Director of Public Prosecutions v Dow

[2023] VCC 2302

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-23-01639

DIRECTOR OF PUBLIC PROSECUTIONS

v

HAYDEN DOW

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JUDGE:	HER HONOUR JUDGE TODD
WHERE HELD:	Melbourne
DATE OF HEARING:	28 November 2023
DATE OF SENTENCE:	7 December 2023
CASE MAY BE CITED AS:	DPP v Dow
MEDIUM NEUTRAL CITATION:	[2023] VCC 2302

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords:              Armed robbery – recklessly causing serious injury – false imprisonment – County Koori Court

Legislation Cited:      Crimes Act 1958 (Vic) ss 17, 75A, 320

Cases Cited:R v Verdins (2007) 16 VR 277; Bugmy v R (2013) 247 CLR 571; Honeysett v The Queen [2018] VSCA 214

Sentence:                  Six years and six months’ imprisonment with a non-parole period of three years and 11 months

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr B. Sharp	Office of Public Prosecutions
For the Accused	Ms E. Byrt	Papa Hughes Lawyers

HER HONOUR:

1In the early hours of 7 July 2022, Mr Singh was earning his living by delivering a pizza when he was approached from behind and punched, slashed across the face with a razor blade, and then made to drive his assailant some distance before making his escape.  All this took place while demands for money or property were being made of him.  He is left with a significant and permanent facial scar.

2Hayden Dow, you have pleaded guilty to the following charges:

·        one charge of armed robbery, which carries a maximum penalty of 25 years’ imprisonment;[1]

·        one charge of causing serious injury recklessly, an offence which carries a maximum penalty of 15 years’ imprisonment;[2] and

·        one charge of false imprisonment, an offence which carries a maximum penalty of ten years’ imprisonment.[3]

[1]Crimes Act 1958 (Vic) s 75A.

[2]Ibid s 17.

[3]Ibid s 320.

Facts giving rise to the offending

3On your plea, a prosecution opening dated 17 November 2023 was tendered and became Exhibit A.  That document is attached to and forms part of these reasons. I will refer to just parts of it in summary form here.

4On 7 July 2022, Mr Singh was working delivering pizzas for ‘Snappy Pizza and Kebab’ in Glenroy.  Just after midnight, he collected a pizza for delivery to 4 Apsley Street.  He parked his car outside the delivery address and left his lights on; carrying the pizza and his phone, he got out of the car.

5You happened to be outside number 3 Apsley Street; you ran across the road and pushed Mr Singh from behind.  He turned around, and you punched him to the face; he dropped everything and fell onto the nature strip.  You stood over him for a further 50 seconds, punching him and wrestling with him on the ground.

6Then you took out a folding razor blade and said: ‘give me everything you have’. This gives rise to Charge 1, armed robbery.

7Mr Singh gave you $50; you asked for more.  You and Mr Singh went to his car, stood at the driver’s side door and after a time, the two of you returned the nature strip where you had struggled before, and you can be seen searching on the ground.

8You then took Mr Singh back to the car and Mr Singh leaned in through the driver’s side door searching for his wallet.  As he did so, you, holding the razor blade, reached around and slashed his face.  This gives rise to the charge of causing serious injury recklessly.

9You then directed that Mr Singh get into his car.  Mr Singh moved towards you and you retaliated, punching him approximately five times in quick succession until he fell to the ground.

10Finally, Mr Singh got up, got into his car and you got into the rear passenger seat behind him.  You repeated the words ‘get in the fucken car and drive’ several times.  This gives rise to Charge 3, false imprisonment.

11Once driving, you directed Mr Singh where you wanted him to take you; he in fact pulled up in front of Snappy Pizza and Kebab, and ran in for help.  You ran off.

Injury to Mr Singh

12Mr Singh was taken to hospital; a medical report records the following injuries:

(a)   a deep curvilinear incision along the left cheek and jaw line requiring surgery;

(b)   a deep incised wound to the back of the left thumb requiring surgery;

(c)   a right orbital floor depression fracture as a result of at least one impact of blunt force trauma to the right eye;

(d)   a superficial incision to the left palm;

(e)   an open wound to the top of the left ear; and

(f)    bruising and swelling to the right cheek and nose.

