Director of Public Prosecutions v Georgiou & Neyland
[2023] VCC 885
•29 May 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR-22-02180
CR-22-02320
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| Nicholas Georgiou Drew Neyland |
JUDGE: | HER HONOUR JUDGE SYME | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 2 May 2023, 3 May 2023 & 14 August 2023 | |
DATE OF SENTENCE: | 29 May 2023 | |
CASE MAY BE CITED AS: | DPP v Georgiou & Neyland | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 885 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Attempted home invasion – In company – Prohibited person use firearm – Reckless conduct endanger life – Possession of a Drug of Dependence
Legislation Cited: Crimes Act 1958 (Vic); Bail Act 1977 (Vic); Drugs, Poisons and Controlled Substances Act 1981 (Vic); Sentencing Act 1991 (Vic) & Firearms Act 1996 (Vic).
Cases Cited:R v Verdins [2007] VSCA 62; Hogarth v The Queen [2012] VSCA 302; Bugmy v R (2013) 302 VLR 192; DPP v O'Brien [2019] VSCA 254 & Wyka & Gardiner v the Queen [2020] VSCA 104.
Sentence: For Mr Georgiou - 5 years and 3 months imprisonment with a non-parole period of 3 years and 6 months. For Mr Neyland, 3 years and 9 months imprisonment with a non-parole period of 2 years and 6 months.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr M. Cookson | Office of Public Prosecutions |
| For the Accused | Mr D. Hallowes KC Ms C. Park | Tony Hargreaves & Partners Lawyers Papa Hughes Criminal Lawyers |
HER HONOUR:
1Mr Nicholas Georgiou and Mr Drew Neyland, you have each pleaded guilty to one count of attempted home invasion. Namely, that on 27 May 2022 at Sunshine West, in Victoria, you attempted to enter, as trespassers, a home situated at Armstrong Street, with intent to commit an offence involving an assault to a person therein, and at the time, you were in company with each other, and had with you, a firearm.
2While a completed home invasion offence carries a maximum penalty of 25 years' imprisonment,[1] an attempt for such an offence carries a 20 year' imprisonment maximum.[2]
[1] Crimes Act 1958 (Vic) s 77A(3).
[2] See Crimes Act 1958 (Vic) 321P(2)(1)(a) - Column 2.
3Mr Georgiou, you have also pleaded guilty to one count of prohibited person use a firearm,[3] one count of reckless conduct endanger life[4] and one count of possess a drug of dependence.[5] The maximum penalties for these offences are 10 years' imprisonment for the first two, and 1 year of imprisonment, respectively.
[3] That at the same time and place, Nicholas Georgiou, being a prohibited person, used a firearm contrary to section 5 of the Firearms Act 1996 (Vic).
[4] That at the same time and place, Nicholas Georgiou, without lawful excuse, recklessly engaged in conduct that placed Noel Carroll in danger of death, namely, by discharging a firearm in the direction of Noel Carroll contrary to section 22 of the Crimes Act 1958 (Vic).
[5] That on 23 June 2023 at Melbourne in Victoria, Nicholas Georgiou possessed two drugs of dependence, namely, Cocaine and Methylamphetamine contrary to section 73 of the Drugs, Poisons and Controlled Substances Act 1981 (Vic).
Background
4The background to the offending is contained in the prosecution opening. It is not disputed.
5Nicholas Georgiou, at the time of the offending, you were a prohibited person as defined in the Firearms Act 1996 (Vic) due, it seems to me, to being subject to a supervised CCO at the time of the offending.
6Drew Neyland, you were residing between various addresses and on bail for unrelated offending. Your bail conditions required you to observe a curfew at a residence in West Melbourne between 11 pm and 5 am. This is relevant to a summary offence you have also pleaded guilty to – that is contravening a conduct condition of bail contrary to s30A(1) of the Bail Act1977 (Vic).
7Mr Neyland, you were the registered owner of a silver 2007 Volkswagen Golf – registration number: 1VZ 3PI. The third offender, who is not before the court today but I will deal with later on, Mr Matthew Jurjevic, was the registered owner of a black 2009 Audi A5 – registration number: APM 474 and he resided at a nearby address in St Albans ('the Jurjevic Address'). The final offender was Mr Najee Moussa who also resided in St Albans.
8The victims of your offending are Mr Noel Carrol and Ms Jennifer Christov, a couple aged in their early 50s who resided at Armstrong Street, Sunshine West. Mr Carrol knew you, Mr Georgiou, and the other two offenders, but not Mr Neyland. Ms Christov had no prior dealings with any of the offenders.
9All four offenders attempted a home invasion at that address on 27 May 2022. During that event, Mr Georgiou, you discharged a firearm in the direction of Mr Carrol. Only you were involved in the decision to discharge that firearm.
Circumstances of offending
10The circumstances of the offending are also contained in the prosecution opening and are not in dispute.
11On that day, 27 May 2022 at 12:06 am, both of you arrived at the Jurjevic Address. Mr Neyland, you were observed on CCTV to be in possession of a black curved jemmy bar wrapped in white tape. You placed it underneath your jumper. At that time, all four offenders were in or around those premises for approximately 5 hours. Some of you left and returned over that time.
12At 2:58 am, you, Mr Georgiou, were observed to be in possession of a sawn-off rifle which you wrapped in a fluorescent work shirt. At this time, all four offenders, all four of you were in the undercover garage area together.
13At 5:11 am, all four of you, all four offenders left the Jurjevic Address. Mr Georgiou, you were still in possession of the wrapped-up firearm and you got into the Audi which was being driven by Jurjevic. Mr Neyland, you and Moussa got into your Volkswagen which was driven by Moussa.
14Both vehicles drove to the Armstrong Street Address and passed it, several times. Outside the address, both of you, Georgiou and Neyland, alighted from the vehicles whilst Jurjevic and Moussa remained in their vehicles, it can be inferred, anticipating the need for a quick getaway.
