Director of Public Prosecutions v Lawson

[2024] VCC 271

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

KOORI COURT DIVISION

Revised
Not Restricted
Suitable for Publication

Case No.CR-22-01632

DIRECTOR OF PUBLIC PROSECUTIONS

v

LYLLEY LAWSON

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JUDGE:	HIS HONOUR JUDGE JOHNS
WHERE HELD:	Melbourne
DATE OF HEARING:	22 August 2023
DATE OF SENTENCE:	12 March 2024
CASE MAY BE CITED AS:	DPP v LAWSON
MEDIUM NEUTRAL CITATION:	[2024] VCC 271

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW - Sentence

Catchwords:              Dishonestly Receive Stolen goods – Aggravated Burglary – Person Present – Theft – Car Jacking – Resist Police on Duty – Intentionally Damage Property - Koori Court Jurisdiction

Legislation Cited:      R v McKee [2003] VSCA 16; Bugmy v The Queen (2013) 249 CLR 571

Cases Cited:DPP v Lawson [2024] VCC 1986;

Sentence:                  8 months’ imprisonment and 2 year Community Corrections Order

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr M. Roper	Office of Public Prosecutions
For the Offender	Ms J. Prior	Law & Advocacy Centre for Women

HIS HONOUR:

1Lylley Lawson, you have pleaded guilty before me in the Koori Court at Melbourne to a charge of handling stolen goods which has a maximum penalty of 15 years’ imprisonment; a charge of aggravated burglary, person present, which has a maximum penalty of 25 years' imprisonment; two charges of theft which has a maximum penalty of 10 years' imprisonment; two charges of carjacking which has a maximum penalty of 15 years’ imprisonment; resisting emergency worker on duty which has a maximum penalty of five years’ imprisonment; assault emergency worker on duty which also has a maximum penalty of five years, and intentionally damaging property where the maximum is 10 years.

2You have also admitted relevant summary offences:  failing to stop vehicle on police direction, maximum penalty of six months for a first offence and 12 months for a second and also committing an indictable offence whilst on bail – it is a rolled-up charge and there is a maximum penalty of 30 penalty units, which is a fine, or imprisonment of three months.  And unlicensed driving which is also a relevant summary offence before me.

3Charges 4 and 5, carjacking, are Category 2 offences.

Circumstances of Offending

4The circumstances are set out in the Prosecution Summary of Prosecution Opening dated 18 August 2023. That summary is Exhibit A and forms part of these reasons for sentence.

5In brief, at 10:52 am on Friday 4 February 2022 police observed you running to a white Mitsubishi and getting into the front passenger seat. Another occupant, Ms Goodall, was observed in the rear seat of the vehicle and your father, Eric Lawson, was also in the vehicle.

6Your father and Ms Goodall were on the run from police, your father having just committed a serious and pre-meditated aggravated home invasion whilst armed and in company. He had also committed other serious offences prior to you joining him.

7I sentenced your father for these matters on 14 November 2022.  The medium neutral citation for that sentence is DPP v Lawson [2024] VCC 1986.

8You moved across to the driver’s seat and started the vehicle. Police had positioned their vehicle partially blocking the Mitsubishi and exited their vehicle, directing you to open the door. You reversed slightly and then moved the vehicle forward. Police feared you were about to ram the vehicle and in response used their batons and OC spray, striking the front driver's side and passenger side windows of the vehicle. You manoeuvred around the police vehicle and drove away. Enquiries with VicRoads revealed that you were not then the holder of a current driver's licence and had never held a driver's licence.

9The vehicle was observed travelling west onto McMahon Road and then south onto Cheddar Road with you driving. At this point police observed the vehicle pull over in the vicinity of Cheddar Road and Orrong Avenue Reservoir where you exited and entered the rear driver's side seat whilst Eric Lawson entered the driver's seat.

10The vehicle then continued driving on, your father Eric Lawson was now driving in a more aggressive manner.  Police saw the white Mitsubishi as it travelled in the vicinity of Fordham Road and Strathmerton Street Reservoir and onto Plenty Road. The vehicle was then seen cutting through Bundoora Square Shopping Centre and then travelling east on McLeans Road Bundoora, whilst your father was driving with you in the front seat.

11At one point the three of you left the vehicle, however, upon seeing police you and your father immediately got back into the vehicle, a tyre deflation device was then deployed on the vehicle as your father reversed out of the carpark, driving off at a fast rate of speed.

