Director of Public Prosecutions v Dix
[2021] VCC 45
•29 January 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. 19-01565
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| HARLEY DIX |
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JUDGE: | HER HONOUR JUDGE RIDDELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARINGS: | 11 June 2020 & 8 October 2020 | |
DATE OF SENTENCE: | 29 January 2021 | |
CASE MAY BE CITED AS: | DPP v Dix | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 45 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW -- Sentence
Catchwords: Kidnap -- Intentionally Cause Injury -- Category 2 Offence -- Extra Curial Punishment
Legislation Cited: Sentencing Act 1991
Cases Cited:R v Verdins & Ors. [2007] VSCA 102 -- R v Teh [2003] VSCA 169 -- R v Armstrong [2014] VSC 256 -- Director of Public Prosecutions v Oatley, Seth (a pseudonym) [2014] VCC 1995
Sentence: Three years and four months' imprisonment – Non Parole Period of 22 months' imprisonment
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr D. Cordy | Office of Public Prosecutions |
| For the Accused | Mr D. Care |
HER HONOUR:
Background Summary
1 On the night of 15 March 2019, 19-year-old Anthony Brown was tricked into accompanying a member of his girlfriend’s family and her friends to an isolated area in bushland near Spring Gully outside Bendigo. They lured him there with the intention of assaulting him and chaining him to a tree where they proposed to leave him for several days. They took weapons and chains to execute their plan. Their spurious reason for doing so, was that they did not approve of the way he was treating his girlfriend, their family member. There was little foundation for that belief, and even if there had been, their decision to punish him by way of personal harm was vigilante behaviour of high order.
2 The risk of serious consequences was borne out, not only to Mr Brown who was physically beaten and bruised, but also to one of the assailants who was killed during the fight which evolved.
3 There are four persons charged over this matter, three of whom – Jara Dix, Harley Dix and Benjamin Judge - have pleaded guilty before me.
4 Harley Dix was aged 26 years at the time of these events. Although older than her, he is the nephew of Jara Dix. Jara Dix, was 20 years and Benjamin Judge 28, at the time of the offending. Mr Judge and Jara Dix were close friends and at the time of these events Ms Dix was living at the Judge family home.
5 The fourth accused, Bo Valli, was aged 23 years. He is the cousin of Harley Dix. At the time of the offending he was living with Harley Dix in a unit in Flora Hill. His matter is currently listed for Trial.
6 The victim, Anthony Brown, was aged 19 years. In February 2019 he moved into the unit with Harley Dix and Bo Valli. While living there he became romantically involved with Harley Dix’s younger sister, 19-year-old Starr.
7 Harley Dix, you pleaded guilty to these offences on 11 June 2020 and a plea in mitigation proceeded on your behalf on that date and later in October 2020, alongside the pleas of your two co-offenders. The matter was adjourned a number of times in order to obtain further material on behalf of all offenders including yourself.
8 Prior to the matter returning for sentence you indicated the possibility of a change of plea. Your matter was therefore adjourned when your co-offenders Ms Dix and Mr Judge were sentenced by me on 2 December 2020. You have now confirmed your plea of guilty and thus I will now proceed to sentence you. These remarks should be read alongside the sentencing remarks for your
co-offenders.
Background to Offending
9 Harley Dix, you were unhappy with what you decided was Brown’s treatment of your sister Starr. According to you, Brown was rejecting her, telling her he needed space. There is no evidence that Starr Dix made any such complaint. You and Mr Valli were also unhappy with Mr Brown’s behaviour at the unit, where he had walked in on people without knocking, and according to you had ‘perved’ at the breasts of your partner. Further, that he took Mr Valli’s shoes.
10 In the days before this offending, there was an occasion where you assaulted Mr Brown and Starr intervened. On another occasion Mr Brown and Mr Valli were at Jara Dix’s family home and had an altercation.
11 That is the apparent extent of the justification for what transpired.
12 You decided that Mr Brown needed to be taught a lesson. You involved Jara Dix and together you formulated a plan, whereby he would be kidnapped and taken by Jara and Ben Judge out to the bush and beaten up. That plan was hatched over several days and is evidenced by text messages. Those text messages include repeated entreaties by you to Ms Dix, that she should ‘deal with’ Anthony Brown. You asked her if she was going to let Brown ‘break up the family’. She eventually messaged to you 'I told you I will deal with it.'
