Director of Public Prosecutions v Boyd&Ors
[2020] VCC 2077
•17 December 2020
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR-19-02091
CR-19-02092
CR-19-02093
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DAVID BOYD ASHLEY MEADE DAMON HEALEY |
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JUDGE: | HIS HONOUR JUDGE SMALLWOOD | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 10 December 2020 | |
DATE OF SENTENCE: | 17 December 2020 | |
CASE MAY BE CITED AS: | DPP v Boyd&Ors | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 2077 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Director | Mr D. Hannan | Office of Public Prosecutions |
| For the Accused Boyd For Accused Meade For Accused Healey | Mr J. Siggins Mr A. Madden ` Mr S. Andrianakis | Emma Turnbull Lawyers Buscombe & Madden Adrian Paull Criminal Lawyers |
HIS HONOUR:
1
David Boyd, Ashley Meade and Damon Healey, you have each pleaded guilty to one charge of aggravated burglary, one charge of armed robbery and one charge of false imprisonment. You, Mr Boyd, have two uplifted summary matters and you, Mr Meade, have one uplifted summary matter. I find each of those summary matters proven. On each of those there is a sentence of
30 days to be served concurrently with the head sentence to be imposed overall and with each other.
2
The circumstances are, that each of you has pleaded guilty and must get the benefit of that plea of guilty. Remorse might be problematical, but there is certainly a degree or utilitarian benefit in these circumstances. Mr Boyd and
Mr Meade have undergone a significant period of time in custody. That has been done in the circumstances surrounding COVID. The lack of visits and those types of things, I take that into account for each of you. You, Mr Healey, have served 396 days in adult prison, despite having only been 18 years of age when you were remanded. Had I been sentencing you, I would have been giving you a youth justice disposition rather than adult, but the delay in the circumstances have now taken that possibility away.
3 The summary of the matter is that Ms Toohey, one of the victims in this matter, had had a dispute with you, Mr Boyd, and she was told if she did not give you money things would happen. I understand there had been an ongoing relationship involving you doing various chores for her. I understand that drugs have played a part in all of this but, in any event, it is obviously by 6 March 2019 when the offending occurred, you had a firm belief that the victim owed you around $600.
4 On that day, the three of you approached the front door of her home in Wendouree. The security door and front door were locked and two people were at home inside their house. You, Mr Boyd, rang the front doorbell and yelled out, 'I want my money.' Your voice was recognised. You began banging on the door and the door was forced open. You entered, holding a metal bar above your head as if to hit someone with it, though I noticed the aggravated burglary here is intended to steal, not assault, and you, Mr Meade and Mr Healey, entered the room after that.
5
At that point in time, Mr Lawson who was also present, asked you, Mr Boyd, to go outside and have a cigarette to try and calm the situation down. You,
Mr Boyd and Mr Healey, went outside in the front yard with Mr Lawson and as he bent over to pick up a cigarette packet, you hit him across the shoulder with the metal bar. As a result of that, he suffered a small abrasion on his right upper shoulder and that is one of the summary matters.
6 The three of you went back inside the house. There is some dispute but certainly black box cutter knives were present. Demands were made to pay the money. Both you, Mr Meade and Mr Healey, told Ms Toohey to, 'Shut the fuck up and pay the money. This wouldn't have happened if you cooperated in the first place.' The three of you stayed in the house for approximately an hour and at one point, you, Mr Boyd, poked Ms Toohey in the face with a box cutter and threatened to slit her throat. She was upset and crying.
7 You, Mr Boyd, told Toohey and Lawson to get into the car, forcing them to go to the back yard. All three got into Mr Lawson's car. Mr Lawson got into the driver's seat and you, Mr Boyd, got into the front passenger seat and the victim Toohey was in the back with you, Mr Meade, and you, Mr Healey, on either side. At that point in time, the Crown opening says that both of you had box cutters in your hands.
8
The vehicle was driven by direction to an ATM to see if Mr Lawson's Centrelink payment had been transferred to his account. It had not been and at approximately 12.40 am Mr Lawson got out of the car by himself and went to the ATM. He withdrew $600 from his bank account, gave you, Mr Boyd, that $600. Apparently, $150 was given to you, Mr Meade, and $150 to you,
Mr Healey. That is Charge 2 of armed robbery.
