Director of Public Prosecutions v Lindsay
[2021] VCC 636
•20 May 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE KOORI COURT | Revised Not Restricted Suitable for Publication |
Case No. CR-21-00279
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DWAYNE LINDSAY |
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JUDGE: | HER HONOUR JUDGE LAWSON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 3 May 2021 | |
DATE OF SENTENCE: | 20 May 2021 | |
CASE MAY BE CITED AS: | DPP v Lindsay | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 636 | |
REASONS FOR SENTENCE
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Catchwords: Criminal law – sentencing – recklessly causing serious injury and a related summary charge of commit indictable offence whilst on bail – sentencing conversation – Koori Court – mitigating factors – early plea of guilty, genuine remorse, genuine participation in the sentencing conversation – application of Bugmy principles – good prospects of rehabilitation – sentence of imprisonment imposed.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms C. Duckett | Abby Hogan, Solicitor for Public Prosecutions |
| For the Accused | Mr G. Davis | Rebecca Boreham, Barristers and Solicitors |
HER HONOUR:
1Dwayne Lindsay, you have pleaded guilty before me to one charge of causing serious injury recklessly and a related summary charge of commit indictable offence whilst on bail.
2The offences are serious and that is reflected in the maximum penalties that is set out by Parliament, and that is, 15 years imprisonment and/or 1,800 penalty units for Charge 1, recklessly causing serious injury charge, and three months imprisonment and/or 30 penalty units in relation to the related summary charge.
3
You admitted to me your criminal history. The history spans a period between
1 June 2009 and 24 April 2017, relating to offences in South Australia and New South Wales. In South Australia, there are three entries that disclose matters of some relevance. In South Australia in 2009, 2011 and 2012, you were convicted of common assault charges for which terms of imprisonment were imposed, albeit each of those sentences were wholly suspended. Between 25 May 2018 and
9 January 2019, there are two appearances in Victoria, and they both relate to a consolidation of matters.
4On 25 May 2018 at Mildura Magistrates’ Court, you were convicted and placed on a Community Correction Order for 12 months with numerous conditions, including supervision, treatment and rehabilitation for drug abuse or dependency, mental health assessment and treatment, and judicial monitoring in the Koori Court and that related to some dishonesty offences, failure to answer bail, fail to stop a vehicle on police direction and a possess methylamphetamine.
5On 9 January 2019 at Mildura Magistrates’ Court, you were convicted of numerous dishonesty offences and possession of methylamphetamine. Without conviction, you were placed on an adjourned undertaking until 8 January 2020. In addition, on that date, you were dealt with in respect to contravention of the Community Correction Order that had been earlier imposed on 25 May 2018.
6The contravention was found proven and the original order was confirmed. The order expired on 25 May 2019.
7I shall proceed to sentence you today in relation to the charges before the court, based on the Summary of the Prosecution Opening dated 11 April 2021.
8The current offending was committed on 13 July 2020. The victim of the recklessly causing serious injury charge is Joshua Peterson, who is an Aboriginal man who is known to you. He was aged 26 at the time and is now aged 27.
9You were aged 29 when you were charged with this offence and you are now aged 30. You have been remanded and been in continuous custody since 13 July 2020.
10The assault, the subject of the charge of recklessly causing serious injury, was captured on CCTV footage. I have reviewed that footage.
11In brief, early on Monday 13 July 2020, a black Holden Statesman was driven along Etherington Drive, Mildura. It came to a stop outside number 7 Etherington Drive. The vehicle had run out of fuel. Joshua Peterson was the front seat passenger, he exited the vehicle with the unknown driver and they attended a nearby residence where they obtained a red jerrycan.
12The CCTV footage shows Joshua Peterson returning to the vehicle carrying the jerrycan and he is seen placing it in the rear passenger seat of the vehicle.
13
A short time later, you are observed on the CCTV footage walking across the road towards Mr Peterson, as he stood at the passenger side of the vehicle. He walked forwards towards you and you both met together at the front of the vehicle.
