Director of Public Prosecutions v Lyon
[2020] VCC 1297
•4 September 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Suitable for Publication |
Case No. CR-20-00383
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| HEATH LYON |
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JUDGE: | HER HONOUR JUDGE LEWITAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17 August 2020 | |
DATE OF SENTENCE: | 4 September 2020 | |
CASE MAY BE CITED AS: | DPP v Lyon | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1297 | |
REASONS FOR SENTENCE
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Subject:Aggravated Burglary, threat to kill, cause injury intentionally, contravene personal safety intervention order
Cases Cited: DPP v O'Neill [2015] VSCA 325; Glen Brown (aka James Davis) v The Queen [2020] VSCA 60; DPP v Myers (2014) VSCA 314 and Boulton v The Queen [2014] VSCA 342.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr P. Pickering | Abbey Hogan Solicitor for Public Prosecutions |
| For the Accused | Ms D. Lamovie | Victoria Legal Aid |
HER HONOUR:
1 Heath Lyon, you have pleaded guilty before me to one charge of burglary, for which the maximum sentence is 25 years' imprisonment, one charge of threat to kill, for which the maximum sentence is 10 years' imprisonment and one charge of cause injury intentionally, for which the maximum sentence is 10 years' imprisonment.
2 You also consented to this court dealing with the summary offence of contravention of a personal safety intervention order. The maximum penalty for this offence is two years' imprisonment.
Circumstances of the offending
3 You were born on 12 July 1984. You are 36 years old and were 34 years old at the time of the offending. The victim, Ivan Stevens, was 68 years old at the time of the offending. The victim resided at 153 Ascot Vale Road, Ascot Vale (the Ascot Vale property). The victim had known you for about five years and had invited you to stay at his house, where you then rented a room.
4
There had been a history of violence and threats by you towards the victim and a personal safety intervention order was issued against you on
26 June 2019, with conditions that excluded you from going to or being within 200 metres of the Ascot Vale property and being within 5 metres of the victim, as well as conditions prohibiting violence and harassment of the victim. The personal safety intervention order was served on you on 30 June 2019.
5 At 5.30 am on 4 July, you entered the Ascot Vale property through an unlocked window leading to the bedroom (Charge 1 – aggravated burglary; Summary Charge 5 – contravene personal intervention order). You called out the victim's name and then confronted him near the living room, saying the victim was to blame for the intervention order. You told the victim, 'You're not going to survive the night' (Charge 2 – threat to kill). You pushed the victim to the ground and kicked him in the head five times.
6 You then ordered the victim to his feet. The victim did not understand what was said, so you grabbed him by his clothing and dragged him into the kitchen. You grabbed two knives from the cutlery drawer and poked them into the victim's face. The victim asked, 'Why are you doing this', to which you replied, 'I don't care, I don't care'.
7 You told the victim to stand up, and immediately punched and kicked him to the face, body and groin, causing him to fall to the ground. You used a kettle to hit the victim over the head, threw a metal steam cooker at his head and pushed him against the wall several times. The victim managed to escape from the house by climbing through a rear window and walking to his mother's house next door.
8 As a result of the assaults, the victim sustained a 4 centimetre long laceration to his forehead, which required a suturing, minor cuts to his hands and a fractured left thumb. He required a surgery to the thumb, involving wires to fix the bones and the repair of a severed nerve (Charge 3- intentionally causing injury).
9 On Saturday 27 July 2019, you handed yourself into the Melbourne North Police Station, where you were arrested by Constable Andrew Callander. A record of interview was later conducted by Constable Sandra Vearing and Senior Constable Mathew Waterson at the Melbourne West Police Station.
10 You admitted your association with the victim, but denied that the offending occurred, stating that you could not remember it at all and that you had been sleeping rough in Parkville at the time.
11 The facts in this case are very serious and disturbing. The offence was committed in the early hours of the morning against a victim who was vulnerable and much older than you. Your counsel conceded that you had been aggressive towards the victim on prior occasions. The defence concedes that the offending took place in the complainant's home in the middle of the night, where he was entitled to feel safe and secure. The defence acknowledged that the assault which took place after your entry was terrifying for the victim.
12 As has been pointed out by your counsel, there are however some mitigating factors. You have pleaded guilty. You are entitled to have that fact taken into account in your favour, and I do so. The community has, by your plea, been spared the time and cost of a trial. Witnesses have been spared the ordeal of giving evidence upon your trial. Further, I take it into account in your favour that you intimated early, your intention to plead guilty to these charges. You told Dr Zimmerman that you now feel terrible about attacking your friend, 'I was just suffering delusions – I did not intend to hurt him.'[1] In the circumstances, I accept that, in your case, your plea indicates remorse for your actions.
