DPP v Braithwaite [2019] VCC 1593 (2 October 2019)

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IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised

Not Restricted

Suitable for Publication

DIRECTOR OF PUBLIC PROSECUTIONS

v

BRANDON BRAITHWAITE

JUDGE:	HER HONOUR JUDGE HAMPEL
WHERE HELD:	Melbourne
DATE OF HEARING:	30 September, 1 October 2019 (Trial), 2 October 2019 (Plea)
DATE OF SENTENCE:	2 October 2019
CASE MAY BE CITED AS:	DPP v Braithwaite
MEDIUM NEUTRAL CITATION:	[2019] VCC 1593

Catchwords: Sentence – attempted armed robbery – theft – late plea of guilty with remaining utilitarian benefit – delay – extensive criminal history – significant maturing since time of offending - imprisonment only appropriate sentence – prospect for rehabilitation better than guarded upon release

APPEARANCES:	Counsel	Solicitors
For the DPP	Mr F. Cameron	Office of Public Prosecutions

For the Accused	Mr H. Rattray	Paul Vale Criminal Law

1 Brandon Braithwaite, you have pleaded guilty to one charge of attempted armed robbery and one of theft.

2 The victim of the armed robbery is Feng Yu. He and his wife, Biyun Yan, were at dinner at the Golden Leaf restaurant in Preston. At about 10:15pm on 19 November 2016, they were standing in the foyer outside the restaurant which is on the first floor of the building. You and another man came up the stairs and stood in the foyer area. One of the two of you looked directly at Mr Yu and then shortly thereafter turned around and went downstairs. Mr Yu and Ms Yan were waiting for their friends. Their friends joined them and they all left the restaurant together, saying goodbye outside the door of the restaurant. Mr Yu and Ms Yan headed off in one direction, their friends went off in the other direction.

Gower Street. You and one other man were also in Gower Street. You crossed the road towards them. They recognised you as the two who had come up to the foyer of the restaurant. One of the men was holding a wine bottle in his hand. He approached Mr Yu and demanded that he give him $10. He then grabbed Mr Yu by the shirt collar, struck him to the head with the wine bottle causing the bottle to smash and cut his head, pulled him by the collar and kneed him in the face. The second man then searched Mr Yu’s pockets and took his iPhone, they then ran away.

4 The prosecution position is that you were one of the two offenders, acting in concert. It is unclear whether you or the other person wielded the bottle. As I said in the course of the plea, it matters little. This was clearly an armed robbery committed by two people acting in concert and whether you were the bottle wielder or whether you were the person who then took advantage of it by frisking the victim and taking his phone, matters little. Mr Yu and Ms Yan were understandably shocked and frightened. They did not fight back because they were scared. They were both considerably smaller than you and your co-offender. Mr Yu suffered bruising and swelling to his head, a cut to his mouth and redness and bruising to his face.

5 Although a bystander came to their aid and assisted them to call 000, and although they were both relatively fluent in English, it is not their first language Although police and ambulance were notified, Mr Yu and Ms Yan waited in the street for 20 minutes or more before walking to the police station because no help had come for them. Ultimately Ms Yan took the police back to the scene where the robbery had occurred, where the broken wine bottle was pointed out by her and retrieved. That was DNA swabbed and, as a result of a DNA database test conducted 20 months later, you were identified as a contributor to the DNA on the bottle. As a result of that you were questioned, you made a no comment interview and charged.

6 You indicated your intention to plead not guilty and a trial commenced on Monday this week. The jury ended up having to be discharged on the Tuesday morning after Mr Yu, the principal victim, had given evidence-in-chief and had been substantially cross-examined. Following the jury discharge, discussions or negotiations between your counsel and the Crown ultimately resulted in the charge of armed robbery not being pursued, charges of attempted armed robbery and theft being substituted and you entered guilty pleas to them on the basis that I have outlined. Your plea of guilty, therefore, is a very late one, but which still has some utilitarian benefit. It saved the time and cost of a second trial and it spared the second victim, Mr Yu's wife, Ms Yan, the ordeal of having to give evidence and relive the events.

7 Mr Yu and Ms Yan both filed victim impact statements. They simply but eloquently spoke of the effect of the offending on them and the fear that they had. Mr Yu said, amongst other things,

I still can't believe this thing happened to us. I don't feel safe to go out for dinner. When my friends ask me out, I always suggest we finish early so we can come home safe because bad things may happen to you.

