Director of Public Prosecutions v Dyer

[2022] VCC 851

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-21-02023

DIRECTOR OF PUBLIC PROSECUTIONS

v

GEORGE DYER

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JUDGE:	HER HONOUR JUDGE HASSAN
WHERE HELD:	Melbourne
DATE OF HEARING:	9 May 2022
DATE OF SENTENCE:	7 June 2022
CASE MAY BE CITED AS:	DPP v Dyer
MEDIUM NEUTRAL CITATION:	[2022] VCC 851

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords:              Sentence — aggravated carjacking — conduct endangering life — learner driver use mobile phone — plea of guilty — full admissions — — vulnerable victim — intoxication — early plea — COVID-19 — remorse — difficult childhood — disadvantaged childhood — childhood abuse — alcohol abuse — post-traumatic stress disorder — generalised anxiety disorder — bipolar disorder — category 1 offence — special reason — substantial and compelling circumstances — category A serious youth offence — exceptional circumstances — youth justice order — community correction order

Legislation Cited:      Sentencing Act 1991 (Vic)

Cases Cited:Bugmy v The Queen (2013) 249 CLR 571; Fariah v The Queen [2021] VSCA 213; Farmer v The Queen [2020] VSCA 140; Morrison v The Queen [2012] VSCA 222; R v Verdins (2007) 16 VR 269; Worboyes v The Queen [2021] VSCA 169

Sentence:                  Total effective sentence of 1 year and 10 months in a youth justice facility and community correction order of 3 years

Section 6AAA declaration: 4 years with non-parole period of 3 years

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms E Strugnell	Solicitor for the Office of Public Prosecutions
For the Accused	Mr J McGarvie	Stary Norton Halphen

HER HONOUR:

1George Dyer, you have pleaded guilty to the following offences carrying the following maximum penalties: charge 1 of aggravated carjacking, which is a category 1 offence under the Sentencing Act 1991 (Vic) and the maximum penalty is 25 years’ imprisonment; and charge 2, conduct endangering life, which has a 10-year maximum penalty. You have also pleaded guilty to the summary charge of learner driver using a mobile phone and that has a 10 penalty unit maximum penalty.

Circumstances of Offending

2You were born in July 1992, so you are presently 19 years old. You were 18 at the time you committed these offences and you have no prior criminal history.

3The circumstances of your offending are as follows. On Friday 2 October 2020, you booked a taxi through 13cabs to pick you up at a residential address in Rosebud. You were collected from your address at approximately 12:20am. Your driver and the victim in this matter was Harmanpreet Singh Dhillon. You got into the rear driver’s seat behind Mr Dhillon and told him you wanted to go to 63 Beleura Road, Mornington. A pre-payment of $50 was required. You only had $25 but you told Mr Dhillon you would pay the balance at your destination. He refused and you went inside and got an extra $20. Mr Dhillon then agreed to take you and started to drive from Rosebud to Mornington.

4You had only travelled around 200 m when you asked Mr Dhillon to pull over and told him you wanted to drive the taxi. When he refused, you produced a box cutter knife and threatened him, holding the knife near his head and neck area. Mr Dhillon stopped the taxi, got out and ran away. You chased him and caught him and threatened him again with the knife, demanding the taxi keys. Mr Dhillon was scared and gave you the keys but he was so concerned about you driving his taxi in your obviously highly intoxicated state that he returned to the taxi with you and got into the passenger seat. You then began to drive the vehicle along the Mornington Peninsula Freeway northbound heading towards Mornington.

5There is CCTV footage from the taxi which captures the journey and your truly appalling driving, which placed Mr Dhillon and other road users in extreme danger. The footage depicts the following:

·        At 12:41:48am–12:42:25am, you do not have your hands on the steering wheel for a period of 37 seconds and Mr Dhillon is steering from the passenger seat. The vehicle is travelling between 70-86 km/h at this time. You can be seen looking at your phone and taking photographs of yourself.

·        At 12:32:30am, your speed is 127 km/h and the relevant speed limit was 100 km/h.

·        At 12:32:42am, your speed is 159 km/h and, again, the relevant speed limit was 100 km/h. The victim, Mr Dhillon, is grabbing at the steering wheel.