[1] Exhibit 1; report dated 21 February 2020 by Dr Zimmerman (Dr Zimmerman’s report), [60];
13 You are an only child of your mother and father. You never had contact with your father, who left soon after you were born and moved to Ireland, where he died in the 1990s. When you were four years old, you witnessed your mother being raped in the family home. Your mother began to drink and smoke heavily after this.
14 You attended three different primary schools. You started receiving mental health treatment counselling from 1990 to 1997 at Alfred Child and Adolescent Services. You were diagnosed with 'Misery and Unhappiness Disorder specific to Childhood and Adolescence' during your treatment at the Alfred.
15 You attended Mordialloc High School until Year 9, and then completed Year 10 at Sandringham Secondary School in Beaumaris. In 2000, you moved to Benalla with your mother and attended TAFE. During this time, you worked part-time doing fruit picking, labouring work and factory work. You lived in Benalla with your mother until 2001.
16 You moved to Melbourne with your girlfriend when you were 17 years old. The relationship lasted five years and you separated amicably. The precipitating factors to the breakup included increasing psychotic symptoms and jealousy.[2]
[2] Exhibit 1, Dr Zimmerman’s report, p5 [26].
17 You started smoking cannabis when you were 13 years old and had been using 200 grams of cannabis at the time of your arrest.
18 Your mother returned to Melbourne in 2006. After your relationship broke up, you returned to live with your mother intermittently over the years. You then obtained Ministry of Housing accommodation in Shepparton, where you stayed for one year. You then returned to Melbourne to find work. Your last paid employment was for a few months in 2017, when you worked stacking shelves in Coburg.
19 On 14 October 2014, you pushed the victim over a table in the living room. You were sentenced to a term of imprisonment for 12 months, with a non-parole period of six months. You were in custody at Beechworth Prison when your mother passed away in 2014. On 23 April 2015, you were dealt with for contravention of the community correction order you received for the charge of recklessly cause injury. You were re-sentenced to one month in prison to be served concurrently with the sentence you were then undergoing. You moved to Wangaratta when you were released from custody, where you were assisted with accommodation and support and you re-engaged with mental health treatment. You completed your parole in Wangaratta.
20 You had been living at the victim's house on and off for five years.
21 You have admitted before me to prior convictions. There are 20 such convictions, involving nine court appearances between 2004 and 2015. The nature of some of those prior convictions, in particular, the three prior convictions (where the complainant is the victim) in 2011, for contravene person safety intervention order are such that they are highly relevant to my task of sentencing you today. You have had previous involvement with Community Correctional Services, having been subject to five prior community dispositions. Between 2002 and 2004, you were subject to three community based orders, two of which were community work only. Between 2013 to 2015, you were subject to a community correction order and parole. You successfully completed two community based orders, being community work only and parole. All other orders were contravened.
22 Your counsel referred to the four years of offence free history before this offending took place.
The application of the principles in R v Verdins[3] (Verdins)
[3] [2007] 16 VR 269.
23 In Verdins, the Court of Appeal stated that impaired mental functioning is relevant to sentencing in at least six ways.
(i) The condition may reduce the moral culpability of the offending conduct, as distinct from the offender's legal responsibility. Where that is so, the condition affects the punishment that is just in all the circumstances; and denunciation is less likely to be a relevant sentencing objective.
(ii) The condition may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served.
(iii) Whether general deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both.
(iv) Whether specific deterrence should be moderated or eliminated as a sentencing consideration likewise depends upon the nature and severity of the symptoms of the condition as exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of the sentence or both.
(v) The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health.
(vi) Where there is a serious risk of imprisonment having a significant adverse effect on the offender's mental health, this will be a factor tending to mitigate punishment.
Verdins Principle 1 – Was your moral culpability reduced?
24 You were diagnosed with schizophrenia in 2013. The prosecution does not dispute that some Verdins principles apply, having regard to the psychiatric opinions of Dr Zimmerman and Dr Best[4]. The defence submits that your moral culpability is reduced.
[4] Exhibit 2,
25 You had not been taking your antipsychotic medication for a period of 12 months before this offending.
26 On 11 May 2019, you were involuntarily admitted to the John Cade acute psychiatric inpatient unit for treatment of psychotic symptoms.[5] You remained there until 22 May 2019. You became homeless after the intervention order was served on you, finished your discharge medication and lost your medical scripts and contact numbers with your CAT support.
[5] Exhibit 2, p 7.