12Later, you and your father were seen by the Police Air Wing jumping over fences and into nearby parkland, pursued by police through the parklands and in the vicinity of Adam Court, Reservoir, and in the process you and your father damaged a side gate at 15 Claremount Court, Reservoir. That damage was $1,500 in value.

Aggravated burglary / Car jacking .

13At 11:30 am on that day, Antonio Amore and his wife Marie returned to their home in Reservoir. Mr Amore parked his Mazda 3 in the garage and closed the electronic door before going inside the house.

14He saw you and your father standing near the back steps and rear sliding door entrance to the house. Your father approached Mr Amore whilst holding a steak knife with a dark handle, extended towards Mr Amore’s chest. The knife was approximately a foot away from Mr Amore’s chest. Mr Amore noticed your father had his car and house keys in the other hand.

15You said, 'Let us go, help us, help us', while your father was saying 'Help us, help us'.

16Marie Amore then saw your father and you standing with her husband and threatening him with a knife. She attempted to get her husband to step back and out of danger with her. She then saw you run into the kitchen via the rear sliding door. As Ms Amore went to follow you into the house you were already running out of the house, through the sliding door and past her.

17Your father continued to brandish the knife towards Mr Amore. He feared for the safety of his wife and himself and told your father that he would let them go out of the side gate.  Instead, your father began forcing Mr Amore to walk backwards towards the garage by brandishing the knife closer to his chest.

18You then ran to the open garage door and your father stopped Mr Amore from walking any further towards the garage by pointing the knife at him. Your father started reversing the Mazda 3 out of the garage whilst you sat in the front passenger seat.

19Your father then drove the stolen vehicle to the Caltex petrol station. CCTV shows you entering the store and taking a two-litre bottle of milk and a small bottle of water and return to the vehicle without paying for them.  That is Charge 9, the theft charge.

Carjacking, Charge 5.

Pat Falvo, who was 78 years of age at the time, was parking his Mazda 626 directly opposite the stolen red Mazda that you had been in. You and your father got out of the stolen Mazda 3 and ran towards Mr Falvo who was still inside his vehicle. Your father opened the driver’s side door and dragged Mr Falvo from the vehicle, grabbing and squeezing his arm and throwing him from the vehicle where he landed heavily.

20You and your father got into Mr Falvo's vehicle, your father in the driver's seat, you in the passenger seat, and reversed out of the carpark at a fast rate of speed, causing Mr Falvo to jump out of the car's path to avoid being struck down.

21Police Air Wing continued to watch proceedings.  An intercept took place.  Detective Senior Constables Davies and Andrews directed you and your father to show your hands and exit the vehicle.  They told you to exit the vehicle and get on the ground.  The constables physically removed you out of the vehicle, you were refusing to comply and at this time you kicked Detective Senior Constable Davies in the forehead.  Another police officer was restraining your father who began kicking out towards the police members and spitting in their direction.  You continued to resist before eventually being placed in handcuffs.

22Inside the vehicle were found stolen items that had been stolen earlier in the day by your father. (Charge 1- Handle Stolen Goods)

Objective Gravity

23The objective gravity of your offending is obvious and it is accepted by you and by your counsel.

24Two of the offences are Category 2 offences. The maximum penalties of each of the offences reflects the seriousness with which these offences are viewed by the Parliament and the community.

25There were several victims of your offending, all of whom are traumatised.

26One circumstance of your offending has great prominence; your co-offender father led you into this offending and his role was central to it.

27Your father’s antecedents, his story, and your relationship with him, interrupted as it has been, is central to an assessment of your moral culpability for the offending.

28I summarised your father’s life when I sentenced him at Paragraphs 23 to 37 of the sentence I have referred to. I consider that your father’s history is relevant to your history and the circumstances of your offending on this occasion.

29Your father has been incarcerated for substantial periods of your life. When he was released under an earlier sentence of mine, he visited Mildura and you were reunited with him. You went to Melbourne with him to fulfil 'sorry business' obligations, attending the funeral of a revered and cherished relative and   Elder in your community.

30Your father relapsed and the pressures and circumstances of that relapse are set out at Paragraphs 38 to 39 of my reasons for sentence in your father’s case.

31Like your father, you also have a longstanding vulnerability to substance abuse. You were introduced to serious drug abuse from a tender age. Ms Lechner’s report indicates drug use from 11 years of age and intravenous Oxycontin use from 14.

32You fell under your father’s influence and it is reflected in the offending. It is a significant matter in assessing your subjective responsibility for the offending.

33I stated in your father’s case:

'The effects of intergenerational trauma are apparent in your life story, and no doubt were apparent to all around you as you passed from childhood to teenager to adult. You were further traumatised through the juvenile justice system…Those traumatic experiences have also left their mark on you and played a role in your psychological make-up and the dysfunction exhibited during times of stress.'