Mr Peterson turned his head away from you slightly and you are then seen punching him with your right fist to the left side of his head. The force of the punch caused him to fall unconscious onto the bonnet of the vehicle. Whilst laying on the vehicle, you punched his torso with your right fist. The victim was then thrown from the bonnet of the vehicle to the pavement. You are seen searching him as he lies unconscious on the ground. At one time, you are seen dragging the victim’s upper body from the ground and then you are seen walking away.
14
The assault was seen by Ms Carina O’Neill. She attended on Mr Peterson and called 000 and tried to assist him. Another vehicle that was driving past did a
U-turn and stopped. The vehicle was being driven by Benjamin Love. He alighted from his vehicle and also helped the victim.
15Then the vehicle in which you were a passenger, drove past. You alighted from that vehicle and had a short conversation with Mr Love. You said to him 'What happened to old mate here?' To which he replied, 'You punched the shit out of him'. You then threw the keys to the Holden Statesman vehicle under that vehicle. You ran back to the other vehicle and drove off, passing the victim, Mr Love and Ms O’Neill.
16An ambulance attended and took Mr Peterson to the Mildura Base Hospital where he was assessed as having life threatening injuries. He was treated for a right sided frontotemporal fracture, (in the left temporal region) with internal haemorrhaging and his nasal bones were also fractured. There was a fracture to the medial wall of the left maxillary antrum.
17Mr Peterson was placed on supported breathing in the Intensive Care Unit for one day and then put into an induced coma and airlifted to the Alfred Hospital, where he was admitted under the care of the neurosurgical team.
18At the Alfred Hospital, his medical condition was stabilised.
19The intracranial bleeds were managed conservatively with antiseizure medication and the facial fractures and nasal fractures were managed conservatively. He experienced a period of post-traumatic amnesia of 11 days, until 24 July 2020.
20On 29 July 2020, Mr Peterson was transferred to Caulfield Acute Brain Injury (ABI) Unit for ongoing rehabilitation. A deterioration in his mental state followed with elevated mood, grandiose and paranoid delusions.
21On 20 August 2020, he was placed on an assessment order under the Mental Health Act of 2014, and he was then transferred back to the Alfred Hospital with a most likely diagnosis of psychosis and mania, due to traumatic brain injury. The manic episode resolved with treatment.
22On 22 September 2020, Mr Peterson was transferred back to Caulfield ABI Unit for further discharge planning.
23On 7 October 2020, Mr Peterson was discharged back into the community.
24There were two subsequent presentations thereafter due to methylamphetamine use and superficial deliberate self-harm to his arm.
25Eventually, on 28 October 2020, Mr Peterson was discharged to the Deniliquin Community Health Service in New South Wales to be cared for by a relative.
26Mr Lindsay, the impact of the assault has been significant. As a result of the incident, Joshua Peterson sustained a moderate to severe traumatic brain injury, that is evidenced in the CT scan that was taken on 1 September 2020, and the neuropsychological assessment performed on 8 September 2020.
27Mr Peterson has ongoing significant cognitive impairment and he has difficulties processing speed, verbal skills and visual spatial reasoning, new learning, and executive function. The neuropsychological assessment noted that his past use of substances and the psychiatric illness would be expected to be negatively impacting upon his cognition. However, the performance was likely to reflect the consequences of his ABI (Acquired Brain Injury).
28It is noted that that Mr Peterson had a prior history of polysubstance abuse, intellectual impairment, borderline antisocial personality disorder and deliberate self-harm. However, he did not have a definitive psychiatric prognosis prior to this event. It is evident that Mr Peterson has a moderate to severe traumatic brain injury, that will have a long term, if not, life long adverse effect on his mental health.
29Mr Peterson states in his statement, dated 18 May 2021, that he has no memory of these events that led to the acquired brain injury. He confirms problems with his memory, feeling a bit paranoid and being sceptical of his family, following this incident.
30His uncle, Peter Peterson, filed a statutory declaration dated 17 May 2021, where he sets out the impact of the offending on his nephew. He believes that Joshua has been impacted very severely and that he is now a very different person and that what has happened, has really affected him. That is consistent with the medical information that has been furnished to the court and was referred to in the Crown opening.
31Dwayne Lindsay, the gravity of the offending is serious, having regard to the nature of the harm inflicted and its consequences. In sentencing you, I must formally denounce your behaviour on behalf of the community and deterrence and community protection are relevant sentencing factors.
