Director of Public Prosecutions v Dawes
[2023] VCC 2077
•9 November 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT LATROBE VALLEY
CRIMINAL JURISDICTION
CR 23-01468
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TYRONE DAWES |
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JUDGE: | HIS HONOUR JUDGE CARMODY |
WHERE HELD: | Latrobe Valley |
DATE OF HEARING: | 9 November 2023 |
DATE OF SENTENCE: | 9 November 2023 |
CASE MAY BE CITED AS: | DPP v Dawes |
MEDIUM NEUTRAL CITATION: | [2023] VCC 2077 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW – Sentence
Catchwords: Aggravated burglary – affray – common law assault – youthful offender
Legislation Cited: Sentencing Act 1991; s5(4C)
Cases Cited:Worboyes v The Queen [2021] VSCA 169; R v Mills (1998) 4 VR 235; Boulton v The Queen [2014] VSCA 342; R v Wyley [2009] VSCA 17
Sentence:Convicted and ordered to serve a Community Corrections order for a period of three years.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms J. Hogan | Office of Public Prosecutions |
For the Accused | Ms K. McFarlane | McFarlane Criminal Lawyers |
HIS HONOUR:
1Tyrone Dawes, on 9 November 2023, that is today at Latrobe Valley County Court, you have pleaded guilty to the following charges on Indictment No. N12782332:
Charge 1, aggravated burglary. This charge has a maximum penalty of 25 years' imprisonment.
Charge 2, affray. This charge has a maximum penalty of five years' imprisonment.
Charge 3, common law assault of Emillie Dalley. This charge has a maximum penalty of five years' imprisonment.
2You have no prior criminal history. You have never been in custody.
Circumstances of your offending
3The prosecutor tendered the Summary of Prosecution Opening for Plea dated 11 September 2023, it was Exhibit “A”. It was read into the record of the court.
4At the time of this offending, you were a 19 year old man. You lived with your younger brother Ryley, who is 18, in Traralgon. Ryley is your co-accused for this offending. A third person by the name of Charley Gilmore has not been charged with any of the offending.
5On Friday 23 December 2022, Mr Brennan and Ms Dalley were at their home which was at Mirboo Street in Newborough. They were having a few friends around for a small party at their home. Their friends included a Ms Sienna Rice and Anthony Mobourne.
6During that afternoon Mr Brennan received a phone call from your phone number. Mr Brennan asked who was calling him and then the phone was hung up.
7A few minutes later another male rang Mr Brennan's phone number again and said 'I'm on my way there now, me, Charley and Ryley will be on the next bus and we're bringing our knifes [sic]'. The prosecution accept that it cannot prove, it was you that made the call and threat. Your phone was used to do it.
8Mr Brennan, Ms Dalley and Ms Rice then worked out the phone number belonged to you, Tyrone Dawes. Mr Brennan then recognised that he had gone to school with you in Moe years before, and more recently had been associated with your younger brother, Ryley.
9Your phone rang approximately five more times, or someone using your phone rang five more times but Mr Brennan did not answer his phone. At 8 pm Mr Brennan went into the house to play his PlayStation.
10Ms Dalley, Ms Rice, Mr Mobourne were out the front of the property when you, Ryley and Charley Gilmore attended at the property. Ryley, your brother, had a black satchel with him.
11Mr Brennan heard some of the commotion out the front of the house when Ms Rice came running into the bedroom and told him to come out, as there were people looking for him. Mr Brennan went out the front of the house and saw you and Ryley fighting with Mr Mobourne. Mr Brennan then observed Mr Gilmore standing in the background. Mr Brennan went back into the house, to the rear bedroom. That is a part of charge 3, affray.
12The door to Mr Brennan and Ms Dalley's home was closed at the time however it was unlocked. You and Ryley entered the house without permission, looking for Mr Brennan. Ms Dalley followed you both inside, yelling at you and Ryley to get out of the house. Ms Dalley has then confronted you and you have pushed her. Ryley has pushed Ms Dalley away and pulled out a knife, waving the knife at her, causing Ms Dalley to run out of the house in fear. That is charge 1, aggravated burglary and charge 2, common law assault.
13You entered the house and started yelling 'Where the fuck is Kai?' meaning Mr Brennan. You then proceeded to the rear bedroom where Mr Brennan was located. You approached him and were yelling at him “you got a problem with me or what? You have been talking shit about me”. At this point Mr Brennan observed your younger brother Ryley standing in the doorway, but behind you. Ryley had a knife in his hand. Mr Brennan was concerned at this point that you might have punched him.
