Director of Public Prosecutions v Lynch

[2015] VCC 581

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-15-00474

DIRECTOR OF PUBLIC PROSECUTIONS

v

DILLON LYNCH

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JUDGE:	HER HONOUR JUDGE QUIN
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	7 May 2015
CASE MAY BE CITED AS:	DPP v Lynch
MEDIUM NEUTRAL CITATION:	[2015] VCC 581

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms N.C. Burnett
For the Offender	Mr D.A. Langton

HER HONOUR: 

1Mr Lynch, you have pleaded guilty to the following charges, Charges 1 and 4, theft; Charges 2 and 3, attempted armed robbery; Charges 5 and 6, dangerous driving whilst being pursued by police.  You have also consented to the following summary offence to be heard with these matters – resist police.  The maximum penalties for these offences are as follows.  Attempted armed robbery, 20 years' imprisonment; theft, ten years' imprisonment.  In respect of theft of motor car there is also mandatory licence cancellation.  Dangerous driving whilst pursued by police, three years' imprisonment; resist police, 60 penalty units or six months' imprisonment.

2At the time of the offending you were aged 18, as these events occurred between 17 and 20 September last year.  You are currently aged 19.

3Your offending commenced at about 11 am, on Wednesday 17 September.  You walked into the TSG shop at Craigieburn and stole a cigarette lighter that looked like a gun.  (See photo Exhibit B.)  You took it from a shelf and placed it under your jumper – this activity was captured on CCTV footage.

4Later that day, at about 4.55 pm, you approached Anele Perrera, who had just parked his car in the car park of the Sunshine Market Place shopping centre.  He noticed you had black material covering your face just under your eyes.  When he got out of his car, you stood in front of Perrera and said "Come here and look at the knife."  He observed that you had a meat cleaver that was about 25 centimetres in length and a handle of about ten centimetres.  You said to Perrera, "Don't shout, I'll kill you, I'll kill you.  Give me the car key.  Give me the car key."  He threw the car keys as far away as he could then ran towards the shops screaming for help.  You then walked away in the opposite direction and left the scene.

5Again on this same day, at about 7.30 pm, you were at the Sunshine Leisure Centre car park.  Wunh Pham had been swimming at the centre with her three

6year old daughter and she was putting her in the car when you approached her and asked her the time.  She said she did not know what it was.  You continued to approach Pham and persisted in asking her the time.  She told you she thought it was about 7.30.  You stood close to her and said, "Give me your wallet and your car keys."  She asked you why and you responded, "If you don't I will chop you."  You then pulled a meat cleaver out from your pants.  She told you to wait a minute and took her young daughter out of the car seat.  She saw people coming out of the centre and screamed for help while holding her daughter. 

7You then ran from the scene.  Again, some of this was captured on CCTV, particularly you following her from the Centre to her car. 

8The next day, at approximately 4 am, Saeed Askari started his car at his home in Werribee.  He reversed out of the garage and returned to his house while leaving the engine running.  Whilst he was inside for approximately two minutes an unknown person stole the car.  You subsequently used this car, knowing it was stolen, in the commission of the next two offences.

9Later that day, at approximately 11.30 am, police observed you driving the stolen car in Ballan Road, Wyndham Vale.  Police attempted to intercept you.  However, you failed to pull over and a pursuit was initiated.  This went on for about three minutes in suburban streets, reaching speeds of 80 kilometres an hour in a 60 zone before being terminated by police. 

10Two days later, on 20 September 2014, at approximately 2.41 am, the stolen car was observed travelling along Point Cook Road.  The stolen car was displaying adhesive stickers in the place of the registration plates.  These spelt out "Fuck cops."  Police attempted to intercept the car but you did not stop.  You were pursued through Point Cook and along the Princes Freeway towards Geelong, then along the Geelong Bypass towards Colac.  This high speed pursuit reached speeds of up to 150 kilometres an hour and continued for 49 minutes over a distance of 107 kilometres.

11Police deployed stop sticks at the intersection of the Princes Highway and Birregurra Road, Birregurra.  As a result, you were forced to pull over after approximately 500 metres and police approached the vehicle.  As you were approached by police, you accelerated a number of times in an attempt to drive away.  At this time police were only metres away from the car situated both in front and behind your car.  You refused to exit the car despite requests and continued to attempt to drive away.  Police then smashed the driver's side window and deployed OC spray.  Sergeant Groves reached into the vehicle and attempted to remove you from the driver's seat.  You continued to push away from Sergeant Groves while trying to get back into the vehicle.  You were subsequently overpowered and handcuffed.  The total value of the vehicle was $4,500.  The vehicle suffered damage to its tyres and had also been painted blue.

