Director of Public Prosecutions v Dryden
[2021] VCC 149
•18 February 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CR-19-01269
Indictment No: J12929752.1
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MICHAEL ROGER DRYDEN |
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JUDGE: | HIS HONOUR JUDGE GEORGIOU | |
WHERE HELD: | Melbourne | |
DATE OF PLEA HEARING: | 5 February 2021 | |
DATE OF SENTENCE: | 18 February 2021 | |
CASE MAY BE CITED AS: | DPP v Dryden | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 149 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Attempted robbery - prohibited person use firearm - criminal damage – unlicensed person store cartridge ammunition in an insecure manner - methylamphetamine abuse – steps towards rehabilitation – criminal history - pre-sentence detention.
Legislation Cited: Crimes Act 1958 ss 75A, 197(1) & 321M
Firearms Act 1996 ss 5(1) & 129A
Cases Cited:
Sentence: Pre-sentence detention of 517 days with 12 month Community Corrections Order with conditions.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr J Goetz | Solicitor for the Office of Public Prosecutions |
| For the Offender | Mr W Barker | Theo Magazis & Associates |
HIS HONOUR:
1 Michael Roger Dryden, you have pleaded guilty to charges of attempted robbery; being a prohibited person using a firearm; criminal damage; and being an unlicensed person storing cartridge ammunition in an insecure manner.
2 The circumstances of your offending are set out in the Summary of Prosecution Opening at Plea, marked Exhibit P1.
3 In short, on 6 November 2018, at approximately 1.00 pm, you attended at the property of Andrew Bayly in Rushworth. You had known Mr Bayly for several months, having met him through a mutual friend. You had been to his property on several occasions before and, according to you, at times you and he together used methylamphetamine.
4 On this occasion you asked Mr Bayly if he would sell you some "gear", referring to methylamphetamine. Mr Bayly told you that he did not sell drugs and so he refused your request.
5
On 7 November 2018, at approximately 1.10 am, Mr Bayly was at home with his friend, Craig Floody. They had just left the main house and were entering the shed to use the internet and listen to music. Before entering the shed,
Mr Bayly heard a car approaching on his driveway. He walked outside the shed to see whose car it was. Mr Floody remained inside the shed.
6 You were driving the car and pulled up near the shed. You got out of the car and stood next to it.
7
As it was dark, Mr Bayly asked, "Who's there?", to which you replied,
"It's Mick". Mr Bayly recognised your voice. You then said, "Don't take me as a fool". Your voice was angry and agitated. You continued, "Don't fuck me around" and then demanded that he give you all his drugs and money. This demand, in the circumstances just described, forms the basis of the attempted robbery charge.
8 Mr Bayly then said words to the effect of, "What are you talking about Mick, let's talk about this, just relax don't worry". He then turned around and ran towards the shed door as he did not know what you might next do.
9 Within a second of Mr Bayly turning and running towards the shed door, he heard a gunshot. He believed that the gunshot went into the air as he did not hear anything being hit. The discharge of the firearm, and the fact that you were a prohibited person as defined in the Firearms Act 1996, forms part of the basis of Charge 2.
10 From within the shed, Mr Bayly called out, "You better fuck off 'cause the cops are coming". He then heard the car door close and the car drive away.
You drove back down the driveway and stopped near the front gate. A CCTV camera was mounted on a tree near that gate. It wasn’t operating. You fired a second shot towards the camera. This second discharge of your firearm also forms the basis for Charge 2. You then drove away.
11 Following the incident, Mr Bayly called 000 to report what had occurred.
12 You then drove to another property at Flowerdale occupied by Troy Burns.
Mr Burns was at the property and following an argument with him, you threw rocks at his window, breaking it. This forms the basis of the criminal damage charge.
13 Police attended at Mr Bayly's property. The tree on which the CCTV camera was mounted had damage consistent with firearm discharge. Located near the tree was a fired shotgun wad and shotgun pellets.
