Director of Public Prosecutions v Fielden

[2024] VCC 1444

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT SHEPPARTON

CRIMINAL JURISDICTION

CR 23-02030

DIRECTOR OF PUBLIC PROSECUTIONS

v

DYLAN FIELDEN

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JUDGE:	HIS HONOUR JUDGE KELLY
WHERE HELD:	Shepparton
DATE OF HEARING:	30 July 2024
DATE OF SENTENCE:	7 August 2024
CASE MAY BE CITED AS:	DPP v Fielden
MEDIUM NEUTRAL CITATION:	[2024] VCC 1444

REASONS FOR SENTENCE

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Subject:  CRIMINAL LAW

Catchwords:  Attempted Armed Robbery — Reckless Cause Injury — Koori court plea — Aboriginal offender — First-time young offender — Verdins principles — Bugmy principles — Alcohol abuse — Fine prospects of rehabilitation

Legislation Cited:           Sentencing Act 1991 (Vic)

Cases Cited: DPP v Tadase [2023] VCC 411; Bugmy v The Queen (2013) 169 CLR 571; Honeysett v The Queen [2018] VSCA 214; R v Fuller-Cust [2002] VSCA 168; Worboyes v The Queen (2021) 96 MVR 344.

Sentence:Fifteen month Community Correction Order — 100 hours community work — Treatment and supervision.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A.J. Moore	Office of Public Prosecutions
For the Accused	Ms E. Allen	Victorian Aboriginal Legal Service

HIS HONOUR: 

1Dylan Fielden, you have pleaded guilty to one charge of attempted armed robbery and one charge of reckless cause injury.  The maximum penalties are as follows: attempted armed robbery 20 years' imprisonment, recklessly cause injury five years' imprisonment.

2On 31 May 2022 your victim, Mr Nathan Everett was riding his bike along Wilmont Road, approaching Sanderson Street.  You approached Mr Everett whilst holding a beer bottle in one of your hands and grabbed the foot of his jacket, pulling him off his bicycle.  You began to yell at Mr Everett, repeatedly asking him who he was, before striking his chin with your fist (part of Charge 2, recklessly cause injury) and demanding that he give you his bike or 'you were going to bottle him' (Charge 1, attempted armed robbery.)

3A member of the public came to Mr Everett's aid, enabling him to ride 10‑15 metres away, where he called Triple 0.

4You caught up with him again and demanded he hand over his bike or you were going to use the bottle to strike him.  You then grabbed the bicycle with your right hand and struck Mr Everett with the beer bottle.  (That gives rise to Charge 2, recklessly cause injury). 

5You then proceeded to grapple with Mr Everett and tried to hit him again with the bottle, before he was able to knock it out of your hand and push you into a Stop sign.

6At this point, officers arrived on the scene and witnessed you trying to remove the bike from Mr Everett.  You then fled, attempting to avoid the officers.  You were caught and arrested on Wilmont Road.  You were transported to Shepparton police station but you were too intoxicated to participate in a police interview until the following day.

7I was informed by Ms Allen of your personal circumstances.

8You are a 20-year-old Yorta Yorta man.  You were born in Wangaratta in 2004.  You are the youngest of three children.  I am told you have a close relationship with both of your older sisters, Shelby and Miranda.

9You grew up in Shepparton in a chaotic and dysfunctional family.  Both your parents drank heavily and consumed illicit drugs.  You reported that family violence was commonplace throughout your childhood and after your parents divorced, you shifted between living with your mum and your dad.  I understand you currently have no relationship with either of your parents.

10You attended several primary and secondary schools completing Year 12 at Greater Shepparton College.  Following graduation you commenced work at a local IGA for a period of 12 months.

11As to your physical and mental health.  You struggle with psychosis and you were released from hospital less than a month before this offending.

12I am told you also have a hole in your heart which is monitored by a cardiologist.

13You acknowledged that you struggle with alcohol abuse and it was this addiction, in combination with a decline in your mental health, which contributed to the offending on this night.

14I have been told you attend meetings in Werribee or Shepparton every fortnight at Alcoholics Anonymous.

15Ms Allen on your behalf submitted that the appropriate sentencing disposition is a community corrections order having regard to your youth at the time of the offending, and your youth now, your pleas of guilty, the delay in finalising your matter, your personal circumstances, the application of Verdins principles, your prior good character and the objectively modest gravity of the offending, as well as your positive prospects of rehabilitation.