·        The victim, Mr Dhillon, is forced to grab the steering wheel on two further occasions at 12:32:10am when you were driving at 130 km/h and 12:32:30am when you were driving at 127 km/h.

·        You exited the Mornington Peninsula Freeway at the B110 exit at Mount Martha onto the Nepean Highway. You drove at speeds of 101 km/h in an 80 km/h residential zone.

6You stopped the taxi outside 63 Beleura Road, Mornington, where you got out, leaving the keys in the ignition. You shook Mr Dhillon’s hand before walking away. The entire incident occurred over 25 minutes.

Arrest and Interview

7You attended the Rosebud police station by appointment on 2 October 2020, where you were arrested and interviewed. You made full admissions to your offending. You told police you had been drinking vodka and beer and had consumed half a bottle of vodka and a six-pack of beer. You said you felt the knife in the pockets of your pants and decided to take it out and use it so you did not have to pay the balance of the fare. You said you did not want to hurt the taxi driver, you just wanted to scare him. You said the taxi driver pleaded with you not to hurt him and told you he had a daughter. You said you realised that he was scared.

Objective Seriousness of Offending and Moral Culpability

8This was extremely serious offending. Your primary victim, Mr Dhillon, was simply going about his lawful business. He was, in my view, a soft target, being a taxi driver working alone at night, and therefore a person vulnerable and defenceless against those who would prey upon him and commit wanton acts of alcohol-fuelled violence such as you did. You subjected him to a terrifying ordeal which began when you pulled a knife on him and continued throughout a hair-raising car journey lasting over 25 minutes, during which you drove while obviously drunk at excessive speed and in an astonishingly reckless fashion which involved, at times, you taking both your hands off the wheel, using your phone and taking photographs of yourself.

9Mr Dhillon did not make a victim impact statement but his palpable fear is captured in the CCTV footage. You have admitted to police that you understood what you were doing was putting Mr Dhillon in fear.

10Mr Dhillon was not your only victim. Anyone on the road that night was put at risk as a consequence of your truly appalling driving.

11I accept the submission of your counsel, Mr McGarvie, that your offending needs to be seen in the context of your immaturity and intoxication and I will discuss both these topics more fully later in these reasons, but even taking into account this context and the fact that you found the knife in your pocket and your offending was opportunistic rather than premeditated, the obvious seriousness of your offending is not significantly diminished in my view and your moral culpability is high.

Personal Circumstances and Matters in Mitigation

12I now turn to your personal circumstances and matters raised in mitigation on your behalf and I begin with your plea of guilty. You pleaded guilty at a case conference on 17 September 2021. Your plea is a plea at the earliest opportunity. It has significant utilitarian value, especially in the context of the ongoing delays in the administration of justice in this State caused by the COVID-19 pandemic. I take your early plea into account and I give it the full mitigatory weight which attaches to it, as discussed in the case of Worboyes v The Queen.[1] I also accept that your plea of guilty, in conjunction with your early and full admissions to police, is indicative of remorse on your part.

[1] [2021] VSCA 169.

13You have had a difficult and disadvantaged childhood and upbringing. You were born in Ferntree Gully. Your mother is Aboriginal. You have a sister, a brother and a half-brother. Your father left the family home when you were four years old. Both your parents were heroin addicts. Your father was also a dealer and a violent man. You were removed from your mother’s care when you were aged five and were in foster placements until the age of around seven. You experienced abuse in your foster placements and were returned to your mother. Your mother re-partnered and your stepfather was another abusive man who died from a drug overdose.

14You left home at 17. Your schooling has been limited and sporadic. You went to three primary schools and finished your education in year 8. Your literacy is poor, although you reported to Ms Cidoni, who prepared a psychological report dated 3 May 2022, that your literacy has improved in custody.

15You reported to Ms Cidoni that you were diagnosed with anxiety at 16 and that you have had an alcohol problem from your teens. You told her you were spending around $600 a week on alcohol and drinking daily at the time of your offending.

