DPP v Austin [2024] VCC 183 (26 February 2024)

Last Updated: 18 March 2024

IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION

Revised Not Restricted Suitable for Publication

Case No. CR-23-00186

DIRECTOR OF PUBLIC PROSECUTIONS
v
BRAEDEN AUSTIN

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JUDGE:	Her Honour Judge Ellis
WHERE HELD:	Melbourne
DATE OF HEARING:	15 February 2024
DATE OF SENTENCE:	26 February 2024
CASE MAY BE CITED AS:	DPP v Austin
MEDIUM NEUTRAL CITATION:	[2024] VCC 183

REASONS FOR SENTENCE
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Subject: CRIMINAL LAW

Catchwords: one charge of aggravated burglary- one charge of theft- plea of guilty- co-offenders- prior criminal history- childhood exposure to violence and alcohol abuse-assessed as high risk of re-offending

Legislation Cited: Crimes Act 1958 (Vic); Sentencing Act 1991 (Vic)

Cases Cited: R v Verdins [2007] 16 VR 277; Worboyes v The Queen [2021] VSCA 169; Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571; DPP V Meyers [2014] VSCA 314; (2014) 44 VR 486; R v Jose Madiera [2002] VSCA 5

Sentence: Charge 1, convicted and sentenced to 6 months imprisonment, followed by a community correction order for a period of 18 months. Charge 2, convicted and sentenced to 3 months imprisonment. One month of the sentence imposed on charge 2 to be served cumulatively on the sentence imposed for charge 1. Total effective sentence of 7 months imprisonment.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms C. Jones-Williams	Office of Public Prosecutions
For the Offender	Ms A. Sharpley	Leanne Warren & Associates

HER HONOUR:

1. Braeden Austin, you have pleaded guilty to:
   • one charge of aggravated burglary contrary to s77 of the Crimes Act 1958 which carries a maximum penalty of 25 years' imprisonment; and
   • one charge of theft contrary to s74 of the Crimes Act 1958 which carries a maximum penalty of 10 years' imprisonment. I note that Charge 2 is a rolled-up charge.
2. There is a co-accused to this offending, 20-year-old Jack Raymond. Your plea hearing was held separate to that of Mr Raymond because he failed to appear at his plea hearing.

