DPP v Braoione [2025] VCC 1237 | Case summary

Having delivered my detailed Ruling in relation to Mr Braione's application for a Drug and Alcohol Treatment Order on 27 March 2025,[1] pursuant to s18Z of the Sentencing Act 1991 [2], and having regard to the matters to which I referred in that Ruling, I do not now intend to repeat the matters relevant to the sentencing exercise. My Ruling will be annexed to these reasons for sentence.

Ms Skvortsova, made further submissions on the issue of hardship, having regard to the Written Outline Of Submissions dated 21 May 2025 (Exhibit K) and the affidavits of Ms ER, your partner, dated 21 May 2025 (Exhibit M), and your twin sister EP dated 21 May 2025 (Exhibit L). 5. Essentially, your Counsel submitted that a further mitigatory allowance was warranted on sentencing by virtue of the hardship to you through your experience of a term of imprisonment and your knowledge of the impacts upon your family, and it was submitted that a further mitigatory allowance was warranted on the basis of hardship to your partner, Ms ER and your children, which was said to meet the exceptional circumstances threshold established by the relevant authorities. 6. It was submitted on your behalf that the circumstances with regard to your children X and V in particular, together with your partner Ms ER, are those that rise above the hardship commonly suffered by families of imprisoned offenders, noting that X and V in particular are especially vulnerable dependents of yours. Your counsel submitted that X and V have been residing with you consistently for 50 per cent of the time since late 2022, and that in the past six weeks this has increased due to difficulties experienced by their mother, Ms LM. According to your counsel, in recent times Ms LM's ability to care for the children has markedly deteriorated to the extent that consideration has been given to a Departmental notification. It was submitted that upon your return to custody, you will be unable to assist Ms LM in ensuring the welfare of X and V at least during the periods they would otherwise be with you, and that if Ms LM is left as the sole or primary carer, it is likely that their welfare will be adversely affected, and they are also likely to regress in the bond they have formed with your family. It was also submitted that should the shared care arrangement continue in your absence, the parenting role for X and V, in addition to the nine-month-old son that you share with Ms ER, will fall upon Ms ER. This would effectively make Ms ER a single parent of three young children without the assistance of the income from your employment and without your assistance with day-to-day care. This would impact on Ms ER's ability to work full-time in her current role in pathology given the necessary time to care for three children, and she will be unable to continue her studies until you return from custody. Separately, it was submitted that your nine-month-old child would be deprived of the daily role of his father in his formative years. 7. Having read the detailed Affidavits of your partner and twin sister, it is clear to me that your incarceration will have significant adverse impacts upon those that you love and care for - namely your partner Ms ER, and your three young children. Both women have expressed concerns with regards to the welfare of X and V, the children you share with their mother Ms LM, particularly in recent weeks. Essentially, they are concerned that the children are not being adequately cared for by their mother when she has them in her care, and concerns have been raised with regards to Ms LM's functioning, and suspected factors which may be impacting upon her ability to care for the children. Save for Ms ER and Ms EP's visual observations of the children, and some instances recently where the school and kindergarten have made contact due to Ms LM failing to pick up the children when required, the Court has not been provided with any objective evidence, for example from a medical practitioner, paediatrician or nutritionist, of inadequate care. Whilst the concerns may well be well founded, in my view they remain just that - concerns. Your partner's Affidavit expanded upon the matters referred to in her earlier letter dated 12 February 2025, setting in out in detail the adverse impacts of your incarceration upon her and your shared child, a nine-month-old son. Ms ER is it seems at the end of her maternity leave. She faces the invidious dilemma of seeking to extend that period, return to part-time work, or resign and go on Centrelink benefits in order to care as a single mother for your nine-month-old child, and possibly the other two children part-time. She will suffer financially, and her studies will be interrupted for a protracted period of time. 8. As hopefully has been made clear in the course of submissions this morning, the Court would have to be made of stone not to be affected by these matters. They highlight just how impactful a sentence of imprisonment will be for your loved ones, who of course have done nothing wrong. Sadly, such consequences are not uncommon when sentencing offenders for serious offending, to sentences of imprisonment. Hardship, often significant hardship, to an offender's family and dependents is the tragic but often inevitable consequence of the imposition of a significant sentence of imprisonment. The law is clear - in order for the family hardship to constitute a mitigating factor on sentencing, it is only in the exceptional case, where a plea for mercy is seen as irresistible, that family hardship can be taken into account.