Director of Public Prosecutions v Herron
[2015] VCC 1384
•12 October 2015
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-14-01511, CR-15-01276
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DYLAN HERRON (also known as DYLAN LAWSON) |
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JUDGE: | HER HONOUR JUDGE LAWSON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 22 May, 17 August and 28 September 2015 | |
DATE OF SENTENCE: | 12 October 2015 | |
CASE MAY BE CITED AS: | DPP v Herron | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 1384 | |
REASONS FOR SENTENCE
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Subject: Criminal Sentence.
Catchwords: Criminal Law- Sentence- Armed Robbery- Intentionally Causing Serious Injury
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms C. Pezzimenti | Vaile Anscombe, Acting Solicitor for Office of Public Prosecutions |
| For the Offender | Mr C. Terry | Doogue, O’Brien George |
HER HONOUR:
1 Dylan Herron, you have pleaded guilty before me on two indictments, the first indictment E11665663 is one charge of armed robbery and that relates to you robbing a chemist at Sunshine on 25 May 2015 and at that time you had with an offensive weapon, namely, a box cutter.
2 On the second indictment F11652982 you were charged as Dylan Lawson and there is one charge of causing serious injury intentionally and that relates to offending on 2 March 2015 and I note that you are known as Dylan Herron but also use the name Dylan Lawson.
3 In addition you admitted your prior criminal history. There are court appearances spanning a period from 25 July 2005 until 12 March 2014 and you have various convictions, some for dishonesty offences. You do have relevant prior convictions for unlawful assault in 2004 and unlawful assault and recklessly cause injury in 2008.
4 The charge of armed robbery is very serious and carries a maximum penalty of 25 years' imprisonment. Additionally, the charge of intentionally cause serious injury is a serious one as well and that carries a maximum penalty of 20 years' imprisonment.
5 I will just set out the chronology and the history of this matter. You were arrested on the armed robbery charge on 20 May 2014 and held in custody from 20 May 2014 until 4 June 2015 when bail was granted. You entered a plea of guilty to the armed robbery charge at committal mention on 25 August 2014. A plea hearing was listed on 24 October 2014 but you failed to appear. On 2 March 2015 the offending, the subject of the second indictment occurred, and you were arrested and remanded in custody from 21 April 2015.
6 On 22 May 2015 the first indictment was listed for a plea hearing and adjourned to enable some reports to be obtained. On 28 July 2015 at committal mention relating to the second indictable matter that matter resolved and that was adjourned to join the armed robbery plea that was listed on 17 August 2015. On that date both pleas were adjourned to enable your counsel to obtain further material and on 28 September 2015 the final plea was listed.
7 I shall now deal with the first indictment E11665663 and the circumstances of the armed robbery charge. I shall sentence you on the basis of the summary of the opening. There was no opposition taken to that when it was read to the court.
8 Briefly what happened was that at about 7.40 pm on 20 May 2014 you attended the Sunshine City Medical Centre Pharmacy and at that time you had on your person a box cutter knife. At the pharmacy the pharmacist, Jacky Truong, was working in the dispensary and another assistant, Kathy Van, was behind the counter when you entered. You told Truong that you were there to pick up some Avanza and gave your name as Dylan Lawson.
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The pharmacy records showed a Dylan Lawson but did not indicate any prescriptions were kept there. Whilst the assistant looked for prescriptions on your behalf, you suggested that they look under the name of Dylan Herron. You wrote down your surname. The chemist then went to look it up on the dispensary computer. You then approached Truong, stepped into the dispensary and grabbed a pack of 10 bottles of Antenex - which is diazepam - five milligram tablets, each bottle containing 50 tablets, with your left hand. The chemist them stepped towards you and you then said,
"Don't come any closer or I'll fucking stab you”, and as you said this you produced a 10-centimetre Stanley knife with a silver blade which was in your right hand.
10 Once he saw the knife Truong stepped back and then you fled the chemist with the bottles. You were seen running from Ballarat Road into another street where you got into a car and left.