12You were arrested and transported to the Geelong Police Station, where you made a "no comment" record of interview and were unco-operative with the police. 

13A victim impact statement was read to the court provided by Ms Pham (Exhibit D).  In it she states as follows:

"Every time we get in the car my child reminds me to be quick or else we will be threatened with a knife.  She is a constant reminder of the assault and she will say it to me any time, whether morning or night.  In the past I have walked her round the neighbourhood and now I dare not to do it.  I feel anxiety, worry and fear every day.  I came to this country as a refugee believing I was coming to a place of safety and freedom.  I do not believe this anymore."

14Your offending has had significant impact on all of your victims. 

15I was provided a report from Pamela Matthews, forensic psychologist (Exhibit 2), which outlines your personal history, and I take those matters into account.

16Briefly, as previously indicated, you are currently aged 19.  You grew up with both your parents in Werribee until they separated in 2005.  You have had intermittent contact with your father to date, though more recently you have seen him more frequently.  I understand that his mother provides you some support and that you have on occasion resided with her.  You have also spent time residing in different places with your mother.

17You have not completed secondary school.  Ms Matthews assessed you as having a mild intellectual disability.  This assessment was not disputed by the prosecution. 

18Over the past two years you have had various placements in residential care, though your living arrangements have been transient and you have couch surfed at friends' places.  At the time of the commission of these offences that was how you were living.

19

You have used drugs since 2009, including cannabis and ice.  At the time of the commission of these offences you were using ice.  You reported to

Ms Matthews that you were not thinking straight and coming off drugs.

20You have a number of prior convictions.  All of these have been previously dealt with in the Children's Court.  These prior matters date back to 2011 and continued up until the commission of these offences.  The priors relate to matters of dishonesty, violence or offences involving weapons and driving offences.  The most recent court appearance was on 16 October 2014 and related to breach of a youth supervision order that had been imposed for offences of a similar nature as those currently before me.  You were sentenced to be detained in a youth justice centre for 42 days.  When sentenced, you had already served that time and it was your first experience of detention. 

21You have been in adult custody in respect of these matters since you were arrested on 20 September 2014 for a period of 230 days.  This is your first experience of adult gaol, a matter I will refer to later in these reasons.

22

There are a number of aggravating features of your offending.  You used a disguise in the first attempted armed robbery.  Both attempted armed robberies occurred in public places and your use of weapon was accompanied with verbal threats.  In respect of the second armed robbery,

Ms Pham was particularly vulnerable with a child under her care.  You watched her go to her car and were aware of that vulnerability.  Additionally, it was dark when this offence was committed.  The effect on both these victims was significant. 

23In respect of the driving offences, presumably the police determined it was too dangerous to continue a pursuit when they first attempted intercepting you.  You were speeding in suburban streets, posing an obvious risk to all road users. 

24In respect of the second pursuit, the registration plates with the sticker was consistent with your attitude at the time.  Your actions were a danger to so many, including yourself, police and other road users.  The pursuit lasted a significant period of time, 49 minutes, and occurred over 107 kilometres.  The manner of your driving included speeds of up to 150 kilometres an hour. 

25Finally, in respect of the summary offence, police officers have a very difficult job to do and your actions were reflective of your contempt for authority.  This offending occurred whilst you were on bail for similar driving matters ultimately dealt with by the court in October last year. 

26I take into account your plea of guilty.  You have pleaded guilty at the conclusion of the committal on 20 March this year.  I accept that you pleaded to these matters at an early opportunity and that the plea is indicative of remorse.  Further evidence of your remorse is contained in the letter provided to me by you (Exhibit 1) and also in Ms Matthews' report.  I accept that you are remorseful for your conduct.

27Ms Matthews notes in her report at the outset a change in your attitude, having previously interviewed and assessed you in December 2012.  Your presentation was markedly different than on that occasion.  Ms Matthews conducted a Structured Assessment of Violent Risk in Youth, or SAVRY, which involved a consideration of a number of factors as set out in the report.  Based on these factors, she rated you as a moderate risk of future violence.  She remarks:

"His interview content and more settled presentation when interviewed on this current occasion also indicated a significant shift in Dillon's attitudes towards his offending and his future.  Static historical factors, combined with Dillon's shift in attitude towards his offending and his future, indicate Dillon's risk of violent re-offending has reduced from high to moderate."

