Director of Public Prosecutions v Dixon
[2024] VCC 870
•11 June 2024
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR-23-00222
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MARCUS DIXON |
---
JUDGE: | HIS HONOUR JUDGE MOGLIA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 11 June 2024 |
DATE OF SENTENCE: | 11 June 2024 |
CASE MAY BE CITED AS: | DPP v Dixon |
MEDIUM NEUTRAL CITATION: | [2024] VCC 870 |
REASONS FOR SENTENCE
---
Subject:Criminal Law – Sentence – guilty plea
Catchwords: Sentencing – intentionally causing serious injury – 31 year old man at the time of offending – low to moderate category of seriousness of injury – relevant criminal priors involving violence – history of violence while drunk and drug affected – specific deterrence more relevant – long history of alcohol and drug use – generalised anxiety disorder – moderate to high risk of further offending – rehabilitative progress while on remand – time on remand more onerous due to COVID – plea of guilty at a late stage
Legislation Cited: Crimes Act 1958 (Vic); Sentencing Act 1991 (Vic)
Cases Cited:
Sentence:Total effective sentence 4 years 8 months imprisonment with a non-parole period of 3 years; 607 days reckoned as already served; 6AAA – but for plea of guilty, sentence imposed would have been 6 years and non-parole period of 4 years.
---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | P. Teo | Office of Public Prosecutions |
For the Accused | G. Douglas |
HIS HONOUR:
1Marcus Dixon, you have pleaded guilty to intentionally causing serious injury on 20 May 2022.
2The circumstances of your offending is that you went to some flats in the northern suburbs of Melbourne in order to score methylamphetamine.
3Having been into the flat, where you intended to go to get drugs, you then got into an argument outside with somebody who was a resident in the same building. He was a stranger to you. You had been seen earlier that day, and since, being quite erratic and threatening to other people. You got into an argument with this fellow, which became physical.
4You hit him with a nearby mop which you had picked up, and the allegation is that you obtained a meat cleaver, perhaps from your car or somewhere else, and then swung that at the victim, or at least threw it from a short distance in a downward motion at him.
5He had put his hand up to protect himself, and he suffered a very deep cut, almost severing his finger, from the meat cleaver.
6You fled in your car, and you were arrested some days later on 30 June 2022. When you were interviewed you made no comment to the allegations.
7The victim, Mr Aycock, wrote a statement describing how the loss of the full use of his hand and finger affects his daily life, which is unsurprising. It has psychologically affected him; it has caused him to be afraid where he should not be afraid in day-to-day life. It has caused him traumatic stress. He had to undergo painful surgery for a severed nerve, for bones that had separated in his hand, leaving him with claw fingers. At the time of the laceration an artery in his hand was severed, which caused bleeding that was very difficult to stop – which if it was untreated could have led to death.
8He has had to undergo medical review and follow up, and recently he has been observed to have ongoing restricted movement in that hand, and ongoing need for therapy.
9Following your arrest on 30 June 2022 you have remained in custody.
10During that time, you served 105 days on other matters involving assault and driving, sentenced in the Magistrates' Court.
11In this matter you ran a contested committal where the victim and other witnesses were cross-examined, and the matter was listed for trial on 26 February 2024. At the last stage prior to trial you brought the matter on for case conference before me, and sought a second sentence indication at the last minute, and under some pressure for all parties concerned, including the court, an indication was given.
12On 23 February you accepted that indication and pleaded guilty to the charge.
13Your personal history is that you have long had problems with alcohol, perhaps since your teenage years. When you get drunk you use other drugs, unsurprisingly, including methylamphetamine, which was relevant on this day.
14That history of alcohol and drug use has been the setting in which you have amassed a number of prior convictions. On a very rough count in your history in the adult courts, not the Children's Court, you have been sentenced for violence on about seven occasions, imprisoned on five of those occasions, and on two of those past occasions the charges have involved weapons.
15Of particular note, in 2011 you were sentenced to 15 months for recklessly causing serious injury. I repeat that history not to punish you again, and I will not sentence you again for those matters, of course. But they are necessary for me to take into account to determine your future risk, how you must be deterred, and your prospects of rehabilitation.
16On your plea, your lawyer, Mr Douglas, tendered a number of exhibits.
17Exhibit 1 is a somewhat dated report of a psychologist who was treating you in 2016, Ms Toohey. The import of that document is that you engaged well with her, and she had a somewhat positive view about your ability to see the error in your ways, the risks that you posed, and that there was a way in which you could bring under control your drinking and therefore your offending. In as much as that is what the report provides, I accept that.
18Your history has shown that you are able to have a positive attitude to your life and responsibilities when you are sober.
19In 2018 for about 12 months, you were the subject of a family reunification order in the children's jurisdiction, in relation to your five children, under the auspices of the Department of Human Services.
20You impressed the department with your positive attitude to adult responsibilities, and your provision for your children, if not your partner, and they were content with you maintaining accommodation and care of your children at that stage.
21Your lawyer, Mr Douglas, said that that was for an extended period, over some years, notwithstanding other offending. Again, I accept that you are capable.
22However, in 2022 it was submitted that you became overwhelmed. You had been working hard, even employing others in your bricklaying business. You had a vision for the future, including buying a property or some land on which to build. But your partner, suffering from her own mental illness, was on a downward spiral, it would seem. That placed pressure on you.
23One of your skills is not planning or managing your stresses. So Mr Douglas submitted that this was the setting in which you started to drink, and then use other drugs, which saw you in the state you were in on 20 May, when you harmed others.
