R v Debrueys
[2014] ACTSC 345
•5 November 2014
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Debrueys |
Citation: | [2014] ACTSC 345 |
Hearing Date: | 29 October 2014 |
DecisionDate: | 5 November 2014 |
Before: | Penfold J |
Decision: | See [29] to [32] below |
Category: | Sentence |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – offender sentenced for burglary and theft committed while on parole – offender’s parole already cancelled – early guilty pleas – significant criminal history – offender suffered childhood sexual abuse – heroin addiction – methamphetamine use – mental health concerns – mother terminally ill – some evidence of genuine attempts to rehabilitate – sentence of 22 months imprisonment, to add six months to sentence currently being served – new non-parole period set. |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT), s 66 Criminal Code 2002 (ACT), ss 308, 311 |
Parties: | The Queen (Crown) Brett Anthony Debrueys (Offender) |
Representation: | Counsel Ms A Clarke (Crown) Mr R Davies (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender) | |
File Number: | SCC 111 of 2014 |
Brett Debrueys has pleaded guilty to one burglary and an associated theft. The offences arise under ss 311 and 308 of the Criminal Code 2002 (ACT) and carry maximum penalties respectively of 14 and 10 years imprisonment.
The burglary was a routine domestic burglary; Mr Debrueys entered a house in Kambah during the day on a Tuesday in early March 2014, obtaining entry by breaking a window in the back door. He searched the house, and stole property worth roughly $6,800, including a laptop, camera equipment, jewellery and coins. Presumably having injured himself in breaking the window, Mr Debrueys left drops of blood at several points in the house, and in due course his involvement in the offence was indicated by DNA analysis of the blood.
Mr Debrueys was arrested at Canberra Airport on 9 May 2014, having just returned from Perth where, as will be further mentioned, he had obtained an Naltrexone implant.
Mr Debrueys’ offence was aggravated by the fact that he was on conditional liberty when it was committed. Specifically, he was on parole, having been released from prison on 16 January this year after serving just slightly more than the three-year non-parole period on a total sentence of seven years imprisonment imposed in 2011 for a series of offences including aggravated robbery, burglary, theft and damage property. Mr Debrueys was already in breach of his parole order before committing the new offences, as a result of failure to accept supervision, use of illicit substances as indicated by urinalysis, failure to attend urinalysis as directed, and leaving the ACT without permission (I understand that that breach arose from his trip to Western Australia). On 10 June this year, Mr Debrueys’ parole was cancelled and he is currently serving a sentence that will expire on 5 June 2018.
Mr Debrueys pleaded guilty to the new charges on 23 May this year, on his third appearance before the court. I shall treat these as early pleas of guilty.
As noted, the burglary was a routine domestic burglary. The value of the items stolen was considerably more than nominal, although lower than for many domestic burglaries. I have already mentioned the aggravating factor of the offence being committed while Mr Debrueys was on conditional liberty.
The offence seems to me to be on the lower edge of mid-level seriousness.
The Pre-Sentence Report describes Mr Debrueys’ attitude to the offences:
Mr Debrueys stated he agreed with the Statement of Facts. He advised he was drug affected at the time of the offences and claimed although he sold some of the stolen items, the offences were not committed to gain money for illicit drugs.
Mr Debrueys was able to verbalise the negative effect his actions would have had on the victims of the offences and stated he understood it was the wrong thing to do.
Mr Debrueys is now 30. His criminal history is reasonably substantial ... and includes three robberies, three burglaries, three thefts and three damage property offences, including the offences for which he was sentenced in 2011, as well as two assaults occasioning actual bodily harm and several breaches of good behaviour orders.
The Pre-Sentence Report provides the following information about Mr Debrueys’ background:
Mr Debrueys reported a challenging upbringing marred by several occurrences of sexual abuse perpetuated upon him over a number of years. He stated he spent much of his formative years in multiple foster care placements due to his challenging behaviour, and recalled often running away to return to his mother’s care. His father committed suicide when [Mr Debrueys] was approximately 10 years old.
Mr Debrueys’ mother is terminally ill. When he was released to parole in January 2014 he resided with her and acted as her carer. He hopes to resume residing with her upon his release.
...
Mr Debrueys ceased mainstream education in approximately year eight and then returned to school to complete year nine in an alternative schooling environment.
He reported no significant employment history, stating he had held employment in 2010-2011 in the building industry.
Mr Debrueys has previously held employment while incarcerated at the Alexander Maconachie Centre, however, he is not currently employed.
...
Mr Debrueys has a long criminal history and has several criminal associates.
Mr Debrueys stated he has no history of alcohol abuse.
Mr DeBrueys reported a long history of heroin use, most significantly when he was 17 years of age. He has experienced periods of prescribed methadone use and reported he was stable during those periods. He has had sporadic contact with Directions ACT and two rehabilitation facilities however, failed to complete either program.