14 At approximately 2.48 pm on 8 November 2018, police were driving to your home at Yambuna. As they were arriving, they saw a green Toyota being driven by your then partner, Kirsten McVeigh. You were in the front passenger seat of that car. Ms McVeigh drove northwest along Scobie Road towards the intersection with Curr Road. She stopped the car for a short time on the side of the road near this intersection. Police did not then intercept you and Ms McVeigh.
15 You were arrested at 7.50 pm on 8 November 2018. You were interviewed and stated you had been at Mr Bayly's property but that had been much earlier in the evening.
16 On 10 November 2018 at 11.15 am, police attended the location where they had seen the car stop two days earlier. They searched the area and found various items, including shotgun cartridges, and rounds of ammunition inside a tree stump. This forms the basis of the fourth charge on the Indictment. The green Toyota was seized and examined. A ballistics expert found that the car was positive for the presence of gunshot residue.
Maximum penalties
17
The offence of attempted robbery carries a maximum penalty of
10 years' imprisonment.
18 The offence of prohibited person using a firearm carries a maximum penalty of 10 years' imprisonment.
19 The offence of criminal damage carries a maximum penalty of 10 years' imprisonment.
20 The offence of unlicensed person storing cartridge ammunition in an insecure manner carries a maximum penalty of 4 years' imprisonment.
Prior convictions
21 You have a lengthy record of criminal offending. It extends for some 17 pages commencing on 17 November 2011 and continues to 7 February 2018. During that period you had 11 separate court appearances. You have convictions for theft, assault in company, criminal damage, extortion with threat to kill, possession of controlled weapons without excuse, possession of cartridge ammunition without licence, trafficking in methylamphetamine, assault with weapon, being a prohibited person using a firearm, to name but some of your offending. You have also breached a number of court imposed orders, including Community Correction Orders. The offences to which you have pleaded guilty before me breach of a 12 month Community Correction Order imposed on 7 February 2018. I am told that breach proceedings are listed in March of this year and it is your intention to plead guilty.
Victim Impact Statement
22
A Victim Impact Statement of Mr Craig Floody was tendered and marked Exhibit P2. There are no Victim Impact Statements from Mr Bayly or
Mr Burns. It is apparent that your conduct has had an impact on Mr Floody, causing him a number of psychological reactions to what must have been a very frightening event. Your offending has impacted on Mr Floody's ability to enjoy and participate in social activities and interests such as kayaking.
He states that he now rarely leaves his house other than for medical reasons directly as a result of your conduct.
Personal circumstances
23 You were born in Healesville and you are now 31 years of age.
24 You lived with both your parents until they separated when you were seven years of age. From the age of seven, you lived variously with one or the other parent until the age of 16, when you found your own accommodation.
25 Your mother worked in the hospitality industry. She passed away four years ago from cancer. You appear to have had a very good relationship with her.
26 Your father worked in the abattoir industry. He lives in Healesville and you see him approximately two times per week. Your father also has a history of criminal offending.
27 You are the second oldest of five children. Your siblings are all employed, and you maintain contact with each of them.
28 You have two children from different relationships. Your son is aged eight and lives with his mother. Your daughter is aged four and lives with her mother.
29 You maintain regular contact with your children and their mothers. You have a good relationship with both your former partners and you were able to secure them accommodation on the property, Glenburn, which you now manage. This is a matter very much to your credit.
30 You completed Year 10 at Alexandra Secondary College. You left school at the age of 16 and commenced work with a rural fencing company, which you did for three years. Thereafter you obtained work with another employer doing bricklaying, asphalt installation, and landscaping. You worked for that employer for approximately four years. You then started your own company sourcing, cutting, and selling firewood. You started doing this work as a means to earn extra money but you eventually built a client base large enough for you to work on a full-time basis.
31 It is your intention, once you are sentenced and no longer subject to bail conditions, to live at Glenburn and continue your work as its manager.