9 Mr Lawson was then told to drive to a servo. That vehicle was seen on CCTV. The vehicle was driven into Wattle Avenue in Wendouree West. You all got out of the car and you, Mr Boyd, threatened the two of them if they went to the police, you would come back after them and hunt them down. You also apparently threatened to kill her dog. You three walked away and Mr Lawson drove back to their home.
10 At the time of the offending, you, Mr Boyd and Mr Meade, were on bail for unrelated matters. That gives rise to the summary offences and I have taken into account the provisions about concurrency and accumulation.
11
I do not need to go through all the forensic analysis as to how people were apprehended. When question, you, Mr Boyd, made no comment. You,
Mr Healey, made no comment and I think, from memory, you, Mr Meade, totally denied it all. The penalty, if I have not already said it, for aggravated burglary 25 years, armed robbery 25 years, false imprisonment 10 years. You have now all done a significant period of time in custody.
12 For sentencing, I take into firstly, that you, Mr Boyd, I will deal with first, have 530 days of PSD for these matters. On top of that, you have - of course it is not a mathematical equation - you have 127 days of what might be called Renzella time or last opportunity for concurrency. You, Mr Meade, now have, on my calculation, 650 days of pre-sentence detention. You, Mr Healey, have now been on bail for some time and have 396 of pre-sentence detention. It is agreed, this is in very short form, that, so far as you are concerned, Mr Healey, you are significantly younger than the other two and, obviously, there is a significant force in a parody argument on your behalf.
13
When I look at you, Mr Boyd, and you, Mr Meade, it is difficult to really differentiate to any great extent. The circumstances are, that each of you had an intellectual disability, indeed, you, Mr Meade, from my reading of the material, have a full-scale IQ of 58 which is very low indeed. I am not aware of yours, Mr Boyd, but you both have that. You at least had a belief that you were owed money, Mr Boyd, even though you went about recovering it in an extremely unfortunate way. On the other hand, you, Mr Meade, went along and received money over something that had nothing to do with you. You,
Mr Healey, are also in the same boat; that you received money for, again, something that had nothing to do with you.
14 In the long-run, I think that you, Mr Meade, get a slightly lesser sentence than you, Mr Boyd, but there is not a lot to it. You, Mr Healey, as you probably understand by now, are going to be sentenced to time served plus a community corrections order and I will deal with that shortly.
15 I then go to the personal matters. I probably should also say at this stage, each of you has significant criminal history. I have also read the victim impact statements from both Ms Toohey and Mr Lawson and they indicate the psychological and ongoing problems that this offending has caused. Each of them eloquently describes the consequences and this is why aggravated burglaries of this sort are regarded by the law as being serious crimes. I take those victim impact statements into account and also, in these circumstances bearing in mind what I said before, I also have to look at the sentencing as taking this offending having taken place within a milieu.
16 The circumstances so far as you are concerned, Mr Boyd, are that you have been certified as having an intellectual disability for a long period of time. You have had various diagnoses of your mental condition, and probably the most helpful documents and material that's provided before were the report from the Justice Plan and original Justin Plan that you were placed on in the Magistrates' Court. I might indicate that, for people who do not understand, that a Justice Plan is a disposition put in place by court to be complied with where people have a significant intellectual disability.
17 Your basic history is, that you left the education system very early; you are unable to read. You do hope to work and have had the difficulty of being unable to get a driver's license and things like that. You have said that you want to try and do a forklift license, you would like to try and get some sort of literacy skills. There have been attempts by Disability Client Services over the years to try and get you education and you have got occasional matters. As it stands, you were 27 at the time of the offending and the mental health history - and I am again going to do this in short compass - is that you were diagnosed having attention deficit hyperactivity disorder as a child.
18 As an adult, you were diagnosed having bipolar disorder and then provided with medication for that whilst in custody in 2016. It also says in that report that you have behaviours that are consistent with mania and hypermania, such as being awake for extended periods of time. You have a long history of substance abuse dating back to your early teenage years. You, according to them, have limited understanding of why you use illicit drugs, but you have been open at least in talking about that.