Mr Debrueys relapsed into heroin use upon his release from custody in January 2014. He travelled to Perth, Western Australia in April 2014 to undertake Naltrexone implant treatment which purportedly blocks the receptor for the effects of heroin. Mr Debrueys is currently paying off the treatment and hopes to return in January 2015 to have his implant renewed as it needs to be replaced every nine to 12 months to be effective.
It is noted Mr Debrueys also returned urinalysis samples positive for cannabis and heroin during his recent period of parole.
Although Mr Debrueys has been accepted for long term treatment at Canberra Recovery Services he has stated that he wanted to be available to care for his mother and does not wish to reside in a rehabilitation facility upon his release. He also stated he is exploring the option of outreach support from Arcadia House, although has not contacted that service at this time.
Mr Debrueys reported he is currently medicated for an ongoing mental health condition. Information received from ACT Health advised Mr Debrueys is engaging in weekly therapy with a psychologist and recommended this should continue upon his release.
Mr Debrueys’ mother’s health is of significant concern to him. Should she pass away it is recommended he engage with a grief counsellor to assist in managing his emotions.
The Pre-Sentence Report author, Shannon Bradbury, gave oral evidence expanding on her report. She agreed that Mr Debrueys, while on parole, had engaged adequately with an officer of Directions ACT, and that he claimed also to have attended Narcotics Anonymous and Alcoholics Anonymous meetings during that period, although she also conceded that he had been very stressed by the pressures on him generated by his mother’s illness and her needs.
Ms Bradbury gave evidence about Mr Debrueys’ role in caring for his mother, indicating that his carer’s role had sometimes caused difficulty for Mr Debrueys in complying with the directions of his Corrections supervisor, but that offers to arrange short term “minders” for his mother via Carers ACT had not been taken up.
Ms Bradbury also indicated that there was a treatment plan currently in place in the AMC for Mr Debrueys, which included prescription of mood stabilisers and ongoing therapy with a psychologist, although there was some uncertainty in the evidence before me about whether Mr Debrueys had ceased to accept treatment from the psychologist or had recently re‑engaged with that treatment.
Ms Bradbury agreed that residential rehabilitation would be a good option for Mr Debrueys, as would a Karralika live-in program. She advised that Mr Debrueys would need another Naltrexone implant roughly every six to nine months, but that he would be able to get a new one without having paid off the high cost of the first one. She said that Mr Debrueys would need a lot of rehabilitation, with a lot of structure and a lot of support people around him, to have any chance of rehabilitation.
She conceded that if Mr Debrueys’ Naltrexone implant was effectively blocking the effects of heroin and thereby eliminating the craving for this drug, this might reduce the intensity of the rehabilitation support he needed.
As noted, heroin use appears to be a defining factor in Mr Debrueys’ adult life and his ongoing involvement in the criminal justice system. His substance abuse in turn may be partly attributable to his very distressing childhood, and especially to the sexual abuse apparently inflicted by his father when Mr Debrueys was little more than a toddler, and subsequently by fellow residents in children’s homes where he spent some time around the ages of 11 and 12. These experiences have no doubt also contributed to his ongoing mental health difficulties, particularly depression and anxiety which in turn may be both a cause and an effect of his substance abuse.
The Pre-Sentence Report author expressed the following opinion about Mr Debrueys’ prospects:
Mr Debrueys appears to have experienced a challenging upbringing marred by abuse and instability. His ongoing criminal behaviour and relapse into drug use is of significant concern to this Service. He has been somewhat proactive in gaining medical treatment to prevent further relapse and is able to receive another implant in January 2015.
Mr Debrueys is assessed as a high risk offender due to his past history of offending, lack of employment and his mental health. During his most recent period in the community he demonstrated little ability to comply with a community based order. Although he has stated a reluctance to enter a residential rehabilitation program upon his release, due to his mother’s illness, it would appear imperative that he undertake treatment in relation to illicit substance use. Without such intervention, it is inevitable that he will relapse and place himself at risk of further offending.
Two CADAS reports were in evidence, confirming that there has been ongoing cannabis and heroin use by Mr Debrueys from an early age, with some amphetamine use during the last period when Mr Debrueys was in the community. The CADAS report described Mr Debrueys’ earlier attempts at rehabilitation:
He could not recall what years he attended the Lyndon Community or The Glen program. Mr Debrueys said that when ... he was receiving treatment at the Wayback program he began injecting his prescribed methadone.
Over the previous nine years there was inconsistent dosing with methadone. He reported that when he was receiving Opioid Replacement Therapy he was using heroin once a fortnight.
A second CADAS report, as well as a letter from the Salvation Army tendered by defence counsel, noted that Mr Debrueys had been offered a place at the Canberra Recovery Service from 29 October 2014. I am told he has also approached the Karralika Nexus program for assessment.
The significance of these approaches, given that the cancellation of Mr Debrueys’ parole on the earlier sentence means that he is not currently able to be released irrespective of the outcome of my sentencing, is said to be that Mr Debrueys has been pursuing rehabilitation options since being returned to custody.
