R v Brooks
[2016] VSC 485
•17 August 2016
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2015 0146
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DEAN JOHN BROOKS |
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JUDGE: | EMERTON J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 6 June & 12 July 2016 |
DATE OF JUDGMENT: | 17 August 2016 |
CASE MAY BE CITED AS: | R v Brooks |
MEDIUM NEUTRAL CITATION: | [2016] VSC 485 |
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CRIMINAL LAW – Sentence – Manslaughter – Guilty plea – Assault on victim in course of a robbery - Victim elderly and frail – Victim assaulted in his own home – Victim left injured and alone – Prisoner significantly younger than co-accused – Good family support and prospects of employment upon release – Longstanding drug abuse – Prior convictions – Prospects of rehabilitation only fair – Sentenced to nine years’ imprisonment with a six year non-parole period.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr P Rose QC | Office of Public Prosecutions |
| For the Accused | Mr R Backwell | Greg Thomas Barrister & Solicitor |
HER HONOUR:
Dean John Brooks, you have pleaded guilty to the manslaughter of Raymond Parker between 6 January 2015 and 13 January 2015, at Bayles in Victoria.
Your co-accused, Garren Philp and Daniel O’Donnell have also pleaded guilty to the manslaughter of Mr Parker.
At the time of the offending, Philp was 44 years old and O’Donnell was 49 years old. You were 23 years old. You were in a relationship with the young woman who is now your fiancée and you had two children, a boy aged three and a nearly two year old baby daughter. You and your young family were living at the rear of your mother’s house in Pakenham. You were working casually as a furniture removalist.
Your mother was in a relationship with Philp. Philp regularly used methamphetamine or ‘ice’. He used it with your mother and with you.
O’Donnell was a very old friend of Philp. He was staying with Philp in order to help Philp deal with what O’Donnell believed was an alcohol problem. O’Donnell did not use ice and strongly disapproved of its use. However, he was a regular user of cannabis.
The victim, Raymond Parker, had been known to Philp since around 2007 and to O’Donnell since about 2009.
Mr Parker was a long-time cultivator of cannabis. He had been growing cannabis for about 30 years without being detected by authorities. He regularly sold cannabis to Philp. Philp told O’Donnell that he was selling three pounds of cannabis a week for Mr Parker, for about $3,000 per pound.
Mr Parker was living alone in a large rented house outside of Bayles, a small township approximately 76 kilometres south-east of Melbourne. The house is on a 20 acre block set well back from the road, at the end of a long gravel driveway. The house is a two-storey house with a double garage underneath. All of the habitable areas, including the kitchen, dining room, lounge room, the five bedrooms and bathrooms, were on the upper level. The ground floor rooms were largely unfurnished as Mr Parker used the ground floor to grow cannabis hydroponically.
Philp had been to the Bayles address on at least 20 occasions to take delivery of cannabis or to assist in the manicuring of cannabis plants. He had assisted Mr Parker to bypass the electrical mains. Mr Parker referred to him as ‘the Electrician’.
Philp believed that Mr Parker kept large amounts of cash at the Bayles address and often talked about this to others.
In September and October 2014, Philp and O’Donnell went to the Bayles address in Mr Parker’s absence with a view to stealing cannabis and money. On the first occasion, in September 2014, Philp and O’Donnell went together and ascertained that the cannabis crop was too young to steal. They took the opportunity to take a look around the house but did not steal anything. On the second occasion, in October 2014, O’Donnell went alone and succeeded in finding and stealing approximately $7,400 and five pounds of cannabis. This was divided between him and Philp.
The events set out in the Prosecution Opening that took place at the Bayles address on the night of 6 January 2015 are largely as described by O’Donnell in his statement to the police. You agree that you were significantly and actively involved in the assault of Mr Parker and armed with a knife. However, the Crown concedes that you were not the only accused who took part in the assault on Mr Parker.
On the evening of 6 January 2015, you, Philp and O’Donnell went to the Cardinia Club, returning home at around 9.00pm. O’Donnell went to bed. In the early hours of the morning, Philp knocked on O’Donnell’s door and suggested going to ‘Ray’s’, being the Bayles address. Before leaving, O’Donnell observed you and Philp smoking ice with your mother, Jodie. You, Philp and O’Donnell then drove to the Bayles address, intending to steal money, valuables and cannabis from Mr Parker.
On the way to the Bayles address, Philp told you that if Mr Parker was there, ‘it would be good to give him a bit of a shake, rattle and roll’.
When you arrived at the front gate of the Bayles address, Philp told you and O’Donnell to go in, while he waited a minute or two before bringing the car up the driveway. When O’Donnell asked him why, he said, ‘In case Ray’s there’. O’Donnell says that this was the first he knew of the possibility that Mr Parker would be home.