32 Following your arrest for the offences before me you were remanded in custody. You were eventually bailed on 7 April 2020. It was submitted by your counsel, Mr Barker, that there has been a significant change in your attitude over at least the last 10 months. You instructed him that upon your release you initially returned to your former peer group, but that after approximately one week you realised that there was a risk of you relapsing into drug use and bad habits. You did not want that to happen and so you contacted a person you had known for a number of years, Mr Donald Worcester, and asked for his help to put your life back on track. Mr Worcester gave you work on Glenburn, on which there were a number of run-down, vacant houses. You set to work renovating those houses, cleaning the property, as well as doing general landscape and gardening work. Those houses are now rented out to others, including your two former partners. You have, as earlier mentioned, become a manager of the property and you are also involved in operating Mr Worcester's earthmoving machinery and operating your own firewood business.
33 Managing Glenburn provides you with the opportunity to see your children on a regular basis, and contribute financially to their care.
34 You have reconnected with your mother's family from whom you had been estranged due to your drug use and offending lifestyle. You are in regular contact with a number of those relatives, including seeing them on a regular basis.
35 Mr Barker conceded that your offending, occurring as it did in the early hours of the morning at residential premises, was undoubtedly a frightening experience for each of your victims. He submitted, however, that your offending was unsophisticated and that you made no attempt to conceal your identity. You even identified yourself as "Mick" to Mr Bayly. Although it was submitted by Mr Barker that you had obtained drugs from Mr Bayly in the past, I am not prepared to accept that without evidence. Furthermore, it is not relevant to your offending on this occasion.
36 Mr Barker submitted that your offending in respect to each offence occurred over a short time-frame and that no one was injured as a result of your actions.
37 He relied principally upon what he submitted were your significant steps towards your rehabilitation since being bailed on 7 April 2020. In short, he submitted that you have reconnected with pro‑social peers, have been in steady employment, and have been drug-free. You have not been charged with any further offences.
38 A number of character references were tendered on your behalf.
39 Your maternal grandmother, Joan Gilligan, confirmed your reconnection with your mother's family. She stated that you being removed from the drug scene has been a huge bonus. In addition to your work and care for your children, your grandmother wrote about your interest in painting and the fact that you have sold some of your art works since your release. She also talked about your commitment to improving your fitness by running 10 kms each day.
40 Your uncle, Mr John Anchen, in his reference, spoke of similar matters to that which your grandmother mentioned. In addition, he referred to the time you and he spend together riding trail-bikes. Mr Anchen stated that he enjoys seeing you happy and clear-minded, and considers that there has been a change in your attitude.
41 References were also tendered from Barbara Hauser, Mr Anchen's wife, and your former partner, Kirsten McVeigh. They both speak positively of you and your efforts towards your own rehabilitation. A reference from Donald Worcester was also tendered. Of particular importance is Mr Worcester's opinion that since your release from gaol you have shown great changes in your behaviour and work ethic. He confirmed your employment and involvement in the wood-supply business, and stated that you have shown signs of putting your past behind you and are looking forward to the future.
Conclusion
42 Mr Barker rightly accepted that there was no excuse for your behaviour. He described your conduct on this occasion as being, "very stupid". I agree. However, not only was it very stupid but it was also serious criminal conduct. The fact that you were using methylamphetamine at the time does not excuse or mitigate your conduct.
43 One of the factors I must take into account in sentencing is the nature and gravity of your offending. Your behaviour in respect to the attempted robbery and the criminal damage was threatening and menacing. It was undoubtedly frightening to each of your victims, particularly as it occurred in the dark, small hours of the morning. The discharge of the firearm on two occasions significantly added to that fear. Your conduct highlights the dangers of methylamphetamine abuse. Such conduct must be strongly denounced by the courts.
44 I have regard also to the fact that the offence of being a prohibited person discharging a firearm is a rolled-up charge constituted by two separate incidents occurring within a short period of time of each other. I was not told why you placed the ammunition in the tree stump and can only surmise that you did not want to be found with it after committing the other offences.