19 Hopefully, custody has given you an extended period of time of not being in the grip of illegal substances and I am afraid only time will tell. It is going to be a matter for the Parole Board as to what they do in the future. They hopefully will refer you to psychologists and endeavour to get you some sort of assistance throughout all this. You, again, are sentenced to - I think I might have already indicated - on the basis that this offending occurred through you having had belief that you were owed money, and I have got no doubt that your intellectual disability and mental disorders clouded the way in which you viewed what alternatives you had in terms of trying to get that money. In other words, it is an intellectually disabled claim of right, I suppose, in a strange sort of a way.
20 Obviously, decisions such as Muldrock and Bugmy apply in circumstances such as this. The submissions that were filed on your behalf will remain on the court file and anyone that needs to can look into those. Obviously, in these circumstances, prospects of rehabilitation have to be guarded. It is going to depend upon how you travel once you get out of gaol. The risk of you reoffending is almost certainly going to be high, particularly if you start to use drugs again, but certainly at this point in time, there is not much I can do about that.
21 The sentencing provisions say that I cannot give you a combination sentence and the same applies to you, Mr Meade, and I would not have done so in any event. We discussed last time how I can affectively do that for Mr Healey, but unfortunately, Mr Boyd and Mr Meade, neither of you are within that realm. Accordingly, taking all those matters into account, as I have already indicated, I am doing this in very truncated form because of the problems that we are having in this particular day and age, yes, I will simply pass the sentence.
22 On the three charges, you are sentenced to be imprisoned for a period of
34 months. Because of the Renzella matters, I direct that you serve a minimum term of 21 months. I direct that 530 days be reckoned as having been served under this sentence and pursuant to s.6AAA I will say that, but for your plea of guilty, you would have received a sentence of five years with a minimum term of three. Once the sentencing is completed, your counsel will endeavour to speak to you and explain to you what all that means.
23 You, Mr Meade, in similar circumstances, again, I am dealing with a situation of a man who, on one aspect, has an IQ of 58. You, at the time of the offending, which I recollect, were 25 years of age and you are now 27. Your father was murdered when you were about 15 years of age, which according to you, 'Really hit me.' You, whilst growing up, moved house several times. You had two children from a previous relationship and you are hopefully of resuming your relationship when your sentence is completed, or certainly when you are released on parole, which is what I anticipate and hope obviously will occur.
24 You were diagnosed with ADHD at three years of age and the ADHD, on top of intellectual disability, was not what one would regard as a flying start in life. You were taken out of mainstream school and enrolled in a specialist school and were put in programs for students with disabilities on the basis of that intellectual deficit. You do have a significant cognitive impairment and I do not have to take that any further. Obviously, some of the principles of Verdins were activated by that and the principles involved Muldrock obviously are as well.
25 You have a long history of drug use dating back to your teenage years. You started with alcohol and tobacco when you were 15 and by 16 years old were smoking cannabis habitually. You have previously undergone detention in Youth Justice and you have been diagnosed as having mixed anxiety and depression disorder. All those matters play a part in what has happened to you over the years. You had a baby sister who died when you were little and that apparently caused you significant problems. Again, I am not going to sit here and tell you what your problems are, you know that as well as anybody, and they are all contained certainly within the report of Mr McKinnon, which I found to be particularly helpful. Some of the quotes from you indicate the problems that you have had. I understand, I do not need to go into detail of this.
26 I understand that you have been assaulted in prison and that you had difficulties in prison. I understand that, for periods of time at least in prison, you have been in protection. Your father - well, again, I do not think I even need to go through that. I will make sure that these reports remain on the court file. You have indicated to Mr McKinnon that you have had enough of this sort of behaviour, that coming to gaol has really affected you and that you are sorry, as you said to him, for the offences and you are going to do your best to avoid doing it again.