32You are a Ngarrindjeri man. You were born in the Riverland area of South Australia and your family has close connections to the old mission at Gerard. Prior to the offending, you had been living in the Mildura region for about four years.
33Both your parents are of Aboriginal descent. You have strong connections to your culture. Your maternal grandmother, who played a dominant and key figure in your childhood, was a respected elder in her community. She raised you as your mother, who has battled with alcoholism all her life, was unable to properly care for you. Your father has had little to no involvement in your child raising. He is described as a violent and abusive man.
34Your matter proceeded in the Koori Court Division and on 3 May 2021, a sentencing conversation was held with Uncle Mark Bland, also a Ngarrindjeri man, who is an elder and respected person of the court.
35Uncle Mark spoke openly with you and condemned your behaviour. He said that what you did was bad. Your unprovoked attack caused serious injury to another and he emphasised that such behaviour, that happened on another person's country, is unacceptable. He expressed his disgust that you caused those horrific injuries to Joshua Peterson and then walked away, without taking responsibility for your actions.
36He emphasised how serious those actions had impacted upon the victim, who will suffer, as a consequence, for the rest of his life. He urged you to take stock and to think about your behaviour. He said that you need to reflect seriously on your behaviour and you need to change, so that you can, in the future, control your anger and make positive changes.
37You openly acknowledged to both Uncle Mark and the court, the considerable harm that you had caused to the victim. You acknowledged that it extended to him directly as well as indirectly to his family members.
38You acknowledged that you have a significant problem with drugs and that your behaviour needs to change and that your focus for the future is on total abstinence. You describe this event as being the catalyst for real change. You stated that you had hit rock bottom, and you accept that you need to seek support and help to deal with your addictions in order to be a better person, so that you can take responsibility for your future.
39I accept that your participation in the sentencing conversation was genuine. It was confronting. Such participation was voluntarily undertaken and involved you participating and acknowledging your wrongdoing. You demonstrated insight into your offending and the factors that led to the offending, as well as the serious impact it has had upon the Mr Peterson. You are now determined to reform and you acknowledge that for the future, you will need to take control and that you must undertake rehabilitation programs that will provide you with the necessary tools to equip you with the means to avoid further drug-taking and associated criminal activity in the future.
40This is your first extensive period of time spent in adult custody.
41Tragically, whilst you have been in custody, you suffered the unexpected loss of your maternal grandmother. Because you were on remand, you could not attend the ceremony to mark her passing. She is buried at the mission in Gerard, where she was raised.
42Your wish is to return and make amends with your grandmother and arrange a headstone for her grave.
43You have utilised the time in custody well. Eventually, you wish to return to South Australia to live. You want to use your experience to educate younger people, particularly your nieces and nephews, about the evils of drugs.
44You have completed a drug rehabilitation course in prison provided by Caraniche Pty Ltd at the Metropolitan Remand Centre and there have been 12 sessions of counselling. After completing six sessions of counselling to reduce the risk of relapse into substance use and offending behaviour, you requested an extension of treatment, that was granted, so that you could continue to address your challenges about drug use in the community.
45Ms Indrani Barua, the Caraniche Alcohol and Drug Clinician, provided a letter to the court confirming that you actively engaged in 12 hourly individual counselling sessions and she confirmed your appropriate participation and stated that you have been exploring the motivation to change and developing insight into your drug addiction. In addition, you are also attending AA meetings.
46You have a good relationship with the Aboriginal Welfare Officer at the prison and you have started making tentative plans for the future. There have been some enquiries made on your behalf through Ngwala Willumbong and Dario Messina, alcohol and drug worker, about you attending a culturally supportive rehabilitation program in the future. It is your hope that you will undertake such a program upon your eventual release.
47I have regard to the contents of the report prepared by Alison Mynard, clinical psychologist, who saw you on 20 April 2021 and prepared a report on 26 April 2021. The report details your background and history and I do not propose to repeat those details in full. Suffice to say, I accept that you come from difficult family circumstances. Your father was physically abusive towards your mother and because they could not properly care for you, your maternal grandmother removed you from their care. You then lived with her, as well as 11 other children from various extended families throughout your childhood. You were the youngest of the 12 children. There were periods during your childhood when your mother would try to care for you, but because of her alcoholism, she was unable to sustain that care for any period.