You jumped out of the car as soon as it stopped and headed up the driveway. Philp told O’Donnell to go with you, and he did. You entered the house first through the open garage door and started to go up the stairs. O’Donnell followed you. When you got to the top of the stairs, you heard a voice say, ‘Who’s there? Who’s that in my house?’. Instead of retreating, you and O’Donnell went in the direction of the voice. You were both now well aware that Mr Parker was at home and you must have known that some form of assault would be necessary in order to subdue him.
Mr Parker’s bedroom was in complete darkness when you and O’Donnell entered. O’Donnell bumped into Mr Parker, pushed him and says he could hear you to his right going at Mr Parker, who fell to the ground. O’Donnell could hear a lot of shuffling and movement and he told the police that he was aware from the sounds that were being made that you were kicking Mr Parker.
At this point, O’Donnell left the room because he thought he had been cut on the hand by something sharp, like a knife. He went toward the lounge area, where there was some light. He could hear you yelling and lots of commotion coming from the bedroom. He yelled out to you to stop, but realised that, given the distance between him and the commotion in the bedroom, you would not have heard him.
O’Donnell then rang Philp to find out where he was and to ask him to intervene. He found Philp sitting outside near the front door, smoking a cigarette. You could be heard thrashing around upstairs and O’Donnell told Philp to go upstairs to stop you, as he thought things were getting out of hand. As Philp went upstairs, O’Donnell could hear you yelling, ‘Where’s the fucking money?’ and ‘Tell me where it is’.
Philp did not intervene. O’Donnell went upstairs and he found Philp sitting on a dining chair close to the entrance to Mr Parker’s bedroom, but out of sight of you and Mr Parker. The light was now on in the bedroom.
O’Donnell entered the bedroom and saw that you had a knife in your hand, and that Mr Parker was lying on the ground with a large cut on his arm. You were tying a cord around Mr Parker’s neck and yelling at him. O’Donnell told you to stop, but you took no notice. O’Donnell left the bedroom to speak to Philp, who ignored him as well. He returned to the bedroom and confronted you, and you let go of Mr Parker. You then went out into the lounge room and slashed the bottom of a chair before returning to the bedroom and yelling at Mr Parker again. This time, Philp told you to come and you did.
The three of you got into the car and returned home.
Mr Parker was found dead in his bedroom a week later, on 13 January 2015, by a friend who had been asked to check on him. He was face-down on the floor at the foot of the bed and all but naked. Bruising and lividity marks were present on his side, back, left arm, face and neck. A length of yellow rope was tied to the bedhead, and smears and drops of what appeared to be blood were found on the walls, floor, bedding and on medication in the master bedroom. The contents of the house had been turned upside down, with drawers removed from cabinets, furniture overturned, the under-side of a couch cut open and the cistern lids removed from the toilets.
Forensic analysis identified your blood on the ends of the rope and on a knot tied in the rope, and on a cable tie. Fingerprints were found throughout the house, including an impression in blood on the right hand side door of the vanity in the master bedroom en suite which belonged to you. Blood was found in the lounge room belonging to O’Donnell.
Following a post-mortem carried out on the following day, the cause of Mr Parker’s death was identified as ‘Complications of chest injuries in the setting of ischaemic heart disease’. The post-mortem revealed multiple blunt force injuries to Mr Parker’s head, upper limbs, torso, back and lower limbs, resulting in extensive subcutaneous haemorrhage and multiple fractures. At least ten separate impacts to his body were identified, along with a sharp force injury to his upper arm. Mr Parker also had significant natural heart disease and liver disease.
The objective seriousness of your offending must be assessed in the following context.
You seriously assaulted a frail and elderly man who was alone in an isolated property. The assault was vicious and protracted. You carried a knife and you used it on the victim. You threatened him and you cut him with the knife, and you tied a rope around his neck. You delivered a savage beating. Mr Parker suffered multiple fractures and extensive bruising in the attack, along with a large cut on his upper arm.
Even if you were not the only one of the three to assault Mr Parker, you were the most active participant. I am satisfied beyond reasonable doubt that you were the principal assailant.
The assault took place in Mr Parker’s own home, in the dead of night. Mr Parker was alone and there were three of you. He was near naked and extremely vulnerable. It must have been a terrifying experience for him.
You must have known Mr Parker to be badly injured when you left, given the intensity of the assault on him. However, when you finally stopped assaulting him you just left him injured on the floor unattended. You did not call 000 or give him any assistance at all.
In my view, this is a serious example of manslaughter. Your moral culpability for this crime is to be assessed in the context of your personal circumstances, among other things.
