Director of Public Prosecutions v Helman

[2014] VCC 1915

IN THE COUNTY COURT OF VICTORIA Revised
(Not) Restricted
Suitable for Publication

AT LATROBE VALLEY
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

DYLAN JOHN HELMAN

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Latrobe Valley
DATE OF HEARING:
DATE OF SENTENCE:	27 May 2014
CASE MAY BE CITED AS:	DPP v Helman
MEDIUM NEUTRAL CITATION:	[2014] VCC 1915

REASONS FOR SENTENCE
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Subject:
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Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr J. Fitzgerald
For the Offender	Ms O. Trumble

HIS HONOUR: 

1Dylan John Helman, you have pleaded guilty on indictment to one charge of trafficking in a drug of dependence, one charge of aggravated burglary, one charge of extortion with threat to inflict injury, one charge of possess an unregistered general category hand gun, one charge of unlicensed person storing firearm in an insecure manner, one charge of possess a drug of dependence.  Those crimes carry maximum penalties of 15 years, 20 years, 15 years, seven years, four years and a monetary penalty respectively.  On the two charges of possession of a drug of dependence, Charges 6 and 7, you are convicted and discharged.

2You have also pleaded guilty to a number of uplifted summary offences.  They are possess ammunition without a licence, which has a monetary penalty; use drug of dependence, methylamphetamine, which carries one year; possess schedule 4 poison, a monetary penalty; and three charges of a possessing a prohibited weapon without exemption.  That charge carries a maximum penalty of two years' imprisonment.  On the uplifted charge of possess ammunition and on the uplifted charge of possess schedule 4 poison, you are convicted and discharged.

3

The circumstances of the offending are as follows:  on or about 4 September 2013, you were the victim of an unreported burglary.  On the night of

19 September 2013, you attended the home of one Campbell, in Traralgon.  You were accompanied by a male known as "Whitey".  You entered the house carrying a flick knife; that is Charge 2, aggravated burglary.  When we discussed this during the course of the plea, it became clear that it was a fairly generous plea of guilty to that charge, as there seemed to be a dearth of evidence about trespass.  In any event, your plea of guilty, as I will refer to in a moment, gets greater credit for having done that.

4You asked Campbell for the gun which you believed he had, and called him names, including "dog" and "rat", before punching him.  Campbell then retaliated and pushed you.  Whitey then hit Campbell over the right ear with a tomahawk handle.  You produced a knife and walked towards Campbell, telling him that you were not "fucking around".  You continued to ask for the gun.  Campbell said, "All right," and you told him he had till the follow day to produce it.  The partner of Campbell was present at the time and said she saw you holding a small knife, and heard you say things such as, "You stole it and I want it back." 

5There were text messages following that incident that revealed that you had told friends about what had occurred, and you said that you had hit the victim, and said that he had been stabbed in the face, which was not true.

6On 21 September 2013, you sent Campbell text messages demanding payment, saying that the money would double, "That'll be 600 or I'll make your life hell."  That is a charge of extortion.

7On 4 October 2013, police executed a search warrant at your premises.  When questioned as to whether you had anything to declare, you said, "Yes, I have got a gun and some ice."  You then led police to a sawn-off shotgun in a shed on the premises, and a bag containing a crystal substance.  The rifle stock and barrel were near the gun.  That gives rise to possessing the unregistered general category hand gun and the unlicensed person storing a fire arm in an insecure manner.

8Police also recovered various items, including ammunition, cannabis seeds, Valium, Viagra, an imitation hand gun, black-handled dagger and a flick knife, which gives rise to the summary charges that I have referred to.

9When your iPhone was analysed, text messages revealed that you had been trafficking crystal and amphetamine between about August 2013 and October 2013.  There is no real evidence before me as to the extent of that trafficking, other than it would appear not to have been one small, isolated incident. 

10I will not go through what you then went through with police, but you essentially, other than denying the aggravated burglary, made a series of admissions as to possession and the like.  You were arrested and have remained in custody.

11The situation is that you are now 28.  This is pretty much the first time that you have ever been in gaol.  You have pleaded guilty at a reasonably early opportunity, and subsequently have displayed remorse, and you must also get the utilitarian benefit of that plea of guilty.  Your admissions were of assistance in the Crown case, and as I have indicated, there has to be an additional benefit for that. 

12You do have prior convictions but they are not of real significance, and certainly there was a matter which had just preceded it by not very much, which involved a police pursuit and driving.  That would appear to have occurred during a time that you were severely affected by ice, and I do not really need to go into that other than in an arithmetical sense, as I will shortly.

