Director of Public Prosecutions v Dwyer

[2022] VCC 936

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-21-02377

DIRECTOR OF PUBLIC PROSECUTIONS

v

ETHAN DWYER

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JUDGE:	HIS HONOUR JUDGE PILLAY
WHERE HELD:	Melbourne
DATE OF HEARING:	2 June 2022
DATE OF SENTENCE:	20 June 2022
CASE MAY BE CITED AS:	DPP v Dwyer
MEDIUM NEUTRAL CITATION:	[2022] VCC 936

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW SENTENCE

Catchwords:              Sentencing – Causing injury recklessly – Resist emergency worker on duty – Bugmy principles applied – Young offender – Verdins principles considered – Disadvantage background

Legislation Cited:      Crimes Act 1958 (Vic); Sentencing Act 1991 (Vic)

Cases Cited:Bugmy v The Queen (2013) 249 CLR 571; R v Verdins (2007) 16 VR 269

Sentence:                  1 year and 2 months imprisonment with a non-parole period of 8 months

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APPEARANCES:	Counsel	Solicitors
For the DPP	Solicitor for Office of Public Prosecutions Victoria Gemma Overend, Solicitor Advocate, Office of Public Prosecutions Victoria
For the Accused	Mr C. Brydon	Chester Metcalfe & Co

HIS HONOUR:

1Ethan Dwyer, to Indictment No M11510030, you have pleaded guilty to 2 charges.

(1) Causing injury recklessly where the victim was a custodial officer on duty contrary to s18 of the Crimes Act 1958. Pursuant to s5(2GA) of the Sentencing Act 1991, you must be sentenced to a minimum term of 6 months. It is accepted that no special reasons exist which can reduce this minimum term. The maximum penalty for this offence is 5 years’ imprisonment.

(2) You have also pleaded guilty to 1 charge of resisting emergency worker on duty contrary to s31(1)(b) of the Crimes Act 1958. The maximum penalty for this offence is 5 years’ imprisonment.

Circumstances of offending

2The circumstances of the offending are set out in the summary of prosecution opening tendered at the plea hearing. You accepted the summary. The summary records the circumstances of the offending in the following terms:

“On 24 March 2021, at approximately 3:00pm, prison officer Paul Sarapuu observed Dwyer out of his cell and looking into other prisoner’s cells. Sarapuu directed Dwyer to stop and return to his cell.

Dwyer began to argue with Sarapuu. He bent over, fixed his shoes, stood up and said words to the effect, ‘I'm going to fucking go you. I'm not going in.’

Sarapuu called for assistance through his security radio.

Dwyer kicked a nearby meal tray on to the floor.

Serapuu attempted to restrain Dwyer. Dwyer then punched Sarapuu in the left side of his head, causing a cut. (Charge 1: Causing injury recklessly)

Other prison officers arrived to assist and restrained Dwyer. Dwyer  resisted by keep his arms under his body and refused to move them onto his back as directed. ( Charge 2: Resist emergency worker on duty). While attempting to restrain Dwyer, prison officer Anthony Dzioba sustained an injury to his left hand.

Dwyer was then returned to his cell by prison officers.

After the incident, Sarapuu had blood running down his face. Sarapuu and Dzioba were both transported to St Vincent’s Hospital for treatment. Sarapuu’s cut to his head was cleaned and glued shut. It was found that Dzioba had suffered a broken hand. Both were discharged from hospital that same day.”[1]

[1]        Exhibit P1 – Summary of Prosecution Opening, at paragraph [2]-[9]

3Victim impact statements have been received by the Court from both Mr Paul Sarapuu and Mr Anthony Dzioba. Both statements were read at the plea hearing.

Relevant background

4Now turning to your background Mr Dwyer. You were born in November 1993 and was aged 27 at the time of this offending. You are 28 years old now. You were born in Preston. You are an Aboriginal Palawa man. I mention this fact because issues related to Bugmy were argued before me. You are the youngest of six children. You were removed from the care of your family as an infant and then again at the age of 6. During the times away from your family you were in foster care and were relocated numerous times. You were also abused during this period.

5You had academic difficulties identified in early high school and was diagnosis with  ADHD. You left school in Grade 8. You began using drugs and alcohol at around this age. You used heroin, cannabis and ecstasy in your teenage years. At around 18 you began using methamphetamine and have used this constantly since 2011 with ongoing occasional cannabis use.

6At age 18 or so, you became known to the law for burglary and theft offences. You were first convicted in 2009. In 2012 you were incarcerated for 9 months for burglary and other offences.. Regular stints of imprisonment followed. Of most relevance in 2018 you served 14 months for burglary, recklessly causing injury and assault of an emergency worker. A CCO was also imposed. You breached this order. In 2020 you were sentenced to 222 days and also placed on a CCO for assaulting and resisting police. You breached that CCO. In March 2021, you were caught shoplifting. You were stopped by a security guard and slashed him with a box cutter knife. You were remanded. Some 10 days later while on remand these offences occurred. On 18 November 2021, you were sentenced to 10 months’ imprisonment in respect of that shoplifting and slashing of the security guard offence. That sentence expired on 6 January 2022. Since then, you have been on remand awaiting sentencing in respect of this offending.