15Each of you climbed over the front fence of the Armstrong Street Address and walked towards the front door of the property. You, Mr Neyland, were wearing dark coloured clothing and shoes and were equipped with the jemmy bar described above. Mr Georgiou, you were wearing a dark-coloured hooded jumper, light coloured pants, gloves, shoes, and you were armed with a sawn-off rifle which was wrapped as above. You dropped this wrapping material near the front fence, exposing the sawn-off rifle.
16Mr Neyland, you walked to the front door of the address and attempted to jemmy open the security door. Mr Georgiou, you were closely behind. You moved your arm toward the door.
17The noise generated alerted Ms Christov who was asleep in the front bedroom. She looked at the CCTV screens located in her bedroom and observed you both to enter the premises. She screamed and woke up Mr Carrol who then picked up an axe and ran to the front door of the house.
18Mr Neyland, you made a second attempt to jemmy open the front security door but retreated when the light switched on. Carrol then opened the front wooden door of the premises which caused both of you to back away and jump over the front fence. He then opened the security door of the premises to confront you both. You were at the front of the house with a fence between Carrol and yourselves.
19Mr Georgiou, at this time, you pointed the sawn-off rifle and discharged one round in Mr Carrol's direction. This shot impacted the ceiling above the front door, where he was standing. Carrol shut the security and wooden doors. You remained behind the front fence. About nine seconds later, you fired a second shot toward the front of the house. You both then ran onto the road and entered the waiting Volkswagen which accelerated quickly away, followed by the Audi.
20Your offending was captured on the Armstrong Street CCTV camera. The footage became an exhibit in the prosecution case. The entire event was completed in about a minute and a half.
21After the matter was reported to police, investigations occurred. Mr Neyland, you were arrested on 7 June 2022 and you, Mr Georgiou, on 23 June 2022. A number of items were seized. No admissions were made. You have each been in custody since the dates of your arrest.
Objective seriousness of offending
22The preparation for the home invasion was significant. All four of you were together in the Jurjevic Address for approximately five hours prior to the attempt. It is accepted, that not all of this time was used in planning. I am advised considerable quantities of drugs were consumed within that timeframe.
23Planning involved dividing four of you into two two-person teams with two cars and getaway drivers. Both Jurjevic and Moussa were to remain in the cars, which were left running, in order to promptly assist your escape. The plan was thought out, with apparent consideration given to the number of people to be involved, the vehicles, and tasks for each.
24The acquisition and use of weapons is acknowledged. Mr Georgiou, you used a firearm and Mr Neyland, a jemmy bar. Both of these weapons were wrapped up and concealed from time-to-time.
25It is accepted that each offender knew that you, Mr Georgiou, had possession of a sawn-off rifle, which is a significant and dangerous weapon. It is accepted that there is no proof, to the requisite standard, that you, Mr Neyland, or the other co‑offenders knew that the firearm was loaded. All offenders, however, were aware that Neyland had armed himself with a jemmy bar.
26It was submitted by Counsel that the entire event was amateurish in nature. It is observed that the event was spectacularly unsuccessful and abandoned after just a few seconds of confrontation at the front door. However, shots were fired after your retreat, underlining the attempt was a serious one. Incompetence or lack of resolve, whatever its cause, does not reduce the objective seriousness of the offending behaviour.
27The charge is one of attempted home invasion. The attempt itself was a well-planned event with each offender having a different task to complete the home invasion itself effectively. Each offender, by their plea, have accepted this. A lack of ability, for whatever reason, to complete the actual entry to the home, does not assist. Had you been successful in entering the home, a more serious charge would have been laid.
28This was a substantial, planned attempt for a confrontational home invasion, involving four people. While no victim impact statements have been provided, this does not reduce the objective seriousness of the offending. I therefore assume the consequences for the victims would be the sort of fear one would expect in such circumstances. It is a serious example of the charged offence.
29The further charges against you, Mr Georgiou, relate to discharging a firearm in the general direction of Mr Carrol’s head or toward a door where he had been standing. This conduct carries with it an obvious risk of his death. I accept there is some overlap in the circumstances of the firearms related offences. The fact that you have now been sentenced for a breach of the CCO and the two offences relate to the use of a single firearm is noted. This will be a consideration in assessing aggravating factors and totality.
Plea
30Both of you indicated an intention to plead guilty at the first available opportunity. You did so plead, therefore, witnesses did not need to be called either at committal or trial. This is of significant utilitarian value to the community and to the administration of justice. This will result in a significant reduction of the sentence that would otherwise have been imposed had the matter proceeded to trial. This will be reflected in a s6AAA declaration.[6]
[6] See Sentencing Act 1991 (Vic) s 6AAA.
31In addition, an early plea is an acceptance of responsibility for the offending and can be evidence of remorse. Neither of you gave direct evidence of remorse, although some information of a secondary nature is available and I will address that later in discussion of your separate personal circumstances. There is little illumination of the reason for this offending, other than to note that you were all, all four of you, apparently significantly drug affected at the time.
Pre-sentence detention
32Both of you have been in custody since your arrest. This is a period in excess of 11 months. Some pre-sentence detention has been subsumed in other sentences and I accept that for some of that time, custodial conditions have been compromised to varying extents by COVID lockdowns and restrictions, although less severe restrictions than were observed in 2020/21. Pre-sentence detention is calculated with regard to emergency days arising as a result of lockdowns. Any further amelioration will be discussed below.
Nicholas Georgiou – personal circumstances
33I turn now to you, Nicholas Georgiou, and in relation to your personal circumstances I will discuss, as far as I am able to, from the information I have been given. You are now 35 years of age. You were 34 when you committed the charged offences. Through your counsel, you do not seek to blame any other person nor circumstance for the predicament you have placed yourself in. This acceptance of responsibility is refreshing. Information presented on your behalf includes three reports prepared by psychologist Patrick Newton for various court proceedings between September 2021 and April 2023 for these proceedings, and a significant number of family and personal references which outline further personal information I can take into account. You did not give evidence.
34The three reports by Mr Newton give a helpful perspective to your presentation over those years. A number of attainment certificates setting out your activities while in custody and a number of urinalysis results give further information about your presentation in custody. It is noted that you have managed to undertake some in-custody programmes despite COVID restrictions.
