STATE OF TASMANIA v GLENN BARRY BROWN 16 DECEMBER 2019
COMMENTS ON PASSING SENTENCE PORTER AJ
The defendant has pleaded guilty to charges of aggravated burglary, stealing and stealing a firearm. I am also dealing with his pleas of guilty to summary charges of possessing a firearm and possessing ammunition when not the holder of an appropriate licence. The facts are as follows. At about 8am on Friday, 7 June 2019, the defendant entered a home in Snug. The owners had left, locking the house as they went. The defendant knew where the spare key to the house was kept, having worked there in 2017 in the course of his employment as a plasterer. Once inside the house, the defendant found the key to a gun safe which was in the spare bedroom. Having opened the safe he took five firearms being two .22 calibre rifles – one with a telescopic sight – two 12 gauge shotguns and a .410 shotgun. He also took 200 rounds of .22 ammunition, 50 .410 shotgun shells and 50 12 gauge shotgun shells. In addition, he took a gun cleaning kit and a knife. Having turned his attention to a jewellery box, he took personal jewellery including a gold wedding ring, a gold engagement ring, other gold pieces and items of jewellery, along with a number of collectable coins. These items were family heirlooms and the total value of the property stolen was about $10,000. The defendant left the house, locking it after him and drove away with the property. His arrival and departure were noted by neighbours and the registration number of his vehicle was noted. On 10 June 2019 police searched the defendant’s home. Much of the stolen property was found still in his vehicle parked in the driveway. Other items were found in the house. When interviewed, the defendant made no comment to the majority of questions. He said he recalled working at the property but denied being in the area at the relevant time. With the exception of the one .22 rifle with telescopic sight, the firearms were recovered. The defendant told police that he had got rid of that particular firearm to a person he knows, but refused to tell them who that was, or to otherwise assist. Most of the jewellery including valuable and significant items was recovered but a ring and some earrings to a value of about $2000 remain unaccounted for. The defendant has been in custody since being apprehended.
The defendant is now 47 years old. He has a very long recorded history of offending, particularly for dishonesty. There are 23 convictions between 1993 and 2012 for burglary, 30 convictions between 1993 and 2014 for stealing, and 11 convictions between 2003 and 2016 for aggravated burglary. There are convictions for other offences of dishonesty. There are also convictions for drug offences and traffic matters. He has been the subject of suspended sentences and actual terms of imprisonment. In November 2017 for aggravated burglary and driving whilst disqualified he was sentenced to concurrent terms of imprisonment of six months and three months respectively. The execution of those terms was suspended on conditions for two years. Application was made to activate them. Cause was not shown and it was not argued that activation would be unjust. I made that order of activation on 11 October 2019, with the period of imprisonment to commence on 10 June 2019, the day on which he was taken into custody. On 11 October, I also ordered that I be provided with a drug treatment order assessment report. I have the benefit of counsel’s submissions and DTO assessment reports dated 14 November and 12 December 2019. I asked for the further report on 26 November following a further medical report and submissions by counsel. The relevant personal circumstances are as follows. The defendant had a disrupted and traumatic upbringing, his father being an alcoholic and violent to him. His father made a suicide attempt by shooting himself in front of the children. This was at about the time of his parents’ separation and was deeply traumatic for the defendant. He completed a plastering apprenticeship immediately after leaving high school and seems to have been in regular employment punctuated by periods of imprisonment. He has a 9 year old son and a 3 year old daughter with his present partner. The son has autism and ADHD and requires significant support and assistance. It seems clear that the defendant’s absence from the home has had a detrimental impact on the child. Prominent in the defendant’s history is polysubstance abuse and drug addiction. His illicit drug use started in his teens. For a time his particular problem was opiates but more recently the primary drug of concern seems to be diazepam, a benzodiazepine. He reported taking 10 5mg tablets a day and was doing so consistently for about three months leading up to this offending. These were sourced illegally. He had been on suboxone pharmacotherapy from September 2016 until March 2018 when he was weaned off. He returned six months later requesting a resumption, and he was still on the program until when he was taken into custody. The defendant initially told the court diversion officer he had no drug-related debts, his only financial stressor being outstanding fines totalling $11,000 odd