Director of Public Prosecutions v Lay

[2022] VCC 493

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

AT MELBOURNE

CRIMINAL DIVISION

Case No. CR-21-01757

DIRECTOR OF PUBLIC PROSECUTIONS

v

MITCH LAY

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JUDGE:	HER HONOUR JUDGE ELLIS
WHERE HELD:	Melbourne
DATE OF HEARING:	8 April 2022
DATE OF SENTENCE:	11 April 2022
CASE MAY BE CITED AS:	DPP v Lay
MEDIUM NEUTRAL CITATION:	[2022] VCC 493

REASONS FOR SENTENCE

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Subject:CRIMINAL LAW

Catchwords:              one charged of attempted armed robbery- one charge of recklessly causing serious injury- plea of guilty- lengthy prior criminal history- guarded prospects of rehabilitation-history of substance use.

Legislation Cited:      Crimes Act 1958 (Vic); Sentencing Act 1991 (Vic);

Cases Cited:R vVerdins [2007] VSCA 62, Worboyes v The Queen [2021] VSCA 169;

Sentence:Total Effective Sentence of 5 years and 4 months imprisonment. Non Parole Period of 3 years and 8 months.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Dr. J Harkess	Office of Public Prosecutions
For the Accused	Ms B East	Sarah Pratt and Associates

HER HONOUR:

1Mitch Lay, you have pleaded guilty to:

·one charge of attempted armed robbery contrary to s321N and s75A of the Crimes Act 1958 which carries a maximum penalty of 20 years imprisonment, and

·one charge of recklessly causing serious injury contrary to s17 of the Crimes Act [1958] which attracts a maximum penalty of 15 years' imprisonment. 

Circumstances of offending

2The circumstances of your offending are set out in the summary of prosecution opening tendered as Exhibit A on the plea.  Around 10 January 2021, you and your co-offender Cameron Ingley met Joshua Pulver at an acquaintance's house in Hughesdale.  You both established that Mr Pulver knew a drug dealer and that he could arrange a deal for you. 

3On Wednesday 12 January 2021, Mr Pulver arranged to purchase 10 bottles of Xanax and a quarter ounce of ketamine from the victim Damian Smith via Facebook Messenger.  Mr Pulver agreed to pay a total purchase price of $3410. 

4At 6.30 pm on 13 January 2021, Mr Smith drove to the vicinity of Swan Road, Murrumbeena in a Toyota Corolla, a hire car.  Mr Smith had with him bottles of Xanax pills and the ketamine.  The Xanax bottles were in a plastic bag near the gear stick.  Upon arrival, Mr Smith observed a small red vehicle parked near the address with a person standing outside of it.  He turned into Katrina Street, Murrumbeena, pulled over and watched the red car follow him and park in the same street. 

5Mr Ingley exited the small red vehicle and approached Mr Smith's driver's door with Mr Pulver.  Mr Smith greeted Mr Pulver and unlocked his doors, allowing Pulver to enter the front passenger seat.  Mr Smith told Mr Pulver that he would not have more than one person in his vehicle.  Mr Ingley opened the rear passenger door and entered the vehicle, sliding over to the left rear passenger seat, allowing you to also enter the vehicle and sit behind Mr Smith.  As you entered the vehicle, you said to Mr Smith, 'Sorry to be an arsehole.' 

6You then reached around the headrest and held a knife to Mr Smith's throat and face.  Mr Ingley did not see that you had produced a knife.  Mr Smith instinctively pushed the knife away and tried to swing punches at the two of you in the rear of the vehicle.  He also activated a noise making taser that he had in his driver's door map pocket.  Mr Ingley grabbed Mr Smith around the head and upper body with two arms and pulled him back into the rear of the vehicle so that he was stretched from the front seat to the back. Mr Ingley had his arm wrapped around Mr Smith's head and body, his left arm and forearm on the outside of his right arm. 

7You then pulled out the knife and used it to stab Mr Smith in the upper left chest.  You withdrew the knife and went to stab him again but instead you stabbed Mr Ingley in the left forearm. 