27
You offended two weeks after you were discharged. In a report dated
21 February 2020, Dr Zimmerman stated:
'In light of his psychotic state two weeks prior to the alleged offending, the Brief material suggesting a degree of disorganised and bizarre behaviour/remarks at the time of the offending, Mr Lyon's description of his paranoid beliefs regarding the victim coupled with a history of acting on these beliefs in a violent manner and the suggestion of some paranoia when admitted to prison, I believe that Mr Lyon was most likely acutely psychotic on the day of the alleged offending.[6]'
[6] Exhibit 2, p 13 [75].
28 The court in Verdins identified a variety of ways in which courts had held that impaired mental functioning might reduce moral culpability as follows:
Impaired mental functioning at the offending may reduce the offender's moral culpability if it had the effect of:
a)impairing the offender's ability to exercise appropriate judgment;
b)impairing the offender's ability to make calm and rational choices, or to think clearly;
c)making the offender disinhibited;
d)impairing the offender's ability to appreciate the wrongfulness of the conduct;
e)obscuring the intent to commit the offence; or
f)contributing (causally) to the commission of the offence.[7]
[7] (2007) 16 VR 269, [26].
29 In Dr Zimmerman's opinion:
As a result of the psychosis and specifically his beliefs that the victim had been tampering with his belongings and food over many years, I believe that there is sufficient evidence that Mr Lyon was unable to reason with a moderate degree of sense and composure whether the conduct he is alleged to have engaged in was wrong as a result of his schizophrenia.[8]
[8] Exhibit 2, p 13 [76].
30 In these circumstances, I accept the defendant's submission that your moral culpability is reduced because you were suffering from schizophrenia at the time you committed these offences.
Verdins principle 2 – should your mental condition have bearing on type of sentence and conditions
31 The prosecution accepts that the second principle in Verdins has some applicability.
32 I accept the defence submissions that you would benefit from a substantial period of support and supervision in the community after you are released from custody.
Verdins Principle 3 – should general deterrence be moderated?
33 The defence submitted that there should be a significant reduction in the relevance of general deterrence because you were suffering from a major mental illness.
34 The prosecution concedes that general deterrence may be moderated, having regard to the psychiatric conditions suffered by the accused at the time of offending and now.
35 I accept Dr Zimmerman's opinion that you were most likely acutely psychotic on the day of the alleged offending.[9] In my view, general deterrence should be sensibly moderated.
Verdins Principle 4 – should specific deterrence be moderated?
[9] Exhibit 1, p13 [75].
36 The defence concedes that the enduring nature of your mental illness, even when stable and undergoing treatment, means that protection of the community must loom large in the sentencing process. This must be accepted in the context of your criminal history.
37 I accept the prosecution's submission that specific deterrence is a major factor in sentencing you, even allowing for your psychiatric condition, due to the repeated attacks on the victim and the imposition of previous sentences, including imprisonment and community-based dispositions. Specific deterrence also needs to be accorded weight, in light of the breach of the personal intervention order.
38 In these circumstances, specific deterrence will only be moderated to a very limited extent.
Verdins Principles 5 and 6
39 The defence submitted that a sentence of imprisonment would weigh more heavily upon you than it would on a person in normal health and would lead to further deterioration of your mental health.
40
Your counsel referred to the statement by Dr Fiona Best in her report dated
25 July 2020, that 'imprisonment may weigh more heavily upon him [you] than an individual without these difficulties and imprisonment may lead to further deterioration of his [your] mental health'.[10]
[10] Exhibit 2, p 13 [7].
41 The prosecutor referred to DPP v O'Neill[11], and submitted that the fifth and sixth limbs of Verdins may operate where the existing impairment will make prison more onerous or where prison may exacerbate the mental condition if the expert evidence establishes the significance of the impairment to the imposition of a prison sentence.
[11] [2015] VSCA 325, [76].
42 The prosecution submits that there is little evidence that the imposition of a term of imprisonment would weigh more heavily on you than it would on a person in normal health. The prosecutor submitted that, on analysing the report of Dr Best, Dr Best does not say why imprisonment would weigh more heavily on you.
43 The prosecution also disputes that there is a serious risk of imprisonment having a significant adverse effect on your mental health. Indeed, the current regime of regular medication seems to be having a positive effect on your psychiatric condition. The prosecutor submitted that you are now in a better condition than you were at the time of your arrest.
44 Having considered the whole of the evidence, I am not satisfied, on a balance of probabilities, that the existence of your mental illness at the date of sentencing means that the imposition of a term of imprisonment would weigh more heavily on you than it would on a person in normal health. I am not satisfied on a balance of probabilities that imprisonment would have a significant adverse effect on your mental health.