28The prosecution submitted that since the report was based on information provided by you, the views therein expressed could not be relied upon, that is, that I should not have the same confidence in you that she expresses as to the changes in your attitude. 

29Your counsel relied on Verdins.  However, the use of drugs cannot reduce your moral culpability for this offending. I do, however, accept, as did the prosecution, that your intellectual disability was such as to make imprisonment more onerous for you.  I was informed of a number of difficulties that you have already encountered in your time in adult custody.

30The prosecution submitted it was necessary for you to serve more time than you had completed, though conceded that youth justice would be appropriate.  Your counsel, relying on the recent decision of Boulton, argued that you should be placed on a community corrections order and that all sentencing considerations could be properly accommodated with such an order, also recognising your time of service of imprisonment.

31You have been in adult custody for the first time for the last seven months or so.  This has no doubt been a sobering experience for you and the principal factor in driving you to change your ways, particularly in respect of drug use and the offending that follows. 

32

This is very serious offending.  Principles of general deterrence and community denunciation are important sentencing considerations.  Specific deterrence also plays a role given your prior history and the risk of you

re-offending, even accepting Ms Matthews' opinion that such a risk is moderate.

33You have very quickly stepped up the sentencing hierarchy and you are still a very young man.  It really is up to you whether you will take the opportunities that are provided to you under a community correction order and take full advantage of the supports offered with family, DHS and Intellectual Disability and other agencies to assist and monitor your drug use.

34If you breach the order, you will come back before me, and I am not so sure I will accept on that occasion your stated desire to get back on with your life.  If you come back before me, I think that you will find yourself at the beginning of a history of periods in custody.

35Could you stand up, please, Mr Lynch?

36MS BURNETT:  Your Honour, could I just indicate before Your Honour hands down sentence?

37HER HONOUR:  Yes, sure.

38MS BURNETT:  In terms of the aggregate sentence, the court needs to, in open court, before handing down the sentence, in language likely to be readily understood by the offender, indicate the decision to impose an aggregate sentence and the reasons for doing so and the effect of the proposed aggregate sentence.

39HER HONOUR:  All right.  Mr Lynch, I propose to give you an aggregate sentence.  That means that you are getting a sentence in respect of all of your offending ‑ ‑ ‑

40OFFENDER:  Yes, Your Honour.

41HER HONOUR:  ‑ ‑ ‑ in the one sentence, all right?

42OFFENDER:  Yes, Your Honour.

43HER HONOUR:    So what I am doing, and I think I indicated at the beginning, was I will impose a sentence of imprisonment, but it will be the time that you have already served.

44OFFENDER:  Yes, Your Honour.

45HER HONOUR:  Then I will place you on a community corrections order for a period of three years.

46OFFENDER:  Yes, Your Honour, I understand that.

47

HER HONOUR:  If you have to come back before me, you can be

re-sentenced in respect of all of that offending.

48OFFENDER:  Yes, Your Honour.

49HER HONOUR:  All right?  Do you understand that?.

50OFFENDER:  Yes, I do.

51HER HONOUR:  All right.  Mr Lynch, you also might - I am sure that your counsel is going to talk with you about this, but working with the DHS and the Intellectual Disability people is important for you ‑ ‑ ‑

52OFFENDER:  Yes, Your Honour.

53HER HONOUR:  They can provide some help for you. 

54OFFENDER:  Yes, Your Honour.

55HER HONOUR:  And you can do that on a voluntary basis.

56OFFENDER:  Yes.

57HER HONOUR:  I propose, as I indicated, in respect of this offending, to impose an aggregate sentence in respect of all of the matters before me, including the summary offence, you are convicted and sentenced to a period of imprisonment for seven months and, at the conclusion of that seven months, to be placed on a community correction order for a period of three years.

58OFFENDER:  Yes, Your Honour.

59HER HONOUR:  As part of that order you are required to do 125 hours community work.

60OFFENDER:  Yep.

61HER HONOUR:  You are required to have a drug assessment and treatment condition.

62OFFENDER:  Yes, Your Honour.

63HER HONOUR:  That will require you to attend where you are directed by the Corrections people.