[3] Such cases will be rare.[4] Having carefully considered the material and submissions on this issue, I have determined that the exceptional circumstances threshold is not met in your case. However, this is not the end of the matter. 9. It was also submitted by your counsel that a mitigatory allowance was warranted on the basis of hardship to you by virtue of the custodial sentence having regard to the awareness on your part of the likely adverse impacts upon your family. An offender's anguish at being unable to care for family members can properly be taken into account as a mitigatory factor, for example, if the Court is satisfied that this will make the experience of imprisonment more burdensome, or that it materially affects the assessment of the need for specific deterrence, or the offender's prospects of rehabilitation. This aspect of mitigation is not subject to the exceptional circumstances threshold.[5] 10. Essentially it was submitted that there would be hardship to you as a result of being separated from your three children during their formative years and there would be hardship to you due to your knowledge of the difficulties that will fall on your partner Ms ER in the time of your absence, and it was submitted that this hardship will affect you daily as you serve your sentence of imprisonment. It was further submitted that there would be hardship to you by virtue of your separation from X and V at a time of their particular vulnerability, and in uncertain circumstances in terms of what will happen to their wellbeing given that you are no longer in the community. 11. On this issue I agree with your Counsel's submissions. I have no doubt that the sentence I am about to impose will weigh very heavily upon you. It is very clear to me from an assessment of all the material, together with my own assessment of your conduct and demeanour in Court over multiple hearings, that you are deeply committed to your partner and young family, and acutely aware of the hardships that your incarceration will cause. This will no doubt make the sentence of imprisonment particularly burdensome for you, such that a mitigatory allowance of some significance is warranted, in my view. I have also concluded that this hardship, in combination with your plea of guilty, and excellent rehabilitative prospects diminishes the need for any sentence I impose to reflect the sentencing purpose of specific deterrence. 12. On the topic of applicable sentencing purposes and the weight to be afforded to them, given the nature of your offending, the sentencing purposes of denunciation, general deterrence and community protection are of course important considerations in the sentencing exercise. In your case, given that I have concluded that your prospects of rehabilitation are strong, particularly if you receive appropriate supports upon your release with regards to your substance use issues, and that the sentence I will impose will likely significantly deter you from again committing crimes of this nature, I do not believe that there is any significant need for the community to be protected from you, and so the application of community protection as a relevant sentencing purpose in your case is diminished. 13. On the issue of your prospects of rehabilitation, your ongoing compliance with bail in the intervening period from the date of the adverse ruling with regards to your application for a Drug and Alcohol Treatment Order, and your timely attendance today knowing the outcome, stands to your credit and fortifies my view with regards to your strong rehabilitative prospects. 14. The offence of trafficking in a commercial quantity is a Category 2 offence, meaning pursuant to s5(2H) of the Sentencing Act 1991 that in the circumstances of your case I must impose a sentence of imprisonment, excluding a term of imprisonment in combination with a community correction order. Upon conviction for Charge 1, you fall to be sentenced as a serious drug offender for Charges 2 and 3. Having determined that a sentence of imprisonment is justified, s 6D of the Sentencing Act 1991 requires me to regard community protection as the principal sentencing purpose for those charges, and I may impose a longer sentence than would otherwise be imposed to achieve that sentencing purpose. There is also a presumption of cumulation with regard to serious drug offences. Of course, whilst in any event a measure of cumulation is required in my view with regards to the trafficking offences, this is subject to the overarching principle of totality. As required by the legislation, I will order that you being sentenced on Charges 2 and 3 as a serious drug offender is entered into the records of the Court. 15. I turn now to the parole eligibility component of the sentence I am about to impose. The purpose of parole is to provide for mitigation of punishment in favour of rehabilitation, through conditional release when appropriate. A non-parole period is the minimum time that I determine justice requires you must serve, having regard to all of the circumstances. Having regard to the powerful constellation of mitigatory factors in your case, and in particular your excellent rehabilitative progress since being granted bail, I have determined that the sentence I am about to impose should have a significant parole eligibility component, to facilitate your eventual reintegration into the community, should the authorities deem it appropriate.

DPP v Braoione

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