48Your grandmother raised you as best she could, but there was an issue with her use of corporal punishment, such that you ran away when you were about 12 or 13. You then lived with some cousins and an aunt who was very permissive. She allowed you to use cannabis and alcohol, if you continued to attend school.
49At the early age of 14, you were supported to live independently through Youth Support Services and DHHS. You continued to live on your own and attended school with support. To your credit, you completed Year 11 at Glossop High School. Your time at school was difficult. You were the subject of bullying. Notwithstanding those difficulties, you did achieve well academically.
50You showed real promise as a young man, working as an indigenous support worker with Anglicare Berri. You were a delegate to the Aboriginal National Youth Congress representing South Australia. You were, according to the referees, Di Wilson and Don Scordo, considered to be a respected member of your community, who participated in many cultural events.
51Having left school, you were able to secure employment in numerous roles, such as fruit picker, carpet cleaner, construction labourer, working with the Aboriginal Lands Trust, as well as youth support worker.
52At the time of this offending, you were assisting a friend to renovate a home.
53You have expressed a keen desire to work with young people in the future, to support them and assist them and to mentor them, in a way that will persuade them not to follow the path that you have taken.
54You have had a long history of polysubstance abuse from about age 10 onwards. You were smoking cannabis and using daily for many years. In late adolescence, you started using Ecstasy and then methylamphetamines and GHB in latter times.
55At the time of this offending, you had been using GHB heavily over the days leading up to the offending and you were coming down. Whilst providing an explanation for your behaviour, it does not in any way excuse your behaviour.
56You have an older half-brother and a younger half-brother from the same father, as well as a half-sister from the same mother. You do not enjoy close ties with any of your siblings.
57I accept that you have been devastated by your grandmother’s unexpected death and I accept the diagnosis of complicated grief disorder. Being in custody has been extremely onerous for you, due to this sudden and unexpected loss and the implications for you personally. You have had great difficulties administering your grandmother's estate for which you are responsible. You are anxious to be able to finalise her estate, so that you can organise a headstone for her grave.
58I accept that not being able to attend her funeral, which you organised, and participate in the ceremony, has been a devastating experience for you and has exacerbated your grief reaction
59You are also anxious about your mother who is in poor health suffering from cirrhosis of the liver. She has also reacted badly following her mother’s death. I accept that those experiences have complicated your grief disorder and that makes your time in custody more difficult.
60You have further suffered, as a consequence of the impact of the restrictions imposed by reason of the COVID-19 pandemic, including lockdowns and limitations on your ability to be able to properly communicate with family and friends. Being so far away from your homeland has been difficult and that has been further exacerbated following the death of your grandmother.
61Ms Mynard describes extreme severe ranges of depressive symptoms and low mood, as well as some suicidal ideation. She diagnosed low mood and complicated grief disorder and stimulant use disorder (in remission).
62She recommends that you would benefit from engaging in suitable cultural programs, such as the Aboriginal art programs, to continue your links to culture and community whilst in prison. She also recommends that mental health support be provided. I endorse that recommendation.
63She has stated in her report that upon release from custody, a drug rehabilitation program, alcohol and drug counselling, psychological counselling and specialised psychological counselling to deal with your past issues of rejection and abandonment, related to your early childhood experience, is necessary to support you back into community and enhance your rehabilitation prospects.
64In formulating the appropriate sentence, I have taken into account all the matters put in mitigation.
65I accept the plea of guilty was entered at the earliest opportunity and that it has real utility. This is particularly so in these times, when courts’ operations have been significantly disrupted by the COVID-19 pandemic. You have saved the court the time and the inconvenience of trial and importantly, it is significant that you have spared Mr Peterson from the further trauma of having to come to court to give evidence and be cross-examined. You have facilitated justice, so your sentence is discounted accordingly.
66I do accept this plea represents an acceptance of real responsibility on your behalf for your wrongful conduct, and that you are a person who is genuinely remorseful, who sincerely regrets the harm that has been caused by your actions.