8You and Mr Ingley then left the vehicle.  Mr Ingley had managed to steal a plastic bag containing at least four bottles of Xanax pills. Mr Smith drove off with Mr Pulver still in the front passenger seat.  He stopped around the corner and made Mr Pulver exit the vehicle.  Mr Smith then travelled to the nearest hospital, Monash Medical Centre. Upon arrival, Mr Smith passed out at the reception counter. He was given 2 litres of blood and then transported to the Alfred Hospital in a life-threatening condition. At the Alfred Hospital he was treated for a collapsed lung, bleeding into the lung and was given a further 4 litres of blood and platelets.

9Dr Angela Williams, consultant forensic physician with the Victorian Institute of Forensic Medicine, prepared a report at to the injuries sustained by Mr Smith.  She noted that his injuries resulted in internal bleeding and a collapsed lung resulting in a shift of Mr Smith's heart and lungs and major blood vessels which     compromised his breathing and blood circulation.  Dr Williams opines that Mr Smith's condition would likely have resulted in death without lifesaving medical or surgical intervention. 

10On Friday 29 January 2022, you were arrested and taken to the Moorabbin Police Station.  You gave a no comment record of interview.  You have been in custody since. You have now spent 335 days in custody on this offending. 

Victim Impact

11No Victim Impact Statement has been received.  Mr Smith was in hospital for four days and post-surgery complications resulted in him having to attend another emergency department after his release from hospital and he required further medical interventions. 

Nature and Gravity of Offending

12The offending in this case is very serious.  There was a degree of planning with respect to the attempted armed robbery.  Whilst there is no evidence to suggest how far in advance of the offending that planning occurred, it is apparent that, at some point prior to entering Mr Smith's vehicle, you had planned to carry out a robbery with a knife.  This is demonstrated by your opening words to Mr Smith upon you being seated within the vehicle and how swiftly you produced a knife to his throat.  You committed the robbery, and then assault on Mr Smith in company of Mr Ingley.

13Determining the seriousness of an instance of recklessly causing serious injury involves a consideration of the degree of probability that serious injury will result and the seriousness of the probable injury foreseen.  As the prosecution points out, your offending in this regard was very serious.  Recklessly causing serious injury using a knife is an inherently grave offence.  I consider this to be a serious example of this offence.  You attacked your victim from behind with a knife whilst he was in a vulnerable position seated in front of you and whilst he was being restrained by Mr Ingley.  For some inexplicable reason, you used the knife to stab him which resulted in the infliction of a stab wound to his chest, causing life threatening injuries.  Fortunately, your efforts to stab him a second time were unsuccessful.

14It is only fortunate that Mr Smith had the wherewithal to get himself to hospital within a short period of time.  The injuries he sustained were, as Dr Williams has explained, life threatening.  Had Mr Smith not received that medical intervention, you may well have found yourself in a different court on different and potentially more serious charges.  Having said that, you are to be sentenced on the basis of your conduct, bearing in mind that the charge is one of recklessly cause serious injury and the maximum penalty applicable and having regard to the injury that the victim actually sustained.  I accept the prosecution submission that your moral culpability is very high. 

15There is no evidence before me as to whether the victim has suffered any long-term consequences of the injuries sustained. 

Prior criminal history

16You were born in March 1996 and at the time of the offending you were 24 years old.  You have admitted a lengthy prior criminal history which contains many prior appearances for dishonesty offences, including robbery, damaging property, contravention of Family Violence Intervention Orders, making threats to kill, threats to inflict serious injury, resist emergency worker on duty, and possess drugs of dependence. 

17Significantly, you have a number of prior appearances for offences involving violence, including unlawful assault, assault with a weapon, intentionally causing injury, and recklessly causing injury. You have in the past been afforded opportunities to rehabilitate yourself by way of Community Correction Order(s).  It appears that you have breached those Community Correction Orders. 

18You first spent time in custody in October 2015 for a period of 21 days.  You have had a number of periods of imprisonment; the most recent was a six-month period of imprisonment imposed at the Moorabbin Magistrates' Court on 10 October  2018 for charges of recklessly cause injury, contravention of Family Violence Final Intervention Order, intentionally damaging property, unlawful assault, possess prohibited weapon, and possess drugs of dependence. 