27 The prospects of rehabilitation are up to you, really, and the Parole Board. Risk of reoffending, high obviously, if you come out of gaol and start using drugs again. I have mentioned having regard to parody issues in so far as you and Mr Boyd are concerned. He will end up doing a bit more than you, as I understand how it will work, because of the loss of concurrency of the sentencing he has already undergone.
28 But in any event, what I am going to do with you is, on the aggregate for the three charges, will be again, 34 months. In your situation, because there is no sentence having already been undergone, your minimum term will be
23 months. I direct that 650 days as having been served pursuant to this sentence and I say that, pursuant to s.6AAA of the Sentencing Act, but for your plea of guilty, you would have been sentenced to a period of five years with a minimum term of three. That is a very truncated way of dealing with the parody issue because, as I have indicated, there is little to choose between you so far as all this is concerned.
29 You, Mr Healey, are in a different situation. You were 18 years old at the time of the offending and you, as I already indicated I think, had a criminal history which included a children's school aggravated burglary and the like. You remained in adult custody for all but two weeks of 396 days. That is a very significant sentence for an 18-year-old and it is unfortunate that was actually done in an adult prison. It would have been a much better outcome had it able to be Youth Justice. Nothing I can do about that now, but it is a situation where I have no desire to return you to prison at all. I think it would serve no useful purpose and, in these circumstances, would be gratuitous. As I have already indicated, you are significantly younger than the other two and are still a young offender.
30 Your counsel has filed submissions which, again, will remain on the court file. Your mother had her own personal difficulties. You have never known your father, your mother had personal difficulties. You have not seen her for a while. She has, all her life, abused alcohol and drugs. When you were 13, your eldest brother was hit by a car. You never really knew your father. You have just been dragged all over the place as a child and you come from a family of alcoholics. You have had issues with alcohol and cannabis, you were, as I understand it, a few weeks ago endeavouring to get into a residential detox program. Your schooling ended at year 7. Whether you have got an intellectual disability or not, I do not know. I suspect you might have. You have recently had employment and you have been assisting other people.
31 You get the same benefits of the plea of guilty as the others. Your sentence had the COVID difficulties, as has Mr Meade and Mr Boyd, and you also spent quite a lot of time in 23-hour lockdown. You have endeavoured to do courses, as has Mr Meade, whilst you are in prison, and that is to the benefit of each of you. You, Mr Healey, are currently on Youth Justice supervised bail. I have read the reports that they have put in in regard to you and essentially what it says is, that you are now 20, that you have attended 39 out of 48 scheduled appointments, that they are endeavouring to get some sort of routine for you, some sort of gainful employment. You expressed a verbal desire to complete education and training, but your actions apparently show that you haven't really committed to that change. It is really going to be up to you, Mr Healey, whether you get your act together and keep yourself out of custody in the future and, again, there is not much I can do about that.
32 Obviously, in a situation such as this, your youth is a major factor in the sentencing process and, as I say, unfortunately you have already done 396 days in an adult gaol and that is unfortunate indeed. You were assessed for a community corrections order and they found you acceptable, even though you repeatedly denied the offending to them, but we will not go down that path in this particular situation.
33 In any event, you will be put on a CCO if you agree, and I am assuming you do. It will be with conviction. I think you are all probably a high risk of reoffending, you certainly are, and the conditions will be supervision. It will be for two years, supervision and treatment and rehabilitation for drug, alcohol and mental health. Imposed work hours, I think, in your situation where you have done an extended period of time in an adult gaol, would be gratuitous. Although, prospects of your rehabilitation, again, are up to you. Risk of you reoffending is obviously high, but if you can somehow keep yourself away from substances and alcohol and calm down a bit, you know, hopefully you will travel all right.
34 So you are sentenced on the charge of armed robbery, 396 days. On the charges of aggravated burglary and unlawful imprisonment, 396 days. The armed robbery 396 days is to be served concurrently with the 396 days aggregate. The two charges that give rise to the aggregate 396 days will be followed - which will be immediate because there is no time to be served - by the two years CCO that I have indicated. That, I think, is lawful. I am satisfied that is lawful, the way of going about it, and it saves me from the proposition of just having to give him a minimum term or send him away with no supervision at all. That is not on, as far as I am concerned.
