Director of Public Prosecutions v Laban
[2016] VSC 612
•12 October 2016
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2016 0061
| THE DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DION PELETTI LABAN |
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JUDGE: | HOLLINGWORTH J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 1, 19 September 2016 |
DATE OF SENTENCE: | 12 October 2016 |
CASE MAY BE CITED AS: | DPP v Laban |
MEDIUM NEUTRAL CITATION: | [2016] VSC 612 |
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CRIMINAL LAW – Sentence – Murder – Spontaneous unprovoked attack on stranger – Prolonged and violent attack – Guilty plea – No relevant prior convictions – Some remorse – Prospect of deportation – Sentenced to 21 years’ imprisonment, with a non-parole period of 17 years
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr P Rose QC | Solicitor for Public Prosecutions |
| For Dion Laban | Ms M Fox | Stary Norton Halphen |
HER HONOUR:
Dion Laban, you have pleaded guilty to the murder of Joel Desgranges on 2 December 2015.
You had never met Mr Desgranges, before you encountered him by chance that morning.
Mr Desgranges loved to walk, particularly in the early mornings. He was in the habit of meeting a friend, Jason McDonald, around 5:30am at the Sunshine Railway Station and walking together to Mr McDonald’s workplace. However, on the morning of his death, he was walking alone.
The two of you first crossed paths at the Sunshine Railway Station. CCTV footage shows you walking behind Mr Desgranges for some minutes through the station, wheeling a suitcase behind you. However, the prosecution does not suggest that you were following him with any sinister intention at that stage.
After the two of you left the station, you continued to walk behind Mr Desgranges. Much of your subsequent interaction was recorded on CCTV footage. At 5:49 am, the two of you were walking along Anderson Road in Sunshine, heading towards the Kororoit Creek area. Some minutes later, when the two of you were on a footpath, beside some houses, Mr Desgranges turned and had a short conversation with you. He appeared to indicate to you to walk ahead of him. Mr Desgranges turned and continued onward, down the path that passed behind some houses. You followed closely behind.
After a short while, Mr Desgranges again stopped walking and spoke briefly with you. You then pushed and kicked him. Mr Desgranges held his right arm out in self-defence, whilst walking backwards away from you. You continued to kick Mr Desgranges’ legs, causing him to fall onto the ground.
You then proceeded to brutally attack Mr Desgranges, by repeatedly kicking, punching, kneeing and stomping on him, while he lay on the ground. At no point during your vicious attack did Mr Desgranges pose any threat to you or try to fight back. Even though Mr Desgranges was largely motionless, you continued to attack him for about one minute, as he lay on the ground. The footage of this part of the attack is clearly visible, and sickening in its gratuitous violence.
You then dragged Mr Desgranges’ body away from the footpath, onto the grass, in the direction of Kororoit Creek. You picked up a large branch, and proceeded to strike Mr Desgranges with the branch multiple times. For most of this part of the attack, Mr Desgranges appears to be lying motionless on the ground, out of view of the CCTV. However, at some stage, he appears to have rolled further down the embankment and, at one point, he appears to have been conscious and trying to sit up or move. You can be seen attacking Mr Desgranges in this way for about four minutes, whilst down on the embankment.
You remained down near the creek, in the vicinity of Mr Desgranges, for a further period of about 15 minutes. It is not clear from the CCTV footage exactly what you were doing during this time. However, at some stage, you removed your jacket, and threw it in the direction of the creek.
You then walked back up to the footpath. You removed your top and beanie, and put them in your suitcase, before putting on a baseball cap. You walked to the side of some houses, where you spent a couple of minutes changing your pants and shoes. After returning to the footpath, you walked back in the direction from which you had originally come, taking your suitcase and possessions with you. Your actions throughout this period after you returned from the creek area seemed calm and purposive.
I do not know whether Mr Desgranges was alive or dead when you left him. Around three hours later, passers-by located Mr Desgranges’ dead body. His legs and feet were submerged in the water, and his upper body was lying on some rocks on the bank of the creek.
A post-mortem examination revealed that Mr Desgranges had suffered multiple episodes of severe blunt force trauma to the head, torso, abdomen, upper and lower limbs and back. The forensic pathologist identified at least 30 separate impact sites on Mr Desgranges’ body, which had been inflicted with severe force. The cause of death was blunt force trauma to the head.