16Your counsel, Mr McGarvie, submitted Bugmy v The Queen principles were engaged in sentencing you.[2] You have had a highly disadvantaged and abusive childhood and formative years, during which violence and drug and alcohol abuse were routine and your education was regularly disrupted. Your poor mental health and your alcohol addiction at such an early age must, at least to some extent, be referrable to your background, and indeed, Ms Cidoni gives this opinion and she further opines that your exposure to trauma has impaired your impulse control and may explain your recourse to violence. In addition, your lack of education has resulted in diminished future prospects. In these circumstances, your moral culpability cannot be equated with that of a person who has had the advantage of a stable and supportive upbringing.

[2] (2013) 249 CLR 571 (‘Bugmy’).

17The prosecution did not dispute that Bugmy principles were engaged in sentencing you. I therefore find that your moral culpability is moderated pursuant to Bugmy principles. However, weighted against this is the obvious seriousness of your offending and engagement of the sentencing principles of specific and general deterrence and community protection.

18Mr McGarvie also relied on your mental health as enlivening Verdins considerations 5 and 6 in sentencing you.[3] That is, that the experience of imprisonment would be more difficult for you than someone in robust mental health and that the effect of prison on you may lead to a worsening of your mental health difficulties.

[3] R v Verdins (2007) 16 VR 269 (‘Verdins’).

19Ms Cidoni gives the opinion that you meet the diagnostic criteria for post-traumatic stress disorder, bipolar disorder and generalised anxiety disorder. She finds that these illnesses were present at the time of your offending but exacerbated by alcohol. Consequently, there was no submission to me that Verdins principles operated to reduce your moral culpability. Ms Cidoni says that your mental health, in conjunction with your young age, would make prison a very difficult place for you. She says, ‘It is fair to say that imprisonment would have a severe negative effect on his development and future behavioural outcomes at his impressionable developmental stage’.

20Again, the prosecution did not dispute that Verdins limbs 5 and 6 were engaged in sentencing you. I accept, therefore, that given your mental health and your young age in the current restrictive conditions in prisons necessitated by the COVID-19 pandemic, prison will be more onerous for you than a prisoner in robust mental health and without your vulnerabilities. I will give some application of Verdins limbs 5 and 6 in moderation of the sentence I impose on you.

21The next issue that Mr McGarvie addressed in his submissions was the explanation for your offending. Mr McGarvie submitted that it could only be explained by your immaturity and your alcohol consumption. In his written submissions, Mr McGarvie argued that your case was an exceptional case in which intoxication mitigated your offending. He relied upon your young age, your heavy consumption of alcohol and there being no evidence that you had ever behaved in a violent manner in the past.

22I reject this submission. You had been drinking heavily for one so young and you must have appreciated the harm it was doing you and its dangerous disinhibiting effects, even if you could not foresee its potential to make you violent. Your case is, in my view, distinguishable from that of Morrison v The Queen, in which a middle-aged heavy drinker engaged in out of character violent behaviour for the first time after many years of sustained alcohol abuse.[4] In that case, the offender’s behaviour, given his age and his history of sustained alcohol consumption without incident, could be characterised as aberrant alcohol-related violence. In your case, I find that your intoxication, in combination with your youth, explains your behaviour but in no way mitigates or excuses it.

[4] [2012] VSCA 222.

23Mr McGarvie submitted that your prospects of rehabilitation were good, given your youth, your lack of prior offending and your family support. In particular, you are supported by your brother with whom you operated a roofing business before being taken into custody.

Relevant Sentencing Provisions

24I turn now to the relevant sentencing provisions applicable to the offence of aggravated carjacking. Aggravated carjacking is a category 1 offence under s 3 of the Sentencing Act 1991 (Vic). In sentencing an offender for aggravated carjacking where that offender is aged 18 or over at the time of the commission of the offence, the court must impose a term of imprisonment and fix, under s 11, a non-parole period of not less than three years, unless the court finds that a special reason exists.[5] What may constitute a special reason is set out at s 10A.

[5] Sentencing Act 1991 (Vic) s 10AD.

25Mr McGarvie submits, in your case, that a special reason does exist to preclude the mandatory application of s 10AD. He relies upon s 10A(2)(e), that is, that ‘there are substantial and compelling circumstances that are exceptional and rare and that justify doing so’.