67Through your genuine participation in the sentencing conversation, I find that you have appropriate insight and you do express real shame for your offending on another person’s country.
68I have taken into account your genuine participation in the sentencing conversation in mitigation of penalty. You were challenged and made appropriate responses and acknowledged your shame to Uncle Mark Bland. I accept that that participation has been rehabilitative.
69I find that you have good prospects of rehabilitation. You made it clear that this incident has been a catalyst for you to change and it has provided you with an opportunity to redirect your life's trajectory. You can act to change your life if you follow through your commitments given to Uncle Mark at the sentencing conversation. It is very important that you do pursue the opportunity to undertake rehabilitation programs, such as those that are offered through Ngwala Willumbong.
70I have had regard to your history and traumatic background, and I have applied the principles enunciated in the case of Bugmy.[1] Notwithstanding your past criminal history, I accept your personal history of childhood deprivation and abuse remains a feature of your makeup and is relevant in the evaluation of your moral culpability. The effects of intergenerational trauma are apparent from your life story and personal childhood experiences. Those background experiences have played a significant role in shaping your personality and responses.
[1]Bugmy v The Queen (2013) 249 CLR 571
71Therefore, I have taken into account your background as an important mitigating circumstance.
72I have had regard to the findings of Ms Mynard and I accept that your complicated grief disorder makes life more difficult for you whilst you are in custody, and that there is a likelihood of your condition deteriorating further whilst in custody.
73I urge the authorities to take note of her diagnosis and take steps to address your mental health whilst you are in prison, to ensure that your mental health is appropriately monitored and treated.
74I have taken into account the difficulties experienced due to the restrictions imposed by reason of the COVID-19 pandemic. I accept that it has caused additional anxiety to both yourself and also your family members.
75I note that you have been in continuous custody since your remand on 13 July 2020, and that you have completed a sentence that was imposed on 12 November 2020, at Mildura Magistrates’ Court, for a term of three months imprisonment, for some unrelated summary offences.
76Ultimately, I must impose just punishment.
77This was an unprovoked and vicious assault on a defenceless victim, that has resulted in serious injury which will have a lifelong impact. For the offence of recklessly cause serious injury, both general and specific deterrence are important factors. I have had regard to the decision of DPP v Betrayhani.[2]
[2]DPP v Betrayhani [2019] VSCA 150
78This court condemns unprovoked violence.
79HER HONOUR: This court does condemn unprovoked violence of this kind in public streets and you must be deterred from further violent offending in the future.
80I have assessed this as being a serious example of this serious offence that falls within the mid-range of seriousness.
81A forceful punch to the head is highly dangerous and a person delivering such a punch is taken to have foreseen a high probability of serious injury. Taken with the serious nature of the victim’s injuries, leads to the conclusion that the only disposition open to the court is one that involves a term of imprisonment to be immediately served.
82You must also be punished for committing such a serious offence whilst you were on bail.
83This case does highlight how one act can change your life, but it also highlights that you have now been given the opportunity to reflect and make a more determined choice for the future to re-direct your life trajectory to a better pathway ahead. I just urge you to really follow through with the help that has been offered at the prison. I will now announce my formal orders.
84In relation to Charge 1, recklessly causing serious injury, you will be convicted and sentenced to five years’ imprisonment.
85In relation to related summary charge of commit indictable offence whilst on bail, you will be convicted and sentenced to one-month imprisonment. That sentence is cumulative upon the sentence imposed on Charge 1. So what that means is the total effective sentence is five years and one-month imprisonment.
86I fix a non-parole period of three years’ imprisonment.
87I make the following declaration pursuant to s6AAA Sentencing Act 1991 declaration, but for your plea of guilty, I would have imposed six and a half years to serve, to serve four and a half years imprisonment.
88I declare that you have spent - I think it is 290 days by way of pre-sentence detention and I direct that that be entered into the records of the court.
89Finally, I make the disposal order sought. That concludes the sentence in relation to this matter of Dwayne Lindsay and we will now disconnect the link. Thank you everybody for your attendance this morning.
90MR DAVIES: Your Honour pleases.
91HER HONOUR: Thank you.
92MS DUCKETT: The court pleases.
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