After you murdered Mr Desgranges, you went about your day as if nothing had happened. You visited your ex-partner and son, went to Centrelink (where you spent about 45 minutes on a computer) and then to a bank to open an account, before you were arrested by police later that afternoon.
There is evidence that you may have been under the influence of illegal drugs when you murdered Mr Desgranges. You told police that you had smoked some cannabis earlier that morning, although said nothing to them about any other drug use. When examined around 10pm that same day, you told the forensic medical practitioner that you had injected a small amount of methylamphetamine (“ice”) earlier that morning, although he noted that you were showing no signs of alcohol or drug effect at that time.
Two reports were filed on your behalf for the purpose of this plea hearing. One was prepared by Dr Nina Zimmerman, a consultant forensic psychiatrist, who assessed you in December 2015 and again in April 2016. The other was prepared by Mr Guy Coffey, a clinical psychologist, who saw you on three separate occasions in July of this year. You told both of them that you had smoked some ice the night before, and may have injected some ice early in the morning of, the murder. In terms of your mental state at the time of the attack, you told Mr Coffey that you were “a bit scattered” as a result of your ice use.
You told both Dr Zimmerman and Mr Coffey that immediately before you hit Mr Desgranges, he turned to you and said words to the effect of “I know who you are. Your wife has white hair and you have a kid,” which made you fearful for your family. You also told Dr Zimmerman that Mr Desgranges had sworn at you and abused you. It is now accepted by you that Mr Desgranges did not make any such remarks. Mr Coffey noted that you had never mentioned any such alleged remarks before your interview with Dr Zimmerman. Mr Coffey said he was unable to determine whether your account as to what Mr Desgranges said was any of the following: an accurate, but previously forgotten recollection; a retrospective reconstruction, whereby you attempted to make sense of your acts; or a self-serving fabrication. I am not able to make any determination in that regard.
You told Dr Zimmerman and Mr Coffey that, at the time leading up to your offending, you were using ice daily, and heroin several times each week. Indeed, in the days leading up to your offending, you were reported as having been paranoid, and had spent a night at Western Hospital after apparently suffering a drug-induced psychotic episode. Mr Coffey said that it is likely that extended heavy drug use had rendered you considerably more aggressive and impulsive, and that, given your reported drug use immediately prior to your offending, it is possible that you may have interpreted Mr Desgranges’ actions in a suspicious and paranoid manner.
Mr Coffey’s ultimate conclusion is that, even if you were affected somewhat by ice at the time of the attack, you were not rendered confused or disorientated by your drug use. It is also not suggested that you were in a drug-induced psychotic state at the time. Your actions were both purposive and goal-directed, and you were aware of the nature of your actions and their consequences. In Mr Coffey’s opinion, any strain on your mental state, resulting from your historical or recent drug use, may explain why the altercation occurred, but falls well short of explaining the ferocity of your attack on Mr Desgranges.
At your plea hearing, the prosecution did not suggest that your drug use should be treated as an aggravating factor, and your counsel did not suggest it was a mitigating factor. Although I accept that your use of ice may explain why you were more paranoid and aggressive than usual, in the circumstances, it does not diminish the seriousness of your actions.
There is also no evidence that you were suffering from any mental illness or impairment at the time of your offending, so as to reduce your moral culpability.
I accept that the attack occurred spontaneously. Nevertheless, it was a deliberate, protracted, brutal and entirely unprovoked attack on an unarmed and defenceless person. At some stage during or after your attack on Mr Desgranges, he died as a result of the injuries you inflicted.
Before I consider your personal circumstances, I want to say something about the effect your actions have had on others.
Joel Desgranges was almost 60 years old at the time of his death. He was the third of four children born to parents Madelaine and Julien Desgranges. He was born and lived in France, before moving to Australia with his mother and siblings when he was about 18. He worked at various jobs, and moved around Australia with his mother for a number of years. Eventually, they settled in Melbourne, where Mr Desgranges lived with his mother, until she was placed into a nursing home.
Victim impact statements were provided to the court by Mr Desgranges’ siblings and friends. They describe him as a kind, cheerful, loving man, who enjoyed life. They speak of his caring nature, which was exemplified by the way he took care of his mother when she was suffering from Alzheimer's disease. They all clearly miss Mr Desgranges greatly, and are shocked and saddened by his death. Several of them are struggling with depression. They are particular disturbed by the violent nature of his death. Some of them are now living in fear as a result of the way he lost his life, and are still having nightmares and trouble sleeping.
