Director of Public Prosecutions v Dike

[2021] VCC 1317

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE

CRIMINAL DIVISION

Case No. CR-21-01372

DIRECTOR OF PUBLIC PROSECUTIONS

v

CHRISTOPHER DIKE

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JUDGE:	HIS HONOUR JUDGE DYER
WHERE HELD:	Melbourne
DATE OF HEARING:	27 August 2021
DATE OF SENTENCE:	8 September 2021
CASE MAY BE CITED AS:	DPP v Dike
MEDIUM NEUTRAL CITATION:	[2021] VCC 1317

REASONS FOR SENTENCE

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Catchwords:

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr A. Sprague	Director of Public Prosecutions
For the Accused	Mr T. Cooper	Randles Cooper

HIS HONOUR:

1On 27 August 2021, you Christopher James Dike pleaded guilty to an indictment containing three offences being aggravated burglary, armed robbery and intentionally damaging property.  You also consented to this court dealing with a related summary offence of committing an indictable offence of aggravated burglary whilst on bail.  You pleaded guilty to that charge.  The maximum penalty set out in the legislation for the offences to which you have pleaded guilty are as follows:

·Aggravated burglary with an offensive weapon, 25 years' imprisonment.

·Armed robbery, 25 years' imprisonment.

·Intentionally damaging property, 10 years' imprisonment.

·The related summary offence of committing an indictable offence whilst on bail, three months' imprisonment.

2The offending occurred on 9 January 2021 shortly prior to midday.  You were driven by another person, McDonald, to an address in Traralgon where the two victims of your offending were known to reside.  You approached the victims' unit and began to kick the front door.  Your male victim was holding the door shut and you went around to the side gate.  Your female victim came out through the back door, attempting to calm the situation down, but you barged past her and entered the house through the unlocked back door.  Having entered the house, you pointed a steak knife at your female victim stating, 'Give me all your money and jewellery or I'll burn the house down.'  You made further threats and then went to a bedroom, picked up your female victim's handbag and began looking through it.  You assaulted your female victim by either throwing something at her face or punching her, resulting in her left eye feeling sore and swollen. 

3You took a motorcycle jacket and a helmet belonging to your male victim and asked for the keys to the motorcycle which was parked at the front of the unit.  You then left the house in possession of your female victim's phone and your male victim's motorcycle helmet and jacket.  You then moved down the driveway of the units before turning around and approaching the motorcycle.  You used the steak knife in your possession to stab both tyres of the motorcycle and were then driven away by McDonald.  After approximately two minutes, you returned to the property with a crowbar and approached the unit, calling out the male victim in a threatening manner.  You then struck the motorcycle with the crowbar and continued to yell at your male victim.  You struck the motorcycle four more times with the crowbar.  You then left the property where the events occurring at the front of the unit being recorded on CCTV. 

4

At the time of this offending in January 2021, you were on bail in relation to other matters listed in the Magistrates' Court.  The full details of your offending and subsequent arrest are set out in the summary of the prosecution opening dated

27 July 2021 which was tendered in evidence during your plea hearing.[1]  You have also admitted your criminal history which does contain relevant prior convictions for violence and property offences dating back to 2010.[2] 

[1]Exhibit A

[2]Exhibit B

5The Crown accepts that you have pleaded guilty at an early stage and you are entitled to the benefit of your plea of guilty as part of the matters relevant to the sentence I must impose upon you. 

Your personal circumstances 

6You are 31 years of age and were 30 at the time of this offending.  I have noted the matters put on your behalf by Mr Cooper and the outline of those submissions were also tendered in evidence before me.[3]  I have also read the reports provided by Ms Pamela Matthews, forensic psychologist, dated 16 August 2021[4] and Dr Elaina Bhattacharya, consultant psychiatrist, dated 19 July 2021.[5]  I have also considered in some detail your handwritten letter, Mr Dike, which was also tendered into evidence by Mr Cooper.[6]  On the basis of this, I do accept that there is a degree of genuine remorse for your actions.  I accept the matters set out in Mr Cooper's outline concerning your significantly disadvantaged early life and upbringing.  It is somewhat understandable that you have developed a lengthy history of substance abuse, which no doubt played a significant role not only in your early behaviour but in this criminality occurring January of this year.

[3]Exhibit 1

[4]Exhibit 2

[5]Exhibit 3

[6]Exhibit 4

7Sadly, a significant term of imprisonment imposed upon you in 2010 did not deter you from further antisocial behaviour or the use of illicit drugs on your release.  I accept that you have developed mental health issues resulting from your drug use and you are currently diagnosed with a mental health condition of borderline personality disorder characterised by significant disturbance of thought, mood, perception and memory.  I also accept that, at the time of this offending, you again resorted to the use of illicit drugs.  Mr Cooper has urged me to moderate the sentence imposed upon you in line with the principles in R v Verdins.[7] 

[7][2007] 16 VR 269

8The Crown argues that drug use, rather than the mental condition itself, are highly relevant to the disposition that the court should impose and, therefore, the principles set out in limbs 1 and 2 of Verdins should not be taken into account.  I do take into account the matters set out in the two specialist psychological and psychiatric reports to which I have referred, and also your own handwritten letter as relevant to the level of your moral culpability at the time of your offending.  Your admission to Dr Bhattacharya that when using GHB you become a “Jeckyl and Hyde” personality, has sadly, in my view, been a major factor towards your criminality on this occasion.  The conclusion of Dr Bhattacharya is that the symptoms at that time are more likely to have been drug induced and therefore the principles in limbs 1 and 2 of Verdins are not enlivened.