14Whilst you were confronting Mr Brennan, Ms Rice had entered the house and grabbed hold of Ryley and has taken him out of the house. You have then followed them out of the house and started pushing Ms Rice. Mr Brennan has also followed you all out of the house.
15Once out the front, Ryley has pointed the knife at Mr Brennan and said “What have you been saying about Tyrone?”. As a result, Brennan has run back inside the house and called triple zero.
16A physical fight has then broken out between you, Ryley and Mr Mobourne. Mr Mobourne was being punched and kicked by you and Ryley. During the altercation, at one point, Mr Mobourne was able to hold down Ryley who was swinging a knife at his leg, causing a small puncture wound on his right calf. Mr Mobourne was trying to protect himself and you were pushing Mr Mobourne off Ryley. Mr Mobourne has swung a vacuum pole at you, which got the better of you. As a result, you have ended up with a blood nose.
17During that offending Ryley has dropped his black satchel he was carrying.
18The offending was captured on CCTV and mobile phone footage filmed by residents from the unit complex.
19Shortly, after Mr Mobourne has swung at you with the vacuum pole, the altercation ended and Ryley and Mr Gilmore took off on foot, and police intercept them down the street. They were both arrested and searched. Police located a dart with no feathers in the jumper being carried by Ryley.
20You were then observed attempting to leave the area and you were intercepted on foot. You identified yourself to police and the police observed the facial injuries, which included you having a blood nose. The police asked you how you got those injuries and you refused to give them any detail.
21During the police search of the property and surrounding area, police located a number of items including, but not limited to:
a.Satchel dropped by Ryley during offending.
b.iPhone in a pink case with driver’s licence belonging to you, Tyrone Dawes, located in the satchel;
c.Gatorade bottle with pipe sticking out the side, believed to be a home-made bong belonging to Ryley;
d.Kitchen knife used during the offending.
22Your arrest together with Ryley's and Mr Gilmore's arrests were captured on police body-worn camera footage. The police made investigations and determined that the phone number was in fact registered to you. You were then arrested and transported to the Morwell police station for interview. You provided no comment. That of course is your right.
23On this night you were clearly out of your depth when you offended on this occasion. Your victims have declined the opportunity to make a victim impact statement. Whilst your group were the initial aggressors, you were the one who left with the blood nose and the court date.
Personal circumstances
24You are now a 20-year-old. At the time of the offending, you were 19 years of age.
25You committed these offences in the company of your brother Ryley, who was one year younger than yourself. He is now in Queensland and has these matters outstanding in the Children's Court jurisdiction.
26Your mother, Bianca Fawkner and father, Michael Dawes had a relationship that was dominated by alcohol abuse and arguments. This all occurred in your presence. Child Protection were involved in your early life due to the verbal and physical violence or physical abuse by your father to your mother, to you and your siblings. Your parents finally separated when you were an 18-year-old. Your mother, Ms Fawkner, is supportive of you and she is here today in court and cares for your younger sister, who is now 10 years of age.
27You were living with your brother at the time of this offending. You have limited contact with your father who lives in Melbourne. You have grown up in Gippsland. You have lived in Moe, Newborough, Morwell and Traralgon.
28You left school at Year 9 level. You were formally diagnosed with a learning disability. Your last school was Traralgon Secondary College.
29You are currently in a relationship with Lina. Lina experienced a miscarriage of your twin children in recent times. No doubt this has caused you both great sadness, but also a chance for you to reflect on how fragile human life is.
30You have been a worker since you were 16 years of age. You worked for GRC Environments in concreting for approximately two years. You then moved to Gippsland Windows in Morwell, but you injured your hand at work. After some time on Workcover you then got yourself a job driving dump trucks for LTV Sands in Traralgon. Your most recent employment is with Gaffke's Gardens and Landscaping in Trafalgar South. In support of that, is a reference letter from your employers which is Exhibit 3.
31It is a credit to you that you have sought and retained work in a section of the economy and State that offers few opportunities for a young person with your documented learning difficulties.
32You have been assessed by Gina Cidoni, a forensic psychologist, for the purpose of this plea hearing. Her report dated 3 November 2023, is Exhibit 2. Ms Cidoni administered a number of psychological tools to you. You were assessed as borderline for verbal comprehension index. Your abilities to sustain attention, concentrate and exert mental control is in the low average range. Ms Cidoni diagnosed you as suffering from ADHD. Your risk factors for violent offending in the future are moderate or medium.
33Ms Cidoni opines:
“His diagnosis of ADHD played a significant role in his offending behaviour. ADHD is characterised by difficulties in impulse control, sustaining attention and executive functioning, which can lead to impulsive actions and a lack of foresight regarding consequences. These cognitive challenges could have contributed to the offending, particularly the actions driven by impulsivity and poor decision making.”