45 The victims of your offending at Rushworth did not know what you would ultimately do with the firearm. As is evident from Mr Floody's victim impact statement, your criminal conduct has had a significant effect upon him.
46 The sentence to be imposed must give primary effect to the principle of general deterrence. That is, others must understand that if they engage in similar behaviour they will be met with stern punishment. Given your history of criminal offending, the sentence to be imposed must also be designed to deter you from any further offending.
47 You have pleaded guilty to the offences and I accept that your offer to plead guilty to the charges before the court was made at an early time, given the final negotiated settlement. You are entitled to a reduction in penalty by reason of your pleas of guilty, which have spared witnesses from the need to give evidence and which have saved the court and community the time and expense of a criminal trial. Your pleas of guilty are also an indicator of remorse and an acceptance by you of responsibility for your conduct.
48 I am also required to have regard to your prospects for rehabilitation. You appear to have commenced on the path towards your rehabilitation. The signs are encouraging but, given your lengthy criminal history and problems with drug use, you still have a long way to go. I am prepared to accept that your efforts over the last 10 months suggest that you have fair prospects of rehabilitation. You now have every opportunity to rehabilitate. You are still relatively young, you have employment and a good supportive network of family and friends. Your care for your children and reconnection with your mother's family should give you every incentive to continue with those efforts.
49 You have served 517 days by way of pre-sentence detention. You have also been on onerous bail conditions since your release. Those conditions include a curfew operating from 9 pm to 6 am each day and a requirement that you not leave Victoria. There is no suggestion that you have breached your bail and, in my opinion, there has been a further deprivation of your liberty by reason of those conditions. I will take your compliance with your bail conditions as a further factor weighing in favour of mitigation.
50 I have also had regard, insofar as it is possible, to current sentencing practice. Given the myriad ways in which these offences may be committed, no case is on all fours with your case. The review of current sentences has been of some assistance.
51 You have been assessed for a Community Correction Order. In the assessment you acknowledged that your compliance with previous orders was poor. You sought to excuse your poor compliance on factors such as substance abuse, your mother's passing in 2016, and your commitment to your own work. I do not consider that any of those factors justify the past breaches. If there were any legitimate issues preventing you from complying with the order, the proper step should have been to raise this with your Corrections officer and or your lawyers. Despite your poor performance on such orders in the past, you have been assessed as suitable for placement on an order. Given that you have already spent significant time in custody, and given your efforts at rehabilitation, I am prepared to give you an opportunity to be placed on a Correction order should you agree.
52 In my opinion, having regard to all of the circumstances, I propose to sentence you to an aggregate term of imprisonment of 517 days. I consider that an aggregate term is appropriate given that your offending occurred over a short period of time and forms a series of events of a similar character.
53 I also propose to place you on a 12 month Community Correction Order. In determining the length of the order I have had regard to the time you have already served in gaol. I also do not propose to direct any community work given that time served.
54 The order proposed will be as follows, and I will ask you Mr Dryden to listen carefully to the conditions, because before I can place you on an order, you must agree to entering onto the order.
55 ACCUSED: I agree.
56
HIS HONOUR: You might want to wait until I have read out the conditions,
Mr Dryden. The order will last for 12 months and commences on 15 February 2021 and ends on 14 February 2022. The mandatory terms that apply to all Community Corrections Orders and which will apply to you are as follows:
· You must not commit another offence for which you could be imprisoned during the time that the order is in force;
·
You must comply with any obligation or requirement prescribed by regulation 17 of the Sentencing Regulations 2011. That means,
Mr Dryden, that you must not attend at the Community Corrections Office either intoxicated by way of alcohol or drugs;
· You must report to and receive visits from the Secretary (or his or her delegate);
·
You must report to the Lilydale Community Correctional Services at
23-39 John Street, Lilydale, Victoria by telephone within two clear working days after the commencement of this order;
· You must let a Community Corrections Officer know within two clear working days of you changing your address or job;
· You must not leave Victoria without first getting permission to do so from the Secretary (or his or her delegate);
· You must obey all lawful instructions from and directions of the Secretary (or his or her delegate).