Circumstances of Offending

3. The circumstances of the offending were set out in a Summary of Prosecution Opening which is agreed by you to be an accurate summary of the offending. At the time of the offending you were aged 28 years old. Your co-offender, Mr Raymond, was aged 18.
4. The victims are Kate Bradfield and her partner Adam Broadway and their two children. All four victims lived at their home in Williamstown.
5. Both you and Mr Raymond committed an aggravated burglary on the garage connected to their home in the early hours of 14 July 2022. The previous day at approximately 3.50 pm, Ms Bradfield parked her 2016 Volvo sedan in the driveway of her home, leaving her remote to the garage door inside the vehicle. At approximately 12.40 am on 14 July 2022 you and Mr Raymond drove a white hatchback, of which you were the registered owner, along Crofton Drive in Williamstown and you parked. You then exited the vehicle and walked along Crofton Drive attempting to open car doors including a vehicle parked outside 9 Crofton Drive which you entered and looked through.
6. At approximately 12.40am you entered Ms Bradfield's Volvo sedan, rummaged through the vehicle, at which point you stole the remote control to the garage door. You then headed east on Crofton Drive towards Sandpiper Place in Williamstown where Mr Raymond forced open the gate to the rear yard, breaking the lock and handle in the process, and the two of you then entered the rear yard of the property which was owned by Michael Sofoclis (Uncharged act).
7. At 12.54 am both you and Mr Raymond returned to Crofton Drive where the victims, Ms Bradfield, Mr Broadway and their two children, were asleep. Together the two of you opened the roller door to the garage using the stolen remote control. Two minutes later you entered the garage whilst Mr Raymond held a hunting knife which had a 15-centimetre blade in his right hand. The blade is visible on CCTV footage taken from the premises. Whilst inside the garage the CCTV footage depicts the two of you rummaging around amongst items with the use of a mobile phone torch in order to see what was available for you to take. The CCTV footage depicts you wearing a black Adidas jacket with a pair of black and white Vans shoes, dark clothing and a black fabric COVID facemask. Your Southern Cross tattoo on your neck and your right ear stud are clearly visible in the CCTV footage.
8. Whilst inside the garage both you and Mr Raymond stole a number of tools which belonged to Mr Broadway. These are set out in the summary of prosecution opening and they were later identified by Mr Broadway as being the items belonging to him. As I said, you remained in the garage for about four minutes looking for items to take. At 1.00 am you exited the garage and walked to the white hatchback and drove away.
9. The following morning the occupants of the house awoke to discover their garage door open and their items had been taken. You were later identified from the CCTV footage due to your distinctive neck tattoo.
10. On 22 July 2022 search warrants were executed at the residence where you were living with your former girlfriend in Seabrook. You fled the address when you heard police at the door but returned just under an hour later after your girlfriend spoke to you and convinced you to return. You were then arrested.
11. During the search warrant a number of items of clothing used in the commission of the aggravated burglary were seized. You were conveyed to the Altona police station where you were interviewed but gave a 'no comment' interview. You consented to having your tattoos photographed as part of a forensic procedure.
12. A search warrant was also executed at the home of Mr Raymond at which time a number of items were seized by police, including items stolen from another victim, Mr Waters. You have not been charged in relation to those items.
13. On 16 August 2022, a search warrant was executed at Mr Raymond's uncle's residence in Hoppers Crossing where Mr Raymond was located sleeping on the lounge room couch and arrested. During the execution of that search warrant police located a single edge blade hunting knife with a metal pommel and sheath. A photograph of this item has been tendered into evidence and is said to be the same knife used in the commission of the offending here.
14. You were arrested on 22 July 2022. You were granted bail on 13 September 2022 and you have spent 54 days in custody. Whilst on bail you have been under the supervision of the CISP program.
15. The matter ultimately proceeded to contested committal during which only the informant was cross-examined and there was a legal issue concerning whether or not the garage was considered part of the home for what was then a charge of home invasion. The matter resolved at a case assessment hearing in July of last year and the matter was listed for plea. A plea hearing took place on 15 February this year.

Victim Impact

16. There is no victim impact statement.

Prior Criminal History

17. You have admitted a prior criminal history dating back to 2013, which includes charges of reckless conduct, endanger serious injury, threat to kill and criminal damage. The most serious prior matter is from 2015 when you were convicted and placed on a community correction order for a charge of recklessly cause serious injury. I have read the sentencing remarks from Judge Tinney who sentenced you on that occasion which I understand relates to you inflicting a serious injury on a friend after a dispute. You ultimately breached that order.