16Having regard to comparable cases, Ms Allen submitted that a disposition without conviction would be appropriate in your case.  She submitted that your offending was unsophisticated, it occurred without any premeditation and the victim sustained a relatively superficial injury and his pushbike was returned to him.

17She conceded that the offending is nonetheless serious and would have been a terrifying encounter for your victim.  She submitted that the offending should be assessed as the product of a rash decision, poor judgment and your extreme intoxication at the time.  For these reasons she submitted that your offending falls towards the lower end of the range of seriousness.

18She submitted as to your intoxication, that you began drinking socially at the age of 14 and in the two months prior to your offending you were binge drinking most weekends.  I am told you are aware of the connection between your alcohol abuse and your decline in mental health at the time of the offending and since then, as I have indicated, you have attended regular AA meetings either with your mother or yourself in Shepparton.

19Ms Allen referred me to the case of DPP v Tadase[1] where a youthful offender received an 18 month community correction order for offending that was more objectively serious than yours here, and it involved the use of knives to threaten high school students to part with their headphones.  Like you, these offenders were young and without relevant prior criminal histories.  Unlike them, you are an Indigenous man who is seeking to reconnect with his culture.

[1] [2023] VCC 411.

20You are to be sentenced as a first-time young offender as defined by the Sentencing Act 1991. You were 18 years old at the time of the offending and you are now 20. Ms Allen submitted that you engaged in resolution discussions at an early opportunity and despite your admissions and denials in your interview, your plea of guilty evinces your willingness to facilitate the course of justice and accept responsibility for your offending. You are entitled to a discount as a consequence.

21Ms Allen submitted that given you were raised in an environment where you were exposed to alcohol and illicit substance abuse, as well as significant family violence, your moral culpability falls to be reduced in accordance with the principles outlined in Bugmy.[2]

[2] (2013) 169 CLR 571.

22Your offending occurred on 31 May 2022 and you were interviewed in the early hours of 1 June 2022.  You were not charged until 4 February 2023.  It was submitted that the threat of imprisonment has weighed heavily upon you during the two years that have passed between your offending and the resolution of these matters.

23I have had regard to the principles set out in the Court of Appeal of Honeysett[3] in relation to your participation in the Koori Court process, and I have also had regard to the principles discussed in R v Fuller‑Cust.[4]

[3] [2018] VSCA 14.

[4] [2002] VSCA 168.

24Ms Allen submitted that your prospects of rehabilitation are positive, especially if you are able to remain abstinent from alcohol and engage in professional support to better understand your underlying mental health issues.

25Mr Moore for the Crown conceded that a community correction order was within range and he further submitted that the Crown has no position in relation to whether a conviction or convictions should be recorded against you. 

26This is, as we discussed at the Koori Court sentencing conversation, serious offending, albeit you were very lucky on this occasion that your victim did not sustain a grave injury.  Wielding a bottle and breaking it over somebody has the potential, as we discussed, for very serious ramifications.  You are lucky that the injury sustained was a superficial one and no lasting damage appears to have occurred.

27I assess your prospects of rehabilitation as fine provided you continue the course you have embarked upon with AA. 

28I accept that you are entitled to a substantial sentence discount as a consequence of your pleas of guilty and some modest moderation when one has regard to the principles in Worboyes.[5]You are a young offender and I accept that the delay of resolving your matter has been oppressive.

[5]Worboyes v The Queen (2021) 96 MVR 344.

29I accept that the principles in the case of Bugmy apply to you and they do so to reduce your moral culpability in relation to this offending.  I also note your active and enthusiastic participation in the Koori Court sentencing process, which is a factor in my assessment of your prospects of rehabilitation.

30Section 5 of the Sentencing Act 1991 states that the only purposes for which you may be sentenced are:

(a)  to punish you in a manner and to an extent which is just in all the circumstances;

(b)   to deter you or others from committing similar offences in future;

(c)  to facilitate rehabilitation;

(d)  to manifest the denunciation of your conduct;

(e)  to protect the community; or

(f)   a combination of two or more of these purposes.

31Now what I am proposing to do at this stage, Mr Fielden, on Charges 1 and 2, is to place you on a community corrections order for a period of 15 months from today's date.  Before I ask you to consent to such an order being made, I have to tell you a bit about the order so that you know what it means, all right.