11 You were located by the police at the home of your then girlfriend, India Sultana. A search of the premises was conducted and they found a red bag containing four bottles of Antenex stolen from the pharmacy, one bottle in a drawer and three others located in a suitcase.
12 You were arrested and participated in a taped record of interview. You told police you had taken four Xanax tablets and you were only just starting to remember things, including that you had been with another man called Don and could not remember committing the armed robbery. Don pressured you to do things and you gave some of the bottles and the knife to him. You expressed your sorrow and remorse in the record of interview. You said you did not mean to do what you did and you were under the influence of drugs.
13 No Victim Impact Statement was filed in respect to that indictment. Nonetheless, I accept that this would have been a frightening experience for both the chemist and his assistant.
14 In sentencing you there is a need to emphasise both general and specific deterrence and on behalf of the community to formally denounce your actions. Soft targets such as chemists are often the subject of these types of armed robbery charges and the courts need to send the message to the community that such acts of violence are not to be tolerated.
15 I note when you were interviewed by Mr Cummins, consultant psychologist, that you told him you spontaneously committed the armed robbery as a result of being refused the prescriptions that were meant to be ready for your collection. You acknowledged to him that the victim would have felt intimidated and frightened.
16 I will now turn to the circumstances of the second indictment dealing with the intentionally causing serious charge, indictment F11652982. I will sentence you on the basis of the summary of the prosecution opening that was read into the transcript and exhibited at the plea hearing.
17 The victim, Nathan Barbarat, a young French national working in Australia on a 12-month working visa, was travelling on a tram in St Kilda at around 3.05 pm on 2 March 2015. You boarded the tram with your girlfriend, Ms Sultana. You had a verbal exchange with Mr Barbarat. You asked him why was he watching you. You were described by others who were travelling on the tram as appearing to be angry. He replied, "I can't watch you. What's the matter?" You then started yelling at him.
18 Witnesses on the tram observed this exchange. There was much swearing on your part and there were threats made by you towards the victim. During the exchange you showed the victim the end of a weapon which you held in your right hand and which was coming out of your sleeve jacket. It appeared to be approximately 10 to 15 centimetres long and it looked to him like a screwdriver. He was scared when he saw the weapon and from then on stopped watching you and looked out the window.
19 After four or five stops you and your girlfriend rose and appeared to be making your way off the tram. After you walked past the victim, who was still seated, you walked back to him and punched him to the right side of the face with force. On being punched he stood up and punched you to the face and thereafter an exchange of punches occurred until the victim got the better of you. As that was happening Ms Sultana pulled out a weapon described as a throat razor or a flick-knife from her and began slashing at the victim whilst shouting for him to get off you.
20 As a result of receiving cuts to his back and arms the victim turned his attention to your girlfriend. That is when you produced your weapon which was described as a screwdriver or a shank and started stabbing the victim to his back, chest and face and one of those stabs connected with his chest.
21 When the tram became stationary and the doors opened, Barbarat managed to push you off the tram and Ms Sultana followed. Barbarat was in a substantial amount of pain and realised that he had been stabbed in the chest. He went with another person to a nearby police station to report the matter and whilst there he vomited and started having difficulty breathing.
22 An ambulance was called and he was taken to the Alfred Hospital where he was assessed and treated. He was diagnosed with a small circular stab wound to the left of the centre of his chest that resulted in a traumatic pneumothorax - collapsed lung - a small circular injury to the back of his left shoulder, soft tissue injuries, linear abrasions to the arm and shoulder and bruisings to the left calf. He was discharged with pain relief and a follow-up chest x-ray on 13 March 2015 revealed that the collapsed lung had resolved.
23 Your co-accused, Ms Sultana, has not been located by police and a warrant remains outstanding for her arrest relevant to this incident.