dollars. He said he made bad decisions when using, and that drug use turned him into a thief, but was otherwise unable to explain how his abuse of medication related to his offending. The first report contains a reference to three suggested instances of the defendant trafficking or attempting to traffic in subuxone while in prison. This is not disputed. Although there is a clear history of illicit drug use, the court mandated diversion team was not satisfied that there is a demonstrable nexus between illicit drug use and the commission of these offences. That remains their view after further consideration and discussion with the defendant. He more recently said he had earlier minimised his drug use, and he revealed continued morphine use. In addition, access to drug screening results showed that the defendant returned a positive test for amphetamines in May 2019, the use of which drug he denied during the initial CMD interview. The defendant also revealed more recently to the officer the fact that he had sold the unrecovered firearm for $800 to pay off a drug debt. Of further significance in all of this is that the defendant was given the benefit of a drug treatment order in January 2010, but received a number of sanction days for non-compliance. After further offending and further difficulties with compliance, the order was cancelled, and he was sentenced to a total of 14 months’ imprisonment. In February 2013 he was again referred for assessment but not recommended for diversion. His compliance with a number of community based orders has also not been entirely satisfactory. In the end, the CMD team stood by their original assessment that Mr Brown was ineligible for participation in the program from their point of view. In short, they rely on his dishonesty and minimisation of his illicit substance use at the initial interview, as well as his history of non-compliance with various orders. It was also pointed out that he had the benefit of going into the further interview with an awareness of the reasons for him not initially being recommended for a drug treatment order. There is no requirement that the offending happens while under the influence of an illicit drug nor that its purpose be to provide access to drugs. It seems to me that I can be satisfied that it is more likely than not that the defendant has a demonstrable history of illicit drug use and that this drug use contributed to the commission of the offences. I am told that the defendant is desperate to have his problems addressed by way of a drug treatment order. However, under s 27B(3) of the Sentencing Act, I am not to make a drug treatment order unless I am satisfied that in all the circumstances it is appropriate to do so. The statute requires me to consider the drug treatment order assessment report. In this case, I have two such reports, and I have considered them. I think that the defendant’s counsel has said all that could be said in favour of making the order. However, having carefully considered the matter and taking everything into account, including the circumstances of the offending, I am not satisfied that a drug treatment order is appropriate.
I take into account the pleas of guilty which were entered at a relatively early stage. The defendant is entitled to credit for those. He accepts responsibility for his conduct. I also take into account the situation of his son and the fact that the defendant’s absence causes particular difficulties over and above what ordinarily might be expected. I am told that the defendant is motivated to change to help his family. However, the defendant must realise that it is his conduct which puts his family in the difficult situation. I also bear in mind the totality principle given the period already spent in custody, mostly relating to the activated suspended sentences. This was serious offending. It involved a breach of the trust that exists between home owners and people who are engaged to do work in and around the home. It was premeditated. Stealing firearms is to be regarded in a particularly serious light. Although the defendant suggested stealing the firearms was opportunistic, and says that he did not know what he was going to with them, one was disposed of. There is a real risk the rest would have found their way onto the black market and into criminal hands. Fortunately, most of the property was recovered. General deterrence and denunciation are important factors, as is specific deterrence given the recorded history of offending.
Mr Brown, I have set out what I see to be the relevant considerations in your case. Your pleas of guilty and, to an extent, your family situation, operate in your favour; otherwise, there is nothing which justifies a lenient course. You are convicted of the crimes of aggravated burglary, stealing, stealing a firearm and possessing a firearm, and sentenced to 16 months’ imprisonment to commence on 9 October 2019. I order that you not be eligible for parole until you have served one half of that sentence. I record a conviction on the charge of possessing ammunition. I make a compensation order in favour of Stephen Pyke and Malina Pyke and adjourn the further hearing to a date to be fixed.