Director of Public Prosecutions v Hellyer

[2014] VCC 900

IN THE COUNTY COURT OF VICTORIA
AT MELBOURNE
CRIMINAL DIVISION Revised
Not Restricted
Suitable for Publication

Case No. CR-13-02443

DIRECTOR OF PUBLIC PROSECUTIONS

v

DYLAN HELLYER

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JUDGE:	His Honour Judge Grant
WHERE HELD:	Melbourne
DATE OF HEARING:	7 February 2014
DATE OF SENTENCE:	27 February 2014
CASE MAY BE CITED AS:	DPP v Hellyer
MEDIUM NEUTRAL CITATION:	[2014] VCC 900

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr A. Grant	OPP
For the Accused	Dr. Fitzgerald	Marich Legal Pty Ltd

HIS HONOUR:

1. Mr Hellyer, you have pleaded guilty to one charge of intentionally causing serious injury and you have consented to my dealing with one summary charge of unlicensed driving.  The maximum penalty for intentionally causing serious injury is 20 years imprisonment.  The maximum penalty for the charge of unlicensed driving is 25 penalty units and/or three months' imprisonment.

2.You have admitted your prior criminal record.  Mr Grant presented a summary of your offending.  It is not my intention to repeat the summary.  It will be attached to these remarks as an exhibit.  Briefly, on 2 August 2013 at about 4 p.m. you attended at the complainant's room in the boarding house at 5 Wilmer Avenue, Dandenong and purchased a small amount of cannabis.

3. During the course of the late afternoon you went to a hotel and consumed alcohol.  You then attended the home of a Mr Ferris in a drunk and aggressive state.  You then returned to the victim's room at the boarding house and at about 7.30 p.m. engaged in an argument with him.  You hit him to the face with a bottle.  You left the victim's room for a short time and then returned with others.  You and the victim argued before you both went outside and commenced to fight.  During the course of that fight you stabbed the victim repeatedly. 

4.Paragraph 13 of the summary alleges that whilst you and the victim were fighting you produced a knife and stabbed him.  You advised the police when interviewed that the knife came into your possession after it fell out of the pocket of the victim.  The prosecution concedes that it cannot refute that explanation and I will sentence you on that basis.

5. The summary describes how after coming into possession of the knife you stabbed the victim on his left hand side.  You then repeatedly stabbed the victim across the face and back.  The victim was taken to the Alfred Hospital suffering severe injuries.  According to Dr Gilbert, a senior clinical forensic medicine registrar at that hospital, the injuries to the chest and back were life threatening and were likely to result in death without immediate intervention.

6. In addition, the injury to the left eye could have caused vision loss without intervention.  The victim was taken immediately for emergency surgery to stop ongoing profuse bleeding from a left lung injury and to release pressure from a build-up of blood around the left eyeball.  He was transferred into intensive care and placed in an induced coma.  Over the next few days he underwent surgery to repair multiple head, neck and limb injuries.

7. He remained in hospital for a period of 13 days.  Paragraph 26 of the summary provides a full account of the serious injuries suffered by the victim.  The victim did not provide an impact statement but has recently told police that he is not suffering ongoing health issues and that his jaw has fully healed.  However, I note that he told police he is still awaiting further surgery on his eye socket.

8. Mr Hellyer, your attack upon the victim was ferocious and brutal.  It involved the use of a knife and resulted in serious life threatening injuries to the complainant.  The injury to the victim's eye socket and the broken jaw could only have been caused by the application of significant force.  These matters are of great significance in determining an appropriate sentence.

9. You have admitted a number of prior court appearances, with one exception they are appearances in various Victorian Children's courts.  There is one prior charge of unlawful assault.  In the past you have been found guilty of dishonesty offences, damage offences and one count of reckless conduct endangering life.  You have also been found guilty of traffic offences including three counts of unlicensed driving and one count of drive whilst disqualified. In 2009 you were placed on probation and later that year a youth supervision order. 

10.Dr Fitzgerald raised a number of matters in mitigation.  I deal with each in turn.  Firstly, the early plea of guilty.  You will be given credit for your early plea of guilty.  It occurred at the committal mention.  It is indicative of remorse and has utilitarian benefit.

11. Secondly, your disadvantaged background.  You have a background and upbringing that is marked by dislocation and disadvantage.  You have never met your father.  When you were four years of age your mother commenced a relationship with your stepfather.  He was a violent man who regularly assaulted you and your mother.

12. The family moved frequently and your schooling was chaotic and unstable.  You left school after repeating Year 8.  You have had very little work since leaving school.  You were the victim of a brutal assault when you were nine years old.  Child Protection became involved and you went to live with your grandmother. 

13. This arrangement did not last and after further Department of Human Services involvement you spent time in a series of residential units.  The only settled time appears to be the period of nine months or so from March 2011 when you had accommodation with Mr Geoffrey Cooper in Shepparton and he has provided a supportive reference on your behalf.

14. A report provided by Mr Gary McMullan, consultant psychologist, states that you were diagnosed with attention deficit hyperactivity disorder and oppositional defiance disorder as a child.  You stopped taking medication when you were aged 15.  You told Mr McMullan that you commenced using cannabis when you were 11 years old.         At the age of 16 or 17 you commenced drinking alcohol.  You were drinking heavily by the time you

were 18. 