13Pursuant to s.464ZF of the Crimes Act, I order that you provide a saliva sample for DNA purposes.  That order having been made, I must advise you that should you provide police with such a sample, they may use reasonable force to take it from you. 

14It is a bit of a hodgepodge of offending, Mr Helman, that had to be regarded in the application of general and specific deterrence, as well as denunciation and punishment. 

15Whatever the circumstances are, going into houses armed, even if it is very vigorous debt collecting in some sort of drug milieu, is a very dangerous matter.  You end up with dead bodies, that sort of conduct, and it cannot be tolerated.  A period of jail is inevitable, in my view.  You have already undergone 235 days.  I will discuss that again.  Having heard from your counsel and working back on matters that told to me previously, I think that is sufficient for these purposes, as long as it also has a community corrections order attached to it.

16Tendered on your behalf was a report from Mr Ball, a psychologist, and I take that into account, as well as references as to your capacities, and what you are normally like.

17The situation is that, as I said, you are now 28 years of age with very few prior convictions, in real terms.  You have been put on a community-based order not long before this offending occurred, but the drug and alcohol aspect of that had not, at that stage, really commenced.  You had only had about one appointment.  You clearly were, having read the report from the Office of Corrections, in a very disturbed mental state of mind at around about that period of time. 

18You commenced using methylamphetamine approximately eight to ten months before this offending occurred.  At the time of it, you were using frequently up to a gram a day.  You are an intelligent and articulate man.  The psychologist says you are of average intelligence and have no cognitive defects or psychiatric disorders.

19In terms of your background, I can summarise that briefly from what was told to me last time, and also from the succinct and helpful submissions that have been filed on your behalf.  You are the eldest of four, you have not had any contact with your biological father, your stepfather died, when you were about seven, in a car accident.  His death apparently had a substantial effect on all the children, and especially on your mother, who turned to alcohol in terms of dealing with the loss.  I am told that you endeavoured to take on a fatherly role, and your lives were all very chaotic after that.  The family moved around considerably, and there were a number of different men in and out of the house.  There was some drug use involved.

20You left home at about 13, becoming estranged from your mother, and went to live with your grandparents.  You had been to a number of schools by then, which is a very common factor when people are seen in your particular circumstances.

21When you were 14, you lost a younger cousin, with whom you were very close, to cancer and lost your grandfather.  The loss of your grandfather was shattering to you.  He had been the second father figure that had passed away. 

22As I have indicated, you went to something in the order of six schools before completing Year 8, and then failing to complete either Year 9 or Year 10.  When you were about 16, you met your current partner, Catherine, and you have been together ever since, with two children, aged seven and six.  I point out, at this stage, that you have very, very strong family support, not only on the day of the plea but in the courtroom today.  That is encouraging in these situations, and is very frequently not the case at all.  People who have been using drugs for long periods of time tend to burn off everybody they know.  It is probably fortunate that your drug use was, perhaps, not known to the rest of the family, and occurred over a relatively short period of time.  That is in terms of ice, I am talking about.

23In any event, you had various jobs over the years, but have struggled holding down long-term positions.  Your partner did not know of your drug problem, and it is a very unfortunate set of circumstances that evolved.

24In 2007, your mother-in-law was diagnosed with a lung disease.  I am told that she was a person who you were very close to.  You had known her most of your life.  In Christmas 2011, the family was told that she was gravely ill and would not survive.  In March 2012, she received a double lung transplant.  After the transplant, she remained in hospital from March 2012 until December 2012. 

25She has not responded well and was on a ventilator for a number of months.  During that period of time, your partner and the children would spend extended periods of time in Melbourne, staying in an apartment provided to them by the hospital.  You remained in Traralgon working fulltime for most of that period and trying to keep the finances afloat.  The family became fragmented and the pressure of the separation and the mother's illness took a considerable strain on your relationship.  You basically, in that scenario - somewhat understandably, I suspect - stopped communicating.  She had no idea you were using methylamphetamine.  She is not a drug user and she never has been.  She had been aware of your cannabis use over the years, but cannabis does not lead to this sort of offending in the general course of events.

26During that period of time, she said that she did not pay a lot of attention to what was happening with you, because she was focussed on caring for her mother.  I note that her own father had committed suicide when, indeed, she was a teenager.