Prior criminal history
35Through your counsel, you admit a significant and relevant criminal history. Your criminal offending did not commence until 2015 when you were aged 28. This accords with the personal history given to Mr Newton. You admit to significant prior use of illicit substances. Your record includes convictions for drug possession and trafficking alongside a 2019 conviction for possession of a prohibited weapon. In 2020, you were dealt with for an attempt to pervert the course of justice, although this event was apparently related to your involvement with a dishonest, and possibly manipulative, drug counsellor in 2017. Most of your offending has been related, in one way or another, to illicit drug use.
36I observe that you have not previously been sentenced to a term of imprisonment, although according to the tendered prison history, you have been 'bail refused' for several months in 2020. Each of your prior offences, some of them serious, have been dealt with in what seems to be, at least to me, to be a relatively lenient way including a series of community corrections orders with or without unpaid community service work and, usually, with significant supervision and conditions requiring you to address mental health and substance abuse issues.
37Since you have been in custody, on this occasion, you have been sentenced for breaches of supervised orders that were still in existence at the time of this offending. This has, in effect, limited the amount of presentence detention that the court can formally take into account, but this will be considered overall, when considering the total time you ought spend in custody.
38It is observed that courts have attempted, on many occasions, to afford you the opportunity of resolving your drug and mental health issues. No doubt, to give you that opportunity of returning to a prosocial lifestyle. For various reasons, as referred to in the psychological reports, you have had difficulty maintaining sobriety and good mental health.
39Your criminal record is not an aggravating circumstance of this offending and will not result in a more significant sentence but must deprive you of leniency. Given the series of community-based orders you have been subject to in the past, the Court has concern about your prospects of rehabilitation. Your counsel suggested that given other outstanding matters, you may be in custody for longer than the sentence imposed in this matter. I have no further information about this.
40The content of your self-report to Mr Newton as summarised by him in the three psychological reports is uncontroversial. The details provided by you to him are consistent with the details provided by your close family members in their letters of reference to the court.
41You report that you are the oldest of two boys born to your mother and father and that you lived a happy and supported life with your family throughout childhood. You did well at school but caused your parents some anguish through your involvement in what they refer to as the 'party drug scene' in your later high school years. Your school results subsequently declined.
42You completed Year 12 and then, a diploma of Business Advertising at RMIT. I am told your drug use continued. You worked in various forms of employment and in 2009, at the age of 23, moved to London where you were employed in the advertising industry.
43On your return to Australia in 2011, your substance abuse continued. Your work history since then has been described by you as 'patchy and insecure'.
44I am told that you have been involved in several long-term relationships which have floundered for various reasons. In between those times, you lived in the family home, and this provided stability. Your family and friends continue to provide support and recall you as an empathetic and intelligent person.
Substance abuse
45You report your substance abuse commencing by cannabis use aged 15. After significant use, you became concerned about its psychotic effect. You started using other drugs, particularly, methamphetamine, from age about 16. You significantly increased your use until you went to England. You reported little substance abuse while in England.
46It seems that from your mid-20s, for various reasons, you struggled with serious mental health issues relating to anxiety and depression. Your use of drugs increased markedly during that time. Your father's death in 2016 resulted in further mental health decline partly, I am told, due to your shame that your father disapproved of your drug addiction. It is observed that your criminal offending commenced in this time frame and increased substantially in 2016/17.
47Mr Newton said you reported use of an array of substances long term. Unsurprisingly, he concluded that your long-term addiction to methamphetamine, GHB, Xanax and heroin was consistent with a substance use disorder of significant seriousness. His current observation, based on your self-report, and supported by urine screens, is that this disorder is in remission.
48Sadly, it seems that this remission is only possible when you are in a controlled environment. From time to time, you have enrolled, either on your own incentive, or as directed by the Court, into various relatively short-term rehabilitation programs. It is reported that you had periods of sobriety within that time but reverted to drug use fairly quickly. Your most recent intake was at the Malvern Private program which you exited in January 2022 approximately four months before the commission of the current offences. You described to Mr Newton that your response to rehabilitation has been 'haphazard'. This appears to be an accurate self-assessment.
Mental health
49In all 3 reports, Mr Newton observes a connection between your mental ill-health and your substance abuse. He observes that your presentation and self-report are consistent with a long-standing persistent depressive disorder, perhaps dating back to your early 20s. Your mother's observations support this information.
50It does not appear that you have received any significant assistance for your mental ill-health except, perhaps, when you have been in custody or required to do so by court orders. Mr Newton observed some improvement in your presentation in his report dated September 2022 as a result, he opined, of medical attention and counselling you were then receiving. At that time, you had been in custody for some 3 months, and were reportedly not using illicit substances.
51Mr Newton observes that over the two years he has assessed you, your insight into the connection between your mental health and substance abuse and subsequent offending has improved. He observed your insight into this connection was 'limited' in September 2021. Notwithstanding the natural anxiety you experience a result of these and, perhaps, other sentencing proceedings, I am told that your insight into how to avoid reoffending in the future is still improving. Your mother's observations also support this finding.
52Separately, Mr Newton observed that you manifest prominent antisocial traits which to his observation go beyond 'mere immaturity'. In the September 2022 report, he observed that these maladaptive personality traits had the potential to be reversed through effective intervention. He cautioned, however (in paragraph 42 of that report), that the time during which that can be likely to occur is limited. Mr Newton's recommendations for intervention in the context of ultimate community supervision are contained in paragraph 48 of his report. The supervision recommended is significant. Given your lack of long-term response in the past, that observation is unsurprising.
Cognitive presentation
53You report achieving well at school until substance abuse became a regular feature of your life. In his first report in September 2021, Mr Newton estimated your intelligence to be of average ability. He suggested that as a result of substance abuse, you were then functioning well below that range. In a later report, he suggests that you are functioning at a below-average level, although no formal assessment has been undertaken. He is concerned that substance abuse may be resulting in longer term damage. This may be an area for attention for those who will supervise you in the future.