19At the time of this offending, you were on a Drug Treatment Order.  This order had been put in place at the Melbourne Magistrates' Court on 6 January 2021, a week before this offending.  That order was cancelled on 28 April 2021 and you were sentenced to 115 days imprisonment. 

20Clearly, in your short 26 year history, you have had considerable involvement with the justice system.  As you reflected to psychologist Laura Fleming, you have spent much of your adult life in custody. 

Personal Circumstances

21You are now 26 years old.  You grew up around East Bentleigh and you are the middle child of three children.  Your father worked in a factory and your mother worked as a cleaner. 

22You attended Coatesville Primary School in Bentleigh and recall having difficulties concentrating.  You were suspended on occasion.  You attended Cheltenham Secondary College but, when asked to repeat year 9 due to non-attendance, you chose to leave school.  You completed year 10 equivalency through SkillsPlus in Cheltenham.  After completing this, you worked at a fast food restaurant as a cook for a number of months, but eventually you were not offered further shifts due to poor attendance.  Whilst in the community, you have occasionally worked in construction.  The last time was in 2018.  Mainly, you have received unemployment benefits.  You are not currently in a relationship and you have no children. 

23You began using alcohol and cannabis at the age of 12 years.  Your drug use accelerated to daily use and you began to experiment with hallucinogens and illegally purchased benzodiazepines.  By the age of 16 you were smoking methamphetamine daily and occasionally using GHB and heroin.  Whilst in the community, you were using more than two grams of methamphetamine daily.

24Efforts to rehabilitate yourself from drugs have been unsuccessful.  You have completed a semi-intensive drug program whilst in custody which you found useful.  You are currently prescribed 30 milligrams of methadone.  As an adult you have been hospitalised three years ago due to unintentional overdoses on GHB and methamphetamine.  You have previously received mental health treatment.  You were admitted as a mental health inpatient at Dandenong on two occasions when you were aged 18 due to experiencing paranoia and anger.  It is believes that these were related to a drug induced psychosis at the time.  You have previously been prescribed antipsychotic medication and have been on a Community Treatment Order. 

25Although you have described your childhood as good, your relationship with your parents deteriorated as your drug use escalated.  You have previously been asked to leave the family home after fighting with your father which resulted in a Family Violence Intervention Order.  This order is currently in place.  You have been homeless in the community ever since, apart from a brief period when your mother rented an apartment on your behalf.  Your current family situation is described as difficult.  There have been Family Violence Intervention Orders put in place at the instigation of police wherein your sister and mother have been named as protected persons.  Although you have expressed a belief that you could return to reside with your parents, there would be difficulties associated with this.  You are in contact with your mother on a semi-regular basis but have not had contact with your father for a number of years. 

26As I have already noted, you have been placed on a Drug Treatment Order a week before this offending.  You have described that during this period you felt isolated and without any significant support.  The supports in place were conducted via telephone.  Whilst you were offered emergency accommodation, it was inconsistent and you were required to travel to different accommodation almost nightly, often on the other side of the city.  You have described feeling a heightened sense of stress and isolation, resulting in a relapse and reassociation with negative peers.  Although you consider that the Drug Treatment Order did not offer you the support you required, it is unfortunate that you did not make the most of the opportunity afforded to you on this order.  This is something that you have recognised. That this offending occurred whilst you were on a Drug Treatment Order and so soon after its imposition, is an aggravating feature. 

Mental health

27Tendered on the plea was a report from forensic psychologist Laura Fleming dated 29 November 2021 whom you saw three weeks earlier.  Ms Fleming examined you with respect to your psychological functioning and she conducted a number of psychometric tests.  Ms Fleming opines that you meet the criteria for stimulant use disorder, which she considers severe and in early remission in a controlled environment, Major Depressive Disorder of moderate severity and probable Attention Deficit Hyperactivity Disorder. 

28With respect to the latter, Ms Fleming considers further monitoring and assessment is required for clarification.  Ms Fleming notes that impulsivity, emotional impulsiveness, mood instability and low self-control have been proposed as core symptoms of ADHD, predisposing to criminal offences.  According to Ms Fleming, your complex profile is further complicated by your history of poly substance use, inferred to have developed as a form of self-medication for your untreated ADHD. You have not been prescribed any medication with respect to your mental health and currently do not receive any psychological treatment in custody.