34At Paragraph 44 of that sentence:

'The circumstances that have led you to this court are not confined to those immediate factors which occurred to you at different times in your life. Parents, family members, friends, people you have grown up with and got to know through various institutions, have also been a product of systemic disadvantage that stems from the colonial experience.'

35These observations also have application in your case.

36You have expressed remorse for your offending in the examination with Ms Lechner, in the Koori Court Sentencing Conversation hearing and during the more recent CCO assessment, and also in the letter that your wrote for the Court.  I accept that you have reflected carefully on what you have been engaged in. In your words you said, 'I think it's terrible what we done.'  You have expressed clear remorse and understanding of the impacts on the victims in your written letter and orally, and I accept that.

Victim Impact Statements

37I received three victim impact statements in relation to your criminal conduct: Exhibit D from Tony Amore, Exhibit E, Maria Amore, and Exhibit C, Pasquale Falvo.  I will not summarise those impacts, they are serious and long-standing, and I take those significant impacts upon your victims into account in sentencing you. 

Personal Circumstances

38Amongst other materials, I have received in your case Ms Prior’s excellent outline of Submissions for Plea dated 21 August 2023, a report from psychologist Carla Lechner dated 3 September 2023, and an earlier report from Warren Simmons dated November 2022.

39I have also received an extended CCO assessment.

40These documents go into some detail about your personal background and I accept the details contained in those documents. I will not reproduce the same detail herein.

41I will summarise some aspects insofar as they are relevant to the application of the Bugmy principle, and insofar as they are relevant to a consideration of the exceptions set out in s5(2H)(e).

42You are now 22 – just turned 22. Your early childhood and development through teenage years was one of profound disadvantage and exposure to trauma:

·Both your parents were vulnerable to illicit substance and alcohol abuse. I have summarised elsewhere your father’s antecedents and in particular his criminal antecedents and periods of incarceration.

·Your parents separated when you were around 10. Prior to that you had first entered foster care at the age of four or five. I was told that you stayed in and out of foster care for those years until 10 when your grandmother, Carolyn, rescued you and created a positive environment for you.

·Your family environment up to that point had been one of exposure to drug use, family violence due to your mother being the victim at the hands of partners, and criminal behaviour.

·You were placed in numerous foster homes during your formative years. At age 11, or thereabouts, you were placed with your grandmother who is here today, which was a positive environment, but you ended up being sent also to live with an aunt in Queensland at one stage due to behavioural issues.

·Your mother travelled to Queensland and removed you from care there. You were then again exposed to drug use and family violence.

·You were also a victim of sexual abuse.

·You also commenced drug use, including intravenous drug use.

·You have been throughout childhood and up to the present in an environment where parents and their partners, and also some cousins, siblings and uncles have been engaged in offending.

·Your criminal record commences at the age of 14. You have experienced juvenile detention and detention in adult custody. Whilst you have an extensive criminal history for a young woman, it is mainly dishonesty offending and does not include the serious type of offences that are now before me.

·You entered a relationship at 16 with your 39 year old drug dealer who was a heavy user himself. Needless to say this was a negative and traumatic experience. You were the victim of violence and coercion throughout. You engaged in heavy drug use throughout the four year relationship.

Mental Health Diagnosis

43There are mental health concerns in your case.  In the opinion of Mr Simmons at the time of his assessment you presented with 'clear signs of post-traumatic stress disorder '[1]

[1] Report pf Warren Simmons, dated 11 September 2022, paragraph 25.

44Ms Lechner also references complex developmental trauma – this is at p3 of her report:

'With respect to exposure to trauma, Ms Lawson has experienced complex developmental trauma in her formative years, as outlined above.  She has been the victim of physical and sexual abuse, has witnessed family violence.  Her attachments have been tenuous in the face of removal from parental care and she has undergone numerous changes of primary care giver.'

45It goes on:

'This has resulted in symptoms of complex PTSD, such as chronically low self-esteem, interpersonal mistrust, emotional and behavioural dysregulation, avoidance, mostly through drug use, and intrusive thoughts and hypervigilance.  She is inclined to engage in a fight response when triggered by situations of violence and/or threat.'

46Those opinions are relevant to my overall assessment of moral culpability in your case.

47Mr Simmons also formed the view that you are likely to suffer from a personality disorder and that you have medicated yourself with drug and alcohol use to treat the ongoing impact of those untreated traumas.[2]

[2] Report of Warren Simmons, dated 11 September 2022, paragraph 27.