So you agree to that,
Mr Healey?
ACCUSED HEALEY: Yes.
MR ANDRIANAKIS: He said yes, Your Honour.
ACCUSED HEALEY: I just did.
HIS HONOUR: He said yes. All right, that's the trouble with all of this. You can't even, you know - anyway. So he said yes to that. So that'll be done as, yes, agreed to in open court. He'll understand that he needs to go down to Corrections in Ballarat, certainly either today or tomorrow, and they'll know about it by then. Maybe just take it from there. I'm not going to try and say what the consequences are going to be if he breaches it. It's only achieved when there's an attempt to try and get him some sort of continued assistance now that he's supervised bail, obviously. We'll end with him. Direct that 396 days be reckoned as having been served under this sentence and whilst the situation is academic, but for his plea of guilty, he would be sentenced to a period of three years with a minimum term of two. I'm indicating that - - -
MR HANNAN: Now, Your Honour, could I just - - -
HIS HONOUR: That's academic because that's 6AAA, it's not the sentence.
ACCUSED HEALEY: Yes.
HIS HONOUR: Your barrister will explain to you soon, all right? You got a CCO. You've got to go down to Ballarat in the next - today or tomorrow you go down to Corrections. All right.
MR HANNAN: Your Honour, it's Mr Hannan.
HIS HONOUR: Yes.
MR HANNAN: Just in respect to Healey's sentence. Can I just clarify with you. There's the three charge, obviously the same as the others.
HIS HONOUR: Yes.
MR HANNAN: Would attention to impose a combination sentence or imprisonment for one or two of them and just a straight CCO?
HIS HONOUR: No, that's what I'm saying. The CCO - - -
MR HANNAN: Yes.
HIS HONOUR: The CCO is just for the aggravated burglary and the false imprisonment.
MR HANNAN: Yes.
HIS HONOUR: So there's 396 days for each of those - sorry, as an aggregate - - -
MR HANNAN: No.
HIS HONOUR: - - - followed by two years CCO. The armed robbery is not part of the CCO. It's a different sentence of 396 days which I've directed to be served concurrently.
MR HANNAN: I'm sorry, Your Honour, I don't understand. So for Mr Healey, for Charge 1, the aggravated burglary, what is Your Honour's attention there?
HIS HONOUR: It's an aggregate 396 days, aggregate with Charge 3.
MR HANNAN: Charge 1 and 3 aggregate 396 days, yes?
HIS HONOUR: Yes, to be followed by a CCO.
MR HANNAN: No, well, see, that's the problem. If Your Honour is intending that a combination, when you say to be followed, then that's not able to be done because there's a limit of 12 months. But if Your Honour is simply - - -
HIS HONOUR: No, no, no, not when I declare the time served.
MR HANNAN: Your Honour, that's true.
HIS HONOUR: Yes, no. No, no, I thought about that, but because there'd be a real problem if I - yes.
MR HANNAN: Yes.
HIS HONOUR: As long as I declare - the whole thing's been declared. That saves - I know what you're saying, but the declaration of the PSD saves it.
MR HANNAN: Yes, understood.
HIS HONOUR: Yes, all right. No, I thought about that.
MR HANNAN: And for Charge 2, what's the sentence for Charge 2 then?
HIS HONOUR: It's straight 396 days, full stop.
MR HANNAN: With no CCO to follow.
HIS HONOUR: No CCO to follow and that 396 be concurrent with the aggregate 396 from 1 and 3.
MR HANNAN: Thank you, Your Honour.
HIS HONOUR: Yes, thank you, Mr Hannan. I don't know how we're going to work this. It's just a shambles, gentlemen, so I'm sorry I can't even work out how to let you talk to your client. You're just going to have to try and ring them individually. This is just - anyone who ever tries to say this has been working, this virtual stuff, has not experienced it. That's all I'll say.
MR HANNAN: I like it.
HIS HONOUR: Fortunately, I've - - -
MR HANNAN: (Indistinct) now, Your Honour.
HIS HONOUR: Yes, fortunately, I can't even hear what you're saying to me,
Mr Hannan, so it does work in some ways.
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