24Mr Douglas relied on Exhibit 2, a record of your partner's mental ill health and her admissions to hospital, which I accept. I make no finding about the cause of that mental illness or ill health, or about whether you were able to help her or not.
25Exhibit 7 is a default notice about the loan you had taken out for the payment that you owed in relation to the land you proposed to build on, which fell into default at the time of this offending, or thereabouts.
26Exhibit 4 is a report from forensic psychologist, Gina Cidoni, dated 24 May 2024. In it she, having had contact with you previously, sets out the history that I have attempted to describe. She diagnosed you as having a generalised anxiety disorder, because you tend to ruminate and not deal well with the stresses that you face, and also a chronic substance use disorder. The use of alcohol and methylamphetamine feature in that diagnosis.
27She assessed you, appropriately, using a risk assessment tool that is recognised as being reliable and gives an opinion that you are at moderate to high risk of further offending. I accept that assessment.
28Having been remanded and now having been in custody for some two years, you have addressed yourself to the task at hand. You have provided clean urine drug screens repeatedly over the months. You have engaged in many programs and seminars, some to do with family responsibilities, some to do with drug use, and how to overcome that addiction.
29I accept that the programs demonstrate what was submitted on your behalf, that you have capacity. That is, you have the capacity to live a productive life, to care for your family, and to contribute to the community rather than to harm it, as you did on this day.
30I accept that you have done all that you can in preparation for parole, save for engaging in the program that you have identified that is only for sentenced prisoners. I accept that you have a degree of insight, albeit the extent of that insight remains to be seen, into your need for help and support to bring your drinking and drug use under control.
31I accept the opinion of Ms Cidoni that that is the key to you remaining offence free and out of custody. If you do not get it under control, you will just keep going back.
32As to sentencing issues, it must be said that causing somebody serious injury is the worst kind of personal offending short of killing them. That is why the charge you face attracts a maximum penalty of 20 years' imprisonment. There is absolutely no reason that Mr Aycock should have been attacked, let alone seriously injured in the way that you caused – no reason whatsoever.
33Terms of imprisonment are intended, and will be deployed in your case, to ensure that what you did is fundamentally denounced, that you are adequately punished, that you know that if you engage in this behaviour strict punishment will follow. It is also intended that this sentence sends a message to others that, even if out of control on drugs or alcohol, if this kind of conduct is engaged in it will be met with stern punishment.
34You must be specifically deterred and the sentence I impose is intended to do this because of that prior matter of recklessly causing serious injury, and other matters of violence whilst intoxicated.
35I accept the prosecutor's submission that you have a history of violence while drunk and/or drug affected. Whilst it is not said that you have been placed on specific notice about serious violence such as this, and that therefore your offending on this occasion is of an increased aggravated kind, it is the case that you are now on notice that there is a repeat habit that when you drink and use methylamphetamine and other drugs, you lose control.
36You must avoid this. That includes doing any drug and alcohol programs offered to you in custody before you are paroled, and can I recommend to you the advice of your lawyer that you must stop, not rush into your future, and you must engage in the kind of protective treatment because you cannot do it on your own. Only that will prevent you from sliding down this path again.
37I accept that you have an intellect that allows you to understand this when you are sober, but being sober is when you must make the plans and the choices that prevent you, when you are feeling stressed, from going down that path.
38I find the serious injury in this case not to be at the high levels. All serious injury is obviously serious, but as to the part of the body harmed, the extent of the harm, the extent and nature of the ongoing affliction with which
Mr Aycock must live, I find that it is in the low to moderate category of serious injury.39As to the delay since the offending until today, when you stand for sentence, I accept that this has been a somewhat lengthy two-year period. You have been in custody all that time on remand, in the early parts of it at risk of, if not living with, lockdowns and other COVID related hardships in custody. I have taken that into account.
40I accept that your prison time has been somewhat harder because you know that by your own actions you have absented yourself from your children's lives, and the hardship that they live with because of that. While not exceptional, it means that your day to day living with that reality makes prison somewhat harder for you.
41As I said, you have done good things with your rehabilitation – attending courses and engaging with those who want to help you in custody. Time will tell whether or not you can translate that into the community, and that will be for the Parole Board to assess. The Parole Board will have access to the dozens of certificates and documents tendered in Exhibit 6 that attest to your sober goodwill.
42As indicated, on the charge on the indictment of intentionally causing serious injury, you are sentenced to 4 years 8 months.
43I will fix a non-parole period of only 3 years.
44The Parole Board will have close to two years within which to ensure that you have engaged in programs, and to consider your release. They will have the flexibility to bring you back off parole if things get out of control.
45There will likely be an intensive parole period upon your first release in which you will have harder and more demanding requirements placed on you as you move back in with your family. I accept that you have got support from family, but you will need professional support to help them help you.
46I only hope that you will engage with the services that are available – that might equip you not only to succeed on parole, but also to get it in the first instance.
47Had you not have pleaded guilty, and been found guilty by trial, I would have imposed a sentence of 6 years with 4 years before parole.
48I make the disposal order in relation to the mop and the clothes, which is unopposed.
49I take it there is an issue, Mr Teo, in relation to the forfeiture of the vehicle. Is that pressed?
50MR TEO: Yes, it is, Your Honour.
51I am not satisfied that the car was used in connection with, or that there is a sufficient connection with the offending, such that it should be lost. I appreciate why the application has been made, but I refuse the application.
52The pre-sentence detention in the matter is 607 days
‑ ‑ ‑
0
0
0