Further considerations
54Again, Mr Newton observes that your suggested major depressive disorder has been a feature of your life for many years, to a greater or lesser extent. Your mental ill-health is relevant to the sentence to be imposed. I accept the observations contained in Mr Newton's three reports. It is useful to have his longitudinal observations over time. By way of further assistance, his observations are consistent with the further information received from family members.
55It is submitted that limbs 5 & 6 of the Verdins principles are relevant. The prosecution accept this submission, in principle, correctly suggesting that the weight to be given to those considerations is a matter to be taken into account with all other sentencing considerations.
56In light of the available information, I accept that you have been suffering from a persistent depressive disorder since at least 2021. I accept that your condition has deteriorated in the last six months.
57The fifth Verdins limb requires the court to have regard to whether the existence of an impairment at the time of sentencing, or its reasonably foreseeable reoccurrence, may mean that a specific sentence may weigh more heavily upon you than it would on a person of normal health. I accept that this is a relevant but limited consideration for you.
58Additionally, the sixth Verdins limb requires the court to consider whether imprisonment presents a serious risk of significant adverse impact to one's mental health. I accept the observation of Mr Newton in his most recent report - and that observation supports such a finding. Your predicament relating to this and perhaps other upcoming charges may be impacting on this presentation.
59These considerations will somewhat moderate the sentence to be imposed.
60Having said that, I note the interaction between your drug use and your mental ill‑health and your mother's observations that your presentation is far more positive than when you were not so using. So while I note custody is difficult for you, the inherent contradiction in your presentation is that when you are not abusing substances, your mental health is easier to address and manage. That is, your substance abuse is easier to control in a custody setting.
61It is clear that your offending over a period of about 8 years has, in large part, related to your use of illicit substances. I accept, to a greater or lesser extent, that your drug use is intertwined with your mental health. There is no doubt that your mental ill-health is exacerbated by your drug use.
62Any community supervision imposed on you once parole is granted must, as a pre‑requisite, include significant investigation and intervention to ensure that your drug-free status is maintained on your release.
Moral culpability
63Self-induced intoxication does not reduce your moral culpability for the offending as a whole. It is accepted that the offences were committed whilst you were under the influence of substances and that you had been substance affected for many days prior to the event. It is also accepted that your substance abuse and mental health difficulties are related. However, there is no evidence, nor do you suggest, that as a result of those considerations, you did not understand that your offending was wrong and seriously so, and rightly, you do not seek to suggest that your moral culpability is reduced by either of those factors. This is a mature approach that also informs this Court with respect to the next issue, and that is your prospects of rehabilitation.
Prospects of rehabilitation
64On a positive note, you have significant support from your family. Your mother and brother were in court and provided helpful information via letters. They, alongside extended family and close friends, continue to provide you with positive and practical support. All speak of your compassionate and empathetic nature and their distress at your descent into addiction. They have been supportive of your previous attempts to overcome that addiction and continue to hope and offer practical support for any future rehabilitation. This support will be invaluable for your future rehabilitation. As she has in the past, your mother is investigating appropriate rehabilitation services that may assist you in the future.
65Your mother describes a number of conversations with you while you have been in custody and she describes those conversations in a positive light. She acknowledges, as you seem to, that being drug-free while in custody has resulted in a greater clarity of mind and an acceptance of responsibility. She reports that you have expressed anger and regret at your actions and have accepted the consequences of your actions both for the victims of the offending, and your family. This expression of remorse, in the context it is given, is a matter which the court will take into account in your favour. Insight into the consequences for victims of offending and the wider community, is one step towards rehabilitation.
66You have also discussed with your mother some activities you might undertake while you are in custody to prepare yourself for employment and life in general when you are eventually released. I note that from the certificates you have filed, that you seem to have taken her advice. I accept that during COVID, some courses have been difficult to access and your persistence is noted.
67It is sad to note that your presentation is so positive while you are in custody but not so when you are in the community. I speculate that your rehabilitation and your recovering mental health may take some time. I will suggest to parole services that before any parole consideration is given, they access the three psychological reports and the letters of support from your mother in order to provide a useful structure for your eventual return to the community.
68Mr Newton observed (this is paragraph 31 of the April 2023 report) that you have maintained the level of insight, as he observed in 2022, into your drug use and offending connection and have identified strategies you might employ to avoid repetition in the future. He concludes that your insight is robust and genuine. He suggests that your long-term prognosis, and the benefits that could flow from treatment, are positive.
69Much will depend on the treatment and assistance you take advantage of while you are in custody and any further rehabilitation and mental health treatment you can be assisted with on your eventual release. This is where your family support is valuable, if you choose to take advantage of it.
70However, given the circumstances of your past 8 years of offending and previous difficulties in maintaining long term sobriety so far, your prospects of rehabilitation can be no more hopeful than 'possible'.
Parole ratio
71It is difficult to know whether your current commitment to address the issues that have resulted in you committing offences will be maintained throughout the course of your imprisonment. However, I propose to allow a generous period of parole in order to give you the opportunity to convince the Parole Board that parole ought to be granted when you are eligible; and that you are a 'good risk' for release into the community. I suggest involving yourself in custody substance abuse programmes and other programmes, which I have noted you have already done, is a good start.
COVID
72In written submissions, counsel suggested that for some time, Covid restrictions resulted in hardship and inability to access programmes and family visits for part of the time you have been in custody. In light of the significant number of courses you have managed to access, this submission was not pursued.
Totality
73As noted earlier, since you have been in custody, you have been sentenced for breaches of prior court orders thus reducing your total pre-sentence detention to what it now is, I understand 140 days. The current offences were in breach of prior community corrections orders for which you have now received short terms of imprisonment. I will take care to avoid double counting when assessing aggravating circumstances and will consider the total time you have spent in custody as part of the overall sentencing process.
Drew Neyland – personal circumstances
74Mr Neyland, you are currently 36 years of age and you were 35 at the time of offending. A report from Psychologist, Alison Mynard, dated April 2023 and a letter from your partner were tendered on your behalf. No further information was offered and you did not give evidence. Your partner was in court to support you.