Your personal history is set out in a psychological assessment report prepared by Ms Gina Cidoni, a psychologist who assessed you at Barwon Prison on 6 July 2016. You gave this history to Ms Cidoni. Ms Cidoni attended court to give evidence. You did not give evidence on the plea yourself.
Your family life growing up was unremarkable, albeit somewhat unstable. Your father was a plumber and your mother a hairdresser. When you were born, your mother already had a child from a previous relationship. Your parents separated when you were six and your father moved to Darwin for two years. You had ‘on again/off again’ contact with him for a number of years, including a period when you were apprenticed to him as a plumber.
Your mother re-partnered while you were still a child and had three more children. You had no problems with your step-father. You lived with your mother, step-father and siblings in Narre Warren and then in Cranbourne. You attended a number of primary schools in these areas and then several high schools, leaving in year 8.
When you were 12, your mother and your step-father separated and the family home was sold. Thereafter, your living arrangements were somewhat fluid. You first lived with your mother for 12 months in Hampton Park. You then moved in with your father for six months, but left when you quarrelled. After that, you lived with friends and you moved between your parents’ homes.
When you were 19, you formed a relationship and moved in with your girlfriend at her parent’s home in Moe. You moved out when things fell apart dramatically.
You became engaged to your current partner at 21, living first at your grandmother’s home in Newborough before renting your own home in Churchill for a year and a half. In October 2014, you moved into your mother’s garage in Pakenham to be closer to work. You were living there when taken into custody for this offence.
You have a long history of substance abuse. You started binge drinking with friends and using cannabis at age 13. By the time you were 16 you were using cannabis daily and you used ecstasy and amphetamines from about that time onwards as well. With the use of cannabis, your behaviour deteriorated. You were asked to leave high school or face expulsion.
Having regard to your substance abuse and uncertain living arrangements, it is not surprising that your work history is chequered. When you left school in year 8 you attended TAFE for three to four months, but lost interest. You worked as a roof tiler for six months before your employer closed his business. You then worked as a removalist in Hallam for 14 months. A plumbing apprenticeship with your father lasted for two years before you fell out with him. You returned to working as a removalist for various companies in Dandenong, Braeside and Traralgon. You also briefly undertook unskilled forestry work for the local council and you worked as a labourer for a kitchen manufacturing company.
You have a relevant criminal history involving violent offending in 2006 and 2012. You first appeared in the Children’s Court in June 2006, and you were placed on probation for unlawful assault, burglary and theft. Later that year, you were placed on a second probation order for assault in company, affray, and recklessly and intentionally causing serious injury.
You did not appear in court again until 2012, when you were convicted of driving offences and given a suspended sentence. A second episode of violent offending took place later that year, and you were convicted of contravening an intervention order, stalking, assault, false imprisonment and a threat to kill and to inflict serious injury.
These last offences are serious offences that are relevant to your current violent offending in my view. They occurred, I am told, in a family violence context when you were drug affected and they involved your former partner’s two brothers. You were given a suspended sentence and a Community Corrections Order, which you breached twice.
Your counsel submitted that that your previous violent offending occurred before your children were born. Nonetheless, you have shown yourself by the current violent offending not to have been significantly rehabilitated by your entry into parenthood.
I take into account that your offending in this instance took place in the company of two much older men, one of whom was your mother’s partner. It was his idea to go to the Bayles address to rob Mr Parker and he gave you ice before you left. You were young and apparently easily led. You were also high on the ice that Philp had given you.
The fact that you were ‘high’ on ice does not reduce your moral culpability, although it possibly goes some way to explaining the mindless violence that you inflicted on Mr Parker. Your relative youth, and the fact that you acted under the influence an older man, somewhat moderates your moral culpability.
In appropriate circumstances, the youth of an offender will be a primary sentencing consideration and rehabilitation will be a more important sentencing consideration than general deterrence.[1] However, while young at the time of your offending, you were nonetheless a fully functioning adult capable of having produced a family. This was not the first time in which you had engaged in violent offending.
[1]R v Mills [1998] 4 VR 235.
Despite your youth and the fact that you were in the company of older men, I assess your moral culpability for your offending to be high. Given the violent nature of your offending in this instance and your previous violent offending, there is a need to impose a sentence that strongly denounces your conduct and operates as a deterrent to you and to others like you. In my view, denunciation of your conduct and general and specific deterrence remain important sentencing considerations in this case.
I turn to consider your prospects of rehabilitation.
Your counsel submitted that the support of your partner and the responsibility of raising two children improves your prospects of rehabilitation. He also referred to your youth and the fact that you have your life in front of you. I accept that their support, as well as the emotional and financial responsibilities you bear in relation to them, will provide a motivation for you to reform and become a responsible member of the community.