45
Since being remanded, you have taken olanzapine, 30 milligrams, at night (antipsychotic). For the last 12 months, you have been receiving regular treatment for schizophrenia while incarcerated and are followed up as an outpatient by Ravenhall Correctional Centre mental health unit. You report adherence to your medication regime. In a report dated 25 July 2020
Dr Fiona Best stated:
2. On assessment today, Mr Lyon was not psychotic. He engaged appropriately with the assessment process and he was a good historian. He reported experiencing auditory hallucinations two weeks prior to the assessment but these had settled spontaneously. Mr. Lyon reported good adherence to his antipsychotic medication regime (olanzapine) since being remanded for over 12 months. His presentation today is likely to reflect adequate treatment of his mental illness. It is recommended that his current treatment plan be continued to reduce risk of psychotic relapse.
3. On assessment today, Mr. Lyon has a diagnosis of Schizophrenia, Multiple episodes, currently in full remission (DSM-5). (emphasis mine)[12]
[12] Exhibit 2, p 12.
46 The defence further submits that your remand in a period of COVID-19 confinement has placed a further burden on you because of your limited contact with the outside world, reductions in personal liberty within the confines of the prison and your experience of additional lockdowns. No personal contact visits are allowed because of the COVID-19 restrictions. You have been unable to receive visits from friends who would otherwise support you. Any contact with the outside world is restricted to telephone calls.
47 In Glen Brown (aka James Davis) v The Queen[13] the Court of Appeal (Priest and Weinberg JJA) accepted that the COVID-19 pandemic is 'causing additional stress for prisoners and their families'. The impact of the COVID-19 pandemic is a matter I take into account in your favour in mitigation of sentence.
[13] [2020] VSCA 60, [48].
48 I also take into account in your favour that at the time of your remand, you were suffering from a cyst on your left testicle. You are now on a waiting list for an operation at St Vincent's hospital, that has been postponed because of restrictions imposed by the COVID-19 restrictions on non-urgent surgical procedures. You take Panadol for the pain but cannot participate in any sporting activity because of the risk of rupture.
Rehabilitation
49 Your counsel submitted that you are motivated to reform and remain drug free. You have been employed within the prison system. You were previously remanded at Port Phillip Prison, where you were working in the laundry. You are presently on remand at Ravenhall Prison. You are working as a yard billet, which is a position of some responsibility. You clean the yard, mow and garden. You enjoy this work and consider yourself fortunate to have been able to maintain a record of working whilst in prison. You are housed in lodge accommodation within the prison, which you share with five other prisoners and share communal cooking facilities. You have participated in rehabilitation programs in custody for your alcohol and drug addiction and have obtained Certificates of Achievement in 'Check Your Thinking', 'Keeping Your Cool', 'Release Related Harm Reduction' and 'Alcohol and Me'.[14]
[14] Exhibit 3.
50 You have had phone contact with some friends whilst in custody, including Damien Rudi Dannock. I take into account the reference by Mr Dannock, dated 14 August 2020.[15] Mr Dannock is prepared to offer you accommodation in his home when you are released from custody. Mr Dannock lives with his mother, who currently suffers from cancer. He is the carer. They reside in a three bedroom house in Coburg.
[15] Exhibit 4.
51 At this stage, your prospects for rehabilitation remain guarded and will depend on your ability to refrain from using alcohol and taking drugs and your engagement with mental health authorities when you are released from custody. In fixing an appropriate sentence, I must seek to maximise the chances of your rehabilitation as there may be.
52 No victim impact statement has been tendered in this matter. I have been informed that the victim was offered the opportunity of making such a statement but chose not to do so. It is clear from the depositions and the evidence I do have before me that there was considerable suffering on the part of the victim as a result of your actions.
53 As well as those matters personal to you, to which I have referred, including your prospects of rehabilitation, I must also consider the question of the protection of members of the community from you and bear in mind the likelihood of your re-offending. I am called upon by the Sentencing Act to manifest the community's denunciation of your conduct and generally to impose a just punishment.
Gravity of offending
54 This is a serious example of aggravated burglary. The Prosecutor referred to the considerations relevant to an assessment of the seriousness of the offence set out by the Court of Appeal in DPP v Myers.[16] In this case, you forced your way into the victim's house at 5.30 in the morning. It was not a random attack. You believed that the victim was inside the home. The victim was particularly frightened of you. The victim had previously been assaulted by you and had taken a personal intervention order against you. I regard this as a mid-level example of the offence of aggravated burglary.
[16] (2014) VSCA 314.