26In determining whether there are substantial and compelling circumstances under s 10A(2)(e) of the Act, the court:

(a)must regard general deterrence and denunciation of the offender’s conduct as having greater importance than the other purposes set out in section 5(1); and

(b)must give less weight to the personal circumstances of the offender than to other matters such as the nature and gravity of the offence; and

(c)must not have regard to—

(i)the offender’s previous good character (other than an absence of previous convictions or findings of guilt); or

(ii)an early guilty plea; or

(iii)prospects of rehabilitation; or

(iv)parity with other sentences.

27In determining whether there are substantial and compelling circumstances under s 10A(2)(e), the court must also have regard to the Parliament’s intention that a sentence of imprisonment should ordinarily be imposed and that a non-parole period of not less than three years should ordinarily be fixed for an offence covered by s 10AD which, of course, includes aggravated carjacking.

28If a court makes a finding under s 10A(2), it must state in writing the special reason and cause that reason to be entered into the records of the court.[6]

[6] Ibid s 10A(4).

Submissions on Sentence

29Mr McGarvie relied upon the following factors in combination as special reasons:

·        your youth and immaturity;

·        your deprived childhood;

·        your reduced moral culpability;

·        your mental illness;

·        the unpredictable effect that alcohol had on your behaviour;

·        your remorse, as demonstrated by your admissions and cooperation with the authorities, including turning yourself in on the day of offending;

·        your early plea during the COVID-19 pandemic;

·        your lack of a criminal history;

·        your excellent prospects of rehabilitation; and

·        the hardship that you have already endured while on remand in an adult prison.

30He submitted a combination sentence of imprisonment in a youth justice facility followed by a community correction order was open to me.

31Mr McGarvie referred me to the cases of Fariah v The Queen[7] and Farmer v The Queen,[8] which both involved youthful offenders sentenced on charges of armed robbery and which involved the consideration of what constituted substantial and compelling reasons in order to avoid mandatory sentencing regimes. In Fariah v The Queen, Priest and Beach JJA stated,

We also consider that the mere fact that some individual circumstances may commonly be encountered by sentencing judges in the County Court will not by that fact alone necessarily deprive them of their character as substantial and compelling and exceptional and rare. Every case will necessarily depend on its particular facts. Circumstances which individually are relatively common may in combination enliven the exception in s 5(2H)(e). Indeed, in our view, the applicant’s appalling childhood experiences, coupled with his youth and other factors relied upon, were sufficient in combination to engage s 5(2H)(e).[9]

[7] [2021] VSCA 213.

[8] [2020] VSCA 140.

[9] Fariah v The Queen (n 7) [25].

32Ms Strugnell, who appeared to prosecute, submitted that this is an extremely serious example of the offence of aggravated carjacking due to its protracted duration, your level of intoxication and your recklessness behind the wheel, including driving at very high speeds and taking your hands off the wheel to take selfies and to film yourself. She submitted that this would have been a terrifying experience for your victim and other road users and that the offence of reckless conduct endangering life was also extremely serious.

33Ms Strugnell submitted that, taking into account the matters I am permitted under the Sentencing Act 1991 (Vic), substantial and compelling reasons have not been demonstrated and the only appropriate disposition is a period of imprisonment consisting of a head sentence and a non-parole period in conformity with the mandated statutory requirements. She submitted that you should be transferred into youth justice detention immediately to serve the initial part of your sentence.

34Given that the parties are in agreement that you should be transferred into a youth justice facility, there is a further relevant sentencing provision and that is s 32(2C) of the Sentencing Act 1991 (Vic), which states,

If a young offender is to be sentenced for a category A serious youth offence, a court must not make a youth justice centre order or a youth residential centre order in respect of the young offender unless the court is satisfied that exceptional circumstances exist.

35Aggravated carjacking is a serious youth offence.

36The parties were in agreement that exceptional circumstances pursuant to s 32(2C) of the Sentencing Act 1991 (Vic) cover broader considerations than special reasons pursuant to s 10AD. It was submitted that a determination as to whether special reasons have been demonstrated should first be made before turning to consider exceptional circumstances pursuant to s 32(2C).

37Mr McGarvie relied upon the same considerations relied upon to make out a special reason exemption to s 10AD, also to make out exceptional circumstances under s 32(2C).