34I interpose at this point, no doubt this is certainly not helped by your state of intoxication which was self-administered.
35Ms Cidoni further states:
“His age at the time of the offence is important. At 20 years of age his brain is still undergoing development, particularly in regions responsible for impulse control and decision making. The prefrontal cortex which governs these functions continues to mature into the mid-20s, making younger individuals more prone to impulsivity and less capable of fully assessing the long-term consequences of their action.
His childhood was marked by adverse circumstances including exposure to domestic abuse, parental substance abuse, and involvement with CP [meaning Child Protection Services]. These experiences, combined with his father's criminal history and mental health issues likely contributed to the emotional distress and instability during his upbringing. Additionally, his learning disability diagnosis and exposure to trauma within his family underscore the potential impact of his early experiences on his behaviour and overall wellbeing.”
36I accept that to be a proper assessment of you. You have got to learn to live with that history.
37You have no prior criminal history and as I said earlier, you have never been incarcerated. This offending is serious.
Sentencing considerations
38The basic purpose for which a court may impose a sentence are just punishment, deterrence both specific and general, rehabilitation, denunciation of your actions, and the protection of the community. In sentencing you I must have regard to a range of factors such as the seriousness of your offending, your culpability for it and your personal circumstances.
39I am also required to balance the interests of the community in denouncing your criminal conduct with the interests of the community, in seeking to ensure as far as possible that you as an offender are rehabilitated and reintegrated into society.
40I am also required to take into account current sentencing practices in fixing your sentence. That enquiry is directed particularly, but not exhaustively, to the kinds of sentences imposed in comparable cases and the statistics of those sentences. I have considered the statistics and current sentencing practices, mindful that each case must be considered in the light of its own particular circumstances, and many of the cases would be distinguishable from your case, as indeed they are from one another. Of course, current sentencing practices is just one of the factors I have to take into account.
41The prosecution submitted a period of detention in Youth Justice Centre would be an appropriate sentence in this case, given the nature of the offending. In the circumstances of your offending and your personal background, the diagnosis of ADHD, and prior good character a period of detention in Youth Justice Centre would be counterproductive in my view to your rehabilitation and its consequence in respect of the protection of the community.
42I am also mindful of the provisions of the Sentencing Act 1991, in particular s.5(4C) which directs a sentencing court to consider whether community corrections order can achieve the purpose for which this sentence is to be imposed. I have reviewed the case of Boulton in considering if a community corrections order would be appropriate in this case, and as you know I have had you assessed for such an order. You have been assessed as suitable. That is not the end of the matter.
43You have pleaded guilty to these charges. Your plea of guilty was indicated at an early stage. Your plea does have the utilitarian value of allowing for the orderly and effective administration of justice. There is a certainty of outcome and a resolution of the substantive issues raised by your offending.
44Your plea allows for the preservation of the court and police resources to deal with other matters and your plea vindicates the public confidence in the legal process set up to protect the community. In short, there was no committal hearing and there is no trial.
45Your plea is also a clear acknowledgement by you that you accept responsibility for your criminal behaviour on this occasion. Your plea also recognised you are willing to facilitate the course of justice in the community. And I accept that your plea of guilty to these charges indicates and demonstrates remorse on your behalf. I accept your expressions of remorse to your offending to Ms Cidoni are genuine. I also note that that same sentiment was expressed during your assessment for the community corrections order this morning.
46I also take into account your plea is given at a time when the backlog of trials, particularly here in the Latrobe Valley, is large as a result of the COVID‑19 pandemic. You have not sought to delay matters by waiting behind a list, but instead have whilst on bail surrendered yourself to a plea of guilty before this court.
47The case of Worboyes has application in your sentencing process and a perceptible amelioration of sentence is appropriate in your case.
48You are a youthful offender. It is a principle of sentencing law that when a young offender such as yourself is to be sentenced, the sentencing disposition should be tailored and taking into account all other sentencing considerations to promote your rehabilitation. This approach serves the interests of the individual offender, that is you, and the community in which you live.
49In the case of Mills the three propositions about sentencing of youthful offenders is set out. The youth of an offender, particularly a first offender, which is you, should be a primary consideration of the sentencing court when matters properly arise.
50The second one is that in the case of a youthful offender rehabilitation is usually far more important than general deterrence. This is because punishment may in fact lead to further offending. Thus, for example, individualised treatment focusing on rehabilitation is to be preferred. In short, rehabilitation benefits the community as well as you, the offender.