8 Ms Yan said that she had always thought Melbourne was a safe and caring city. She had lived in the area near the robbery for 11 years but now she feels very sad and not safe. She is frightened to go to Preston for fear of seeing the assailants again and she finished by saying this, 'I only hope that Melbourne will have less of this kind of thing happen'.

9 Any armed robbery is serious. That is clearly so and clearly measurable in part by the maximum penalty of 25 years' imprisonment. An attempted armed robbery in these circumstances is equally serious. There is very little difference really between the completed armed robbery and the attempt in the circumstances here. This was serious offending. It was opportunistic. There was not any, or any significant, preplanning but it was clearly frightening, it was violent and the potential for harm was exacerbated by the weapon used and the fact that you and your co-offender were clearly in an intoxicated state, something you have now acknowledged.

10 The victims were both smaller than you and this was an attack in numbers, two people, that had happened at 10:15pm at night as people were leaving a restaurant. This is also, in my view, a feature that adds to the seriousness because it means that people who are just going about their business, going out to dinner with friends, are left feeling unsafe in the streets of this city. It is very clear, therefore, that subject to considerations personal to you, denunciation and deterrence, both general and specific, as well just punishment must carry considerable weight and it was acknowledged that, in the circumstances as I will now outline them, imprisonment is the only realistic option.

11 You were only 20 at the time of this armed robbery and you come before the court now as a 23-year-old man who has spent most of the time since then in custody. You have significant criminal history commencing when you were aged about 15 in 2011 when you were dealt with in the Children's Court for an armed robbery, an attempted armed robbery, aggravated burglary and related dishonesty and driving offences. Within two months of that sentencing, you were sentenced again in the Children's Court for a further armed robbery. On both occasions the court, without conviction, placed you on probation.

12 You had various other Children's Court appearances for dishonesty and weapons offences before. In November 2015, you were sentenced in this court for further offences of armed robbery and of recklessly cause serious injury, reckless conduct endangering serious injury, burglary, criminal damage and weapons and other dishonesty offences. On that occasion her Honour Judge Cohen sentenced you to 18 months of detention in a youth justice centre.

13 Whilst you were serving that period of detention, you were dealt with in the Magistrates' Court on two further occasions for minor offences and received fines or adjourned undertakings as a result.

14 This offence occurred after you had finished serving the custodial part of your sentence of youth detention and were on youth parole.

15 The offences that I have detailed are the only prior convictions that I take into account for the purpose of sentencing for this offence. However, your sorry history of offending did not end there and what happened since then is relevant to an assessment of your prospects for rehabilitation and therefore I will detail them now.

16 Before her Honour Judge Cohen sentenced you in this court in November 2015 for the serious injury and other offences, you had been on remand at the Metropolitan Remand Centre for some months and you were there at the time of the riot on 30 June 2015. You participated in that riot. You were ultimately then charged with and pleaded guilty to riot.

17 By the time your plea hearing in relation to your participation in the riot commenced, you had completed your Youth Justice sentence, including the parole period. The riot plea was adjourned part heard whilst a presentence report, which included a request for an assessment of your eligibility for Youth Justice detention, was commissioned and your bail was extended.

18 Only two days after that adjournment, you were remanded in custody for further offending. That was on the 18th of March 2017 and you have remained in custody since then. Ultimately on 7 June 2017 his Honour Chief Judge Kidd sentenced you to a term of imprisonment of two years and two months with a non-parole period of 14 months for your participation in the Melbourne Remand Centre riot. A declaration of twenty-nine days of presentence detention was made in respect of that sentence.

19 Since that sentence was imposed, you have been sentenced in the Magistrates' Court on three separate occasions for further offences. Each lot of offences were consolidations and all of them were, as I understand it, offences committed during that period after you had been released on youth parole or the period after its expiration and up until the date of your remand in custody on 18 March 2017. Each of the three Magistrates' Court sentences were straight sentences, that is no parole period was fixed. The first two sentences of four months and nine months' imprisonment respectively were ordered to be served cumulatively upon Chief Judge Kidd's sentence. On the third sentence of 12 months imprisonment, it was directed that four months of that be served cumulatively upon the sentence imposed by Chief Judge Kidd.