Conclusions

38I turn now to my conclusions. The task of determining whether a special reason has been demonstrated is an evaluative one for me as the sentencing judge. There is no onus on the defence to prove a special reason on the balance of probabilities.

39I have concluded, taking into account the matters relied upon by your counsel with the exception of your plea of guilty and your prospects of rehabilitation, which are explicitly excluded from my consideration, that you have demonstrated substantial and compelling reasons. I am therefore not bound by s 10AD of the Sentencing Act 1991 (Vic).

40But that is not the end of the matter. Mr Dyer, your offending is extremely serious. Your victim was a man simply doing his job to support his family. It is intolerable that he should have been set upon by a violent drunk and subjected to such a frightening ordeal and you should be thoroughly ashamed of yourself.

41The principles of specific and general deterrence, denunciation and community protection are all engaged in sentencing you. You are a very young man and your rehabilitation is an important sentencing consideration. It is my intention, taking into account all the matters I am required to under the Sentencing Act 1991 (Vic) and matters personal to you, to sentence you to a term of imprisonment served in a youth detention facility, followed by a community correction order.

42I had you assessed for both a youth justice order and a community correction order and you were assessed as suitable for both. I am satisfied, taking into account your youth, your lack of prior convictions and the other matters relied upon to make out substantial and compelling reasons, that you have also demonstrated exceptional circumstances as required by s 32(2C), which permits me to sentence you to a youth justice centre order even though you have committed a serious youth offence.

43I intend to sentence you as follows. You can remain seated in the circumstances, Mr Dyer.

44On charges 1 and 2, you are convicted and sentenced to an aggregate sentence of one year and 10 months in a youth justice facility, followed by a three-year community correction order.

45The order commences upon completion of your sentence of imprisonment and its conditions are as follows. You must attend at Ringwood Community Correctional Services at 60–62 Maroondah Highway, Ringwood within two clear working days after the commencement of this order.

46The mandatory terms of the order are as follows.

47You must not commit any offences that could result in imprisonment while you are on the order. That is not serious matters like aggravated carjacking. Most offences could potentially attract a term of imprisonment. So for three years after your release — well, let us hope forever after you are released — no further offending whatsoever.

48You will be under the supervision of Corrections and you have got to report to them, you have to receive visits from them and you have to obey all lawful instructions from whoever is in charge of you from Corrections. That will be for three years.

49You must let a Corrections officer know if you change your address or you change your job. When you are finally released from custody, which will be in about 11 months, you will have to report two days after being released. You are not to leave Victoria without first getting permission to do so. So they are the conditions that are imposed on all orders.

50You will have to perform 200 hours of unpaid community work for a period of three years. I order that 50 hours of treatment and rehabilitation satisfactorily undertaken will be counted as unpaid community work for the purposes of the order.

51You will be under supervision for a period of three years. 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 will have to participate in programs and courses that address factors relating to your offending and you will be monitored by me. You must reappear at Court for a review of your compliance with the order on 7 December 2023 at 9:15am.

52On the summary charge, you are convicted and fined $150.00.

53Pursuant to s 6AAA of the Sentencing Act 1991 (Vic), had you pleaded not guilty, you would have been sentenced to a total effective sentence of four years with a non-parole period of three years.

54Pursuant to s 18(4) of the Sentencing Act 1991 (Vic), I declare that you have served 329 days of the sentence I have passed upon you and I direct that that be entered into the records of the Court.

55As I discussed before I began the sentence, the offence of aggravated carjacking and the offence of reckless conduct endangering life are both serious motor vehicle offences, so there is a mandatory period of cancellation/disqualification of your licence. For aggravated carjacking that is 24 months, and for reckless conduct endangering life that is 12 months. I impose a licence cancellation and disqualification of 24 months on aggravated carjacking and 12 months on reckless conduct endangering life to be served concurrently. That makes a mandatory licence suspension/disqualification period of 24 months starting today. The effect of that, Mr Dyer, is you’re not going to be able to obtain a licence for around 12 months after your release, so there’s going to be a period of around 12 months post-release that you won’t be able to drive and won’t be able to apply for a licence.

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