13 At one point, you were talking to your friend, James Rice, via SMS about Jara Dix. You stated, 'She wants us to kill Anthony'.
14 Harley Dix, you admitted in your later record of interview that you wanted Brown to hurt so he knew how it felt for what he had done to your sister, and you also wanted Brown to stay away from your sister and family.
15 On Friday, 15 March 2019, Ben Judge sent a message to you stating, 'This shit will get sorted today. I’m letting Jara do it her way ATM as I respect that she wants to get to the bottom of it. I honestly don’t give a fuck about Y.'
Circumstances of the Offending
16 On the same day, 15 March, Jara Dix, arranged through you to borrow Bo Valli’s car. He had previously told her to take his car, take Brown for a drive, and ‘hurt him a little bit’.
17 Ms Dix and Mr Judge, collected Anthony Brown and Starr Dix around 9 pm and drove Brown to Bendigo police station. They then returned, collecting you and your girlfriend, and all six of you travelled to Flora Hill where you and your girlfriend were dropped off. You therefore knew that Brown was in the company of Jara and Ben Judge that night and that the plan to assault him would be carried out.
18 Starr Dix was dropped off at her father’s house. Jara Dix, invited Brown to go with her and Ben Judge and smoke a bong at One Tree Hill. He agreed. They then drove with Brown via the Judge family home, where they loaded a tool box, sledgehammer, bag of ropes and chains, and a tarp into the boot of the white Lancer, while Brown sat in the rear shed with 24-year-old Steven Judge, Ben’s brother.
19 Steven Judge decided to go for a ride and have a smoke and so Jara Dix, Anthony Brown, and Ben and Steven Judge got into the car and drove up Edwards Road to the One Tree Hill Lookout.
20 Those facts form the foundation for the kidnap charge to which you have pleaded guilty. That is, Mr Brown was fraudulently lured to go to smoke cannabis. All of you intended that he would be kept captive and would be assaulted. That charge is an ongoing one, covering the events which then unfolded.
21 Brown was driven to a remote location past a 'Road closed' sign on One Tree Hill Road, near the Mandurang Road entrance. He and Dix and Judge shared a bong. He remained in the car with Steven Judge while Jara and Ben got out.
22 Ben Judge, removed the sledgehammer, bag of ropes and chains from the boot of the car and walked into the bushes. He tied the chain to a tree. Jara Dix, also walked into the bushes and checked what Ben Judge was doing.
23 Jara Dix, then asked Brown to get out of the car. He stood next to the car, watching Ben Judge walk in and out of the bushes. Whilst he was standing there, Ben Judge picked up the sledgehammer and came towards Brown with it raised. Brown tried to push the sledgehammer away, using the car door. Mr Brown was grabbed from behind and dragged to the ground, where he was assaulted for approximately five minutes by both Steven Judge and Ben Judge. He was kicked and hit. He was then dragged by his hood and his legs towards the site where the chain had been set up. Brown was continually hit and kicked. Brown believes he was hit in the head at least once with the sledgehammer.
24 While the assault was occurring, Jara Dix was yelling out, 'You shouldn’t have fucked with the family.' Ben Judge was carrying out most of the assaults, while his brother was assisting, holding the victim down and was also hitting and kicking him. Those are the facts founding Charge 2, intentionally cause injury.
25 At one point, Mr Brown tried to run away but Mr Judge, grabbed him from behind and dragged him to the ground in a choke hold. He began to lose consciousness and he believed he might die. Brown had a kitchen knife in his pants pocket. As Ben Judge was holding him in the headlock, Steven was on top of Brown. Brown pulled out the knife from his pocket and jabbed Steven Judge three times, one impacting the left arm, one hitting him in the chest, and one hitting him under his left arm in the chest area.
26 Steven Judge backed away. He was bleeding heavily. Brown made his escape, running into the bushes to get away.
27 Ms Dix and Ben Judge both managed to put Steven in the car. They drove to try and get help. However at one point the car stopped and would not start again. They tried to carry Steven, however, could not go far. Ben Judge ran to a house and asked the occupant to call an ambulance.