Personal Circumstances

18. You grew up in the western suburbs. You are the youngest of three boys and your eldest brother had a history of substance abuse and offending. He was in and out of jail. You have described your middle brother as fantastic. Your parents separated when you were six years old and your father left your mother for another woman. Your father was reportedly a violent man with a history of alcohol abuse and you were exposed to some early family violence. You did not have contact with your father for another ten years and although you described your relationship as rocky to psychologist Lisa Jackson, your counsel submits that you have, to some extent, developed a better relationship with your father who reportedly has emphysema and you have been assisting him.
19. You reportedly had a good relationship with your mother in the early years but she is said to have had a problem with alcohol and pills and a violent temper. Your mother sustained a head injury in a car accident when you were 13, after which you describe her as being changed. She increasingly relied on alcohol and drugs. Her behaviour deteriorated and she was spending time with people that you considered to be rough. There was a history of neglect and she would sometimes disappear for days or weeks at a time interstate leaving you with no food or money. Your older siblings had by then left the home and you report being forced to steal food from supermarkets in order to eat.
20. The relationship with your mother, although strained, deteriorated further when you were 23 and living at home. You were late paying rent and she ordered you to leave the house. You then sold your car in order to fund rental accommodation. You were in a relationship at the time but this came to an end in 2022 which was a very difficult period for you. You had previously had a problem with abusing alcohol as a way of managing your depression and this resulted in conflict in your relationship. I am told that the offending in this case occurred in the context of you being in a dark place following the separation (after a seven-year relationship) and during which time you were homeless and couch surfing.
21. You were diagnosed with attention deficit hyperactivity disorder when you were four which was partially managed with medication. You were subjected to bullying whilst at school and you were treated badly by some of your teachers who did not know how to manage your mental health problems. You have described being sometimes locked in small rooms as punishment or forcibly held down.
22. You did not settle down any better in secondary school and you continued to have problems with your behaviour and you have described yourself as being rebellious. You left part way through Year 10. You completed a certificate in mechanics and worked on a casual basis in landscaping for three to four years. You started a pre-apprenticeship in plumbing with your brother but left that after two months and then began working casual jobs labouring or landscaping.
23. You were involved in a serious car accident in 2017 which resulted in a back injury and you were unable to work for some time. You sustained some nerve damage. You did not receive any compensation payout through the TAC but your physiotherapy was funded. You continue to suffer chronic back pain which has limited your ability to do heavy lifting. You also sustained an injury to your finger when you were 15 and two years ago you had an accident on a motorbike which fractured your femur and damaged the ligaments down your leg. When you were 19 you were injured when you were stabbed in the chest. Currently, you have been working three or four times per week helping a friend in the building cladding industry. You have been able to save enough money to obtain a rental accommodation for yourself and to support yourself legitimately.