24 Mr Herron, this is a serious example of this serious crime of intentionally causing serious injury involving, as it does, an unprovoked and vicious attack on an innocent person who was travelling on a tram in a public place. It involved a weapon and the stabbing was to a part of the body in which serious injuries were not only foreseeable but also intended. Mr Barbarat suffered serious injury and the impact of your crime has been serious and significant.
25 The details were set out in his Victim Impact Statement that was read to the court. He has suffered significant adverse effects following your crime. He has ongoing difficulties coping with psychological consequences, including constant rumination about what happened, sleeplessness, pain and difficulties in his recovery which impacted on his ability to work and to practice his sport, lacrosse. He could not work for three weeks and had to have financial assistance from others to help him through that time. His mother incurred the further extra cost and inconvenience of having to travel from France to come to care for him.
26 He no longer feels safe in public places and is hypervigilant. He is always frightened that there could potentially be a dangerous person around who could stab him, even in daylight in a public place. His injuries have impacted on his ability to enjoy life and have curtailed him evolving his career in IT in Australia.
27 Having regard to the seriousness of your offending, there is a real need to emphasise both general and specific deterrence and also denunciation in the sentence.
28 I note your background. You are now 27. You grew up in country Victoria in Ballarat and Geelong. You were cared for by your mother. Your father, who died when you were five, had no real input into your upbringing. Your mother entered into a de facto relationship following your father's death which was characterised by violence that you unfortunately witnessed repeatedly.
29 You had a half-brother and two stepsisters. Your half-brother died of alcohol asphyxiation in 2011 and the material, in particular the report of Mr Cummins, confirms you are still grieving and have symptoms of persistent complex bereavement disorder. He postulated that led to an increase in your risk taking and drug use.
30 You have no relationship with your stepsisters and you are estranged from your mother.
31 You have two daughters, aged 12 and six. You have no contact with either child at present. You have a positive relationship with only one of the mothers and you are hoping to build a relationship with your older daughter in the future.
32 Throughout your childhood you attended numerous schools and had a chequered history scholastically. You attended secondary school but did not complete year 8 and you are functionally illiterate.
33 You have a long history of alcohol and cannabis abuse starting when you were about 13 and your drug use progressed over the years to using ice and heroin intravenously.
34 Your past criminal history is no doubt linked to your drug use. You have a very limited work history. You have some qualifications in painting and decorating and did work in that trade in your late teens, working for one of your former girlfriend's fathers.
35 In 2010 you were assessed as having an intellectual disability and were registered with the Department of Human Services. I will speak a bit about that later.
36 At the time of the offending you had been in a relationship with Ms Sultana for about three or four years. She is also a methamphetamines and heroin user. You reported she has a debilitating and rare skin condition.
37 On your behalf Mr Terry submitted that the armed robbery was not a sophisticated example of this offence. He pointed out that when you were asked for you identification details you did not hesitate to provide those. He submitted that whilst it is undoubtedly a serious offence it is towards the low end of the spectrum in terms of the offence of armed robbery.
38 I do accept that the armed robbery was opportunistic offending borne out of anger and frustration on your half. Nevertheless, you went into the chemist shop armed with the box cutter and used it to effect the robbery. I note that you did not cause any physical harm to either the pharmacist or the assistant. I consider this to be at the lower end of seriousness for this sort of offending.
39 Insofar as the intentionally causing serious injury charges are concerned, Mr Terry conceded this is a serious offence for which the only available penalty is period of immediate imprisonment. He conceded that the use of the weapon, the fact that the offending in public and that the attack was on an innocent civilian are all aggravating features. He highlighted there was no pre-planning or premeditation and that the stabbing occurred in the context of the scuffle that broke out on the tram.
40 Whilst that may be so, you instigated this incident through your own violent and aggressive behaviour. You started the whole event that led to the stabbing by punching the victim for no apparent reason. You say you were overly conscious of people whom you perceived were starting at your partner, Ms Sultana, because of her obvious skin contusions as a result of her rare skin condition. Whilst that may be so and you are sensitive to other people's reactions, nothing the victim did on this occasion could be seen as being a justification for what you did.