Your counsel also submitted that your prospects of rehabilitation are strengthened by your work history, emphasising that even while your abuse of drugs was worsening in the months leading up to this offence you still managed to retain employment. He also submitted that your prospects of being successfully rehabilitated are enhanced by an offer of employment from your previous employer when you leave prison. You plan to continue furniture removal work as soon as you are released.
I accept that your prospects of rehabilitation are strengthened by your work history and that offer of work.
I have had regard to the three character references tendered on the plea. Ms Emma Lowen, a family friend, writes that you have been of great assistance to her family, helping her husband to finish building their house and caring for their young daughter, whom you call every week from prison.
Your former employer, Mr Adrian van Dooun, writes that you have been a pleasure to work with, that you give ‘100%’ at work and are ‘polite, respectful, enthusiastic’ and ‘kind and caring’ towards everyone. Mr van Dooun says that you have his support in regards to employment upon your release.
Your partner, Ms Bonnie Woods, is ‘very hurt and disappointed’ by your offending, but states that you have always worked hard for your family and that you take great pride and joy in your children. It is evident that Ms Woods sees your current offending as out of character and believes that you will re-join the family and contribute in a positive way upon release.
However, Ms Cidoni has assessed you to present a high risk of violence in situations where you are abusing drugs or alcohol or where you are associating with antisocial peers. She found that you lack insight and generally exhibit little forethought, blaming others for your behaviour. She states your unstable behaviour and failure to consider the consequences of your actions needs to be addressed by therapeutic support while you are in prison.
In Ms Cidoni’s opinion, the high risk you present is somewhat reduced by there being no findings of mental illness or disorder and by the stable, supportive presence of your fiancé. However, the risk you present to others will not be significantly reduced until you overcome your dependence on drugs and your involvement in relationships that negatively influence you.
Your plea of guilty and your expression of some remorse about the consequences of your offending during your assessment by Ms Cidoni are also relevant to your prospects of rehabilitation. However, your statement to Ms Cidoni that you are remorseful must be assessed against the background that when speaking to her, you denied any physical involvement in the assault on Mr Parker.
On the basis of all of this evidence, I find your prospects of rehabilitation to be only fair. They depend on whether you are able to avoid falling back into substance abuse in the future. If you resume abusing drugs, your prospects of re-offending are high. However, with suitable drug and alcohol treatment, you may be able to stay off drugs and out of trouble, work hard for your family and lead a purposeful life.
Ms Cidoni found that you do not have any major mental illnesses or personality disorders. She noted that you exhibited some mild depressive symptoms which she found most likely attributable to your current incarceration, as well as some antisocial traits and hypomania which fell short of the full diagnostic criteria for an antisocial personality or bipolar disorder.
There is no evidence that mental illness played any part in your offending or that imprisonment will be more difficult for you due to your state of mental health.
You entered a plea of guilty for manslaughter at a relatively late stage. The case against you was strong, having regard to the statement of your co-accused and to the forensic evidence to which I have referred.
However, I give your plea its full weight for its utilitarian value, as well as for the expression of remorse that it demonstrates. Your plea saves the community the expense and the family the ordeal of a trial.
I turn now to the impact of your offending upon victims.
The prosecution filed victim impact statements from Mr Parker’s five adult children and from his friend Trevor Wilson. It is clear that Mr Parker was a much‑loved father and friend and his family and friends are understandably shocked and very traumatised by the manner of his death.
I have had regard to the victim impact statements in sentencing you.
Sentence
The offence of manslaughter carries a maximum penalty of 20 years’ imprisonment. This recognises that killing a person strikes at the sanctity of life, which is a core value in our community.
Manslaughter throws up a great variety of circumstances concerning culpability. In sentencing you, I must have regard to the nature and gravity of the offence, and to your culpability and degree of responsibility.
I have found your offending to be a serious example of manslaughter. Your moral culpability is somewhat reduced by your youth and the fact that you were in the company of older men, one of whom, in particular, was able to exert an influence on you and instigated the episode that resulted in the assault on Mr Parker. Nonetheless, just punishment, denunciation of your conduct and general and specific deterrence remain important sentencing considerations.
I have also had regard to your prospects of rehabilitation and the matters underlying my assessment of those prospects, including your supportive family and the prospect of gainful employment when you are released. I have also had regard to your plea of guilty.
Dean Brooks, please stand.
You have pleaded guilty to killing Raymond Parker. You stand convicted of manslaughter.
Balancing the relevant factors as best I can, and having regard to current sentencing practices, I sentence you to a term of imprisonment of nine years for the manslaughter of Raymond Parker. I fix a non-parole period of six years.
But for your plea of guilty, I would have sentenced you to a term of imprisonment of 11 years, with a non-parole period of eight years.
I declare that you have served 542 days by way of pre-sentence detention, up to but not including today.
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