28 Two ambulance units arrived at the scene at 11:29 pm, as well as several police units. Resuscitation was commenced however Steven Judge was pronounced dead at 11:47 pm. He was 24 years old.
Initial Accounts
29 Ms Dix and Mr Judge spoke to police at the scene and made up a story about being ambushed by unknown attackers. Neither mentioned the plan in relation to kidnapping or assaulting Mr Brown. They both made sworn statements reflecting those untruths.
Arrest of Victim – Anthony Brown
30 The following morning Anthony Brown was found hiding in a shed and was arrested in relation to the death of Steven Judge. At the time, he was in possession of a small kitchen knife.
31 Brown was injured and had a significant amount of dried blood covering his head, face, and clothes. He was examined at Bendigo Hospital and found to have multiple lacerations, abrasions and bruises to the face and neck, including an injury to the right side of his head which required three stitches. He also sustained multiple abrasions, bruising to the chest, upper and lower back and ribs, along with bruises and abrasions to the legs. A photograph taken by him on his mobile phone demonstrates the injured state he was in.
32 Forensic examination concluded those injuries were consistent with multiple episodes of blunt force trauma to his face and head, at a minimum total number of five impacts. Abrasions to his face, torso, back and legs were caused by moving contact with an abrasive object such as fingernails or twigs. The abrasions to the back suggest the cause could also be from a sole of a shoe with imbedded stones. Brown's lower legs were subject to multiple episodes of blunt trauma, in the form of blows or other impacts.
33 Mr Brown was interviewed and gave a truthful account of what had occurred. He later made a sworn statement reflecting his record of interview.
Arrests and Interviews of Accused
34 You were arrested and interviewed the following day, 16 March 2019. You made full and frank admissions and later made a sworn statement reflecting that interview. You told police that Mr Brown broke your sister’s heart; that you love your sister and would do anything for her, including going to gaol for her.
35 You admitted you started forming a plan with Jara Dix on the night of 13 March 2019. The plan was for Jara to take Brown out bush somewhere, kidnap him, and hurt him. You stated that you wanted Brown to know how it felt to hurt for what he had done to your sister; you stated Jara Dix gained Brown’s trust to get him in the car. When asked whether you knew weapons would be used, you said you did not care how Jara Dix assaulted Brown, that you just told her to make sure it was done. You wanted him beaten up and told to stay away from your sister.
36 You stated that you had not spoken to Ben Judge but guessed Jara Dix had told him of the plan. You knew Ben Judge would be involved because Jara and Ben are like brother and sister. Ben Judge was obviously in the car when you were dropped off just prior to the incident.
37 In your statement made the day of your record of interview you elaborate, saying, ‘I had this plan going through my head and so the next day I decided to do something about it. I planned to get Anthony knocked around a bit, so that he got the message to stay away from my sister and our family … the plan was for some people to take him out the bush and knock him around a bit…’ You admitted arranging to borrow Valli’s car. You admitted needing to drop Starr at your father’s as part of the plan to separate her from Mr Brown.
38 You did not know precisely where Mr Brown was to be taken. You were asked by police about items being taken in the car – I assume that is a reference to the tools and chains. You stated, ‘I don’t know anything about those things. I just made the plans for these people to take him out the bush. The stuff they were going to do was up to them and what they used to do it with was also up to them.’
39 You confirmed those descriptions in your statement made in August 2019 also saying you wanted Mr Brown to be taken three hours out of Bendigo and also saying Jara Dix had said to you on the day of the kidnap, ‘We’re going to have some fun tonight.’ You admitted enlisting Bo Valli’s help.
40 On the 17 October 2019, you gave a sworn undertaking to the County Court to assist authorities and give evidence in line with your sworn statements if required to do so.
41 Bo Valli was arrested and interviewed on 16 March 2019.
42 Ben Judge was arrested and interviewed on the 17 March 2019. Jara Dix was also arrested and interviewed on that date. In their interviews both were originally dishonest, saying nothing of the plan to assault Brown. However both later made admissions, including Ms Dix stating that there was a plan to tie Mr Brown to a tree and leave him for a couple of days just to teach him a lesson.