7In terms of work and qualifications, you have managed to complete Year 10 while in YTC and have a few trade certificates. You last worked at the age of 17 to 18 years of age. You have been on Centrelink predominately since that time.

Sentencing assessment

8Now turning to the sentencing assessment in your particular circumstances. It is accepted that the principles enunciated in Bugmy apply, particularly that such principles sensibly moderate general deterrence as a sentencing consideration. I do not consider that you are a person though which general deterrence should be expressed. I do not consider, despite the debate had over the application of the  Verdins principles, that much more need be said. Your background is littered with abuse, disadvantage both specific and inter-generational, and the mitigatory impact of this remains. The psychological report of Ms Gina Cidoni and a neuropsychological report of Ms Rachel O’Meara assist in giving specific insight to your mental state. However, as is made clear in Verdins, at paragraph 8 it is not the labelling of the condition that is important, but rather the nature, extent and effect of the mental impairment.[2] I find that you suffer from a depressive disorder with a stimulant abuse disorder which causes a level of executive dysfunction. I accept that this all leads to a moderation of general deterrence.

[2]          R v Verdins (2007) 16 VR 269 at [8]

9Specific deterrence, however, has a very significant role because of the continued violent behaviour against custodial and police officers. This is the third such instance of this offending and it occurred while on remand for slashing a security guard. Such offending is repeat behaviour and in context when CCOs were ordered, they were breached. This is a concerning pattern of behaviour. Allied with this is that the protection of the community must be considered a very important factor.  Here the victims were custodial workers, police or security guards. All were workers going about their normal daily job tasks. I emphasise that the Court is very concerned by the fact that workers, going about their ordinary working lives have been attacked. The community does not tolerate such violence and I consider your behaviour warrants denunciation in strong terms.

Rehabilitation

10For a young offender, which I consider you are, this should be a primary factor. But in this case, you have had one stint at Wulgunggo Ngalu which ended due to Covid. This was unfortunate, but the fact is you admitted to using drugs during this time. This undermines one of the core principles of that program, which is to respect the process that you were involved with. In the end, the treatment program was not successful.

11Other than that, no material was put as to your prospects for rehabilitation, save that the sentence imposed should not “crush you”. I consider this to be a tragic outcome for a young man.

12

I am mindful of the totality principle and your counsel stressed that this loomed large. You have been in custody since March 2021. You were sentenced on

18 November 2021 for the slashing of the security guard offending. But you have now lost the opportunity for concurrency of that sentence with the sentence I am about to impose.

13I have struggled to balance the factors in your case because I consider they present a very difficult set of circumstances, because of your disadvantage background. But balanced against that your repeat offending against people who are custodial or police workers. Also of great relevance is your young age. However, I do note your poor prospects of rehabilitation and also the fact that specific deterrence must be a factor in your sentencing. I bear all these factors in mind, and I have had regard to the totality principle as your counsel put so well at plea. Having regard to all those matters I sentence you as follows.

14On Charge 1, I sentence you to a term of imprisonment of 9 months. On
Charge 2, I sentence you to a term of imprisonment of 5 months. These sentences are to be served cumulatively as a total sentence of 14 months.

15I impose a non‑parole period of 8 months. Your Counsel on plea argued against such a non-parole period but no other rehabilitation suggestions were forthcoming. I have imposed one given your repeat offending, poor rehabilitation prospects and young age. The imposition of parole does provide for some very limited ongoing monitoring and support, assuming you are paroled of course. I sincerely do hope Mr Dwyer that you take up the opportunities that the parole system may offer to you. Parole should provide some structure and potentially a way to link you to housing and other supports in the community. I do not consider that a straight sentence would have offered even this very modest support.

16I have accounted for your early guilty plea and the fact of incarceration during the pandemic being more onerous than otherwise.[3] You are entitled to substantial discounts as a result of these factors. If not for these factors, I would have imposed a sentence in the following terms:

Charge 1 – 14 months

Charge 2 – 7 months

making a total head sentence of 21 months, if the sentences were served cumulatively with a non‑parole period of 12 months.

[3]Worboyes v The Queen [2021] VSCA 169, at [35]-[39]

17I otherwise declare 164 days of pre‑sentence detention.

18

That concludes my sentencing remarks. Is there anything you wish to say

Ms Fleming?

19MS FLEMING: No thank you, Your Honour.

20HIS HONOUR: Mr Brydon?

21MR BRYDON: No thank you, Your Honour.

22HIS HONOUR: Thank you. Obviously Mr Brydon we can’t leave you on this link to communicate with your client I take it so, you might have to get on the phone to him.

23MY BRYDON: Yes Your Honour I will.

24HIS HONOUR: Thank you, otherwise we will adjourn the court until 10am tomorrow morning please.

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