Prior criminal history
75You have admitted a prior criminal history which commenced in 2006. Your history contains a series of criminal damage charges, perhaps, graffiti and related matters. You were initially dealt with without conviction and by way of supervised orders. However, in 2012, you were convicted of intentionally causing serious injury and sentenced to a term of imprisonment of three years with a non-parole period of 18 months. His Honour Judge Carmody's reasons dated June 2012 were made available to me for reasons that will become clear later.
76You did not come before the court again until February 2020 on further criminal damage charges and later that year, on a carry controlled weapon offence. These later offences were adjourned in order that you obtain treatment for your mental health and substance abuse issues. I have not been provided with any information relating to the result of this direction. In February 2022, you were convicted of a number of possession of drugs and prohibited weapon matters alongside related matters for which you were convicted and fined. This offence occurred months later.
77I am told that much of your offending relates to your substance abuse issues. Your record is not an aggravating circumstance but must deprive you of some leniency.
Background
78The true nature of your background and personal circumstances is unclear. The only information provided by you about your background is as contained in the April 2023 Mynard report which was prepared following a 2-hour video interview with you. I accept that she accurately recorded what you told her about your background. The information she reported is inconsistent with information given to His Honour Judge Carmody in 2012.
79It appears however, uncontroversial that you grew up with your mother and father and two sisters. You attended MacKillop College until Year 11 and on one version of events, completed Year 12 at Footscray TAFE.
80You complained to Ms Mynard that your father was a violent perpetrator who was 'always violent towards you and that he had problems with both alcohol and cannabis'. You reported that you were always scared of him and that your mother, who was aware of the violence, did nothing to protect you. You reported that your sisters were also assaulted. No evidence was before the court to support any part of this self-report, although, as noted later, it theoretically could have been available.
81You told Ms Mynard that over the years, you had built a 'better relationship' with your father, and that you were now 'all good'. This seems to be contradicted by you further reporting that neither parent had sought to contact you since you have been in custody. She did not pursue this observation further.
82Ms Mynard did not seek to confirm your self-report in any way. This perhaps could have been achieved by speaking to your parents or your sisters, with whom you report a good relationship. It is surprising that there was no information from any family members at all, in light of the fact that you complained bitterly about your (to use your counsel's description) 'neglect and abuse' while you were growing up. Counsel is assumed to have understood the relevance of this proposition to a sentencing court.
83You told Ms Mynard that your work history was at Coles, in the electrical field, in steel work, welding, concreting, scaffolding, and that you 'worked various jobs to get out of the house'.
84In 2012, the court was advised that you had completed three years of a four-year electrical apprenticeship and that you were encouraged by your father to complete the last year on your release from custody, which I speculate was sometime in 2013. I have no information as to whether you did complete the apprenticeship. This information was absent from Ms Mynard's report.
85It is noted that you told Ms Mynard that you and your wife, from whom you were separated in 2020, enjoyed a settled life for a number of years. You had purchased your own home and were saving for a second one. You and she have a 4-year-old child with whom you say you have regular contact. You reported to Ms Mynard that your relationship with Ms Saunders, your current partner, had existed for a year as at March/April 2023 but that 'you did not live together'. Her letter to the court says otherwise, stating 'he lives with me in our apartment in Footscray'. It appears that Ms Mynard did not explore the accuracy of your self-reports of your life with your wife or Ms Saunders, nor did she speak to them.
86Your counsel submits that you and your wife remain on amicable terms and that you maintain regular contact with your 4-year-old daughter (and this is paragraph 13 of the written submissions). There is no information to support this submission and some which contradicts it. You told Ms Mynard that the marriage broke down, in part, as a result of your drug use, and that your contact with your daughter was less regular 'as you were not very focussed on dates and times” (this is paragraph 21 of the Mynard report).
87Of major concern to this court is that the description of your childhood and background as given to Ms Mynard is significantly inconsistent with the information and background apparently given to His Honour Judge Carmody, in 2012.
88His Honour stated that he was told that you had previously consulted Dr Hickey, to assist you with your substance abuse issues and that he attended on you while you were in custody awaiting sentence. Dr Hickey reported on the consequences of your addiction to drugs and your progress in rehabilitation, which he stated to be a positive. He diagnosed you with a condition of paranoid delusional disorder which he opined was drug induced. Seroquel was prescribed to assist you. His Honour Judge Carmody did not refer to any other mental health disorder that he was advised about.
89That court also received evidence from your father and His Honour Judge Carmody noted that both parents were in court to support you in 2012. Your father apparently told that court of your background and the high degree of family support available to you, although they had been impacted, at that time, by your substance abuse.
Mental health and expert evidence
90Ms Mynard is a Clinical Psychologist and has attained a Master's Degree in that field. Apart from further counselling qualifications, she did not include any indication of further study in her CV. She has many years of experience treating people for, she says, 'trauma, alcohol and drug problems'. She agreed in cross examination that this is her area of interest and practice.
91In her report, Ms Mynard concludes (at paragraph 32) that she has diagnosed certain mental health conditions including Complex Post Traumatic Stress Disorder (with prominent dissociative symptoms); Psychotic Disorder NOS (not otherwise specified); Attention Deficit Hyperactivity Disorder (which she concluded was provisional); and Stimulant Use Disorder (methamphetamine and GHB). I underlined the word 'diagnosed' because I am not entirely sure that as a psychologist, Ms Mynard is qualified to pronounce a diagnosis, as she has done, but I continue.
92Ms Mynard concluded that a combination of her 'diagnoses' together with substance intoxication lead to 'impaired judgement and impaired reasoning skills'[7] thus presumably relevant to your offending on this occasion.
[7] See paragraph 45.
93Additionally, she opined, (at paragraph 46 of her report,) that custody has been more onerous on you, Mr Neyland, on the basis of a largely undiagnosed mental health condition. However, there is also in her report a puzzling reference to you receiving medication for a condition presumably observed while you are in custody.
94As a result of Ms Mynard's findings, your Counsel submitted that most of the Verdins considerations were relevant and should to be considered by the court.
95Ms Mynard's report and conclusions were challenged by the prosecution, on the basis both of the accuracy of your self report and on the rigour of any reasoning contained therein. As a result, she made herself available for cross examination.