43 By your plea you admit the prosecution opening which describes not only the planning of these events, but how they unfolded. You admit your complicity in these offences.
Sentencing Principles
44 This is a serious matter. Principles of general deterrence and just punishment are paramount in sentencing you.
45 The kidnapping, while committed by fraud rather than force, is a most serious offence. That is, Mr Brown was tricked into getting into the car and going with your co-offenders on the premise that they would smoke marijuana together. Once in the vehicle after leaving the Judge premises, it is clear that the intention was that he would not be permitted to leave and that he would be assaulted. The offence of kidnapping is effectively an ongoing offence from that time.
46 Here, that offence involved planning and premeditation, largely by you along with Ms Dix and on your own admission it was at your instigation. It involved a planned violence which was carried out.
47 There is no direct evidence that you were aware weapons or tools would be used against Mr Brown. I accept your comments made in your statement that you were not aware of the specific items taken to the site. I accept you did not actually inflict injury on the victim. I accept your comments that how the victim was to be hurt was a matter for your co-offenders. However as you admit in both your record of interview and your statements, it was your plan that Mr Brown be taken to the bush and hurt. You did not care how that was done. Therefore your lack of specific knowledge as to how he was hurt or what items might be used for that purpose does not reduce your responsibility for what ultimately occurred.
48 I find as a matter of fact that Mr Brown was hit with the sledgehammer at least once. I make that finding to the requisite standard for reasons which I have outlined in sentencing your co-offenders.
49 Mr Brown suffered injury which I have outlined. There was a multitude of injuries, some of which required medical intervention.
50 The only reason the plan to leave the victim in the bush, injured and chained to a tree, did not come to fruition, was because he was able to fight back.
51 The impact on the victim of this offending has been significant. He does not wish his victim impact statement to be read aloud and so I will not refer to it specifically. I have, however, taken into account what he describes as the ongoing and pervasive impact of your offending on him.
52 This behaviour is deserving of denunciation on behalf of the community. Taking matters into your own hands in this way is unacceptable. The sentence I impose must deter others from taking similar action. It must be directed to community protection and must justly punish you. It must also deter you from committing any similar offence in future.
Objective Gravity
53 In assessing the objective gravity, for the reasons I have just outlined, in my view it is a serious example of the offence of kidnap, though somewhat moderated by the fact that your ultimate plan was thwarted.
54 The gravity of the causing injury charge is also a serious example of that offence given the level of premeditation and the actual setting, being at night in the bush, and given the nature of injuries suffered.
Moral Culpability
55 Your moral culpability is high, given the planning and deliberate purpose of your offending which was carried out at your instigation and with your assent.
Maximum Penalties and Category 2 Offence
56 The seriousness of this offending is amply demonstrated by the applicable maximum penalties. In relation to kidnapping, the maximum penalty is 25 years' imprisonment. In relation to intentionally causing injury the maximum penalty is 10 years' imprisonment.
57 Parliament has also declared the offence of kidnapping to be a Category 2 offence and enacted s.5(2H) of the Sentencing Act 1991. Those matters mean, I must impose a sentence of imprisonment, not in combination with a community correction order, unless special circumstances exist.
58 The special circumstances which were originally relied on at your plea relate to your cooperation with the authorities. That is s.5(2H)(a) namely where an offender has assisted or given an undertaking to assist, after sentencing, law enforcement authorities in the investigation or prosecution of an offence.
59 Firstly, your full admissions to police during your interview were relied on. While that is commendable and was important in this matter, I do not believe the intention of the legislation should be interpreted such that anyone who makes admissions in a record of interview is entitled to an exception under s.5(2H)(a).
60 I do however accept that your level of cooperation with the authorities in that record of interview was important. You were the first interviewed. Your interview largely confirmed what the victim had told police. You nominated not only your own involvement but the extent of involvement with your co-offenders.
61 The real reliance here under s.5(2H)(a) is that your record of interview was followed by your sworn statement confirming and elaborating on the contents of that interview. Further, that in August 2019 you made a second statement, and, as I have said, in October 2019 you swore an undertaking to give evidence should any matter proceed to trial.