48Early exposure to and gravitation towards drug use is a relevant sentencing consideration in your case in terms of assessment of moral culpability – in the sense described in the case of Brooks and McKee.[3]

[3] R v McKee (“Brooks and McKee”) [2003] VSCA 16.

Sentencing Conversation

49Participation in the Sentencing Conversation in the Koori Court plea at Melbourne is mitigatory as it is recognised that the confrontational aspect of it, the participatory aspect of it, in the sense that one cannot hide behind counsel but must be accountable and accept responsibility, the shaming that can be involved, along with the willingness to engage in the cultural process, are all features which set it apart from the general list process, and make it more onerous.

50It also provides a vantage point for the Judge to assess remorse, contrition and willingness to address behaviours and embark on change. It can be a very informative process.

51In your Sentencing Conversation you spoke about the artwork you had been doing, and in particular the kangaroo painting that you did for your great-grandmother, I think it was, for Dot Lawson for NAIDOC week.

52You also expressed remorse and acknowledgement of your wrongdoing and the impacts on the victims.

53You spoke about other things you had been doing in custody, including the yarning circles and the women's business.  Quite a bit of the conversation involved the skilful art that you had done and the thought that went into the production of those artworks and the meaning of them.  You talked about what you wanted to do in the future and talked about work On Country with your grandmother, Caroline Lawson.

54It was not easy for you to participate. You are shy by nature and quietly spoken and you found the courtroom a bit intimidating, and you did not have the family support in Melbourne as it was too far for family to travel from Mildura and Robinvale.  But you participated fully and expressed what you might want to do in the future, including TAFE courses.  There was some discussion with the Aunties about that.

55You are entitled to the full mitigatory effect of participation in the Sentencing Conversation.

56Your plea of guilty is significant in respect of most of the charges before me. It is inescapable that your father was the driver and main actor in most of the offences.

57The relationship dynamic cannot be overstated. It was one of your rare experiences of being in your father’s company as an adult, given his lengthy stints in prison. You would not have come to Melbourne if it were not to accompany him to the funeral. You would not have engaged in the offending were you not in company with your father.

Post-offence conduct

58Post-offence conduct has been very positive.  You have experienced custody in an adult setting, which of course is not positive, but has had a salutary effect upon you.  As Mr Roper observed, totality applies for the periods you have spent in custody and goes beyond the pre-sentence detention applicable to this matter.  You did use your time in custody well.

59I deferred sentence in your case, with some hesitation at the time being concerned about your vulnerability to relapse and association with criminal influences. It is to your credit, and to those of your supporters, including in particular your grandmother, that you have steered clear of those influences.

60You have engaged with MVAC and more recently MDAS. You have been living with Nan in Robinvale until the moves to Mildura, as Ms Prior discussed today.  You have been keeping appointments, mostly.  You have been doing better recently than you started off, but it has been significant and it has now been a six month period where you have been free from offending and living positively in the community.

61I received the extended CCO pre-sentence report which in relation to your suitability said this:

'It is noted that until now Ms Lawson has made no effort to address her situation voluntarily and her ongoing level of motivation is unclear or measurable, although she reports her pregnancy is currently motivating her to abstain from drug use.  It appears Ms Lawson will require significant support to create a pro-social life for her and her child and she advised she will need a strong case manager to make her accountable and to be a pro-social influence on her.  Ms Lawson will require a high level of support in the community to firstly assist her with mental health and her pregnancy and birth of her first child.'

62And goes on to advise that:

'Ms Lawson can attend her appointments at the Robinvale office, however, she advised she would prefer to attend the Mildura office and engage with MDAS when in Mildura.'

63As noted there in the CCO assessment, you are now approximately three months' pregnant and you have a supportive and pro-social partner who is here today, Mr Doolan, and his presence is welcomed and noted, and your grandmother has been present today, as I have said, and through Ms Prior has indicated that the prospect of motherhood may well be the making of you, Ms Lawson, in the sense that you are accepting your responsibility and using it as a motivating factor, as you should.

64In my assessment of the factors under 5(2H)(e) – I should state of course that in respect of Charges 4 and 5, them being Category 2 offences, I must make an order of imprisonment, either a head sentence and non-parole period or a straight sentence of imprisonment, unless there are substantial and compelling circumstances that are exceptional and rare and that justify not making that order.

65In determining whether there are substantial and compelling circumstances, I must regard general deterrence and denunciation of your conduct as having greater importance than the other purposes set out in s5(1) and I must give less weight to the personal circumstances of you than to other matters such as the nature and gravity of the offence.  I must not have regard to previous good character or an early guilty plea, or prospects of rehabilitation or parity with other sentences.