20 This offending for which I am sentencing you occurred in the same period.

21 The effect of all of those sentences, the one imposed by his Honour Chief Judge Kidd and the three Magistrates' Court sentences, is that, as of today, the three straight sentences have been served and your sentence for the riot is due to expire on 9 September 2020. Your eligibility for parole date in respect of that matter is 14 October 2019.

22 It was common ground that, having regard to the seriousness of this attempted armed robbery and the associated theft, your previous convictions, particularly for armed robbery and the fact that this offence was committed whilst you were on youth parole, no sentence other than one of imprisonment was appropriate. It was also common ground that there had to be some cumulation upon the sentence that you are currently serving and it followed therefore that a new single non-parole period in respect of the unexpired portion of the sentence imposed by his Honour Chief Judge Kidd and this sentence would be required to be fixed.

23 It was also common ground that the principles of totality, the need to avoid a crushing sentence, and the principles applicable to sentencing youth offenders all applied in this case. In sentencing youth offenders, generally more weight is to be given to rehabilitation or encouraging rehabilitation and therefore often commensurately less to deterrence than is the case with older offenders. However, that has to be tempered by the criminal history of the person and their assessment of likelihood of reoffending.

24 The sad reality is that you have been in custody continuously since 18 March 2017 and you are now looking at a further period in custody. From the age of 20 up to 23 you have spent your time in custody. You had had a period in adult custody on remand in the lead up to her Honour Judge Cohen's sentence, that is when the riot occurred.

25 It is not surprising, given that criminal history, that you also report a history of poor engagement with school, with lack of respect for discipline and authority, with very early use of alcohol and cannabis and, by the age of about 16, increasing use of other drugs including ice, cocaine, GHB and abuse of prescription medication.

26 Often when we hear a history like this in these courts, there is a history of poor parenting. You by contrast have a loving and supportive mother who has been a constant throughout your life. She was herself only a teenager when you were born and your father was out of her life and yours by the time you were one. She brought you up as a sole parent until she re-partnered when you were 10. You became an angry and rebellious teenager but throughout your life your mother has steadfastly supported you, modelling good behaviour, the importance of good education and good employment and shown unstinting love whilst not at any time it would appear excusing or condoning your bad behaviour. She seems to have managed very well to navigate that line between showing that you will have love and support but not excusing your bad behaviour.

27 She is present today and she has written one of the most moving letters I have ever ready from the mother of a young man. It is because she is so clear-sighted about the standards that she has tried to bring you up to adhere to, the standards that she believes in and lives by, the mature understanding of the rebellious and difficult time a teenager can go through, the essence of seeing a good person behind all of that and her trust and faith in you that makes it such a moving report and makes her account of the changes in you, during your recent time in custody, so powerful. You are indeed very lucky to have such a supportive mother and to have her continued support. I see that as one of the most significant factors in assessing your prospects for rehabilitation as being significantly better than your criminal history and your history of substance abuse would otherwise indicate.

28 When you were yourself only a teenager, only 17 or 18, your then partner gave birth to a son. The relationship with your partner did not endure and your contact with your son has been severely limited in his early years due in large part, it seems to me, to your bad behaviour and substance abuse, although it seems also it has been hard for you to accept this. In more recent years it has been in a large part because you have been in custody. You have just, in recent days, had the first contact you have had with your son in three years. This is clearly something you have been wanting to have happening, something you look forward to and something that for you is the most significant single feature in giving you the strength to put into action your desires to lead a better, substance free and anger-free.

29 Ever since your son's birth, it is clear that you have expressed a deep love and commitment to him and a desire to be a father who is present in his life and a father who will model good behaviour to him. You recognise now that you have not done that to date and that you have sadly wasted some of the opportunities you had with him by being unhappy that you could not have more time with him, rather than relishing the time you did have. The fact that you now have the maturity to understand that and to understand that you have to prove yourself worthy of being a good father to him so that he will have a meaningful father figure in his life, again shows a maturing in you that stands in stark contrast to the awful criminal history that has been recounted.

30 Nobody likes to see a young person in custody and in custody for the time you have been. The only benefits I can see from the time you have spent in custody are that you have matured. You have understood, perhaps because you have been able to be substance-free for a sustained period, that you can be a different person and feel like a different person if you are substance-free. You have clearly, it would appear, not succumbed to the temptation to obtain drugs that are available in prison. You have used your time in prison as a period to test your strength, so that when there are difficult times you can find ways of dealing with your hurt, anger, pain or frustration other than turning to substances. That shows good training for the time when you will be released into the community and is clear evidence of a maturing and a capacity to follow things through.

