DIRECTOR OF PUBLIC PROSECUTIONS v BRODY SPOKES [2024] VCC 1829 | Case summary

DIRECTOR OF PUBLIC PROSECUTIONS v BRODY SPOKES [2024] VCC 1829 | Case summary | Zoe

[18]

You were born in July 2003 in Melbourne as the youngest of nine half-siblings born of different fathers.
You had limited contact with you father, who spent periods of time in prison. You lived with your mother in Pakenham, but your home life was disturbed by your mother's drug use, neglect and your fear of her sometimes violent associates. Sadly, your mother died of a heroin overdose when you were 11. You were placed into state care before going to live with your sister, who has provided a more stable environment.
You attended primary school until Grade 3, when you were asked to leave. You have received no formal education since that time. You have described yourself as being illiterate.
In early adolescence, you started drinking alcohol to the point of intoxication, which has continued over the years.
You started smoking cannabis around the age of 14. Initially, you smoked socially, but progressed to daily use of around three grams per day from the age of 15 or 16. At the age of 15, you started smoking ice, up to one gram or more per day, and GHB at the age of 16. You also abused prescription medication, Xanax, from the age of 17, every 1-2 weeks.
While involved in drugs, you were assaulted with some periods of loss of consciousness.
You ceased all drug use when your then partner, Chloe Moore, became pregnant with your daughter in early-mid 2021. You resumed your abuse of Xanax after your daughter was born and your use of GHB and ice in mid-2022. It been said that the offending for which you are presently before this Court occurred at the peak of your drug abuse.[1] After being remanded in September 2022, you seem to have abstained from alcohol and drug use until at least November 2023.
Your relationship with Chloe Moore has ended. At the time of plea in November 2023, you had fortnightly visits via video link with your daughter.
Your only employment occurred between the ages of 15 and 16, when you worked with your sister's ex-partner in bricklaying for 6 months.
You have been assessed as having a low-level of intellectual functioning.[2] You have also been found to have Alcohol Use and Drug Use at the Disordered level, Generalised Anxiety at the Disordered level and Persistent Depression. You have ADHD.[3]
You have otherwise never been prescribed medication for depression, anxiety or any other problems.
You were 19 years old at the time of offending. You are now 21 years old.

[23]

The Director submits that the offending can be grouped together as it occurred all on one day and in a reasonably short time. Defence did not quibble with that. Taking the most serious example of the attempted aggravated carjacking. While a weapon was brandished and was no doubt terrifying for the elderly gentleman, no use of it was made beyond that, either to harm him or damage his property. But it is a serious event and this cannot be downplayed: a senior citizen held at knifepoint in a public place and threatened with being stabbed in an entirely unprovoked manner. Your actions had a degree of malice about them because you followed him, brandished the knife and spoke words to intimidate him into submission. When he turned he was confronted with a large bladed knife and you spoke words of threat to him again. Terrifying behaviour. I consider this a moderate to serious example of offending of this kind.
As for charge 5 - affray I consider this a moderate example of the offending as while a knife was present it is not clear it was used to threaten.
As for Charge 4 - damage of the Montagu fence - I consider this was a moderate example of the offending. A car was used to cause the damage.
As for Charge 3 - I consider this was a moderate example of the offending. The use of a large knife to do the damage at the front door was threatening and confronting.
As for Charge 2, Charge 1 and RSO Charge 3 - theft of motor vehicle, drive unlicensed and with stolen plates I consider this was a low to moderate example of the offending.
As for RSO Charge 6 - assault of Chloe Moore with weapon I consider this was a moderate example of the offending. The knife was brandished but not used while the assault occurred.
As for RSO 10 - assault of Montagu with a weapon I consider this was a moderate example of the offending.
As for RSO Charge 21 - use threatening words to Melissa Moore I consider this was a moderate example of the offending as a member of the public was stopped from going about her business and threatened with direct physical violence and her family was threatened.

[24]

You entered an early plea at the earliest opportunity and are entitled to an appropriate discount in this regard.
A consideration of the principles in Worboyes also applies given the time the plea was entered in mid-2023, however the effect of that discount is lessened given the state of the prisons and the pandemic at that stage.
Your solicitor submits the principles from Bugmy v The Queen[4] apply.[5] I accept that the profound childhood deprivations and your own intellectual limitations have an ongoing effect and inform the moral culpability of your offending.[6]
Your solicitor submitted that Verdins limbs 1, (perhaps 2) and 6 apply. No particular medical evidence was cited in support of this submission. I note the Justice Plan. Your solicitor filed a further report of Mr Healey (undated) on 11 November 2024. Mr Healey had spoken to Mr Spokes that day via videoconference. No submissions were made regarding that report from either Prosecution or Defence. Dealing with the submission as best I can.
Limb 1: The conclusion of Mr Healey supports a finding that your moral culpability is reduced because your condition was operative at the time of the offending. While punishment and denunciation remain relevant sentencing principles they are of less weight.
Limbs 3 and 4: Given the significant cognitive deficit and psychological diagnoses I consider that you are limited candidate to express general deterrence. Specific deterrence is of almost no utility because of your limited insight into your own behaviours and the rules which are said to govern it.
Limb 5: I accept this has a role to play.
You chose to have your plea heard in the County Koori Court. Your willingness to participate in Koori Court and undergo questioning by your elders in an open and honest way indicates to me your willingness to take responsibility for your actions and to begin on the path of rehabilitation.
I also consider given the very sporadic offending, over hours, involving brazen serious public acts raises the need for public protection to be given greater consideration in your sentence. This is also because there has been such little effect of rehabilitation to date and those opportunities have been spurned by you.
Overall a combination sentence was sought. I do not accept that such a combination sentence in these circumstances is appropriate. This is primarily because of your behaviour over the last year. That has shown a disregard for orders of the Court, your bail conditions and ability to participate in quality rehabilitation programs. All that supports my finding that your compliance with the conditions of a CCO is highly unlikely. I propose to sentence you on the basis of a head sentence with a non-parole period.

DIRECTOR OF PUBLIC PROSECUTIONS v BRODY SPOKES

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Judgment (34 paragraphs)

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