Mental Health

24. You were first diagnosed with depression and anxiety by your general practitioner in 2012 and you were prescribed anti-depressant medication but declined to finish this after experiencing side effects. It is believed that this was associated with your childhood trauma. A close friend died in a car accident when you were 17 which triggered further mental health deterioration. You have continued to have persistent symptoms of depression and anxiety which is linked with your substance abuse which you have used as a coping strategy.
25. You also have a history of substance abuse. You commenced cannabis use when you were 13 and you were smoking this drug daily by the time you were 14. You managed to cease cannabis use when you were 19 but relapsed again at the age of 24. Following the death of your friend you briefly tried amphetamines and at the age of 18 you were introduced to methylamphetamines by your older brother who pressured you to use the drug. You used this socially for two or three years but stopped all use when you met your former partner. You then had a problem with alcohol use since 2021 which you used as a coping mechanism. You were drinking most days to the point of intoxication and this resulted in problems in your relationship.
26. Following the separation from your partner in 2022 your mental health declined further and you experienced suicidal thoughts. You maintained heavy alcohol use up until the time of the offending and you describe that being arrested has given you a wakeup call.
27. Your diagnosis of depression was confirmed by your general practitioner and you have again been prescribed medication which you consider has made a significant difference in your life.
28. During your period on remand your mental health spiralled rapidly and you have described the period in which you spent in isolation as nearly destroying you. You continue to have nightmares about this time during which you were incarcerated. I take into account that you spent this time in custody and in particular during the COVID-19 pandemic and the restrictions that were associated with this.
29. The time that you spent on remand clearly had a salutary effect upon you. Upon being released on bail you engaged with the CISP program. You engaged extremely well attending all appointments and you are described as having been mindful of the effect that any further offending would have on your liberty. You self-referred to a men's behaviour change program but have remained on a waitlist. You were initially bailed to reside with your brother but then ultimately moved to your own rental property where you live meeting all of the financial obligations and spend time caring for your dog.
30. You have complied with all of the conditions of your bail. You have attended counselling with a psychologist but the costs were too prohibitive and you stopped attending. This morning I was provided with a letter from psychologist Kelly Strange, whom you saw a number of times, the last time being almost a year ago.
31. Although you cancelled a number of appointments she considered that you engaged well. You discussed with her the offending and accepted responsibility for it. You also discussed the significant impact the death of a friend when you were 17 has had on your life. Ms. Strange recommended ongoing counselling to assist you with processing your grief. Obtaining treatment for your mental health issues is clearly a very important part of your rehabilitation.
32. A character reference was provided from your employer. He describes you as having been honest, reliable and having never let him down whilst you have been working for him. Mr Soper is prepared to offer you long term full-time employment as he considers that you desire to develop your career and skills. In his view you have demonstrated great remorse for your actions and he considers that you are really trying hard to put in a huge effort at work. It is very much to your credit that you have remained out of any further trouble and you do seem committed to rehabilitating yourself. Another referee, Mr. Cornell, considers that you are committed to achieving personal growth and that you have always fostered an attitude of self-improvement.
33. According to Lisa Jackson, psychologist, there are a number of protective factors that will serve to increase your rehabilitative strengths. These include stable housing, employment, prioritising the demands of managing rent and caring for your dog. You are said to have disassociated from antisocial influences in your life and you reportedly have developed a clear insight into your mental health problems and the importance of adhering to your medication and accepting support and counselling. Clearly, counselling and treatment would only serve to enhance your prospects of rehabilitation which I consider to be quite good.
34. According to Ms Jackson, your psychological vulnerability suggests that you are likely to suffer another significant decline should you be placed in the custodial environment which could limit the treatment that you require. Your counsel does not submit that the principles in R v Verdins^[1] are enlivened here but I take these matters in relation to your mental health into account as part of the broader context of your personal circumstances.
35. As I said, you are to be commended on your efforts at rehabilitation and this is a factor that I very much take into account when turning to consider the ultimate sentence. As I have said, I regard your prospects as quite good, although I note Corrections takes a more guarded approach. I must, however, have regard to other sentencing principles including general deterrence, specific deterrence, denunciation, just punishment and protection of the community. Ms Jackson notes the considerable influence that your childhood had upon your development, namely your exposure to family violence, substance abuse, an absent father and a history of neglect which dominated your childhood.
36. I take into account your childhood exposure to violence and alcohol abuse in accordance with the general principles in Bugmy v The Queen^[2] and have moderated your sentence accordingly.
37. I take into account your plea of guilty. Although not a plea at the earliest opportunity, you spared the victims from having to give evidence at a committal. Your plea of guilty has a utilitarian value in that it has saved the community the expense and time of a trial, and again you have also spared the victims from having to give evidence. Your plea of guilty is also an indication of your remorse.
38. Your plea of guilty was entered at a time when the court was experiencing a backlog associated with the Covid-19 pandemic, and although the backlog has since cleared, taking into account the time at which you entered a plea of guilty, I have moderated your sentence further in line with the principles set out in Worboyes v The Queen.^[3]

Nature and Gravity of the Offending

39. The offence of aggravated burglary is an inherently serious one which is reflected by the maximum penalty applicable. When the maximum penalty was increased the Attorney-General noted the prevalence of burglary and home invasion-style offences having caused great disquiet in the community. This is indeed the case. Offences of this nature undermine the sense of security that people feel in their own homes, a place where a person is entitled to feel safe. The notion that a family were asleep while you and your co-offender, having stolen a remote control from the vehicle, then helped yourself to the property in their garage while they slept inside the house nearby, would have been extremely unsettling.

• 40 I have had regard to the various factors identified in DPP v Myers^[4] when assessing the gravity of an aggravated burglary. Your intention at the point of entry was to steal, and again you gained entry by stealing a remote control to the garage, a somewhat opportunistic entry. You were in company with your co-offender and the offending occurred shortly before 1.00 am. You were reckless about the presence persons within the premises which by your plea of guilty you have accepted.

