Director of Public Prosecutions v Dana
[2020] VCC 1040
•14 July 2020
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 19-00623
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ERYL DANA |
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JUDGE: | HIS HONOUR JUDGE BOURKE |
WHERE HELD: | Melbourne |
DATE OF HEARING: | |
DATE OF SENTENCE: | 14 July 2020 |
CASE MAY BE CITED AS: | DPP v Dana |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1040 |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr J. Siggins | |
For the Accused | Mr A. Patton |
HIS HONOUR:
1Eryl Dana, you are to be sentenced for one charge of recklessly causing injury. The applicable maximum sentence is five years' imprisonment.
2You were arraigned in this court and pleaded guilty on 26 February. When interviewed by police on 2 October 2018 - now almost two years ago - you exercised your right to silence. I was advised at your plea hearing before me that you were originally charged with this offence and others; and the matter was to be heard in the Magistrates' Court summary jurisdiction. You were then charged with more serious matters, including aggravated burglary and causing serious injury. There was a committal hearing on 1 April 2019. You were committed and the matter listed for trial. It resolved, the Crown withdrawing allegations of the more serious indictable offences and there being an indictment alleging this offence of recklessly causing injury. As stated, you pleaded guilty to that on 26 February.
3You receive the benefit of your plea of guilty. Your plea has facilitated the interests of justice, accepts responsibility, on the basis of the offence before me, and expresses remorse. The timing of it must be seen in the circumstances of the proceeding's history just outlined.
4At your plea hearing, which ran on 8 July, Mr Siggins, for the Crown, tendered a written Crown summary.
5Mr Patton, for you, tendered certificates and other documents related to education and rehabilitation programs in remand custody; negative drug screen results taken in custody; the report, dated 13 September 2019, by Fiona Devlin of the CISP remand and outreach program (CISP stands for court integrated services program); letters of Restart forensic case worker of ACSO - Australian Community Support Organisation - Tim Wilson and Caraniche drug and alcohol worker, Ellis Waite. Both are dated 29 June 2020. He also tendered a letter of character reference by your stepfather, Pierre Le Bondy. Mr Patton provided a written outline of plea submissions.
6The circumstances of offending are described in the tendered Crown opening. A difficulty is that this description includes acts in circumstances which can be seen to make out the more serious offences now withdrawn. I find that in the circumstances of this case I am bound, and you are entitled to be sentenced on the basis of the offence to which you have pleaded and, therefore, the conduct which proves that. Bearing this in mind, my summary of the circumstances on which you are to be sentenced is as follows. It is also informed by matters put on your behalf, not challenged by the Crown, and also parts of the depositional materials to which I was referred.
7In 2017, you were released from prison, having served the full term of an approximately five year sentence imposed in 2012 for offences including armed robberies and recklessly causing serious injury. Other short sentences seem to have been imposed cumulatively, at or near the same time. A non-parole period had been set; but I was told that you did not apply for parole. Upon release, you had little support in the community and there were periods of homelessness. In October 2018, you were housed in supported accommodation, a boarding house in Williamstown. Your victim, Peter Majak, was another resident. There is evidence in the depositions that he suffered drug and mental health problems.
8On the morning of 2 October, two housing support workers attended the premises in response to complaints about Peter Majak. Their statements are at pp.31 and 34 of the depositions. You were there, seen to be in an angry and agitated state. You complained to them about Peter Majak's hygiene and drug use, at one point saying that you had been in prison and were trying to stay straight. After the workers left, there was confrontation between you and Peter Majak in the communal kitchen. There was a fight. Ultimately, you armed yourself with a samurai sword which you kept in your room, I accept for ornamental purposes. In Peter Majak's bedroom, you raised the sword and swung. You struck him on the face and (the major blow, I have deduced), on his forearm. He held that up in protection.
9After swinging again, without contact, you left. Peter Majak was hospitalised.
10Paragraphs 24 and 25 of the Crown summary describe the injuries you caused.
'Four centimetre open wound to his right cheek - nerves intact; a deep 15 centimetre open wound to the rear dorsal aspect of the left forearm - nerves intact; bone injury to the radius bone, one of two forearm bones, deep to the open forearm injury; significant emotional trauma'.
'The victim required plastic surgery under general anaesthesia, X-rays, painkillers, antibiotics, a tetanus vaccination booster and anaesthetics'.
11I was told that Peter Majak was discharged or left hospital after two days.
12I have viewed a depositional photograph of Peter Majak's injuring. It looks a very serious deep sound.
13Relevant to this case, s.15 of the Sentencing Act, defines serious injury as follows, “an injury, including the cumulative effect of more than one injury that endangers life or is substantial and protracted”. The Crown's agreement to the lesser offence of causing injury concedes that the evidence of Peter Majak's injuries fell short of this high test. However, the injuries amount, in my view, to a very significant example of injury. I do not agree with Mr Patton's submission that the offending falls within the mid-range of seriousness for this offence, recklessly causing injury; certainly not in the sense of the level of injury caused.
14You were aged 37 at the time of your offence and are aged 39 now. You are in remand custody, awaiting this sentence. You were born in the Philippines, the eldest of three children, and came to Australia at seven. Your father had been killed during the first Iran/Iraq war. He was a crewman on an oil tanker destroyed in an airstrike. Your mother re-married.
15You are estranged from your mother and siblings, but keep contact with your stepfather, who is supportive of you. You spoke no English when you came here.
16You left school at Year 9 because your girlfriend was pregnant. The relationship ended when that child, a daughter, was aged 2. Her mother was granted custody after a period of your care and you saw little of your daughter after. After release from prison in 2017, you renewed some contact and hoped to do so again upon release form this sentence.