64OFFENDER:  Yes, Your Honour.

65

HER HONOUR:  And you will be required to provide urine tests there as well,

I presume.

66OFFENDER:  Yep.

67HER HONOUR:  It will depend on what they think is the appropriate thing for you to have to do.

68OFFENDER:  Yes.

69HER HONOUR:  I will also include a mental health treatment condition.

70OFFENDER:  Yes, Your Honour.

71HER HONOUR:  And also include a condition regarding offender behaviour programs.

72OFFENDER:  Yes, Your Honour.

73HER HONOUR:  You will be supervised by the Broadmeadows Community Corrections Service.

74OFFENDER:  Yes, Your Honour.

75HER HONOUR:  I will also impose a judicial monitoring condition.  You will be required to come back to me ‑ ‑ ‑

76OFFENDER:  Yes, Your Honour.

77HER HONOUR:  ‑ ‑ ‑ and see how you are going in about two months' time.

78OFFENDER:  Yep.

79HER HONOUR:  All your licences will be cancelled and you are disqualified from obtaining your licence for a period of two years.

80OFFENDER:  Yes, Your Honour.

81HER HONOUR:  So you are going to have to be able to get to community work ‑ ‑ ‑

82OFFENDER:  Yep.

83HER HONOUR:  ‑ ‑ ‑ and the other places without driving.

84OFFENDER:  Yes, Your Honour.

85HER HONOUR:  You are going to have to use public transport or work out a way to get there.

86OFFENDER:  Yes.

87

HER HONOUR:  All right.  I do not think there is anything else.  You will see

I did not impose a residential condition or a curfew condition.

88OFFENDER:  Yes, Your Honour.

89HER HONOUR:  There were reasons for that.  But hopefully you have got enough support within your family members to be able to have sort of stable accommodation.

90OFFENDER:  Yes, I do, Your Honour.

91HER HONOUR:  All right.  Now disposal order and forensic sample orders.  Have you got those?

92MS BURNETT:  I'll hand those up, Your Honour.  There is 229 days by way of pre-sentence detention.  That does not include today.

93HER HONOUR:  Yes, that's all right, because - yes, 229 days PSD is declared.  Is there anything else?  The judicial monitoring will come back to me.  What is the date today, the 6th?

94OFFENDER:  Seventh.

95ASSOCIATE:  Seventh of May.

96HER HONOUR:  Seventh of May.  I keep calling it the 6th.  I am away, so if it can come back to me on 14 July at 9.30.

97OFFENDER:  Yes, Your Honour.

98HER HONOUR:  All right?  So come back on 14 July at 9.30 and we will see how you are going.

99OFFENDER:  Yeah, all right, Your Honour.  Thank you very much.

100HER HONOUR:  I will make the disposal orders and the forensic sample orders. 

101Pursuant to s.6AAA of the Sentencing Act, if you had not pleaded guilty in respect of these matters, I would have sentenced you to a period of imprisonment of three years with a minimum of 18 months.  It should be noted, though, that the question of youth justice has not been determined at this stage.

102I have been handed up two lots of ‑ ‑ ‑

103MS BURNETT:  There's custodial and non-custodial that were provided.  It should just be the non-custodial.

104HER HONOUR:  Yes.  Yes, it is the one with the two things written in, so that ‑ ‑ ‑

105MS BURNETT:  That's right, Your Honour.

106

HER HONOUR:  Yes.  Mr Lynch, I should indicate to you that another order

I am making requires you to attend a police station for them to take a sample.

107OFFENDER:  Yes, that's okay, Your Honour

108HER HONOUR:  All right.  Mr Lynch, it is up to you now.

109OFFENDER:  Yes.

110MS BURNETT:  Your Honour, in respect of the judicial monitoring, are the prosecution required to appear on that date?

111HER HONOUR:  No, they don't necessarily.

112MS BURNETT:  Thank you, Your Honour.

113HER HONOUR:  No, thanks.

114MS BURNETT:  Thank you, Your Honour.

115HER HONOUR:  I am just trying to think.  No, they don't.  If you could maybe give it to Mr Langton to show his client.  Thank you.

116MR LANGTON:  Yes, that seems to be correct, Your Honour.

117HER HONOUR:  I think he needs to sign it.

118MR LANGTON:  Yes, I'll take it to him now then.

119HER HONOUR:  Thanks.

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