Mr Debrueys’ counsel submitted that that pursuit of rehabilitation options, his pursuit of the Naltrexone implant, and his recent engagement with Directions, indicate Mr Debrueys’ recognition of the importance of addressing his substance abuse.
Mr Debrueys’ mental health has also been a matter of concern over some years. In evidence before me were two ACT Forensic Mental Health assessments, dated 13 May 2008 and 21 April 2011, both prepared by consultant psychiatrist Dr Graham George, and a psychiatric report dated 4 August 2010 prepared by consultant forensic psychiatrist Dr Stephen Allnutt.
In 2008, Dr George, without making a formal diagnosis, referred to symptoms suggestive of major depression and a presentation as moderately to severely depressed, chronic anxiety with over-vigilance and hyper-arousal, a low frustration tolerance and poor impulse control, as well as chronic post-traumatic stress disorder and borderline personality disorder.
Dr Allnutt in 2010 noted symptoms consistent with a depressive disorder characterised by a depressed mood, feelings of worthlessness, reduced appetite, impaired sleep, poor motivation, reduced energy, reduced decision-making, lack of interest in activities, anhedonia and intermittent suicidal ideation. He noted panic attacks and post-traumatic stress symptoms, and suggested that at the time he saw Mr Debrueys in July 2010, about four months after the aggravated robbery for which he was sentenced in 2011, Mr Debrueys had symptoms consistent with a resolving psychosis, possibly associated with the use of methamphetamine. Dr Allnutt recommended at that stage that Mr Debrueys discontinue substance use, attend drug and alcohol counselling, and receive anti‑psychotic medication.
In 2011, Dr George, again without making any formal diagnosis, noted symptoms of a substance abuse disorder relating to cannabis, anxiety and depression possibly caused by substance abuse, and post-traumatic stress disorder, as well as a possible diagnosis of mixed personality disorder with borderline and anti-social traits.
The Pre-Sentence report mentioned Mr Debrueys’ mother’s illness. There was in evidence before me a certificate from Mrs Debrueys’ doctor certifying that she has end-stage chronic obstructive pulmonary disease requiring domiciliary/home oxygen and chronic steroid use, as well as an ambulatory oxygen therapy with oxygen cylinder, wheeled carrier whenever she is out in the community.
General deterrence is always important for offences of this kind and it is clear that Mr Debrueys needs ongoing personal deterrence.
As noted, I accept Mr Debrueys’ pleas as early pleas of guilty, and I accept them as indicating remorse as well as, presumably, recognition of the inevitable. While noting the strong prosecution case, I will nevertheless provide a significant sentencing discount.
Mr Debrueys, please stand. I record convictions on the charges of burglary and theft.
I now sentence you to imprisonment for 22 months for the burglary, reduced from 30 months for your plea of guilty, and 12 months for the theft, reduced from 16 months for your plea of guilty and to be served concurrently with the burglary sentence.
The sentences will be served so that the burglary adds a further six months to the sentence of seven years currently being served. Accordingly, the burglary sentence will run from 6 February 2017 until 5 December 2018 and the theft sentence from 6 February 2017 until 5 February 2018. That means that 16 months of the new sentence will be served concurrently with Refshauge J’s earlier sentence which, among other things, accounts for the 32 days you have served in custody already solely in relation to the new offences.
My sentence also means that you will be serving a head sentence totalling seven and a half years running from 6 June 2011 until 5 December 2018. For that sentence, I set, under s 66 of the Crimes (Sentencing) Act 2005 (ACT), a new non‑parole period of three years and nine months, which will run from 6 June 2011 until 5 March 2015, and so you will be eligible to apply for release on parole in March 2015. That’s about five months, I think, maybe not even that. That means that as a result of the new offences, you will serve roughly, by my calculations, an extra 10 months in custody which would not have been required but for your breach of parole.
In setting that new non-parole period, I have not been quite as lenient as Refshauge J, but a non-parole period equal to half the total sentence is still somewhat lenient. I should point out to you, however, that much of that leniency relates to the tragedy of your mother’s condition and the fact that the two of you may not have a lot of time left together, rather than to any particular optimism on my part that you now have the capacity and the commitment to achieve genuine drug rehabilitation despite the various burdens you are carrying.
I do hope you can manage it, Mr Debrueys, but you need to realise that you have a long hard road ahead of you. If you do hope to achieve rehabilitation, you will need to start thinking about making better use of the support services that are available to you, initially in the prison and then afterwards, once you are released on parole, from the Corrective Services people.
In particular, it seems to me that the psychological counselling that you have been offered may well be fundamental to you achieving any success through drug counselling and other help with your substance abuse. As I have already suggested in this sentencing, it is quite likely that it is your early traumas that have led you into drug abuse and into mental health difficulties, particularly into depression, and so unless you somehow deal with those early traumas, all the rest of it is going to be a very difficult struggle.
You may sit down.
| I certify that the preceding thirty-six [36] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Penfold. Associate: Date: |
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