96Ms Mynard's report of 21 April 2023 was, as I noted above, after a 2-hour interview, which included a break of unknown duration. She relayed a personal history as reported by you, made some observations of your presentation and purported to make a psychiatric diagnosis. Her apparent conclusions were used to support submissions as to your reduced moral culpability for the offending and to support submissions as to an appropriate sentence.
97It is surprising that Dr Hickey, who, as a psychiatrist, is qualified to make a mental health diagnosis, did not make any diagnosis similar to Ms Mynard's observations, notwithstanding that he appears to have consulted with you prior to your 2012 incarceration. Unfortunately, I was not provided with his report, but the judgment of His Honour Judge Carmody refers to those matters relevant to the then sentence. I have no doubt that if any other diagnosis had been made, His Honour would have referred to it.
98This is particularly relevant to the Post Traumatic Stress Disorder apparently observed by Ms Mynard and is alleged to relate largely to your childhood experiences. The suggested ADHD has been present since then, according to her observation. It defies logic that PTSD arising largely from childhood only manifested itself when the subject was 35 years of age.
99In assessing the reliability of Ms Mynard’s report, I have initially referred myself to the County Court Practice Notes on expert reports, which replicates the Supreme Court Practice Note 7 on the same topic. Ms Mynard claims to have read the requirements contained therein and agrees to be bound by it, including that she had 'made all appropriate inquiries and considered all of the issues which she believed desirable and appropriate'.
100At paragraph 23 of her report she observed that you, Mr Neyland, reported that you had seen several psychiatrists over the years. It is disappointing that she did not bother to contact any professionals with whom you had treatment from in the past. Such an enquiry would have been necessary to fulfil her obligation to make 'all … inquiries and [considered] all the … issues which she [believed] [to be] desirable and appropriate'. Had she done so, she may have been given information from Dr Hickey which was ultimately made available to the court by the prosecution.
101Further, even though you advised Ms Mynard you had a good relationship with your father and your sisters, she did not seek to confirm what was pivotal to her observation and subsequent diagnosis. That is, you had a severely traumatised childhood.
102Ms Mynard based all of her conclusions on a single interview and access to court documents. She did not seek any information to confirm what she had been told by you, notwithstanding her knowledge that you had significant substance abuse issues. Relevantly, she observed you to be 'vague … not concentrating … distracted and unfocussed' during the interview. (This observation is contained in paragraph 22 of her report).
103Ms Mynard in cross-examination was asked whether apart from your self-report, there was any other indicia of PTSD which she diagnosed. She responded that she observed you 'disassociating' during your video interview with her. She explained what she meant by this classification was that you presented as 'vague' and that your thoughts 'were jumbled'. She suggested this was evidence of dissociation. No other observations were noted.
104It is not controversial that the term 'dissociation' describes a mental process whereby a person disconnects from their thoughts, feelings, memories or sense of identity. Ms Mynard did not report that you expressed these feelings in any part of your self-report. However, you did report that you were receiving anti-psychotic medication, namely, Olanzapine, while in custody. You told Ms Mynard that this medication resulted in symptoms of vagueness (paragraph 44 of her report). This observation seems to have slipped Ms Mynard's attention. Her observation of your 'vague presentation and jumbled thoughts' were the only matters she relied on, apart from your self-report, in order to diagnose the conditions she listed at paragraph 32 of her report.
105MR COOKSON: Your Honour, and I apologise, I find myself due in another court. I have talked to my instructor who - - -
106HER HONOUR: Are you happy that he sits there? I am happy.
107MR COOKSON: Yes, Your Honour. If Your Honour would excuse me.
108HER HONOUR: I am sorry, it always takes longer than I think it is going to and I do have a little while to go, obviously because of the things that I am now discussing.
109MR COOKSON: Of course.
110HER HONOUR: We are giving the transcribers a copy of my judgment and ask that the transcript be out very quickly.
111MR COOKSON: I am grateful, Your Honour. Thank you, Your Honour.
112HER HONOUR: Further, Ms Maynard concluded that you suffered from 'psychosis and reported long-term auditory hallucinations'. She opined this to be consistent with your childhood abuse. She provided the court with no process of her reasoning for this conclusion.
113It is noted that in 2012, Dr Hickey reported that any psychosis observed by him was likely related to your drug use. Ms Mynard does not seem to have considered this, even though she was well aware of your significant substance abuse, including methamphetamine.
114No enquiries have been made nor do I have any information as to the consequences of any substance, legal or otherwise, that you might be ingesting while you are in custody. Given your long-term history of drug-abuse, I cannot assume that you remain drug free even in a controlled environment.
115Ms Mynard did not investigate this question with you. I note that if a stimulant use disorder is 'in remission' due to those stimulants not being taken for a period, it is usual for a professional to note that. Ms Mynard did note that you had a stimulant use disorder, but she included no such note in paragraph 32 of her report. I can only conclude that her observation of a stimulant use disorder is not currently in remission. Counsel was asked whether such information was available and no information was provided.
116These matters demonstrate the importance of professionals who accept a request to report to the court for an individual who has committed a crime to take care to ensure that they do not simply accept, without question, information given by that individual during the course of what is supposed to be an independent process. Acceptance of the rules relating to such reports ought be more than window dressing.
117The matter for which you, Mr Neyland, were sentenced in 2012 was a very serious offence of intentionally causing injury while you were armed with a weapon, similar to the weapon with which you were armed on this occasion. It was a matter of significant violence and you reported you were under the influence of drugs when you committed that offence.
118There is no indication that you advised Dr Hickey of your family background being one of significant violence. I have little doubt that had you done so, an observation of same would have appeared in Judge Carmody's judgment. It seems that in 2012, you and your father had a close relationship. This appears to be inconsistent with your claim that your interactions with him were 'always violent and scary'.
119It is noted that in 2012, your mother and father both attended court with you and your father gave evidence on your behalf indicating a great deal of support and their willingness to help you resolve your drug issues. They also wanted to ensure that your electrical apprenticeship was completed. They further supported your entry into drug rehabilitation in 2011.