Jason McDonald, Mr Desgranges’ friend and regular walking companion, also filed a victim impact statement. Mr McDonald feels guilty and in some way responsible for Mr Desgranges’ death, as he was on leave and not there to meet and walk with him that particular morning. I hope that, with the passage of time, Mr McDonald will come to realise that Mr Desgranges’ death is in no way his fault.
I turn to consider your personal circumstances. You were born in Wellington, New Zealand. You are now 33 years old and are partly of Maori descent.
You were abandoned as an infant by your biological parents, who showed no interest in your subsequent upbringing. You and your younger sister were taken in and raised by a couple, who were family friends. When you were about nine, your father took your sister to live with him, leaving you with your adoptive parents.
You had a loving upbringing with your adoptive parents in New Zealand, although suffered feelings of confusion and abandonment, which you have carried with you into adulthood. When you were 9 years old, your adoptive parents separated, and you moved to Australia with one of them. At school, you were an average student academically, but excelled at sports.
You have a long history of substance abuse. By the age of 13, you were a regular user of cannabis, and an occasional user of heroin. Within a couple of years, you were using both of them heavily. You returned to New Zealand briefly for two years when you were about 15, however you were eventually expelled from school for smoking cannabis. You have continued to use drugs on and off since that time, and your life has suffered in a number of ways as a result. In more recent times, your drug addictions have resulted in the breakdown of several relationships, your inability to maintain steady work, and homelessness.
At the age of 19, you began a relationship with Kelly. When you were 22, you and Kelly had a son, who is now about 10 years old. Your son suffers from severe autism, with behaviour and needs that have been very difficult for both you and Kelly to deal with. When not under the influence of drugs, you have been a loving and attentive father to your son. After your son was born, your drug use diminished significantly, although you continued to smoke cannabis, and used heroin for a few days every year.
While you were in a relationship with Kelly, you were in regular employment, including as a truck or forklift driver and, eventually, a driving instructor.
When you were 22, you were prescribed Suboxone to assist with your heroin addiction; you continued to take that medication until 2010.
You tried ice for the first time in 2011. Your erratic behaviour while under the influence of ice lead to a temporary separation from Kelly, however your relationship resumed once you stopped using ice. During that period of separation, you took three overdoses of heroin, as you were feeling desperate and abandoned. You began using ice and heroin again on a regular basis, around late 2014 or early 2015. That seems to have been around the same time as Kelly started a new relationship. Your escalated drug use ultimately lead to the breakdown of your relationship with Kelly, around March 2015. From then until the time of offending, you were using ice daily, heroin and cannabis on most days, and consuming 4 to 6 cans of bourbon daily.
Your drug use has resulted in several hospital admissions. You were hospitalised for one night in July 2015, and for a week around early November 2015. Prior to the November admission, there were several occasions when you had turned up to Kelly’s place in a confused, paranoid and drug-affected state. On 31 October, police took you to hospital, after you had been found in the middle of the road, acting strangely and talking to the traffic. You presented on admission as confused, aggressive and paranoid. On both of those admissions, you were advised to attend drug and alcohol counselling after leaving hospital, but failed to do so.
You stayed with your adoptive mother and her partner for a few weeks in November, until your relationship deteriorated and you were asked to leave. After spending a few nights in a hotel, you were sleeping on the streets in the days immediately before the offending.
On 30 November, police again took you to hospital, because you were in a very emotional state and had been behaving strangely. You were hospitalised overnight on 30 November 2015.
Both Dr Zimmerman and Mr Coffey agreed that 2015 was a turbulent and distressing year for you, as a result of escalated drug use, relationship breakdowns, and unsuccessful attempts to reconnect with your biological parents.
Your paranoia and strange behaviour on those occasions are effects of your drug usage, and are not due to any mental condition. You have no history or diagnosis of mental illness or disorder. Your counsel accepted that Verdins principles do not apply in your case.
Whilst in custody, you have suffered from some reactive depression and lowered mood, for which you have been treated with anti-depressant medication. Dr Zimmerman recommends that this be supported by regular counselling, as well as medication. However, there is no suggestion that you are likely to find prison more burdensome than other prisoners, on account of depression. Indeed, Mr Coffey says your psychological state has improved in custody, due to the enforced withdrawal from drugs.
