Director of Public Prosecutions v McLean
[2022] VCC 246
•2 March 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-20-01466, CR-21-02336
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TYRAN McLEAN (aka TYRAN WILLIAMS) |
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JUDGE: | Her Honour Judge Dalziel | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 2 March 2022 | |
DATE OF SENTENCE: | 2 March 2022 | |
CASE MAY BE CITED AS: | DPP v McLEAN | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 246 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentence
Catchwords: Recklessly Causing Serious Injury – Armed Robbery – Intentionally Causing Injury – Possession of a Drug of Dependence – Trafficking in a Drug of Dependence - Committing an Indictable Offence on Bail – Unlawful Assault
Legislation Cited: Sentencing Act 1991 (Vic)
Cases Cited:DPP v Lawrence [2004] 10 VR 125; Worboyes v The Queen [2021] VCA 169; Al Wahame v The Queen [2018] VSCA 4; DPP v Betrayhani; Betrayhani v The Queen [2019] VSCA 150; DPP v Cook (2004) 141 A Crim R 579;
Sentence: Convicted and sentenced to a total effective sentence of six years and six months’, with a non-parole period of four years.
Section 6AAA declaration: Conviction and total effective sentence of eight and a half years’ imprisonment with a non-parole period of 5 years.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr M.Cookson | Office of Public Prosecutions |
| For the Accused | Mr J. Barreiro | Victoria Legal Aid |
HER HONOUR:
1Tyran McLean, you have pleaded guilty today to charges relating to two separate incidents, the first in September 2019 and the second in April 2021.
2019 Offence
2On Friday 26 September 2019 the victim of the first offence, Roman Nestoriwskyj had gone out in the evening, with a friend, to celebrate happy events that had occurred for both of them that week. Mr Nestoriwskyj was 20 at the time, and a member of Victoria Police. That evening he was not on duty.
3Mr Nestoriwskyj and his friend went to a music event at the Pier Hotel Band Room, in Frankston. Each had had a good time, drinking and catching up with friends. At around 1.00 am Mr Nestoriwskyj and his friend decided to leave, and arranged to be picked up by an Uber. They left the venue and walked to a nearby intersection to wait for that car to arrive.
4The same evening you had been to a party at the Cheeky Squire Hotel, which is opposite the Pier Hotel Band Room, where Mr Nestoriwskyj had been.
5When Mr Nestoriwskyj and his friend were waiting for their Uber, two young women were standing near them. At around 1.07 am you approached the two young women and spoke to them. Mr Nestoriwskyj was standing closer to the young women than his friend, with his hands in his pockets. You and he had a very short conversation, and then he stepped towards you and another short conversation ensued.
6Then, very quickly, you punched Mr Nestoriwskyj to the right side of his jaw, using your right fist. He fell backwards, striking the top of his head on the concrete footpath. It is apparent from the CCTV footage that you put your body behind this punch and that it was a very powerful blow.
7The CCTV footage shows a bystander trying to stop you, but you broke free and ran away.
8The victim of this offence was unconscious for between 8 to 9 minutes. He was taken to hospital and, after scans, was discharged that night. He has suffered pain and headaches. The blow you landed caused life threatening injuries to Mr Nestoriwskyj. Being unconscious for that period of time places a person in danger of death, by reason of possible events such as occlusion or collapse of the airways. Furthermore, your punch fractured his teeth, and damaged his nose.
9The effects of your unprovoked and cowardly attack have been significant upon Mr Nestoriwskyj and his family. His work has been negatively impacted, and he has incurred medical expenses particularly in respect to his teeth. His leisure activities have also been affected by nose bleeds and intense headaches. Your crime has affected his ability to concentrate, and his sense of wellbeing and safety. He is always on alert, had flashbacks, his sleep is impacted by his mental and physical state, and he has felt the need to alter how he socialises so as to avoid other random attacks.
10His family suffered the fear and trauma of learning of the attack upon their loved one, and of the danger he was in from this injury. This has affected their own sense of safety for themselves and their family, affecting how they conduct their lives. Their ability to concentrate and work or study has also been undermined. The impact statements demonstrate how the effect of crime can impact not only the direct victim but also those close to them.
11At the time of this offence you were 18 years old. Mr Nestoriwskyj was 20. Your offending has had a significant effect on him, and now as a 21 year old you are facing the serious consequences of your dangerous behaviour.
12The police pursued a number of enquires in the effort to identify you. You were arrested the following week, on 2 October 2019, interviewed, charged and remanded in custody. You were granted bail on 24 April 2020.
13On 6 November 2020 after a contested committal exploring the issue of whether Mr Nestoriwskyj’s injury was a serious injury as defined in the Crimes Act, you were committed to stand trial in respect to this matter. After a number of hearings and discussions in a Case Conference, where the issue was the same as that run at the committal, you indicated on 20 July 2021 that you would plead guilty to the charge of recklessly causing serious injury.