120I am aware that in order to make any finding on any factual dispute that may be in issue relative to a matter in mitigation, the standard of proof is on balance. I cannot find, even on the balance of probabilities, that the version of events you gave to Ms Mynard is accurate. As noted above, she effectively diagnosed a long-term PTSD arising from what she referred to as 'attachment trauma', arising initially, from childhood experiences. If your version of events cannot be accepted, then Ms Mynard's supposed diagnosis is flawed.
121There are other problems in accepting her conclusions. Ms Mynard's report is not only deficient in rigour of assessment as explained above, but fails to transparently expose any reasoning for the conclusions she reaches.
122I do not propose to speculate why this might be the case. Her reasoning processes are neither objective, nor substantiated. In those circumstances, she has prepared a report and suggested diagnoses based on information I cannot accept, even on balance, to be accurate. I find her report unhelpful and nowhere near objective enough to be given any weight.
123As a result of information tendered during the course of the plea hearing, it became obvious that there were real doubts about the accuracy of Ms Mynard's opinion. I raised this concern with counsel and suggested counsel consider her position and whether further evidence was warranted and suggested an adjournment. The next day, no further evidence was called.
124As a result, Mr Neyland, I do not accept that your self-report to Ms Mynard is of sufficient accuracy to enable the report to be relied on. It was within her power to make enquiries as to whether the information you gave her was accurate or not or within yours to give or call evidence and neither occurred.
Moral culpability
125At paragraph 28 of submissions filed by your counsel, it was submitted that your background of trauma was a matter of considerable weight. The Bugmy[8] decision was cited as being highly relevant to the matter at hand. The Court considered that even if your self-report to Ms Mynard was accurate, your childhood circumstances were not comparable to those discussed in Bugmy's case. Counsel did not persist with this submission after this observation was drawn to her attention and I do not propose to address it further.
[8] v R (2013) 302 VLR 192.
126Counsel did, however, even after the observations that I noted above were enlivened in court, she maintained that she relied on Ms Mynard's opinion that you met the diagnostic criteria for complex PTSD and that you display symptoms consistent with ADHD and therefore, as a result of the combination of those two disorders, your moral culpability was reduced; in effect, suggesting that Verdins considerations had been enlivened. In order to consider this, I am going to have to refer to the Verdins considerations.
Applicability of Verdins
127In R v Verdins,[9] the Court of Appeal identified six ways that mental impairment may be relevant to sentencing. Your Counsel submitted that limbs 1, 3, 5 and possibly 6, are relevant to you and I therefore must address them in turn.
[9] [2007] VSCA 62.
128Limb 1. Mental impairment may reduce an offender's moral culpability and so affect what is considered to be just punishment with the effect of lessening the need for denunciation. Moral culpability may be reduced if, at the time of offence, an impairment, in general terms, causally contributed to the commission of the offence.
129The relevant question is whether evidence establishes that the impairment contributed in any way to make you, Mr Neyland, 'less blameworthy as a result'. There must be a 'realistic connection' between the impairment and your offending. There is no evidence of cognitive difficulties and no acceptable evidence of any feature of your life which would reduce your moral culpability.
130In addition, and in apparent contradiction, Ms Mynard reports that you told her (paragraph 37 of her report) that you thought you would not have committed the crime had you not been intoxicated. This is hardly evidence of reduced moral culpability. This is a clear acceptance by you that the offending was committed while you were under the influence of self-induced intoxication. I find this is more likely to be the case than the matters raised by Ms Mynard and by your counsel.
131Limb 3. General deterrence may be moderated or eliminated as a sentencing consideration depending on the nature and severity of the offender's symptoms, and the effect of their impairment at the time of the offending, sentence, or both.
132Limb 5. Relates to the existence of an impairment at the time of sentencing, or its reasonably foreseeable reoccurrence, may mean that a specific sentence may weigh more heavily on the offender than it would on a person of normal health.
133Limb 6. If there is a serious risk that imprisonment will have a significantly adverse impact on the offender's mental health, this will be a mitigating factor.
134These principles are exceptional and should not be invoked in routine cases.
135Having made the observations on the evidence provided above, I find there is no acceptable evidence on which I can make such findings in your case, Mr Neyland.
Substance abuse
136In 2012, you reported to Dr Hickey, through your father, that drug abuse has been a major problem since your late teens. The offence for which you were sentenced in 2012 was apparently committed while you were under the influence of amphetamines. On my calculation, you were probably released sometime in 2013, although I was not advised directly of this. You report to Ms Mynard that you commenced using amphetamines daily from age 26, again on my calculation, about 2013.
137You reported that you had been drug free for 2 to 3 years sometime before 2020 and resumed drug use thereafter. I accept there may be many reasons related to your drug use that make you an unreliable historian. The court can only draw the conclusion that your drug use has been long-term and significant - involving an array of drugs. I do not know your current drug use status. The court did seek information about your use in custody from your counsel, but none was forthcoming.
Further sentencing considerations
138I note that your summary matters are, in large part, directly related to this offending. You were on bail for unrelated matters. I will ensure that the fact of you being on bail and other conditions are not double counted when assessing the sentence to be imposed in this matter. I will consider the total time you will spend in custody on all matters of which I am aware.
Prospects of rehabilitation
139Throughout your interview with Ms Mynard, there was no expression of insight, nor understanding, of the consequences of your offending reported. Similarly, there was no commitment in that conversation with Ms Mynard, to rehabilitation.
140Your girlfriend, Ms Saunders, with whom you may or may not have been residing at the time of the offending, has written a letter of support and attended court to support you. I note that you indicated you were using significant quantities of drugs prior to your arrest when it seems that this relationship was on foot.
141In any event, she says that she has visited you weekly and spoken to you daily since your arrest. She expresses that you are sorry for the consequences of the offending on her. This is not remorse as is meant by the Act.
142Your plea is an acceptance of responsibility, but there is no other evidence of remorse for your offending. Your attitude to the offending seems to be that you were justified as you were helping a mate. This is remarkably similar to the justification you gave for your 2012 offending.