55 In relation to the charge of intentionally causing injury, the victim was pushed to the ground and kicked in the head five times. He was hit with objects, including a kettle and knives. The victim's injuries were extensive and required surgery. His finger was wired. The offence falls within the low to mid-range example of the offences of intentionally cause injury.
Sentencing submissions
56 Your counsel submitted that a period of imprisonment and a community correction order would be the appropriate disposition in all the circumstances of this case. On 18 August 2020, you were assed to determine your suitability for a community correction order. You were assessed as suitable for a community correction order. Community Correctional Services assessed you as being high risk of re-offending, according to the Level of Service Risk Assessment.
57 The defence accepts that this is serious offending. The offending took place in the complainant's home in the middle of the night, where the victim was entitled to feel safe and secure.
58 In relation to the summary charge of breach personal safety intervention order, the defence acknowledged that you have been dealt with previously for similar offences concerning the same victim.
59 The prosecution submitted that a period of imprisonment with a non-parole period would be best suited to allow for rehabilitation rather than a community correction order.
60 In my view this is serious offending. I have considered s.5(4C) of the Sentencing Act 1991. Having considered the whole of the evidence and the submissions made by counsel, a term of actual imprisonment is required. The purpose or purposes for which the sentence is imposed cannot be achieved by imprisonment to be followed by the imposition of a community correction order, to which one or more of the conditions referred to in s.48F to J are attached. The imposition of a community correction order in this case would not give sufficient effect to the purposes of the protection of members of the community from you, the community's denunciation of your conduct and the need to impose a just punishment.
61 In paragraph 140 of Boulton v The Queen [17], the Court of Appeal stated:
There will, of course, be cases where the sentencing court concludes, after engaging in the deliberation now required by s.5(4C), that certain sentencing purposes – typically, just punishment, denunciation and/or deterrence – cannot be sufficiently served by the making of a CCO, even with onerous conditions. Consistently with the principle of parsimony, the court would then impose the shortest term of imprisonment consistent with the achievement of those purposes.
[17] [2014] VSCA 342, [140].
62 These are without doubt serious offences. In all the circumstances, I have no alternative to the imposition of custodial sentences. I propose to record convictions on all charges and sentence you to be imprisoned as follows:
Charge 1 - Aggravated Burglary - to a term of imprisonment of four years.
Charge 2 - Make threat to kill - to a term of imprisonment of one year.
Charge 3 - Causing injury intentionally - to a term of imprisonment of 18 months.
Summary Charge 5 - contravening Personal Safety Intervention Order - convicted and sentenced to a term of imprisonment of six months.
63 The base sentence is the sentence imposed on Charge 1, aggravated burglary. I direct two months of the sentence imposed on Charge 2, three months of the sentence imposed on Charge 3 and one month of the sentence imposed on Summary Charge 5 be served cumulatively on each other and on the sentence imposed on Charge 1. That results in an effective sentence of 54 months.
64 Having considered the submissions made by your counsel and the need to maximise the chances of your successful rehabilitation, I direct that you serve a minimum term of two years and six months before becoming eligible for parole. You will have the opportunity to continue rehabilitation in the community if you are granted parole.
65 As prescribed by s.18(4) of the Sentencing Act, I declare that the period of time you have already spent in custody is - how many days, Mr Prosecutor?
66 MR PICKERING: Sorry, Your Honour, it is 405 days.
67 HER HONOUR: Four hundred and five days. I direct that such be noted in the records of the court.
68 I order that the property referred to in the schedule of the disposal order (the property), which I have signed this day, be forfeited to the Minister. I further direct that the property be placed in the custody of the Chief Commissioner of Police and be held by him until 28 days from this date or the conclusion of any appeal proceedings and then destroyed.
69 Section 6AAA of the Sentencing Act 1991, requires me to state the sentence and non-parole period that I would have imposed but for the plea of guilty. Your plea has saved time, expense and the need for witnesses to give evidence, and is reflective of remorse. But for your plea of guilty, I would have sentenced you to a term of imprisonment of six years on Charge 1, eighteen months on Charge 2, 27 months on Charge 3 and nine months on Summary Charge 5. I would have directed that three months of the sentence imposed on Charge 2, five months of the sentence imposed on Charge 3 and two months of the sentence imposed on Summary Charge 5 be served cumulatively on each other and on the sentence imposed on Charge 1, making a total effective sentence of six years and 10 months. I would have directed that you serve a period of four years before being eligible for parole. Yes, are there any further matters?
70 MR PICKERING: No, Your Honour.
71 MS LAMOVIE: No, Your Honour.
72 HER HONOUR: Yes, thank you.
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