13Mr Singh was treated surgically and discharged from hospital the following day.  He was required to wear a thumb splint for five weeks.  His total healing time was expected to be two to three months.  All scarring is expected to be permanent.

Arrest and interview

14Many months later, on 10 March 2023, you were interviewed at Sunshine police station.  In the main, you exercised your right to silence.  You did volunteer that there would be no reason for your DNA to be on Mr Singh’s car or phone and said that you did not recognise Mr Singh.

15You were ultimately remanded into custody on 4 May 2023.

Victim Impact Statement

16Mr Singh filed a victim impact statement.  I also had regard to the photographs of his injury to the face, both before and after treatment.  He will have a permanent curved scar to his face from his ear to the middle of his lower lip.

17Mr Singh writes in his victim impact statement that he has lost the full use of his thumb.  His modest description of the consequences of the attack on him includes him noting that he had ‘not too many hard feelings’, but that what you did makes him uncomfortable around some people, that he feels ‘a bit scared’ to meet new people and cannot work as efficiently as before.  He was required to have two months off work.

18I take the difficulties experienced by Mr Singh including his injuries into account in arriving at your sentence.

Prior criminal history

19Your prior criminal history commences in the Children’s Court in 2014, when you were 15 years old, but I focus for the purposes of this sentence on those matters that were dealt with in the adult court from 2018 onward.

20You have previously been dealt with for crimes of violence against the person: unlawful assault, recklessly causing serious injury (two counts in 2018) and another charge of recklessly causing serious injury in this court in 2020.  I read the sentence of her Honour Judge Lawson from 2020.  Although the injury in that case was less serious in some respects than the one before me, the circumstances are not dissimilar, in that your conduct arose out of a random interaction with someone which was at your instigation and unprovoked, and which escalated into a seriously violent attack by you on another man in a public place.

Nature and gravity

21It was conceded by your counsel that Mr Singh was a ‘soft target’; a pizza delivery man working after midnight, alone, in the suburbs.

22You carried a weapon - a fold-out razor blade.  It was not suggested that you ordered the pizza; this was an opportunistic and random encounter.

23You were under the influence of alcohol and methamphetamine which does not excuse your offending; it provides some context.  You were homeless, couch surfing where you could, angry and intoxicated.

24Your attack on Mr Singh was brutal and sustained and without motive or meaning, insofar as your violence against him well exceeded that which was required for your purpose of obtaining money or property from him.

25Initially, you punched him and attacked him over about 50 seconds.  While he was apparently attempting to comply with the demands you made in the course of the armed robbery, you reached around and drew the razor blade across his face while behind him, causing a deep laceration which ran from the tip of his ear to his lower lip.  When you did this, he was in the process of submitting to your demands, searching for something in the car.  The use of the razor blade was an act of dreadful and purposeless violence.  You then continued your assault of him while his face had a deep, ‘full thickness’ laceration, punching again several times before forcing him into the car to drive you somewhere.

26I regard this as a serious form of armed robbery, by reference to the prolonged physical attack, which constituted the element of force in the armed robbery.  I regard the charge of recklessly causing serious injury as a grave example of that offence by reference to the injury to the face and the use of a weapon, and the lasting scarring.  The false imprisonment was after the infliction of fear and injury.

27That said, I am careful to treat, when it comes to fixing individual sentences, each offence distinctly; you will not be punished twice for the same acts, though I take into account the circumstances of each.  I regard the recklessly causing serious injury to be the most serious of these offences, notwithstanding the higher maximum penalty open on the armed robbery.

28Your moral culpability is illuminated by your previous sentences for violence, including three prior convictions for recklessly causing serious injury.

Personal Circumstances

29You were 23 at the time of your offending; you are now 24.  You were born in Warragul.  You live with your parents, your four older half-sisters, one older brother and one younger brother.

30You are an accepted member of the Gunai Kurnai and Gunjitmara communities.

31Your father was imprisoned after sexually abusing you and your three sisters.  The abuse of you stopped when you were three years old.  Your father died when you were 10.

32You committed acts of self-harm from an early age, sometimes by hitting your head against a wall.