15. I accept that the disadvantage that you have suffered in your life is a relevant matter in mitigation of sentence. 

16.I move now to the relevance (or otherwise) of the Verdins principles.  Mr McMullan has provided a diagnosis of post-traumatic stress disorder. He states that the condition developed as a result of the serious physical abuse inflicted upon you by your stepfather.  He is of the opinion that the assaults on your mother would have exacerbated the condition.  He also diagnoses major depressive disorder which possibly developed as a result of your home circumstances.  In his report Mr McMullan says this about your offending and I quote:

"The disinhibiting effects of alcohol almost certainly had a part to play in Mr Hellyer's behaviour at the time of the assault.  However, I also believe that his post-traumatic stress disorder and major depression would have impaired his ability to exercise appropriate judgment.  Seeing a woman being abused apparently brought back distressing memories of his mother being assaulted.  Such memories along with other symptoms may well have impaired his ability to make calm and rational choices".

17. Your counsel did not submit that general or specific deterrence should be moderated because of the diagnosis of post-traumatic stress disorder and major depression.  Rather, he submitted that these conditions reduce your moral culpability and the sentence should be moderated accordingly.  I am unable to accept that submission.

18. I am satisfied that you suffer from these conditions.  Indeed I am satisfied that the existence of these conditions requires me to apply the fifth principle of Verdins and moderate your sentence accordingly.  However, I am not persuaded that there is sufficient nexus between these mental conditions and the offending such as to justify any reduction in your moral culpability.

19. Mr Hellyer, the offending in this case is explained by the amount of alcohol that you had consumed, not by your mental conditions.  Mr McMullan places weight on your report to him that the victim's assault on his girlfriend, "Brought back distressing memories" of assaults upon your mother.  He says that the memories together with the other symptoms may well have impaired your ability to make calm and rational choices.

20.I make two points about Mr McMullan's assessment. First, it is equivocal. Second, it does not accord with other evidence of your behaviour on the afternoon in question.  In the late afternoon of that day you attended at the home of Mr Lee Ferris.  He is a man who had not been in dispute with his girlfriend, you were drunk and you were aggressive. 

21. You were so drunk and aggressive that his partner called the police for assistance.  As I said, you then went back to the victim's room at the boarding house and consumed more alcohol.  You behaved aggressively towards the victim.  You were asked to leave by the victim and you did so and a short time later you returned with a group of people who banged on the victim's door.  You entered the room after the victim opened the door and resumed an argument.  You both went outside and started fighting. 

22. Mr Hellyer, you consumed a significant amount of alcohol on the day of this offence and behaved in an aggressive manner throughout the late afternoon.  I accept the prosecution's submission that the offence was the culmination of an extended period of interaction between yourself, the victim and a number of other people.

23. In these circumstances I am not persuaded that there is sufficient connection between the offending and your mental conditions to justify a reduction in your moral culpability.

24.I now turn to the issue of your youth.  Mr Hellyer, you are still a young man.  You are 20 years old.  At the time of the offence you were 19 years old.      The law has always recognised the importance of rehabilitation in sentencing a young offender.  In this case where you have a limited history of violence the principle is still highly relevant.  However, the seriousness of the offence means that appropriate weight must also be given to principles of general deterrence, denunciation and protection of the community.

25. Your counsel suggested that a sentence of detention would be an appropriate order.  I disagree.  The only appropriate order in this case is an immediate term of imprisonment.  A sentence of detention in a youth justice centre would not adequately reflect the gravity of your offending.

26. However, I do take into account in determining the period of time that you would serve that this is your first custodial sentence and that your youth makes you vulnerable in an adult prison. 

27.I now turn to your prospects for rehabilitation.  Mr Hellyer, I am guarded about your prospects for rehabilitation.  You have had a number of appearances in the Children's Court.  You have received supportive orders such as probation and a youth supervision order and they have not stopped your offending.  Indeed this offence marks a significant escalation in your offending.

28. Mr McMullan indicates in his report that treatment is available for your post-traumatic stress disorder and major depression.  However, he also says this and I quote:

"I believe that Mr Hellyer has very high support needs.  His paid work experience is limited to a couple of months plastering.  He has limited education and few vocational skills.  He has not had secure accommodation since he left state care.  He has very little in the way of family support.  He has not been able to sustain friendships or intimate relationships and he has serious untreated mental disorders.  He is socially immature and vulnerable to exploitation or being led astray.  In my view he requires intensive comprehensive case management and appropriate treatment for his serious mental disorders."

29. I agree with this assessment.  Your rehabilitation is very much dependent upon you receiving the intensity of support, supervision and treatment recommended by Mr McMullan.  It is to your credit that you have completed a number of relevant programs whilst on remand.  These include a program on problem solving and an introduction to anger management.

30. The final matter in mitigation relates to the circumstances of the offence.  I accept that you did not intend at the outset of your fight with the victim to use a weapon.  Indeed you did not have a weapon when the fight commenced.  The weapon came into your possession when it fell from the victim's pocket.

31. Finally, before passing sentence I note that the prosecution has withdrawn the sentencing range that it previously provided.  This has been done as a result of a recent decision of the High Court of Australia.  I will disregard the submission as to an appropriate sentencing range made by Mr Grant on behalf of the prosecution.

32. Mr Hellyer will you stand please.  Mr Hellyer, on the charge on the indictment you will be convicted and sentenced to be imprisoned for a term of five years and three months.  I fix a minimum term of three years before you will be eligible for release on parole.

33. On the unlicensed driving you will be convicted and sentenced to three months imprisonment.  This will be served concurrently on the order made for the charge of intentionally cause serious injury.  All licences are cancelled and you are disqualified from driving in the State of Victoria for a period of six months.

34. I make a declaration that you have served 210 days by way of pre-sentence detention.  Had you been found guilty of this matter after trial I would have imposed a sentence of six and a half years imprisonment with a minimum of four and a half years.  I make an order for retention of the forensic sample and I make the disposal order sought by the prosecution.  Mr Hellyer, you can be seated there.

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