Character references were filed on your behalf by various family and friends, as well as the pastor of a church which you have attended. Your referees all describe you in positive terms, such as quiet, polite, thoughtful, gentle, someone who helps others. They all describe what happened as being out of character for you, and all blame ice for what occurred. Understandably, they seek to put forward a positive view of you; but most of their references do not really acknowledge the extent to which illegal drugs have been an ongoing feature of much of your life. It is also difficult to reconcile the person they describe with the extreme, gratuitous violence which you demonstrated on this occasion.
You have a few prior convictions (mostly for property-related offences) in the Magistrates’ Court from 2004. However, I accept that you do not have history of violent behaviour towards people (although you have caused property damage by your violence when on ice). You have never served a term of imprisonment before.
At your committal hearing, you indicated your intention to plead guilty to murder. You pleaded guilty at the first directions hearing in this court, in May 2016. This is an early plea. You are entitled to a discount on the sentence to be imposed upon you in recognition of your plea, and its utilitarian value. Your plea has facilitated the course of justice. The community has, by your plea, been spared the time and cost of a trial. The family and friends of Mr Desgranges have been spared what would have been a very traumatic trial for them.
Apart from any remorse which is implicit in your plea, there is also some evidence that you have, in more recent times, started to demonstrate remorse. Certainly, in the immediate aftermath of the offending, your only concern was to protect yourself. After dragging Mr Desgranges’ body out of sight and continuing your assault, you left him partially submerged in the creek. You went and changed your clothes. When first interviewed by police, later that day, you denied that you had seen or spoken to anyone on your walk that morning, or had any involvement in the attack. Then, after you had seen CCTV footage, which clearly showed you attacking Mr Desgranges, you admitted having attacked him, but gave a false account of Mr Desgranges having abused you and told you he knew your wife and son, and where you lived. You told police that you originally had no memory of the attack, but seeing the CCTV footage brought back your memory.
Many of your referees have simply made a rather formulaic recitation of the fact that you are now remorseful for your actions, without giving any indication of what it is that you have said or done to demonstrate genuine remorse. That makes it difficult to assess the nature and strength of your remorse.
While you told Dr Zimmerman in your second consultation with her that you are remorseful for what you did, Mr Coffey did not mention any expression of remorse in your three consultations with him.
Although you have lived in Australia for much of your life, you are not an Australian citizen. At the time of your offending, you were in Australia on a Special Category Temporary Visa, which had been granted in August 2015. Your visa was cancelled on 2 March 2016. I accept that knowing that you are likely to be deported to New Zealand at the conclusion of this sentence is likely to make imprisonment more burdensome for you than others,[1] particularly given that your son and most of your supporters live in Australia.
[1]Guden v R (2010) 28 VR 288, 295.
At your plea hearing, your counsel submitted that you have very good prospects of rehabilitation. She pointed to the fact that during the period of about a decade in which you were in a relationship with Kelly, you largely abstained from illicit substances and did not commit any offences. Since you have been in custody, you have undertaken a number of courses and jobs, and are now a unit billet. You are on a methadone program, and have returned negative results for illegal drug use in custody. All of those are positive things, in terms of prospects of rehabilitation.
However, I am somewhat guarded about your prospects of rehabilitation. Your risk of reoffending is inextricably linked to your drug use. As mentioned earlier, your general psychological wellbeing has improved considerably during your time in custody, due to the enforced abstinence from illegal drugs. I agree with Mr Coffey’s assessment that you have demonstrated a low capacity to remain abstinent in the face of stressful periods in your life; in the past, your heavy drug use has often been linked to feelings of isolation and depression. If, at the end of your sentence, you are eventually deported to New Zealand, away from your family and friends, that is likely to be particularly challenging for you in that regard. I agree with both Dr Zimmerman and Mr Coffey that it would be for the benefit of you and the community for you to receive long-term counselling in custody and during any period of parole, in order to address both your drug addiction and the issues that underlie it.
There is a need for both specific and general deterrence in this case. Denunciation and just punishment are also very relevant considerations in sentencing you.
For the murder of Joel Desgranges, I sentence you to 21 years’ imprisonment.
I fix a period of 17 years before you become eligible for parole.
I declare, pursuant to s 6AAA of the Sentencing Act 1991 that, but for your plea of guilty, I would have sentenced you to a total of 24 years’ imprisonment, with a minimum non-parole period of 21 years.
Further, I declare that the period to be reckoned as already served under this sentence is 316 days, inclusive of today's date. I direct that there be noted in the records of the court the fact that such declaration was made and its details.
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