66So in making that assessment I will not be considering the sentence I imposed on your father.

67I am satisfied that the combination of circumstances in your case meet the description of substantial and compelling circumstances that are exceptional and rare and that justify not making the sentence of imprisonment other than a combination sentence.

68In summary, those circumstances involve the secondary role played to your father and the family dynamics, which includes an overlap with the types of Bugmy considerations and Brooks and McKee, the mitigation I have referred to.  It is part of the dynamics, your effective separation from your father for a large part of your life and this being a rare opportunity to engage with him.

69Next, what I will refer to as Bugmy mitigation, a key consideration.  Both very significant mitigatory factors in your case.[4]

[4] Bugmy v The Queen (“Bugmy”) (2013) 249 CLR 571.

70Youth, you were 20 years of age I think at the time of the offending, you are now 22.  A young Aboriginal woman, at the time you first came to this court for the Koori Court conversation, at risk of revolving door incarceration prior to the deferral of sentence, and the progress you have now made - that is not going to happen, you are on a different path now.

71The progress on the deferral of sentence that you have made. You have shown a commitment to moving forward with your life in a positive way and you have stated that on numerous occasions. 

72The pregnancy - you are now three months' pregnant and any custodial sentence I could impose that would sit within s5(2H) would see you experience all of that pregnancy in custody and face giving birth in custody, and either raising your baby in custody or being separated from your baby.  The stress and inadequacies of care would place a significant additional burden upon you.

73Your participation in the Sentencing Conversation is another factor.  Your remorse which I found to be genuine.  And the totality of the periods in custody, including the 216 days pre-sentence detention attributable to these offences.

Parity

74Having been satisfied that the exception is made out, I do have to consider parity, and there are clear distinctions which I have alluded to or have done so implicitly in the sentence – the family relationship, the difference in age, the role provided a clear point of distinction between yourself and your father.  Prior convictions is another significant disparity.

75General deterrence and denunciation, including community protection, are important factors I have to give significant weight to.

76Given your progress during the period of deferral and the stable factors in your life now, I am of the view that community protection is better served by your continuing rehabilitation.

77Sentence

78I sentence you as follows:

79On Charges 4 and 5, the two charges of carjacking, I am going to impose an aggregate sentence.  The aggregate sentence is seven months' imprisonment in combination with a two-year community corrections order.

80I declare you have served 216 days as pre-sentence detention.

81On the remaining charges, including the relevant summary offences, you are sentenced to a two-year community corrections order with the following conditions:

·Drug and alcohol assessment and treatment;

·Mental health assessment and treatment;

·Supervision;

·Judicial monitoring;

·Also 100 hours of community work.  Up to 75 hours of treatment conditions can be credited towards that community work. 

82I further make the recommendation that so far as practicable and possible that MDAS be the referral service for those assessments and treatments and continued alcohol and drug counselling, and that MDAS, or some like service, also be the provider of any community work opportunities, and I particularly encourage or recommend that work on country, such has been described, would be capable of being credited towards those hours.

83Pursuant to s6AAA, were it not for your pleas of guilty you would have been sentenced to three and half years' imprisonment with a 20 month non-parole period.

84So that has the effect, Ms Lawson, that you have done the time in prison and now you will be on a two-year CCO.  Do you consent to being on the Corrections order?

85OFFENDER:  Yes.

86HIS HONOUR:  Good.  If you do not comply with the Corrections order, if you are not attending when you are supposed to be attending or if there is any further offending, then you can be brought back before me for re-sentence.  You need to understand that before we sign the order.

87Mr Roper, was there any mandatory licence - - - 

88MR ROPER:  Licence cancellation.

89HIS HONOUR:  Yes.

90MR ROPER:  No, Your Honour.  (Indistinct) it's appropriate but there were no mandatory minimums.

91HIS HONOUR:  All right, I'm not going to make an order.  And there were no disposal orders or anything like that?

92MR ROPER:  No.

93HIS HONOUR:  That community corrections order is going to be prepared now and then I will sign it and then you will be able to sign it, Ms Lawson, and then you'll be able to report to Corrections within two days and commence the order.

94The judicial monitoring, I will see you again in four months.  So judicial monitoring is you come back before me, usually at 9.30, you can just appear on the screen, I will be in Melbourne, and we'll just see how you're going and see how Corrections are going and whether there is anything we need to discuss.

95All right, I might just stand down while that order is being prepared.

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