41 I do not consider this to be the most serious example of intentionally causing serious injury, but nonetheless it is quite a serious example of this sort of offending.
42 I accept that the commission of each of these offences occurred in the context of your heavy drug use and whilst providing an explanation for your behaviour I do not consider that excuses your behaviour in any way.
43 In formulating the appropriate sentence I have had regard to the matters put on your behalf in mitigation. I accept that you entered a plea of guilty at the first opportunity at committal mention in respect of both indictments. I accept there is real utility in your pleas. You have spared each of the victims the trauma of having to come to court and give evidence on your trial and you have also saved the state the cost and inconvenience of the trial and you have thereby facilitated justice and your sentence will be discounted accordingly.
44 I accept your pleas of guilty are also evidence of some remorse.
45 I have had regard to your prospects of rehabilitation. I note in the past you have served some short prison sentences, six days in 2001 and five days in 2014 for relatively minor offending. Subsequent to these charges being laid there has been a period of three weeks in custody as a result of a sentence that was imposed at the Magistrates' Court, Ballarat, for a consolidated plea.
46 You do strike me as being somebody who is still relatively young, notwithstanding your chronological age. It is hard to make an assessment of your rehabilitation prospects given what has happened in the past and your heavy dependence on illicit drugs.
47 You have never undertaken any drug rehabilitation programs or anger management programs and absent appropriate treatment for your underlying addiction to drugs and behavioural problems it is hard to be optimistic about your prospects.
48 However, by your pleas you have accepted that your actions were wrong and that does reflect some insight into your behaviour. Therefore, I consider there is some prospects for rehabilitation in the future, albeit guarded.
49 In the past you have been assessed as a person who has an intellectual disability. You were deemed suitable for services under the Disability Act 2006 on 6 May 2010 on the basis that you were found to have a mild to borderline intellectual disability. This assessment made by Department of Human Services was in the context of a request by Her Honour Magistrate Robertson at Ballarat Magistrates' Court who was dealing with a number of matters and wanted you to be placed on a Justice Plan. Because the department could not contact you and you failed to attend agreed appoints they were not in a position to provide the court with a Justice Plan as requested and that did not eventuate.
50 Testing has confirmed that you are a person who has a relatively low verbal IQ and full scale intelligence. On 5 April 2010 an assessment by David Ball, who is a forensic psychologist - his estimate was your IQ resides in the mildly retarded range. He did not attempt formal assessment because of your illiteracy and because you would not meaningfully engage in the assessment process.
51 Mr Warwick Brewer, consultant clinical neuropsychologist, further assessed you on 9 September 2015, and I have read his report. Following his testing he assessed you as a person of borderline intellectual capacity. He did not consider that your results met the technical threshold to warrant a formal diagnosis of intellectual disability. Given his qualifications, I do not propose to rely on any of his further expressed opinions concerning your current mental health status.
52 I have had regard to the reports of Mr Cummins, the consultant psychologist, and there were two, 19 May 2015 and 13 August 2015. I accept his results following mental state examination. He confirmed you do not present as being psychotic or schizophrenic and do not present with any obvious personality disorder. He considered you to be below average intelligence, although he did not form the opinion that you were functioning in the intellectually disabled range. He confirmed you had presented as being severely depressed and mildly anxious and he recommended treatment for your mental health within the custodial setting. He noted that you are still grieving in relation to the death of your half-brother and that you had symptoms of a persistent complex bereavement disorder for which you have received no treatment.
53 In his opinion the fact that you are suffering from ongoing grief at the time of the offending is of general relevance to your circumstances at that time. He confirmed his opinion was your mental health will inevitably deteriorate the longer time you spend in custody and that because of your mental health problems it would be more onerous for you to spend time in custody than for somebody who does not have mental health problems and it is most probable that you are suffering a persistent depressive disorder, although he conceded that that diagnosis could be confounded with depression, inducing effects of cannabis and heroin.