33You went to school in Melton and were diagnosed with an intellectual disability in 2014, when you were 14 or 15.  However, I note that this diagnosis is now regarded as invalid by a more recent neuropsychological assessment, to which I will return.  Your anger problems caused you to move to schooling at an ‘alternative’ school called CALM from Year 8.  You later changed to Braybrook Secondary, but left school before completing Year 9.

34You worked in plastering for a few months after leaving school; you have received disability support payments from an early age.

35You have had endured very significant mental health problems and have made attempts on your own life.

36You first used cannabis at 12, this then became alcohol and methamphetamine use from age 13.  You have had one experience of drug rehabilitation now quite some time ago at the Youth Substance Abuse Service, however, you relapsed shortly after this treatment.  You were a regular user of alcohol and methamphetamine until your most recent remand into custody.

37Your mother’s new partner was a good stepfather to you, however, they later separated and he passed away while you were on remand.

38You were an enthusiastic football player, but could no longer play after you injured your leg while breaking a window.  You have been the victim of a stabbing requiring hospitalisation.

39You have a daughter who I will call K.  Your mother has in the past cared for her; she is now back in the custody of her mother, your former partner.  K was six months old when you were incarcerated at 18 years old.  You have had insufficient stability in your life to have any practical role in your daughter’s life.  You separated from your daughter’s mother in the context of violence committed against her. There has been departmental involvement with your daughter’s care.

40You have rarely had stable housing; you tend to move between friends and family, worrying that you might outstay your welcome.

Matters in mitigation

Pleas of guilty, Worboyes

41You have taken responsibility for your offending.  Your plea is entered early, it has prevented witnesses from having to attend court and be cross examined.  You have saved the community the costs, both human and financial, of conducting a trial.  Moreover, I accept that you plea, despite being finalised at a time when the County Court has declared its return to pre-pandemic delays, came before that fact, and your plea carries with it still an additional and palpable benefit coming as it did, at a time late in the crisis in the administration of justice caused by the pandemic.

Youth

42At 24, you are not young, but you still attract, to a degree, the operation of the principles which attach to youthful offenders.  I will find that your moral culpability is reduced by a combination of factors among which is your relative youth.

43It was sensibly conceded by your counsel that the seriousness of your offending, in the context of a range of serious prior convictions, must temper the application of the principles of sentencing youthful offenders and I do temper the application of the principles of youthfulness in sentencing.  

Psychological material; Verdins submissions, Bugmy v R

44A range of material dealing with your mental health and your neuropsychological profile was tendered on your plea.  I have considered all that material,[4] some of which clarifies and qualifies earlier materials generated in 2014 and 2020.

[4]See Exhibits 2-5 on the plea.

45In the neuropsychological report dated 20 October 2023, authored by Martin Jackson, Mr Jackson concludes that you do not have a neuropsychological condition that could be regarded as a factor contributing to your offending, while also recognising that you do have a severe mental health condition that has a major impact on your day-to-day functioning, and which is highly likely to be related to your offending behaviour.

46Mr Jackson concluded that earlier intellectual testing underestimated your intellectual capacity.  You now present with a normal cognitive profile.  The earlier profile, in the opinion of Ms Mynard, was likely to have been affected as the result of past trauma and the related effect on your ability to concentrate and process information.  Mr Jackson notes that the intellectual profile obtained when you were 13 should now be regarded as not valid. Separately, he found there was no evidence of an acquired brain injury.

47Across two reports authored by Alison Mynard, clinical psychologist, in 2020 and in 2023, Ms Mynard arrives at a diagnosis of complex PTSD rooted in severe childhood trauma, among other serious conditions.[5] Ms Mynard’s opinion is that at the time of the offending, you suffered from alcoholism disorder, noting that you would drink first thing in the morning, drinking bourbon, at least a litre a day.  You found that alcohol ‘took the edge off’ your low mood and your anxiety.  You also report experiencing overwhelming emotions when alcohol affected.