51The third proposition is a youthful offender is not to be sent to an adult prison if such a disposition can be avoided, especially if you/he is beginning to appreciate the effects of his past criminality. The benchmark of what is serious and just defines adult imprisonment may be quite high in the case of a youthful offender, where the youthful offender has not previously been incarcerated. A shorter term of imprisonment would be justified.
52In more recent times the Court of Appeal in the case of R v Wyley, President Maxwell said as follows and is applicable in your case:
“Mills constantly reminds sentencing courts, and this Court on appeal, that there is great public benefit in the rehabilitation of an offender and in maximising the prospect that the offender will carry on a law-abiding life in the future. But that consideration is not unique to young offenders. Nor is there any one correct answer as to how the balance is to be struck between that consideration and others which may point towards a period, or a longer period, of imprisonment, rather than a non-custodial sentence. Thus understood, the later cases of DPP v Lawrence and R v Nguyen, are not to be viewed as “Excluding the principles in Mills”, but simply as instances of how those principles are to be applied.
As counsel properly conceded towards the end of his submissions, there is a role for general deterrence to play in relation to every class of case. In relation to certain classes of cases, however, general deterrence may have a particularly important part to play. The present case is of that kind. Violence of this kind [and that is what this case is about here], in the circumstances of this kind, is so prevalent, that general deterrence is seen to have particular importance. But, again, the role of general deterrence may vary with the circumstances of each case.”
53The community though have set out quite clearly that in terms of Charge 1, it is a serious offence by its maximum penalty of 25 years. The level of seriousness of your offending is indicated by the following matters:
a)your actions were motivated by some perceived slight against you and Ryley. This is a retribution occasion for you;
b)you attended in company with your brother;
c)you entered the property through an unlocked door;
d)you did not have a weapon with you;
e)there is very limited evidence to establish you knew your brother had a kitchen knife with him. The Crown accept they cannot prove that;
f)the fighting, that is the affray, is an all-in affair, you ended up being injured yourself;
g)you left the house once you were challenged by Ms Rice;
h)you engaged in punching and kicking of Mr Mobourne; and
i)the whole incident was over in a small amount of time.
54I accept that the three charges all occurred in the same short time span and whilst there are separate victims to your criminality, the sentencing principles of totality has a part to moderate your sentence, that is it is to be dealt with as one.
55Your prospects of rehabilitation are good. You have no prior criminal history. You have the support of your mother and your partner. You have a job. You have no drug issues and your alcohol intake has been controlled since the offending.
56The sentencing considerations of general and specific deterrence, protection of the community, denunciation of your actions and your rehabilitation dictate that for the reasons set out the appropriate just sentence is as follows. Would you stand please.
57On Charges 1, 2 and 3 you are convicted and placed on a 3 year community corrections order with the following conditions:
a)Supervision by the appropriate corrections officer;
b)200 hours of unpaid community work. I have moderated those hours for the simple reason that you are in full time employ and that you have domestic responsibilities with your partner;
c)Mental health assessment and treatment. That is to do with your ADHD;
d)Alcohol assessment and treatment; and
e)Judicial monitoring which is fixed for 16 February 2024 at 9.30 am and you can do that by attending at the Latrobe Valley Corrections Centre via Webex and I will be wherever I am at the time.
58Pursuant to s6AAA of the Sentencing Act 1991, but for your plea of guilty I would have sentenced you to 3 years and 3 months with a 2 year non-parole period for this offending.
59I have signed the forfeiture orders required by the Crown.
60Now if you consent to that community corrections order I will have it printed and you can sign it. Does that cover everything, Ms Hogan?
61MS HOGAN: Yes, as the court pleases.
62HIS HONOUR: Thank you. Mr Dawes, I just noted in the assessment by Corrections that they were not recommending supervision. I have imposed supervision condition on you. Their concern was that you might meet up with other ne'er-do-wells over here, when you come to Corrections. It is up to you how you manage who you bump into in the street, either here or anywhere else. This is your chance to grow up and grow up fast.
63OFFENDER: Yes, Your Honour.
64HIS HONOUR: You can take a seat, Mr Dawes. If you would just have a look at that, Ms McFarlane?
65MS McFARLANE: Yes, Your Honour.
66HIS HONOUR: If you are satisfied that is right, get your client to sign it. Mr Dawes, I am going to have four copies of this made: the Crown get one, your lawyers get one; you get one; and we get one. The one for you is to be put up on the inside door of your cupboard, so that every morning you wake up to get clothes out of it, you have got a reminder of what is in front of you. I just want to make sure you understand one thing, and one thing only. You breach this order, you come back before me. And have absolutely no doubt what happens then. Straight out that door. You can step out of there now.
67COUNSEL: Thank you, Your Honour.
68HIS HONOUR: Counsel, thank you for your assistance in this matter.
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