32The following core conditions apply to all community correction orders.

33You must not commit, whether in or outside Victoria, during the period of the order, an offence punishable by imprisonment.  So if you reoffend during the order it will come to my notice.

34You must report to and receive visits from the Secretary to the Department of Justice or his or her nominee during the period of the order.

35You must report to the Community Corrections Centre at Shepparton within two clear days following your release form custody, that is two days from today's date you have got to turn up to Corrections.

36You must notify the Secretary or his or her nominee of any changes of address or employment within two clear working days after that change.  So if you move address or if you change jobs, you have got to let your Corrections worker know.

37You must not leave Victoria except with the permission of the Secretary to the Department of Justice or his or her nominee.  Again, you will have a Corrections case worker; if you want to travel interstate you have got to ask them for permission.

38You must comply with any direction given by the Secretary that is necessary for the Secretary to give to ensure that you comply with the order.  So if they tell you that you have got to go to a certain venue, for instance to perform community work, you have got to go.

39There are a number of other conditions attached to this order and they apply to you.

40You have to perform 100 hours of unpaid community work over a period of
15 months, as directed by the Regional Manager, 75 hours of treatment and rehabilitation satisfactorily undertaken are to be counted as hours of unpaid community work, for the purposes of the unpaid community work condition.

41You must be under the supervision of a Community Corrections officer for a period of 15 months.

42You are required to be supervised, monitored and managed as directed by the Secretary or his or her nominee.

43You must undergo assessment and treatment including testing for drug abuse or dependency as directed by the Regional Manager.

44You must undergo mental health assessment and treatment including but not limited to mental health, psychological, neuropsychological and psychiatric treatment in a hospital or residential facility, as directed by the Regional Manager.

45You must undergo programs or courses aimed at addressing factors relating to the offending as directed by the Regional Manager.

46Now, those are the additional conditions.  I can only impose a community correction order if you agree to such an order being imposed, so I need to tell you a little bit more.

47If you contravene or breach the order by committing further offences, then you can be charged and a sentence of imprisonment is one of the options that can be imposed for the breach.  So if during the 15 months you reoffend and that breaches the order, I can resentence you for these two original offences.

48You can also be resentenced for the offences that are before me.  One of the options available includes a term of imprisonment.

49So what that all means is that you just need to be careful for the next
15 months, no committing any further offences that might incur a term of imprisonment, otherwise you come back before me.

50I also advise you that if you fail to comply with any direction of the Secretary to the Department of Justice, in other words a Community Correction worker, as part of the order, a substantial fine can be imposed.

51Now, are you aware of all of that?

52OFFENDER:  Yes, Your Honour.

53HIS HONOUR:  Ms Allen, do you want the opportunity to explain the order before I ‑ ‑ ‑

54MS ALLEN:  No, Your Honour.  I have spoken to Dylan ahead this morning, given the favourable assessment and I plan to speak with him immediately afterwards as well, so that is not necessary but thank you, Your Honour.

55HIS HONOUR:  Very well.

56I should note for completeness that a positive Correction report, which makes a number of observations, one of which is that you said to the Corrections worker that you are not proud of what you have done, that you are ashamed of how you have behaved, and that you have cut ties with former social circles, and other than attending Alcoholics Anonymous and church, you consider yourself a recluse.

57You have not previously been sentenced to a community based disposition and you are a youthful offender.  So supervision is an opportunity for you to build a constructive relationship.  Corrections also noted that after this offending you self-reported to Alcoholics Anonymous for proactive treatment.  All of this, as I say, augers well for your rehabilitation.

58So the order of the court then is, without conviction, a 15 month community corrections order with the obligation that you perform 100 hours of unpaid community work within 15 months.

59No ancillary orders sought?

60MR MOORE:  There is a disposal order for a Carlton Draught beer bottle, if that could be made.

61HIS HONOUR:  That can be made in the terms sought.

62MS ALLEN:  Yes, Your Honour, that's not opposed.

63HIS HONOUR:  But for your pleas of guilty I would have imposed a combined sentence of four months gaol with an 18 month community correction order with conviction.

64Thank you, Ms Allen, for the very excellent written submissions.

65MS ALLEN:  Thank you, Your Honour.

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