[5]Complex Trauma Disorder, Generalised Anxiety Disorder (with panic attacks), Social Anxiety Disorder, Persistent Depressive Disorder, Borderline Personality Disorder. He has also been diagnosed with Drug Induced Psychosis, Stimulant, Alcohol and Cannabis Use Disorder (in remission whilst in custody). See Psychological Report of Alison Mynard dated 29 September 2023 and 25 October 2023, 10 [38] (‘Mynard Report 2023’).

48Ms Mynard concludes by setting out diagnoses in full at paragraph 38 of her 2023 report.  I accept Ms Mynard’s opinion that your impaired mental functioning results in a higher burden upon you in custody.  Ms Mynard writes that your social anxiety, depression, general anxiety and your history of trauma, combined with the lack of control you have over your environment in custody, causes you to feel more helpless and more hopeless.[6]

[6]Mynard Report 2023, 12 [51].

49Ms Mynard also expresses her opinion that you require ‘targeted individual treatment for [your] mental illness in a safe environment in the community, otherwise the risk of long-term deterioration in [your] functioning will be significantly increased'.[7]

[7]Ibid.

50Ultimately, it was submitted that Verdins[8] principles apply in your case to reduce your moral culpability (on account of your past history or serious trauma and deprivation), moderates the role for general deterrence, creates an additional burden of imprisonment, and puts at risk your mental health.  I accept that the Verdins principles are engaged in this way, on each limb and serve to mitigate, significantly your sentence for this offending.

[8]R v Verdins (2007) 16 VR 277 (‘Verdins’).

51Pausing there, it is difficult in your case to fully extricate your mental health issues from the social difficulties you have endured since early childhood and which have continued to prevent you from getting consistent, supported, culturally appropriate treatment for your manifest difficulties, many of which were visited on you from your earliest childhood days and arise out of severe disadvantage.

52Your infancy and childhood were deeply traumatic defined by, but not limited to, the fact you were put in enormous danger from the person who should have been your protector.  Yours was profound childhood deprivation, and either caused or was compounded by other difficulties in your life.  In your most tender years, you were traumatised, subjected to sexual violence, homelessness, and a possible misdiagnosis with intellectual disability because testing could not accommodate the difficulties you had manifest for other reasons.  

53In this way, the principles articulated in the case of Bugmy v R[9] are brought to bear in your case; I find that the structural and cultural disadvantages you have endured, directly relate to your moral culpability for this offending.  I note, among other things, your rage and substance abuse, the one fuelling the other, and both operating on you at the time.  I give the Bugmy principles full weight in mitigating your moral culpability.  It is also true that your drug and alcohol use caused and compounded by your other difficulties creates a more complex picture for the assessment of moral culpability - however, in your case, I find that your drug and alcohol use is deeply connected with your mental health problems and social disadvantage.

[9](2013) 247 CLR 571.

54The effects of your childhood trauma do not diminish over time, and I apply the principle of reduction of your moral culpability.  However, I am also aware that such a finding, can, and must in your case, lead to an increased role in this sentence for the protection of the community.

Koori Court sentencing participation

55You are a proud Gunai Kurnai and Gunjitmara man.  You participated in the Koori Court sentencing process.  For you, this was the second time you have sat at the table and heard from the Elders in your community.

56I listened while Uncle Rod Jackson spoke to you; your mother sat beside you.  Also in court was your sister and a baby niece.  Your family are clearly steady, and affectionate and loyal.

57

I observed that the process was one that was very difficult for you.  I have no doubt that a conventional hearing process, with you keeping silence behind your lawyer, would have been easier.  Instead, you brought yourself to the sentencing table. You appeared to me to be an angry and vigilant young man.  Little wonder this is so, given what you experienced as a very young person, and subsequently.  You spoke of only rarely having experienced living in a stable domestic environment. By participating in the County Koori Court sentencing process, you were, in a personal way, exposed and vulnerable.  I observed your struggle with your participation at the table, which sometimes seemed unbearable for you.  

Ms Mynard’s report informed my perception of your presentation in that hearing.[10]

[10]Psychologist Report of Alison Mynard dated 13 August 2020, 7.

58I take into account your participation in that challenging process and apply it in mitigation of your sentence.[11]

[11]Honeysett v The Queen [2018] VSCA 214.