9I do accept, however, that the mental health condition of borderline personality disorder from which you suffer may mean that any sentence will weigh more heavily on you than it would be for a person of normal mental health and thus, the fifth limb of Verdins is enlivened. 

Sentencing principles

10Denunciation of your offending, general deterrence and protection of the community must be given prominence in any sentencing disposition.  Additionally, specific deterrence whilst taking into account your particular circumstances and your mental health condition must also be given much consideration.  The offences of aggravated burglary occurring in the middle of the day and directed to persons who were not known to you, together with armed robbery, must be regarded as very serious. 

11In the present case, there are no victim impact statements before the court but, clearly, your offending in relation to the first two indictable offences, that is, the aggravated burglary and the armed robbery, must have caused extreme fear and undoubted mental anguish to your victims.  The physical injury to one of your victims is likely to be of a much lesser impact than the emotional scars.  Further, the offence of damaging property involved you returning to the property following your initial offending and carrying out a sustained and unnecessary attack on a motorcycle belonging to one of your victims. 

12The higher courts have repeatedly stressed the need for sentences to properly reflect the objective seriousness of aggravated burglaries since the case of Hogarth v The Queen.[8]  The offence of armed robbery has been properly described by the Court of Appeal recently in Lord v The Queen[9]  as an offence that “causes great harm to those directly affected and great disquiet to the wider community.”[10] 

[8](2012) VR 658

[9][2018] VSCA 52

[10]Ibid at [11]

13More recently, in Comensoli v The Queen[11] the Court of Appeal affirmed the seriousness of aggravated burglary offences involving an intent to steal as destroying the sense of security that people are entitled to feel in their own homes. 

[11][2020] VSCA 2

14I do accept that your offending was not a totally random attack as the prosecution summary records you calling out the name of your male victim during the course of your offending.  It is also noted that the identity of your victims was clearly known to the person McDonald who drove you to their premises.  Nevertheless, the damage that was done, no doubt emotionally and to the community generally, needs to reinforce the consequences of this type of offending in the sentence imposed upon you.  Currently sentencing practices must be a factor taken into account in any sentencing exercise.  This has been  reinforced on many occasions and recently the case of Dalgleish confirmed that current sentencing practices are one factor but not the defining factor in an overall sentence. 

15I do take into account your explanation for your offending and particular circumstances that you faced at that time and, in addition, your relative youth of 31 years. You will also necessarily face additional hardship whilst imprisoned due to your existing mental state.  I do regard your prospects for rehabilitation somewhat guarded.  The fact that you were on bail at the time of the commission of these offences and the nature and extent of your prior offending involving drug use makes it difficult for me to conclude otherwise.  Your resort to illicit drugs has made your prospects of rehabilitation less favourable than would otherwise be the case.  In relation to the list of comparable cases that was provided to me by the prosecution, I regard the case of Comensoli as summarised as being most apt to guide my sentencing disposition. 

16Mr Dike, I am now going to pass the sentence on you. 

·On the first charge of aggravated burglary, you will be convicted and sentenced to imprisonment for a period of two years and six months.  This is the head sentence.

·On the armed robbery charge, that is, Charge 2, you will be convicted and sentence to a term of imprisonment of two years and three months.  I declare that six months of this sentence is to be served cumulatively on the sentence imposed on Charge 1.

·On Charge 3 of intentionally damaging property, you will be convicted and sentenced to six months' imprisonment.  I direct that two months of that sentence be served cumulatively on the sentences imposed for the head sentence and Count 2. 

·On the Summary Charge 4 of committing an indictable offence whilst on bail, you are convicted and sentenced to two months' imprisonment and I direct that one month of that sentence is to be served cumulatively with the other sentences imposed. 

17The total affective sentence is three years and three months imprisonment.  I direct that 21 months be served as a minimum term before you are eligible for parole and I declare that 235 days held in pre-sentence detention, not including this day, be reckoned as time already served under the sentence.  I direct that this be noted in the records of the court. 

18I will declare pursuant to s6AAA of the Sentencing Act that but for your plea of guilty, sentence that would have been imposed in aggregate would have been four years and six months imprisonment with an eligibility for parole after three years of that sentence. 

19And finally, pursuant to s78(1) of the Confiscation Act, the item as specified in the schedule, namely a cigarette butt, be placed in the custody of the Chief Commissioner of Police to be held by them for a period of 28 days or the conclusion of any appeal proceedings where it may be tested and/or analysed and then destroyed.

20Now, Mr Cooper, are there any further matters?

21MR COOPER:  No, Your Honour. 

22HIS HONOUR:  Thank you.  Mr Sprague, are there any further matters?

23MR SPRAGUE:  No, Your Honour, thank you.

24HIS HONOUR:  Thank you, Mr Cooper, Mr Sprague.  If there's nothing further, we'll just adjourn. 

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