62 Mr Cordy on behalf of the prosecution confirmed the prosecution’s intention to call you to give evidence at any trial for Mr Valli. You have sworn to do so. I take those matters into account in your favour.
63 Policy considerations confirm that where an offender is prepared to assist the authorities in bringing a co-offender to justice, that offender should receive a discount in sentencing. In assessing the discount to be attributed, I am required to assess the value of your cooperation. In that regard, it is apparent that Mr Valli has already implicated himself in this offending, so your evidence will not be of high value.
64 Nonetheless I take it into account your preparedness to give evidence. Giving evidence against someone you know, and in your case who is a relation, would not be easy and I accept as a general proposition that it may expose you to negative attention in the custodial setting.
65 I have not reached a conclusion however that your level of assistance in the face of this serious offending is such that it should lead me to impose either a community correction order or a combination disposition.
Personal Circumstances
66 Mr Dix, you are now 28 years of age, you are the older of two children. Your parents separated when you were aged 8 or 9. Your sister – Starr – is 10 years younger and you have a number of half-siblings on both your mother and father’s side. Your childhood was dislocated and difficult.
67 You were born in Bendigo but spent some years in Queensland. Your father worked on the carnivals there and you moved around a lot. You have had a difficult relationship with your mother.
68 You attended 10 to 11 primary schools mostly in the Bendigo area. You attended Golden Square Secondary College until half-way through Year 8 when you were suspended and left. You were bullied on account of your surname, often resulting in fights.
69 You attended TAFE where you completed Year 8 and Year 10. After completing TAFE, you did part of a mechanic’s course but you failed to complete it.
70 You describe yourself as unhappy growing up. You say you mostly stuck to yourself.
71 You report being sexually assaulted twice, the first time when you were aged two years, where I understand you have been told by your mother that she caught a male person kissing you on the lips. You were later touched on your genitals as a 12-year-old boy by your father’s boss. You report those matters still bother you. However there is no specific diagnosis relating to them.
72 When you returned to your mothers as a 13-14 year old you describe her not caring where you were. You began smoking cannabis at the age of 12. You had a “turn” at age 14 and have not smoked since. However, you admit using ecstasy and that you developed an addiction for ice, using as much as you could purchase and also at one point you had an addiction to Oxycontin and Valium. Between the ages 18-22 years you were drinking up to a slab of beer a day but you now only drink “occasionally”.
73 You have been prescribed Pristiq (anti-depressant) and Seroquel (“for anger or sleep”) in the past. Your compliance has fluctuated however more recently you have commenced medicating properly, that is since this offending.
74 After leaving school you worked cleaning chicken sheds in Bridgewater for about six months.
75 You have at some stage completed a vocational preparation course and obtained a Certificate 3 in Community services, a Certificate 1 in First Aid and a Certificate 2 in Hospitality. You worked with Pro Vac poultry service for about three months, catching and vaccinating chickens.
76 Prior to this offending, however, you had been unemployed for approximately 3 years, admitting your ice addiction was a problem. You apparently travelled to Western Australia in an attempt to rid yourself of that addiction.
77 You have had several relationships. You have two daughters, a 9-year-old who is in Permanent Care, and an 8-year-old who is in her maternal grandmother’s care. You have no contact with those children.
78 At least one of your past relationships was marked by violence. DHHS were required to become involved, and your partner sought the protection of family violence orders which you breached.
79 You have a number of relevant prior court appearances, several of which for violence. Those include unlawful assault and criminal damage in 2013 where you received an undertaking with condition to complete Mens Behaviour Change program and continue with treatment plans through Bendigo Health. You contravened that order and received a further order.
80 In 2015, you received a 6-month community correction order for two charges of contravening a family violence order and possessing a dangerous article. You were to undergo treatment for addiction, and a mental health assessment as well as offending behaviour programs. You again breached family violence orders and appeared twice in 2017, both times receiving a fine. I should add that you managed to complete the 2015 community correction order successfully.