57 In addition to the mandatory conditions, I intend also to impose the following conditions:
· You must be under the supervision of a Community Corrections Officer for a period of 12 months;
· You must undergo assessment and treatment (including testing) for drug abuse or dependency as directed by the Regional Manager;
· You must undergo assessment and treatment (including testing) for alcohol abuse or dependency as directed by the Regional Manager;
·
You must reappear at this court for a review of your compliance with the order as directed by the court. I propose that you attend for review on 16 July 2021 at 9.30 am. This may be done by way of video link,
Mr Dryden.
58
The Community Correction Order will attach to each of the charges to which you have pleaded guilty. I should warn you also, Mr Dryden, that should you breach any of the terms of the order, then you may be charged with a criminal offence, and brought before this court for sentencing on the charge and also
re-sentencing on the charges that are currently before me.
59 Do you understand each of those conditions.
60 OFFENDER: Yes, I do.
61 HIS HONOUR: Do you consent to being placed on a Community Correction Order.
62 OFFENDER: Yes.
63 HIS HONOUR: All right. Now, I also declare pursuant to s.18 of the Sentencing Act, that the period to be reckoned as already served on the sentence as 517 days.
64 Pursuant to s.6AAA of the Sentencing Act, Mr Dryden, had you not pleaded guilty to the charges before me, and been found guilty of those charges, the sentence I would otherwise have imposed is one of two years and eight months' imprisonment, with a non-parole period of 24 months.
65 That completes the sentencing, Mr Goetz. Are there any other matters, to which I need to attend.
66 MR GOETZ: Two matters, Your Honour. Firstly, Your Honour sentenced him in relation to attempted robbery, but when you were summarising the maximum penalties appropriate, you referred to attempted armed robbery. So, if that could be amended in Your Honour's - - -
67 HIS HONOUR: I did read out the correct maximum penalty, did I.
68 MR GOETZ: No. You did not. Attempted robbery has a maximum penalty of 10 years. So, if that could be amended. Further, I foreshadowed on a previous occasion a forfeiture order in relation to the ammunition. My instructor has sent the order through to Your Honour's associate. If that could be signed at the appropriate time.
69 HIS HONOUR: Yes, I will do that. Mr Barker, any difficulty with that.
70 MR BARKER: No, Your Honour. There is no issues in terms of that forfeiture order. The only thing I just also seek to clarify, is in relation to the judicial monitoring. Does Your Honour seek that Mr Dryden be legally represented on that day.
71 HIS HONOUR: That is not necessary, Mr Barker. If Mr Dryden wishes to be, then that is a matter for him. But I do not require it. I will correct my sentencing remarks to reflect that Mr Dryden pleaded guilty to a charge of attempted robbery and not attempted armed robbery, and that the maximum penalty is 10 years. That is how I understood the charges when Mr Dryden pleaded guilty to them. It does not change at all, the sentence I intended to impose on Mr Dryden.
72 MR BARKER: Yes, Your Honour. I understand that.
73 MR GOETZ: Thank you, Your Honour.
74 MR BARKER: Just in terms of a practicality, Your Honour. Given that counsel is not present and they are required to merits advice, if Your Honour could provide a copy of the sentencing remarks when Your Honour's had a chance to finalise them.
75 HIS HONOUR: Yes. I will do that. That will be done, Mr Barker.
76 MR BARKER: Thank you, Your Honour.
77 HIS HONOUR: All right. Are there any other matters.
78 MR GOETZ: No, Your Honour.
79 HIS HONOUR: All right.
80 MR BARKER: No, Your Honour.
81 HIS HONOUR: Well, thank you once again for your assistance, and I will now adjourn the court.
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