Citation: R v BRADDICK, Brian; R v BRADDICK, Robert [2018] NSWDC 407
Court: District Court of New South Wales
Date: 28 September 2018
Judge: King SC DCJ
Background
Two brothers, referred to here as the first offender and the second offender, were convicted after trial of aggravated break and enter with intent to commit a serious indictable offence, namely assault occasioning actual bodily harm. The offence was committed in company at a residential address in Nowra on 31 January 2015.
The offenders, along with at least one other male, entered a family home uninvited and proceeded to the victim's bedroom. The victim was beaten with a hard implement approximately 30 centimetres long, struck with a chair and a fan, and was found by police lying on the bedroom floor drifting in and out of consciousness. His mother and sister were present in the house during the attack.
The court accepted that the assault was motivated by a perceived wrong done to a female relative of the offenders earlier that day. King SC DCJ characterised the incident as a vigilante retribution attack, planned at least to a limited degree in the hours between the alleged misconduct and the attack itself.
Legal Issues
- Where on the range of objective seriousness did this offence fall, given the circumstances of the break and enter and the assault?
- What aggravating and mitigating factors applied to each offender?
- What was the appropriate sentence for each offender, including whether a non-custodial or alternative sentencing arrangement was available?
Decision
King SC DCJ assessed the objective seriousness of the offence as below the mid-range, though not at the lowest end. The assault took place in the victim's own home, a place where he was entitled to feel safe. The court identified the intrusion into a family residence and the planned nature of the attack as aggravating factors. Although the victim's injuries were relatively minor (a scalp laceration requiring staples, a fractured metacarpal, bruising, and a temporary loss of consciousness), the force used was considerable.
The first offender had a more substantial criminal history, including a prior conviction for aggravated break and enter, subsequent supply offences, AVO contraventions, and a common assault. He had previously served a period of full-time custody. The court gave weight to his role as the primary carer of three young daughters, particularly given the potential disruption to his eldest daughter's Higher School Certificate preparation if he were imprisoned. Reports from Community Corrections documented moderate to high reoffending risk but also genuine engagement with rehabilitation programs during prior supervision.
The second offender had a less serious criminal history. He resided in Forbes at the time of sentencing, was employed, and was assessed as having a lower reoffending risk. His subjective circumstances were considered more favourable overall, which was reflected in the shorter sentence imposed.
The court determined that, in each case, an Intensive Correction Order (ICO) was the appropriate sentencing disposition. An ICO is a sentence of imprisonment served in the community under strict supervision conditions, rather than in full-time custody. The court emphasised clearly to both offenders that the ICO constitutes a term of imprisonment and that revocation for non-compliance could result in serving the balance in full-time custody.
Orders Made
First offender (Brian Braddick):
- Convicted of the offence
- Sentenced to 2 years' imprisonment to be served by way of an Intensive Correction Order
- Sentence to commence 28 September 2018
- Standard ICO conditions applied, including no further offences and submission to supervision
- Additional conditions: compliance with directions regarding treatment or counselling for prohibited drugs, alcohol, and anger management
Second offender (Robert Braddick):
- Convicted of the offence
- Sentenced to 18 months' imprisonment to be served by way of an Intensive Correction Order
- Sentence to commence 28 September 2018
- Standard ICO conditions applied
- Additional conditions: compliance with directions regarding treatment or counselling for prohibited drugs, alcohol, and anger management
Key Takeaways
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Entering a person's home without consent to carry out a group assault, even where injuries are relatively minor, places an offence below the mid-range of objective seriousness for aggravated break and enter and assault, but not at the lowest end, given the violation of the victim's place of safety and the planned nature of the attack.
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A perceived wrong to a family member does not reduce the gravity of a vigilante assault; the District Court treated the retributive motivation as part of the factual background without treating it as a mitigating factor.
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Significant personal hardship to a dependent child can influence a sentencing court's choice of disposition, even where an offender carries a prior criminal history including a period of full-time custody.
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Differences in criminal history and personal circumstances between co-offenders engaged in a joint criminal enterprise can justify meaningfully different sentences, even where the underlying conduct is identical.
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An Intensive Correction Order is a sentence of imprisonment, and the court made clear that non-compliance carries the real risk of the offender being required to serve the remainder of the term in full-time custody.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW) (offence of aggravated break and enter and commit serious indictable offence; maximum penalty of 20 years' imprisonment; standard non-parole period of 5 years)
- Evidence Act 1995 (NSW), s 38 (leave to cross-examine the victim as an unfavourable witness)
Cases: No cases were cited in the judgment.