81 You were bailed when charged with this offending in March 2019 and you have not reoffended since that time.
82 You appear now to be in a stable relationship now, and you and your partner married in March 2020.
Verdins
83 At your plea I received a report from Clinical Psychologist Carla Lechner dated 24 December 2019. In it she describes you as having genuine cognitive limitations which restrict your problem-solving and judgement skills. She says your intelligence is in the mildly disabled/borderline range and on testing you have an IQ of 68, where 98% of the population would perform better. She describes your disability as a mild intellectually disability. Further, that you present with borderline personality traits including emotional and behavioural dysregulation. She says your Border Personality Disorder, which is the descriptor she uses in an addendum to her report, arises from your childhood/adolescent trauma.
84 I accept her opinion. I accept the submissions of your Counsel at the please, Mr Habib, that I should understand your comments as to your motivation for, and your involvement in this offending, through the prism of your cognitive limitations. I accept that your cognitive capacity renders you less able to find alternative ways of dealing with problems. You lack a range of coping and adaptive skills.
85 You detailed to Ms Lechner a history of suicidal ideation and several attempts. It is not clear whether those were prior to or subsequent to this offending. Ms Lechner says there was no evidence of psychotic processes, but says you described yourself as part of the spirit world, a werewolf, very spiritual. You told her you believe you have a protective spell over you.
86 I accept that your mild intellectual disability enlivens the principles of Verdins. In particular Limb 1, namely that your moral culpability is somewhat reduced. I also take those matters into account in moderating my considerations of general and specific deterrence, while acknowledging that that can only be to a degree given the seriousness of the offending.
87 I accept Limbs 5 and 6 of Verdins are enlivened. On top of your cognitive limitations your results on anxiety and depression scale testing were in the severe range. Although largely reactive to the situation you now find yourself in, I do note that Ms Lechner opines your history suggests your mood has been far from optimal for much of your life, on account of what she calls a dysfunctional family background. I note also that Bendigo Health records confirm you were treated on three separate occasions, being diagnosed with an Acute Stress Reaction in 2011, a Mild Depressive episode in 2011 and an adjustment disorder in 2016.
88 Your mild intellectual disability, your Borderline Personality Disorder traits and your diagnoses of Depression and Anxiety render your time in custody likely more difficult and I take those matters into account.
89 I take also into account the comments of Ms Lechner that imprisonment could potentially have an adverse impact on your mental health namely a decline in your mood state and the risk of self-destructive behaviours or self-harm and suicide attempts. Further that your Borderline Personality Disorder traits may also contribute to difficulties in the prison environment given a difficulty to read social cues and make good decisions. It is clear you will need close monitoring in the prison environment.
90 Any moderation of sentence must be tempered by the seriousness of the offending. I note the comments of Ms Lechner that you knew the behaviour you organised was wrong and unlawful. She states you were not mentally impaired at the time of the offending and she is not of the view that you are mentally impaired as such.
Bugmy
91 Your Counsel provided further submissions as to the application of the principles enunciated in Bugmy v The Queen [2013] HCA 37. I accept you have a difficult upbringing, as I have described. In particular, as I have outlined, the breakup of your parents at an early age; reported physical abuse, which is detailed in Ms Lechner's report, and sexual abuse at the age of 12; that you commenced using marijuana at around that age. I accept you were bullied and left school early and have had limited education and prosocial opportunities. I accept Ms Lechner's description that yours was a dysfunctional background. However, I do not accept those matters are to a degree that they enliven Bugmy principles, while confirming nonetheless that I take your life story and your history into account. I accept that you have experienced dysfunction and disconnection throughout your life and from an early age.
92 There is some overlap with how that has impacted you and my considerations under Verdins. To my mind the more significant matter here is your mild intellectual disability and other diagnoses in relation to your mental health that I have described. Those are, as I have described, matters which affect my assessment of your motivation and involvement in this offending and to an extent moderates your moral culpability and my considerations of you as a vehicle for general deterrence.
93 On return of the extended pre-sentence assessment which I ordered, counsel then relied on s.5(2H)(e) of the Sentencing Act as another reason where an alternative to a term of immediate imprisonment should be imposed in your case; that is counsel submitted that such an alternative was said to be available because of the constellation of circumstances which I have described and which in his submission should amount to a substantial and compelling reason to depart from a sentence of imprisonment. I do not accept that your mild intellectual disability even in combination with the other diagnoses as outlined by Ms Lechner takes your case to that level, even in combination with your efforts to cooperate with the authorities.