27In December 2012, when your mother-in-law left the hospital, there was a poor prognosis and it was anticipated she would not last more than a few months.  During that period of time, she could not stay near the children because of the risk of infection and colds and things like that, and your partner spent a considerable time away from the home, caring for her mother.  The relationship was not going well at that point in time, and again one can see how that had occurred.  Your mother-in-law died in July 2013.

28In about June, you had been made redundant from your job.  By that stage, you were already seriously addicted to methylamphetamine.  It is clear, as you told the psychologist, that around that period of time the deaths that occurred in your life had effectively caught up with you, and there had never been a proper grief solving regime put into place.  It was in that scenario that you became involved in this overall setup, dealing drugs and essentially becoming a crook.  As Ms Trumble would say, it was the milieu in which you were mixing at the time. 

29That does not excuse what you did, and I suspect that people who become involved in this sort of activity sometimes deserve what they get.  But the fact of the matter is that that is how all this came about, and you have extremely strong family connections, and I think the risk of you re-offending, if you can rehabilitate from the drug use, should be low.

30Your prospects of rehabilitation are really dependent upon you, but you do have a large number of, in my view, protective circumstances, they being your realisation as to what has occurred and the fact that you have now been in custody for something in the order of eight months, which has been a long time to think about what you have done.  You are clearly capable of working.  You have done some programs in gaol, but because you are on protection, which I obviously take into account, you would not been able to do too many of them, and being on remand would not help either.

31You were sentenced during all this on a breached community-based order.  That community-based order was, realistically, breached by you going into custody and none of the programs that were going to be put in place could be put in place.  This offending breaches it as well, but I do not know whether that is of particular relevance here. 

32I find this sort of sentencing can be extremely difficult.  It is the sort of offending where things like a sawn-off shotgun, aggravated burglaries all add up to somebody who, if they are not a crook, seems to want to be one.  You are going to be on a community corrections order and I make it very clear to you that, if you breach that community corrections order for this offending and you are brought back, you will do - and it will be plural - years.  All right?  This is extremely serious offending.  You are a very lucky man that you have got such strong family support, and the way that things have fallen into place since you went into custody.

33I take into account, obviously, the report of Mr Ball.  I take into account the references that have been filed.  You have, in the twixt time since going on remand for this, undergone a sentence which was imposed for a police car chase.  What I am doing is I have dealt with that appeal, set the Magistrates' Court orders aside, and made that same sentence again, but concurrent.

34The report from Corrections outlines the sort of programs that you should be involved in.  If you agree, the order will have those programs within it.  I also think that what was mentioned in Mr Ball's report, about doing the Best Chance Program, should be done as well, and that has been referred to Corrections.  So what we end up with is a period - I can do an aggregate sentence, can I not, for this, obviously - of 235 days on all those matters. 

35You would then be placed on a community corrections order for a period of two years, the conditions being that you must not commit another offence, you must report and receive visits from the Secretary, you must undergo assessment and treatment for drug abuse or dependency, undergo mental health assessment and treatment, and essentially do what you are told.  I am not going to impose work hours; you have done eight months in gaol and that is enough.

36I simply make it very, very clear to you again, so that this is all transcribed, and if you breach this by coming back here for, essentially, having been a crook, it is all over, as far as I am concerned.

37All right, that is the sentence I have reached.  Two hundred and thirty-five days be reckoned as having been served under this sentence, and take the order down, if you would not mind going with him, Ms Trumble, please.

38HIS HONOUR:  I will do that 464 in chambers, unless you have got one there.

39MR FITZGERALD:  No, we do not have it yet, Your Honour.  We will provide it.

40HIS HONOUR:  I will just do it in chambers, yes.  Ms Trumble, you have explained he has got to report within two days and do those sorts of things.

41MS TRUMBLE:  Yes.  He is going to either go immediately or he will go tomorrow morning.

42HIS HONOUR:  Sorry?

43MS TRUMBLE:  He will either go immediately upon his release.

44HIS HONOUR:  Yes, on his release.

45MS TRUMBLE:  Or tomorrow morning.

46HIS HONOUR:  Very well.  All right, I have given the 235 days.  Just check with records that that ties in with what they have got, that that is all under control.  That is all I need to do, everyone?

47MS TRUMBLE:  Yes, Your Honour. 

48HIS HONOUR:  Thanks for that.  Thanks, Ms Trumble.  Thanks, Mr Fitzgerald.

49MS TRUMBLE:  Thank you, Your Honour. 

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