17After school, you worked in a supermarket and then in several largely unskilled jobs, mainly factory work. Employment has been affected by drug abuse. That has badly impacted on your life. You began to smoke cannabis at 17 and progressed to heroin by 20.
18You used that consistently in the years following. Your first court appearance in February 2000, when you were aged 18, was a non-conviction adjournment for using and trafficking heroin. Between then and August 2018, there are multiple convictions until 2020, mainly for drug and dishonesty offences. As stated, in 2012, you received a five year sentence for armed robberies and recklessly causing serious injury. In August 2018, you received a community corrections order for unlawful assault. Your victim was your mother. It is an adverse feature of this offence that it was committed whilst on that order. The order has since expired. Your criminal history is broadly relevant and contains offences of violence. I accept Mr Patton's submission that drug dependence has been a primary factor in the bulk of your past offending.
19Mr Patton's submissions speak of the need to manage mental health problems during your remand. This is consistent with your history to the CISP practitioner, Fiona Devlin, in September 2019. There are self-reported diagnoses of depression, personality disorder, and post-traumatic stress disorder. You have been medicated for such symptoms in custody.
20You have taken other steps toward rehabilitation in custody. I note your participation in programs, subject to COVID-19 restriction. You hold a position as unit billet. I am told that you are drug-free.
21This was serious offending. Peter Majak was viciously and dangerously assaulted with a weapon in his home. As I have stated, I see the injuries as very significant. As raised with counsel, a sentence for the offences withdrawn would have been lengthy. I am constrained by the offence on which you are to be sentenced, and pleading; for example, the maximum sentence applicable. That is properly so. However, the sentence should reflect the serious and adverse features of what you did. You have a relevant criminal history.
22These circumstances make relevant sentencing considerations and purposes of moral culpability, deterrence, that is both general and special deterrence, denunciation of the offending and proportionate punishment of it. A term of imprisonment is necessary.
23However, there are also important moderating factors relevant to your sentence. They include the following.
24(1). Your plea of guilty and cooperation;
25(2). To some extent, the circumstances, or better put, context of offending. You were placed in difficult circumstances and accommodation. I accept that you were, in your struggle to rehabilitate, distressed by this and Peter Majak's behaviour.
26(3) It would be naïve to see your prospects for rehabilitation to be high. However, release from my sentence will be to a relatively better supported situation. This will feature that of your stepfather and that of ACSO in relation to accommodation, albeit likely crisis accommodation at first, and related assistance. I see life out of custody to be, again, challenging for you.
27(4). There is the matter of delay. That has been, in at least part, caused by the charging of the more serious indictable matters and what flowed procedurally from that. There was also difficult in locating Peter Majak. Mr Patton points out, that had the matter stayed in the Magistrates' Court, the maximum sentence would have been two years. I am not restricted to that. However, it is a relevant factor in the consideration of the circumstances of delay. You offered to plead to this offence in January 2019 prior to the committal hearing. When you applied for bail after that, in September of that year, you faced a higher test because of the offences then charged.
28(5) There is the consideration or principle of moderation itself - I should say moderation in itself. For example, I must sentence you on the offence before me, the circumstances that make that out and its maximum sentence.
29After considering the relevant matters, some of which are unusual, I have decided that the correct sentence is that of two years, with a minimum term of 18 months; but I shall declare over one year and nine months of pre-sentence detention. You have stated through counsel that you do not intend to apply for parole. That is a matter for you and parole, at least, is a matter for the Adult Parole Board.
30I formally sentence you as follows. On one charge of recklessly causing injury, you are sentenced to two years' imprisonment. I set a minimum term before eligibility for parole of 18 months. Under s.18 of the Sentencing Act, I declare a pre-sentence detention of 651 days already served.
31Mr Siggins, I am required, am I not, to state what sentence I would have imposed under s.6AAA had the accused man not pleaded guitly?
32MR SIGGINS: Yes, Your Honour, thank you.
33HIS HONOUR: I mean, this is a case that highlights, again, the artificiality of that. If it had not settled, he would have faced a trial on aggravated burglary and other matters.
34MR SIGGINS: Yes.
35HIS HONOUR: However, presuming the unlikely event that I would have been sentencing him for this offence after a trial, which is almost impossible, probably impossible to imagine, I would have sentenced him to a term of three and a half years, with a minimum term of two and a half years.
36MR SIGGINS: May it please the court.
37HIS HONOUR: All right. What else is there that I need to do?
38MR SIGGINS: There is the disposal order, Your Honour, in respect of the sword.
39HIS HONOUR: Yes, well I am going to - well, it includes others, there were blood swabs in relation to the DNA testing.
40MR SIGGINS: Yes, Your Honour.
41HIS HONOUR: And there was another sword that was taken from him home, there was a towel ‑ ‑ ‑
42MR SIGGINS: Yes.
43HIS HONOUR: ‑ ‑ ‑ which was taken, I think, probably from the room of
Mr Majak in the investigation, and also there is the particular larger sword. You do not want to say anything about that on behalf of Mr Dana, do you, Mr Patton?44MR PATTON: No, Your Honour, nothing to say.
45HIS HONOUR: All right. All right, well that is all I need to do. Mr Dana, I wish you the best of luck when you are released from prison. I should imagine one very important motivation for you is your desire to reunite with your daughter. I hope that can happen and I hope you stay out of trouble. All right, we will turn everybody off now.
46MR SIGGINS: Please the court.
47MR PATTON: As Your Honour please.
48HIS HONOUR: Thank you.
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