Extra Curial Punishment
94 The impact of this offending has been significant for you and your co-offenders, given the death of Steven Judge. I outlined the considerations relevant to his death as a form of extra curial punishment in my sentencing remarks of your co-offenders.
95 Case law establishes that despite coming about as a result of offending which you and your co-offenders committed, it is still a matter which I should take into account and I do so. The reports in relation to you are replete with your expressions of remorse about that aspect of this offending. It is an ongoing burden you will bear.
96 As with your co-offenders the serious consequences of the violence committed should deter you from ever involving yourself in violent behaviour again. I accept that this additional punishment also moderates to an extent the need for specific deterrence and just punishment.
Prospects of Rehabilitation
97 With regard to your prospects of rehabilitation, I take into account your past offences of violence and the fact that on a previous occasion you were required to undertake treatment in relation to such offending. You made some concerning comments to Ms Lechner about how you would deal with conflict or mistreatment of your family. You are too ready to resort to violence again. That reflects, in my view, your concrete thinking and a lack of judgment.
98 You were on bail however for approximately 20 months prior to me remanding you in October 2020. You did not reoffend during that time and you have not reoffended since these events and that is significant.
99 You have also been treated now by a doctor in Bendigo, you have now been prescribed medication which seems to have had a positive effect on you and you say is assisting you manage your anger. That is a real positive. You informed me today that you are still taking Pristiq which is now prescribed to you in the custodial setting and you believe by a psychiatrist and that you have had some contact with the psychiatric nurse at Fulham Correctional Centre. Those are positives. Any engagement with therapeutic counselling or psychiatric treatment would be beneficial to you.
100 In addition, you now have a Statement of Intellectual Disability pursuant to the Disability Act 2006. That declaration now makes you eligible for the National Disability Insurance Scheme. As at the time of the plea, you had not yet been assessed, but I am told you are now aware of that scheme and you have expressed some interest in pursuing it. In my view it would be of real benefit to you to take full advantage of that scheme and any supports it can offer you upon your release.
101 I take into account your report that you have not used any illicit drugs since this offending. Drug use is one of your major risk factors for reoffending. Therefore your efforts to stay away from drugs since these events is important. You are to be commended for that in particular given your long history of drug use.
102 You have a positive relationship with your father, you are now married and will live with your wife on release. I note also that before being remanded you had engaged in the gym and some martial arts training. Hobbies and outlets are important.
103 Despite your cognitive limitations, you have completed some Certificates and training. That shows some ability and hopefully you will pursue employment.
104 In all the circumstances, I consider your prospects of rehabilitation to be reasonable.
Plea of Guilty
105 I also take into account your early plea of guilty. That is a matter which entitles you to a significant discount in sentencing. It has the benefit of saving the community the time and expense of running a jury trial which likely had some 40 witnesses.
106 I cannot, however, equate your plea with an expression of remorse for the victim in this matter. That is in part because of your cognitive limitations which render victim empathy difficult. It is also difficult for you because as with your
co-offenders your focus has largely been on the death of Steven Judge rather than on the injury and damage inflicted on the victim, Anthony Brown.
Time in Custody
107 I take into account that you entered the prison for the first time when I remanded you in October. That is your first time in custody and you entered that environment in the context of the COVID-19 pandemic. You underwent 14 days of isolation and you had limited time out of your cells. You were only entitled to conference and phone calls with family. That situation has only changed recently with in-person prison visits only recommencing from 23 January 2021. You are housed at Fulham, however, and the distance is causing and likely to cause an ongoing difficulty for your family to visit you very often.
108 In the custodial setting for the first time and with the history I have outlined and your mild intellectual disability, I have no difficulty accepting that imprisonment is going to cause you greater hardship than a prisoner without those factors.
109 Although I sought an extended presentence report and assessment for a community correction order, ultimately I have reached a view that the seriousness of this offending warrants a term of immediate imprisonment not in combination with a community correction order. However, I take into account your mild intellectual disability and your coexisting diagnoses, your willingness to assist the authorities, the extra curial punishment and its relationship to specific deterrence as well as your prospects of rehabilitation into account in determining the length both of the head sentence, but more pertinent, the length of the non-parole period.