31 When you have been in the community, you have had a very good work history and clearly working, earning money, supporting yourself and looking to support your family is, again, a very positive factor and is promising again for the future. You have done more than say you want to get a job. You have shown real pride in being the sort of person who can have a job and a normal life. The letter that you wrote and that was tendered on the plea, confirms that that is what you want, a normal happy life. Family, home, job. This again shows a maturing and being able to actually put substance to plans rather than just being unhappy because you do not have those things at the moment.

32 So, it seems that you have used imprisonment as a time to reflect and a time to mature. I was particularly impressed by the fact that you have, in recent times, twice undertaken the 40-hour drug and alcohol program. You did it a second time because you were not satisfied you obtained sufficient benefit from it on the first occasion and you wanted to do everything you could to equip yourself to be able to manage better on the outside. Despite that sorry history, therefore, I consider that your youth and the mature reflection that you have shown in more recent times in custody, make your prospects for rehabilitation better than what would otherwise appear. I consider they are better than guarded.

33 If you maintain this commitment, maintain your relationship with your mother, maintain your desire to show that you can be a substance-free and non-angry parent or person, you will be able to have greater access to your son and you will be able to use the skills that you are learning in custody to give yourself a good prospect of employment upon release. All of that should be recognised in the sentence to be imposed. Because the timing of this plea, so long after the actual offence, when you have already spent a considerable time in custody and the maturing that you have shown since then, I intend to temper the head sentence to be imposed because you have lost a lot of opportunity for concurrency that might have otherwise been available.

34 I also propose to impose a significant gap between the head sentence and the new single non-parole period so as to give you the best opportunity, first of all to demonstrate before your earliest eligible release date that you can continue to make progress on the significant advances you have made to date but also so there is a considerable time after your first eligible date to allow for a staged, managed and supported release into the community. This will give you the best prospects of withstanding the pressures that come upon release, remaining substance-free, managing to continue to deal with your anger and frustration in a way that does not lead to violence, drug taking or further offending and therefore to be the contributing member of the community that you want to be.

35 So, having regard to all of those matters I will now proceed to sentence you. Can you please stand, Mr Braithwaite. On the two charges of attempted armed robbery and theft to which you have pleaded guilty, you are convicted. On Charge 1 of attempted armed robbery you are sentenced to be imprisoned for a period of two years and nine months and on Charge 2 of theft you are convicted and sentenced to be imprisoned for a period of six months. That is to be served concurrently with the sentence on the attempted armed robbery. So, that is a total effective sentence of two years and nine months. I direct that two years of that be served cumulatively upon the sentences you are currently serving. I fix a new single non-parole period from today of 12 months. The declarations I have made are in accordance with the decision in R v Stares.[1]

36 It is my expectation that the pre-sentence detention of 29 days, declared by his Honour Judge Kidd on the 7 June 2017 will be counted and reckoned as part of the sentence already served. It is also my expectation that the pre-sentence detention of 52 days, declared by the Magistrates' Court on 15 February 2018, if that has not already been counted and reckoned as part of the sentence already served, should be too. I declare pursuant to s 6AAA of the Sentencing Act that, but for your pleas of guilty, I would have imposed a total effective sentence of four years' imprisonment and fixed a non-parole period of two years and six months.

37 Do the sentences that I have declared reflect what I said I intended to do?

45 HER HONOUR: All right, thank you. Mr Braithwaite, I really hope this is the end of the court appearance road for you, that you can look forward to a better and more fulfilling future. Some people just mature later than others and some people muck up much worse than others. You are in that category but it is clear there is a lot going for you, including a loving mother and the strength that you have shown to be able to work to turn your life around and I hope you can hold on to that and take pride in how you have turned your life around rather than focus on the mistakes you have made. Use them as a learning experience rather than something that is always going to set you back. So, I do hope it is the last time you are before this court or any other court and that you can achieve those dreams that you have got. Thank you. And Mother, you are fantastic. He is a lucky son indeed. All right, thank you, adjourn.

County Court of Victoria

DPP v Braithwaite [2019] VCC 1593 (2 October 2019)