 4 ½ hours, before your sister and her husband joined in the attack. You drank at various stages during the attack, although your level of intoxication is not known by me. Moss died shortly thereafter. In increasing your sentence to 8 years, the Court of Criminal Appeal described the attacks as “cowardly, vicious and sadistic, with little justification”, inflicted on an older, defenceless and unresisting man. Referring to your then 20 criminal convictions from 6 court appearances between 1979 and 1984, the court described you as a young man with “proven criminal propensities, including convictions for crimes of violence”.
In 1995, you were sentenced by the County Court to a total sentence of imprisonment of 4 years and 9 months for intentionally causing injury, two counts of attempted assault with intent to rob and possession of a drug of dependence.
Since your last release from prison in 2000, you have been in trouble with the police twice – once for these offences, which occurred in 2002, and more recently for an offence that took place in October 2005, for which you are yet to face court. Given your history, I do not share your counsel’s optimism that this shows that you have matured, learned from past mistakes and have good prospects for rehabilitation.
Sadly, your entire adult life has been spent in and out of the criminal justice system. Your psychologist’s report confirms that your substance abuse and anger management problems remain unresolved, notwithstanding considerable previous treatment for your alcohol abuse. You seem to be unwilling or unable to address these problems, which have brought you into such regular contact with the law. Combined with your paranoid personality and your moralistic, concrete way of thinking – which have already contributed to somebody’s death – your substance abuse and anger management problems cause me to feel rather pessimistic about your prospects for rehabilitation.
There is clearly some need for me to impose a sentence which reflects an element of specific deterrence.
Personal circumstances - Green
Anthony Green, you are now 34 years old.
You were born in Kyabram and raised in Springvale. You still maintain a good relationship with your parents and your brother and remaining sister. Although you first left home aged 17, you have lived with your parents on and off during your adult life. You were particularly close to your other sister, who died in an accident when she was 17 – an event which affected you greatly.
You left school mid way through year 9, the same year that your father had a very serious car accident which also affected you greatly. Whilst at school, you fell in with a group of students who regularly drank and abused drugs; you were often in trouble and a truant.
After leaving school, you initially worked in the meat works, a job which you continued in various country towns. You have also worked as a storeman.
Your employment history has been somewhat unstable and includes periods of unemployment. That has no doubt resulted from your itinerant lifestyle and the amount of time you have spent in prison over the years. You were 19 when you were first sentenced to imprisonment and have been regularly in and out of prison ever since, albeit often for short terms.
You have also abused alcohol. It appears that you have a very low threshold of tolerance when drinking and are easily provoked, which leads to aggressive behaviour on your part. Many of your prior convictions appear to have resulted from alcohol abuse. Unlike Mr Brock, it does not appear that you have in the past received substantial treatment for your alcohol problems.
You have also been a heavy cannabis user in the past, something which you continue to smoke. During the late 1990s, you were also a heroin user, until you went on a methadone programme which you have - to your credit - successfully completed. Some of your prior convictions relate to drug usage and possession.
You have prior convictions for 62 offences, from 19 court appearances, mostly from Magistrates’ Courts in this state, and equivalent courts in Western Australia, the Australian Capital Territory and New South Wales. More than 1/3rd of those are for driving-related offences, but you also have multiple convictions for assault, burglary and theft.
In 1994, you were sentenced in the County Court to a total sentence of 2 years for false imprisonment, intentionally causing injury and assault. In 1997, you were sentenced to 3 years’ imprisonment for burglary and theft in the Supreme Court of the Australian Capital Territory.
Over the years, a number of courts have imposed community-based orders or suspended sentences on you; unfortunately you have a pattern of breaching those and being placed in custody as a result. Although you are reasonably intelligent and presented as co-operative and polite, your psychologist, Ian Joblin, describes you as having developed a negative attitude towards authority and the criminal justice system generally. Often seeing yourself as a victim who is misunderstood by the system, he says you are angry and resentful at the continued sentences of imprisonment imposed on you, which has made you rebellious and not particularly amenable to rehabilitation.
You had not been long out of prison, from two convictions imposed in October 2001, when you committed these offences.
Like Mr Brock, you seem to believe that your actions against Mr McBride were justified, and it is not clear that you have demonstrated any real remorse for what occurred.
You have had a number of long term relationships, including one that produced a child. For the past 2 years, you have been in a relationship with the same woman. It also seems that your parents have remained supportive of you throughout your past problems, although your father is now suffering from Parkinson’s disease.
Although a decade younger than him, your prior convictions are more numerous than those of Mr Brock. However, your convictions have generally been for less serious offences than his. Whilst you are prone to aggressive behaviour when abusing alcohol, it seems that you have been able to maintain a number of long term relationships. It is also to your credit that you have managed to overcome your heroin addiction. It seems from your psychologist’s report that you might yet benefit from treatment for your alcohol abuse; that may best be achieved under the supervision of the Adult Parole Board. However, your prospects of rehabilitation will probably remain limited until you stop seeing yourself as a victim and start accepting some responsibility for your own conduct.
As in the case of Mr Brock, there is clearly some need for me to impose a sentence which reflects an element of specific deterrence. However, I feel more optimistic about your potential for rehabilitation than his, particularly if you are able to address your alcohol problems.
Cumulation/concurrence issues
I agree with the Crown’s submission that the false imprisonment was a new phase of the incident, for which there should be a small amount of cumulation, and that there should be no cumulation for the theft.
Sentence - Brock
Barry Brock, in respect of the first count, that of intentionally causing serious injury, I sentence you to imprisonment of 4 years.
In respect of the second count, that of theft, I sentence you to imprisonment of 1 month, all of which is to be served concurrently with the sentence imposed on the first count.
In respect of the count of false imprisonment, I sentence you to imprisonment of 12 months, 9 months of which is to be served concurrently with the sentences imposed on the first two counts.
This makes a total effective sentence of 4 years and 3 months. I fix a period of 3 years as the period you must serve before becoming eligible for parole.
I declare that the period to be reckoned as already served under the sentence is 257 days inclusive of today’s date and I direct that there be noted in the court’s records the fact that the declaration has been made and its details.
Sentence - Green
Anthony Green, in sentencing you I have started off with an assumption of parity of sentence, having regard to the fact that your involvement and culpability are equivalent to that of Mr Brock. However, I have reduced your sentence on the first count, having regard to the following matters. First, I have had regard to the time that you have spent in custody for subsequent offences, which does not fall within s.18 of the Sentencing Act 1991[1]. I have also taken into account the fact that you have better prospects of rehabilitation and fewer prior convictions for serious violent offences than Mr Brock.
[1]R v Renzella [1997] 2 VR 88.
Accordingly, in respect of the count of intentionally causing serious injury, I sentence you to imprisonment of 3 years and 3 months.
In respect of the count of theft, I sentence you to imprisonment of 1 month, to be served concurrently with the sentence imposed under the first count.
In respect of the count of false imprisonment, I sentence you to imprisonment of 12 months, 9 months of which is to be served concurrently with the sentences imposed for the first two counts.
This makes a total effective sentence of 3 years and 6 months. I fix a period of 2 years and 3 months as the period you must serve before becoming eligible for parole. I hope that you will be able to seriously address your alcohol abuse problems under the supervision of the Adult Parole Board; if you do not take this opportunity to do so, you can expect increasingly heavier sentences for future offences.
I declare that the period to be reckoned as already served under the sentence is 266 days inclusive of today’s date and I direct that there be noted in the court’s records the fact that the declaration has been made and its details.
---
0
0
0