29Ms Fleming considers that imprisonment would likely weigh more heavily on you than on a person without your conditions. You are unlikely to receive specific treatment in custody. Your access to programs and treatment in custody is generally reduced as a consequence of the COVID-19 pandemic.  Untreated, your condition has the potential to worsen. 

30Your counsel Ms East submits that the principles espoused in R vVerdins[1] has application here.  Specifically, she submits that limbs 5 and 6 are enlivened in light of Ms Fleming's assessment.  I accept that to be the case. 

[1][2007] VSCA 62.

Prospects of rehabilitation

31Ms Fleming considers that you are at a moderate to high risk of recidivism.  She opines that there are a number of areas which should be targeted to reduce potential future offending.  She is of the view that you would benefit from placement in residential rehabilitation facility to address your substance use through specialised interventions.  I agree with Ms Fleming that your offending appears to be related to drug abuse.  If you are to have any real prospect of rehabilitation, this will depend on whether or not you can abstain from drug use. Intertwined with this is the need for you to receive appropriate treatment with respect to your mental health issues.  Ms Fleming recommends that you be referred to a psychiatrist for monitoring of your mental health.  Pharmacotherapy could help manage some of the difficulties associated with your depression and probably ADHD symptoms.  Ms Fleming considers that you would benefit from intensive psychotherapy. 

32Having regard to your extensive prior criminal history, the current lack of mental health supports and your history of extensive drug use, I regard your prospects of rehabilitation as guarded.  Having said that, you are still relatively young and, to that end, the need to ensure that you are appropriately rehabilitated as a sentencing consideration must be given some weight.  I take your relevant youth into account but given the seriousness of the offending, I must also balance this against other sentencing considerations. 

33You appear to have some insight into the wrongfulness of your behaviour and, indeed, the role that your substance abuse plays and the risk it poses for future offending.  Through your letter to the court you recognise the significance of losing the chances given to you through the Drug Treatment Order.  You have expressed a desire to change and to link in with rehabilitative services.  Your future, Mr Lay, really comes down to whether or not you are prepared to do what you need to do to help yourself; namely, to stay off drugs and to follow the recommendations made with respect to you obtaining some assistance in managing your mental health.

Remorse

34The prosecution initially submitted that there is little evidence or remorse in this case, aside from your plea of guilty; that whilst you have acknowledged to Ms Fleming that your behaviour was stupid and unnecessary and that you caused injuries to the victim, that your narration of events exhibits a lack of insight into the offending. I tend to agree that the description that you gave to Ms Fleming seems to somewhat underpay the true nature of your offending.  Your letter to the court, dated 2 December 2021, also presents a skewed account of events in which you highlighted feeling scared.  The foundation for this is unclear, particularly given that it was you and Mr Ingley who provided the threat in the first place. 

35However, in your letter you do express your remorse and, having had time to reflect upon it, you recognise the seriousness of your behaviour and the potential consequences.  In light of your letter to the court, I accept that you are remorseful and this too is reflected in your plea of guilty. 

Plea of guilty

36

The matter proceeded as a contested committal on 17 August 2021 and you were committed to stand trial.  The matter resolved on 5 October 2021 and I note that you were arraigned on 12 October 2021.  The previous dated set down for the plea hearing in December 2021 was vacated.  I take into account the fact that you have pleaded guilty and the stage at which you entered that plea.  Your guilty plea demonstrates an acceptance of responsibility for these offences. It is also evidence of your desire to facilitate the course of justice and I accept that it has utilitarian value in saving the community the expense of a trial.  Moreover, I take into account the fact that your plea of guilty has been entered during the

COVID-19 pandemic where the court has faced a substantial backlog of trials resulting from the suspension of jury trials. 

37As the Court of Appeal articulated in Worboyes v The Queen[2], your guilty plea is worthy of greater weight in mitigation than a similar plea entered at a time when the community and courts are not afflicted by the pandemic's effects.  Your plea of guilty should result in a perceptible amelioration of sentence.  You are entitled to a substantial discount, taking into account the fact that this plea of guilty has occurred during the COVID-19 pandemic. 