143However, I note a reported drug free period of 2-3 years some time before 2020, so perhaps it is possible again. Your prospects of rehabilitation must be guarded.
Conditions in custody
144Your counsel submitted that the benefit of your plea is enhanced due to the onerous conditions you have experienced in custody. Counsel submitted conditions included lockdowns, a lack of visits and a lack of ability to participate in programs.
145I have no information of any particular programs now not available. I do note that many offenders in custody are able to access programs now, as opposed to previously. Your claim of lack of social visits is contradicted by the content of Ms Saunders' letter. I do not find any particular hardship to be established over and above the emergency days you will be credited with. The Court understands that shortly after you were apprehended, the conditions in custody started to relax and did not resemble those in place during 2020 and 2021.
Parole, parity and comparable cases
146There is no doubt, for both of you, Mr Neyland and Mr Georgiou, that your offending is related to substance abuse. Therefore, any supervision in the community on your release must include strict requirements for rehabilitation including, I suggest, urinalysis.
147The duration of substance abuse by both of you may convince those who will supervise you that release to the community through a residential facility may be desirable. This is a matter for Corrections. However, whatever the conditions of your parole may be, I suggest that the authorities are more likely to release you onto parole, once you are eligible, if you have undertaken some pre-release rehabilitation counselling and are drug-free.
148If you present in the way I suggest, you will be more likely to convince those who may supervise you that you present a lower risk of relapsing once you are in the community. Mr Georgiou, I observe that you have made a good start. Mr Neyland, it seems you are yet to do so.
149It is in the community's best interests that you both resolve your substance abuse issues. You both have the potential to return to being contributing members of the community. I propose to allow both of you the opportunity of relatively early release on parole. As I have said, release will only be granted if you satisfy the Parole Board that your risk to the community is now at an acceptable level. By this method, I hope to give you both some incentive to do as much as you can to address the issues at hand.
150On the matter of parity, I note both of you have relevant records. Mr Georgiou is charged with more offences which reflect his greater criminality relative to the event as a whole. Accordingly, obviously his sentence will be longer. I note that Mr Neyland was also armed. There is little difference in culpability for the attempted home invasion offence.
151Lastly, I have been addressed on two similar matters. They are Wyka & Gardiner v the Queen[10] and DPP v O'Brien[11]. It is noted that both of these cases relate to a completed home invasion for which the maximum penalty was 25 years' imprisonment as opposed to an attempted home invasion which, as I said, carries a lesser maximum penalty.
[10] [2020] VSCA 104.
[11] [2019] VSCA 254.
152I accept that in relation to offences of home invasion or even attempted home invasion, a term of imprisonment rather than a combined sentence including a community corrections order will usually be an appropriate disposition. Neither of your counsel suggest otherwise.
153The use of a firearm, or any weapon in fact, in the course of such an offence, clearly makes the offending more serious. While the purposes of sentencing often pull in different directions, all purposes are, to a greater or lesser extent, relevant to each of you. Courts however, have observed that just punishment, deterrence and denunciation are paramount considerations when sentencing for such offending. I accept this.
154In Hogarth v The Queen,[12] similar observations were made, as was the obvious consideration that where maximum penalties are set for confrontational offences, Courts must consider those sentencing purposes in that context.
[12] [2012] VSCA 302.
155Balancing the purposes of sentencing which are to justly punish; to deter yourselves and others from committing the same offence; to facilitate your rehabilitation; and to denounce your conduct and to protect the community, I now impose the following sentences:
Sentence
156Mr Georgiou, for the offence of attempted home invasion, I sentence you to a term of 3 years and 9 months imprisonment. This will be the base sentence.
157For the offence of prohibited person use a firearm, I sentence you to 2 years imprisonment. 3 months of this sentence is to accumulate on the base sentence.
158For the offence of reckless conduct endangering life, I sentence you to 2 years and 6 months imprisonment. 15 months of this sentence is to accumulate on the base sentence.
159For the offence of possession of a drug of dependence, I sentence you to 1 month imprisonment, concurrent with the other sentences.
160The total effective sentence on my calculation is 5 years and 3 months imprisonment. I propose a non-parole period of 3 years and 6 months in total.
161I note 140 days pre-sentence detention and I will calculate those days as soon as my associate has done the maths.
162Pursuant to s6AAA of the Sentencing Act 1991 (Vic), had it not been for your plea of guilty, Mr Georgiou, I would have sentenced you to a total term of 7 years and 4 months imprisonment with a non-parole period of 4 years 9 months imprisonment.
163Mr Neyland, for the offence of attempted home invasion, I sentence you to a term of imprisonment of 3 years and 9 months. The non-parole period is 2 years and 6 months.
164Pursuant to s6AAA of the Sentencing Act 1991 (Vic), had it not been for your plea of guilty I would have sentenced you to a term of imprisonment of 5 years with a non-parole period of 3 years 4 months.
165I note your pre-sentence detention is 314 days. Mr Neyland I believe also has some summary matters, does he, hence?
166MR HALLOWES: Yes, Your Honour. Contravene bail and commit indictable offence while on bail.
167HER HONOUR: All right. Is there, in light of what I have said, is there any reason why there should be any cumulation on those, or I would propose concurrent sentences?
168COUNSEL: No, Your Honour.
169HER HONOUR: Yes. I will not ask Ms Park to be heard then, thank you. On each of those matters I propose to impose a term of 3 months' imprisonment on each to be served concurrently.
170MR HALLOWES: As Your Honour pleases.
171HER HONOUR: I note the forfeiture orders. Sorry, it took so long counsel. There ended up being a lot to say. Do you want to speak privately to your client? We can - - -
172MR HALLOWES: No, Your Honour, we will arrange to speak to him later.
173HER HONOUR: You'll arrange to do that? Ms Park, do you require to speak privately to your client?
174MS PARK: No, Your Honour, I will arrange a conference.
175HER HONOUR: You will arrange a conference. Is there anything else?
176COUNSEL: No, Your Honour.
177HER HONOUR: Good, thank you very much. We will adjourn now.
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