Prospects of rehabilitation

59

As Ms Mynard notes, a safe place to live is a basic necessity before a person can confront mental health and other problems.  NDIS support is now available to you and funded housing I understand would also be available to you in future.

Ms Mynard writes ‘with targeted psychological and treatment for your mental health issues, specifically your early traumas', she opines that your risk of relapsing into substance abuse and reoffending would reduce.

60I note that you now have a more positive relationship developing with your mother than the one you have experienced in the past and this is a supportive feature of your potential rehabilitation.  You should no more consider yourself limited by an earlier diagnosis of intellectual disability. You have a family, physical health, affection for your daughter, and, when you are ready to accept help to recover from your past trauma, you will have it.  I have taken into account the wise words of Tyrone Dow in his letter from the Yudaki Support Services.  He is a family member and advocates your return to country to heal.  His words are simple and wise and it is helpful to know that you have the quality of this support in future and I have also taken into account the letter of Ms Delta Brookes, the Wellways letter.  There is support available for you in the future.

61At this point, I must assess your prospects of rehabilitation as guarded, but by no means hopeless.  You are still a young person with much of your life ahead of you.

Purposes of sentence

62While I have found that features of your situation reduce the role for general deterrence, it is not completely eliminated as a feature of this sentence.  General deterrence is always an important sentencing consideration in offences of violence. There is a significant role for specific deterrence.  Mr Dow, the sentences keep getting longer until you stop and in your case, this means accepting help with your anger, and with the alcohol and drug use that both medicates it and fuels it.

63You must be justly punished for what you did; through this sentence, the court denounces any violent attack on an ordinary person going about their difficult job; in this case Mr Singh, delivering pizza after midnight.

64There are three serious offences which overlap to a degree in time and culpability.  I will not subject you to double punishment; I apply the principle of totality to arrive at a just sentence overall, by making appropriate orders for cumulation and concurrency.

Sentencing Submissions

65Your counsel submitted that a term of imprisonment with a longer than normal non-parole period is the appropriate sentence to address and mitigate the risk of reoffending and allow for treatment structures to be constructed for you on your conditional release.

66The prosecution submitted that a sentence with a non-parole period was the only available one.

67I have thought carefully about this sentence, which is particularly difficult to impose – to do justice by both properly recognising the mitigating features of your  background, while giving proper weight to the roles of community protection, specific and general deterrence.  Fundamentally, I must resolve the best I can, the tension between the great seriousness of your offending and the mitigating features of the wretched, enduring disadvantage you have had to absorb.

Disposition

68On Charge 1, armed robbery, you are convicted and sentenced to four years’ imprisonment.

69On Charge 2, recklessly causing serious injury, you are convicted and sentenced to five years imprisonment.

70On Charge 3, false imprisonment, you are convicted and sentenced to two years imprisonment. 

71I make the following orders for cumulation.  Charge 2 will be the base sentence.  I direct that twelve months of the sentence on Charge 1 and six months of the sentence on Charge 3 will be served cumulatively upon each other and upon the sentence on Charge 2, resulting in a total effective sentence of six years and six months’ imprisonment.

72I fix a minimum non-parole period of three years and 11 months.  This I note is a sentencing structure which gives additional regard to a period of lengthy conditional release on parole.  Your preparation for that release on parole Mr Dow can start now.

S 6AAA

73Pursuant to s 6AAA, I declare that had you been found guilty and not pleaded guilty, I would have imposed a sentence of eight years and six months, with a non-parole period of five years and one month.

S 18 Presentence Detention

74I declare that pursuant to s18 of the Sentencing Act, you have already served 217 days not including today as already served under this sentence.  Mr Sharp, have I missed any orders?

75MR SHARP:  No, Your Honour.

76HER HONOUR:  All right.  Ms Byrt, I have sentenced your client and I note that he has had significant mental health problems in the past.  What I intend to do is to endorse this order with the court's request for Mr Dow to be given mental health support today.

77MS BYRT:  Thank you, Your Honour.

78HER HONOUR:  And what I will do is adjourn, but we have the link for a little longer if you want time to explain the sentence to Mr Dow.

79MS BYRT:  That will be great.  Thank you so much.

80HER HONOUR:  Thank you for your assistance counsel.

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