Parity
110 Lastly, I am mindful of the issues of parity when dealing with co-offenders. Parity is an aspect of equal justice. There should be no unjustifiable difference in sentences imposed upon similar offenders for similar offending.
111 The key words are, 'unjustifiable difference'. That is because parity takes into account, consideration of the offending and your roles in that offending but must also take into account your personal circumstances at the time and since. In that sense, equal justice may result in different outcomes.
112 I have given a great deal of consideration to parity as it applies to your offending in this case. This offending happened at your insistence. The text messages which passed between you and Jara Dix bear out your repetitive requests and pressure of her to take action against the victim. At one point she tells you that the relationship is a matter for Starr – in other words, not something you should get involved in. In that she was quite right. But you persisted and she agreed.
113 There is an argument that you as the person who instigated and planned this event should receive a higher penalty than your co-offenders, despite not actually having carried out the actual violence. As I have found, although you may not have known the actual specifics of how the victim was to be hurt, you well and truly understood that he would be taken to the bush and hurt – that was your whole plan. As far as parity is concerned the fact you did not carry out the actual violence, in those circumstances, in my view, does not justify a different outcome on the basis of your role.
114 However, I have accepted your Counsel’s submission that I should view your actions and behaviour in the light of your intellectual disability, and I do so. To an extent that does temper my view, as I have described, of your moral culpability. To that extent, although as I said, your involvement may in fact justify a heavier penalty, in my view, ultimately and my conclusion is that I ought not impose a heavier penalty on you than on your co-offenders.
115 In terms of your personal circumstances your cognitive capacity does loom large in sentencing you. However, both of your co-offenders also had their own mental health issues and Verdins applied to both of them. They also had dysfunctional upbringings, in many ways similar to yours.
116 You have prior convictions for violence where they had no prior appearances at all. You have been assessed as a high risk of reoffending.
117 Ms Dix was a young offender and now has a young baby.
118 Mr Judge suffered the particular consequences of the death of his brother. Ms Dix was present when he died. You are more removed from those events, though still affected.
119 You all pleaded guilty and offered assistance. None of you have demonstrated remorse for the victim.
120 Ultimately, in all the circumstances, I have concluded that there should be no difference in your sentence.
Cumulation
121 I intend to cumulate a portion of the sentence for intentionally causing injury, giving that was distinct offending and a sustained attack which resulted in a multitude of injuries.
Non-Parole Period
122 As with your co-offenders though I do see merit in imposing a shorter than normal non-parole period given the matters I have outlined.
Current Sentencing Practices
123 Finally, I have given consideration to other cases. Some have similarities, but more often differences, in particular kidnaps are often committed in the context of drug debts and with additional violence by persons with lengthier prior criminal histories. I am required to take into account current sentencing practices and to impose a just sentence and that is what I have endeavoured to do.
Sentence
124 The sentence I propose to impose is as follows, Mr Dix.
125 On Charge 1 of Kidnap, you are convicted and sentenced to two years and six months' imprisonment. On Charge 2 of intentionally cause injury, you are convicted and sentenced to two years' imprisonment.
126 I direct that 10 months of Charge 2 is to be served cumulatively on Charge 1.
127 That is a total effective sentence of three years and four months' imprisonment.
128 I direct that you are to serve a minimum period of 22 months' imprisonment, prior to becoming eligible for parole.
129 I declare that you have already served 113 days' imprisonment and that this period should be reckoned as having been served under this sentence.
130 But for your pleas of guilty, the sentence I would have imposed, would have been one of six years' imprisonment with a non-parole period of four years and three months' imprisonment.
131 Any matters to raise, Counsel? Sorry, I think we have got them on mute still. Just one moment.
132 MR CARE: Not from the defence's view.
133 MR CORDY: And no other from the prosecution, Your Honour.
134 HER HONOUR: All right. Thank you very much. That concludes this matter now. We will now adjourn. Thank you. Thank you.
135 MR CARE: As the court pleases.
136 HER HONOUR: Thank you very much.
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