41. I accept that your entry into the premises was confined to the garage only. As is apparent from a photograph tendered during the course of the plea, there is a door that connects the garage to the rest of the house. It is unclear whether or not that door had a lock or was locked. As I understand it, Ms Bradford and one of her children were sleeping in the room next to the garage. It is indeed extremely fortunate that they did not hear you and that you were not disturbed in the course of your offending. The fact that Mr Raymond was carrying a large hunting knife is a matter which I take into account. There is no explanation as to why he had the knife, which you accept you knew was in his possession and is clearly visible on the CCTV footage. Had the occupants of the home encountered you in the garage while Mr Raymond was wielding or carrying the knife there was a great potential for things to have gone wrong. Of course, I do not sentence you on the basis of the potential for things to go wrong but I take into account the fact that your co-accused was carrying a weapon in assessing the gravity of the offending.
42. I accept that there was an apparent lack of planning or premeditation. It seems from viewing the CCTV footage that once you opened the garage door with the remote control you and the co-offender paused for a couple of minutes to ensure that it had not alerted any of the occupants to the house. Although your counsel submits that your entry into the premises was brief, and it was, there was still a good four minutes in which the two of you hunted around the garage using the torch from the mobile phone to look for something of value. In this case no value has been placed on the items stolen but needless to say you stole a considerable number of items which would have been of some value to the owner. The items have thankfully been recovered.
43. I accept that this is not the most serious example of an aggravated burglary given the factors that I have identified, but it is not by any means a low level aggravated burglary given the time of day, the fact that the garage was adjoined to the house, the presence of the weapon and that there were two of you committing the offence.
44. I also accept that the occupants of the house were not people that were known to you and so there is no reason for them to have had a particular fear of you, but of course it goes without saying that the fear of unknown intruders into one's home would carry with it its own degree of disquiet.

Sentencing Submissions

45. Your counsel has submitted that having regard to the extensive efforts that you have made towards your own rehabilitation, that the 54 days spent on remand for the offending would be sufficient if coupled with a community correction order. It was submitted that the community correction order could have a significant therapeutic effect upon you.
46. The prosecution submits that your offending warrants a head sentence with a non-parole period having regard to the gravity of this offending, but now concedes that a combination sentence would not be outside the range.
47. The prosecution have provided me with a number of comparable cases involving aggravating burglaries where items have either been taken from a garage or from within the home whilst occupants were present. It is trite to say that no two cases are alike and the prosecution concedes in comparison to the cases provided to me, that the offending here would appear to be less serious. I agree. While the garage formed part of the home, you were not rummaging around in areas in which the occupants would generally inhabit as part of their day to day living. Your counsel has pointed out some of the differences between those comparable cases that were provided to me, including that offenders in some instances had significant priors or were on parole at the time of the offending or on a community correction order at the time of the offending, or that the value of the property was considerably greater.
48. I have had regard to the comparable sentences and I must take into account current sentencing practices, although this is not the only consideration and is but one of many. I was also provided with information regarding the sentencing statistics for the five years leading up to June 2022. It is helpful to have this information provided to the court, although as your counsel has pointed out, a number of aggravated burglaries where the intention upon entry was to steal are dealt with regularly in the Magistrates Court, and accordingly, the statistics are somewhat skewed as perhaps reflecting the more serious examples of an aggravated burglary which are ultimately disposed of in this jurisdiction, and I take that into account.
49. The theft charge is separate to the aggravated burglary and you must be sentenced separately for it, but noting that the offending on both charges is closely related and in effect committed in pursuit of the same objective, I have ordered a significant degree of concurrency.^[5] I have had regard to the principles of totality and parsimony.
50. I have had regard to the maximum penalties applicable and the sentencing principles as set out in the Sentencing Act 1991. These include general and specific deterrence, just punishment, denunciation, rehabilitation and protection of the community. I accept that you are remorseful for the offending. I take into account your personal circumstances and in particular your history of childhood deprivation and neglect and your exposure to violence and abuse. I have had regard to the considerable efforts that you have put in towards your own rehabilitation and I understand that the notion of you having to return to custody having made such significant steps in your own development would understandably cause you some distress. Your rehabilitation is important, but it is not the only matter which I must take into account.
51. In particular, I must have regard to the need for the court to denounce this sort of conduct and for the community to understand that aggravated burglaries will not be tolerated. Intruding into another human being's home or garage and disturbing their sense of safety and sanctity must be denounced by this court, even though in this case you only went as far as the garage. Specific deterrence is also relevant given that you have admitted a prior criminal history, albeit one involving aggravated burglaries.
52. I have had you assessed for suitability for a community correction order, and as I made clear, it was really for the purposes of gaining information so as to assist me in determining the ultimate sentence to be imposed. You have been assessed as suitable. Corrections consider you a high risk of re-offending.
53. Imprisonment must be a sentence of last resort and I have given careful consideration to whether or not the sentencing objectives could be achieved without imposing a further period of imprisonment. However, I have come to the conclusion that they cannot. I am of the view that having regard to the gravity of the offending, the fact that you do have a prior criminal history, the need for the court to denounce the offending and deter others from similar offending, that the only sentencing disposition in this case will involve a return to the custodial environment.
54. I am satisfied that in the circumstances of the case and having regard in particular to your efforts at rehabilitation, that it is open to the court to impose a term of imprisonment combined with a community correction order. This is really to give you an opportunity to engage with Corrections upon your release about which you will have some certainty.