54 Mr Terry, on your behalf, said that you do accept that at the time of these offences you knew and appreciated what was right and wrong. He noted that your cognitive impairment does mean that when you are placed in overwhelming situations you lack the cognitive ability to regulate your own behaviour and make rational decisions and, therefore, that led to your offending and on his submissions your moral culpability is thereby reduced.
55 He acknowledged that general deterrence was still a significant factor in the sentence, although he said you were not an ideal candidate for general deterrence. He acknowledged that you committed the offence of intentionally cause serious injury whilst on bail and submitted that the court, when formulating a sentence, ought to have regard to the principles of totality.
56 Ms Pezzimenti, on behalf of the Crown, submitted in all the circumstances the only appropriate sentence was a gaol term to be immediately served. She highlighted that your actions in respect to the intentionally cause serious injury charge were deliberate, that you were armed and that you initiated the violence. She submitted on the basis of Mr Brewer's report that you were at high risk of reoffending absent a structured regime to address your offending behaviours.
57 Having regard to the nature of the offending on each occasion I do not consider that the principles of Verdins are enlivened so as to reduce your moral culpability. I consider that you understood what you did was wrong in respect to both charges. I have, however, taken into account in a general sense the matters raised by Mr Cummins.
58 I accept, given your current situation, gaol will be more difficult than if you were a person of normal health and that there is a prospect gaol may make your mental health condition worse.
59 In sentencing you I must impose just punishment and have regard to the principles of both general and specific deterrence and denunciation, I must also bear in mind the important consideration of the protection of the community.
60 In imposing a sentence in respect to the intentionally cause serious injury I must further have regard to the fact that you did commit that offence whilst you were on bail for armed robbery. Pursuant to s.16(3C) of the Sentencing Act 1991 when I impose a term of imprisonment for an offence committed while released on bail in relation to any other offence the court, unless it orders otherwise, must direct that the imprisonment be served cumulatively on the sentence imposed.
61 I have had regard to the principles of totality and in formulating the appropriate sentence in this matter for both indictments and in the particular circumstances of this case I will direct otherwise.
62 Could you please stand now. I will announce the formal sentence, Mr Lawson. Indictment E11665663, on the charge of Armed Robbery, you will be convicted and sentenced to three years' imprisonment.
63 On Indictment F11652982, one charge of Recklessly Causing Serious Injury, you will be convicted and sentenced to five years' imprisonment.
64 I make the following order for cumulation: the base sentence is the intentionally causing serious injury charge, five years imprisonment. I order that one year of the sentence imposed in respect to the armed robbery indictment be cumulative upon the sentence imposed in respect to the second indictment, making a total effective sentence of six years' imprisonment. I fix a nonparole period of four years.
65 I make the order for disposal, there being no objection to that order being made.
66 I make the order for the taking of a forensic sample pursuant to s.464AF(2) of the Crimes Act 1958 having regard to the seriousness of the offending and I consider it is in the interests of the community that the sample be taken.
67 I make a declaration pursuant to s.6AAA of the Sentencing Act 1991 but for your plea of guilty I would have imposed a term of imprisonment of eight years' imprisonment to serve six years.
68 I make the following declaration of pre-sentence detention: I declare that you have served 189 days of the sentence that I have imposed this day and I direct that that be entered into the records of the court.
69 I think that covers everything. The only thing I need to tell you, Mr Herron, is because I have made the order for the taking of forensic sample prison authorities can arrange for the taking of a scraping from your mouth and you have to cooperate with that process otherwise I have to tell you if you do not the police may use reasonable force so that that can be done. I think that has covered everything.
70 MR TERRY: Yes, Your Honour.
71 MS PEZZIMENTI: Yes, Your Honour, and I have updated copies of those orders as well.
72 HER HONOUR: Yes. I believe my associate printed them out on Friday and I have signed all the orders, so my associate will provide those to you,
73 MS PEZZIMENTI: Thank you, Your Honour.
74 HER HONOUR: Thank you.
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