[2][2021] VSCA 169.

Time spent on remand

38I also accept that your time in custody has been made more difficult by virtue of the fact that you have been on remand during the COVID-19 pandemic.  As a consequence, you have been unable to receive visitors, engage in courses and your movement around the prison has been more restricted. You were also required to undergo a period of quarantine each time you have moved to a new prison and I accept that this would have been very difficult.

Co-accused

39

Your co-accused Mr Ingley pleaded guilty in the Melbourne Magistrates' Court on

6 October 2021 to a number of offences, including robbery, for which he received 12 months imprisonment and which related to this offending.  He also pleaded guilty to a number of other charges.  Mr Ingley, who is roughly the same age as you and admitted a prior criminal history, was sentenced to a total affective sentence of 18 months' imprisonment with a non-parole period of 334 days.  I am to have regard to matters of parity, however, as Dr Harkess on behalf of the prosecution points out, Mr Ingley pleaded guilty to a charge of robbery, not attempted armed robbery.  He was also not sentenced in relation to the serious injury inflicted on Mr Smith which the prosecution submits, and I accept, is the most serious offence before the court here.  Accordingly, your counsel agrees that parity has a limited role to play. 

Totality

40I take into account the fact that you were on a Drug Treatment Order at the time of this offending.  Whilst it was an aggravating feature of your offending, I also take into account the fact that you have already been sentenced with respect to that matter and have served 115 days in custody.  Your counsel submits, and I accept, that you have lost the opportunity for concurrency and I take this into account when determining sentence. 

41Furthermore, whilst the offences to which you have pleaded guilty occurred within the same event, they are separate offences, each warranting individual punishment.  However, I must ensure that the overall sentence imposed is just and proportionate.  Accordingly, I take into account the principles of totality and have allowed for a reasonable amount of concurrency.

Relevant sentencing factors

42The basic purposes for which a count may impose a sentence are just punishment, deterrence (both specific and general), rehabilitation, denunciation, and protection of the community.  I am required, pursuant to the Sentencing Act 1991, to take into account various factors when formulating an appropriate sentence in your case. These include, the seriousness of the offending, your culpability, the effect of your offending on the victim and your personal circumstances.

43The sentence I pass must balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that, as far as possible, you are rehabilitated.  I must have regard to protection of the community.  I also have regard to principles of parsimony. 

General and specific deterrence

44General deterrence is an important sentencing consideration in sentencing you for these offences.  Other members of the community must understand that offences of this nature involving the use of a bladed weapon, in this case a knife, will not be tolerated.  Those who might be inclined to engage in such wanton acts of violence must be deterred from such behaviour. 

45In your case, specific deterrence is a significant consideration.  As already set out, you have an extensive prior criminal history, including prior convictions for offences of a violent nature.  The sentence that I impose must deter you from behaving in this manner in the future.

46Just punishment and denunciation must also be given primary consideration in my instinctive synthesis. The occurrence of knife related assaults cause the community serious consternation and fear.  The community looks to the court to denounce and punish such conduct for its protection.  Your conduct on this occasion warrants the court's denunciation. 

Sentence

47Turning now to the sentence that I am going to impose.

·        On Charge 1, attempted armed robbery, you are convicted and sentenced to 15 months imprisonment.

·        On Charge 2, recklessly causing serious injury, you are convicted and sentenced to 4 years and 10 months imprisonment. 

48I order that 6 months of the sentence on Charge 1 be cumulative on Charge 2.

49The total affective sentence is therefore 5 years and 4 months imprisonment.  I order that you be eligible for release on parole after serving 3 years and 8 months imprisonment. 

Pre-sentence detention

50Pursuant to s18 of the Sentencing Act 1991, I declare 335 days pre-sentence detention as time already served to be deducted from the sentence that I have imposed.

Section 6AAA

51Pursuant to s6AAA of the Sentencing Act [1991], had you proceeded to trial and been found guilty, I would have imposed a total affective sentence of seven years' imprisonment with a non-parole period of five years. 

Ancillary orders

52Finally, I make the orders for disposal and forfeiture, as sought by the prosecution. and I note that these orders are made by consent. 

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