Sentence

55. On Charge 1, you are convicted and sentenced to six months' imprisonment. This is to be followed by a community correction order for 18 months.
56. On Charge 2, you are convicted and sentenced to three months' imprisonment.
57. I order that the sentence imposed on Charge 1 will be the base sentence. I further order that one month of the sentence imposed on Charge 2 be served cumulatively on the sentence imposed for Charge 1. That makes a total effective sentence of seven months’ imprisonment.
58. You have already spent 54 days in custody which will count as pre-sentence detention.
59. The community correction order will commence upon your release from custody and there will be a number of conditions attached to the order.
    • You are to be under the supervision of Corrections for a period of 18 months;
    • You must undergo treatment and rehabilitation for drug and alcohol use;
    • You must undergo treatment and rehabilitation with respect to your mental health; and
    • You must undergo treatment and rehabilitation to address your risk of re-offending.
60. I have not made an order that you undertake unpaid community work. The reason that I have not done so is to ensure that your time spent on the order is focused on your rehabilitation.
61. There are also a number of core conditions attached to all community correction orders.
    • You must not commit any other offence that is punishable by imprisonment during the 18 month period;
    • You must comply with any and all obligations and requirements prescribed;
    • You must report to and receive visits from Corrections during the period of the order;
    • You must report to the nearest community Correction centre, which I believe is in Werribee, within two clear working days from your release from custody;
    • You must let a community Correction officer know within two working days of any change of address or employment;
    • You must not leave Victoria without first getting permission; and
    • You must obey all lawful instructions and directions from Corrections.
62. You are going to be asked to sign the order in a moment to indicate that you understand what the conditions are.
63. As I have said, you must comply with the conditions of the order. If you do not do so you will likely find yourself back before this court on a breach, I would then need to resentence you for this offending and it is likely that there would also be a penalty for the breach itself.

Pre-sentence Detention

64. I declare 54 days presentence detention as time already served to be deducted from the period of imprisonment.
65. Was there a request for an order for restitution?

MS JONES-WILLIAMS: Your Honour, there is however, it's necessary for the court to sign in relation to both offenders. Your Honour can either sign in relation to Mr Austin and then it's put aside for Mr Raymond's plea or you just deal with it at his plea.

HER HONOUR: All right, well I'll make the order for restitution as sought - - -

MS JONES-WILLIAMS: As the court pleases.

6AAA

66. Pursuant to s6AAA of the Sentencing Act 1991, I indicate that but for your plea of guilty I would have imposed a head sentence of 20 months' imprisonment with a non-parole period of 14 months' imprisonment. That is the term that I would have imposed but for your plea of guilty had you been found guilty following a trial.

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^[1] [2007] 16 VR 277.

^[2] [2013] HCA 37; (2013) 249 CLR 571.

^[3] [2021] VSCA 169.

^[4] [2014] VSCA 314; (2014) 44 VR 486.

^[5] R v Jose Madiera [2002] VSCA 5.