14The conditions of your bail included a curfew, a requirement that you not attend any licenced premises, and that you not consume alcohol or illicit drugs.
2021 Offence
15At 3 am on Saturday 3 April 2021 you were out with a friend and your 17 year old sister, at the Spearmint Rhino Strip Club, in King Street, Melbourne. Also present at the Spearmint Rhino was a group including Druk Sherchan, Sandip Silwal and some of their friends.
16At around 3.15 am your sister approached Sherchan and his friends and was chatting with them. Sherchan bought her several drinks. At some point your sister offered to sell them Cannabis, which they agreed to buy. She moved back to where you were sitting, and you then approached Sherchan and his friends, showing them the Cannabis which you had in a satchel.
17Sherchan went to the ATM and withdrew money to buy the drugs, and then arranged to go outside with Williams to carry out the transaction. You followed them out.
18Sherchan and you sister walked to Highlander Lane. Approximately one minute later you followed them into the lane, holding a knife. This was at around 3.45 am. You pushed Sherchan up against the wall, and struck him to the mouth causing his lip to bleed, and you demanded that he give you his money. You reached into his pockets and demanded his money again. You stole $100 from him at this time.
19Sherchan broke free from you and was joined by his friend Sandip Silwal. Your sister and friend joined you in the lane. You punched Silwal to the head, causing him to fall to the ground (Summary Charge 12, unlawful assault). You stood over him, holding the knife in your hand.
20Meanwhile, your sister searched Sherchan and stole his phone and another $50. This and your earlier theft from him give rise to the charge of Armed Robbery.
21You then approached Sherchan again, dragged him by his jumper to an alcove and struck him again, in company with your friend. You were still holding your knife, and one of your blows cased a deep cut cross Sherchan’s forehead, through his left eyebrow and across to his temple.
22The CCTV shows you and your two associates leaving the laneway at 3.48 am.
23Mr Sherchan was transported to the Royal Melbourne Hospital. He had suffered bruising and numerous lacerations to his face and head, including the significant cut I have described over his left forehead. That cut required 32 stitches. It was a deep cut with consequential muscle damage, and he required surgery to enable him to fully close his left eye. It is that cut that forms the basis of the charge of intentionally causing injury.
24Your presence at the Spearmint Rhino means that you are also charged with breaching a conduct condition of your bail, as well as a charge of committing an indictable offence whilst on bail.
25You were stopped by police searching the area within minutes of the attack on Mr Sherchan. You had in your possession another knife in the satchel, cannabis hidden in your pants and you were in possession of a small amount of Cocaine. The knife you used to attack Sherchan was found in the laneway later that day.
26When you were interviewed you claimed you were protecting your sister from sexual importuning by Sherchan, and whilst you admitted assaulting Sherchan you did not admit the armed robbery. I note that whilst Sherchan said in his statement he made some sexual suggestion to your sister, the events I have described above are inconsistent with the version of events given by you to the police.
Personal Circumstances
27You are now 21 years old, and will turn 22 in November this year. You have one younger sister and two older brothers.
28Your parents separated when you were around 4 years old, with you and your mother moving to Melbourne to be closer to her parents. You report that your father had been violent towards your mother, with psychotic episodes of violence by him, including choking your mother and pulling a knife on you. Your counsel says that violence was normalised for you from a young age.
29You finished Year 10 via a TAFE program, and at the time of this offence you were part way through a carpentry apprentice.
30You were exposed to abuse of drugs from an early age, and yourself started smoking Cannabis at around 13 and methylamphetamine from age 15. Your first appearances in the Children’s Court are in 2016, when you were still 15.
31Your criminal history in that Court involves violence, drugs, dishonesty and driving offences. When sentenced to a Youth Supervision Order in 2016 you were directed to participate in drug and alcohol counselling. When receiving the same type of order in 2017, that was not a special condition. Your criminal record after the July 2017 sentence was minor, compared to the past offences and the offences for which you are now to be sentenced.
32I was told that between 2017 and 2019 you were working and had completed three of a four year carpentry apprenticeship. Further, after you were bailed on the 2019 charges, you were not charged with any other offence until the April 2021 matters.
33A reference from your mother written in February 2021 described how hard it was for you to grow up without a male role model and that your behaviour changed once you started high school. She said that you struggled with feelings of unhappiness, anxiety and depression, masked by you adopting an intimidating persona. She spoke of the progress she had observed in you whilst you were on bail over 2020, and that you were working on strategies to have a more self-controlled approach to life.
34I am told also that you were prescribed Avanza whilst in custody in 2019 and that when taking this medication, you are calmer and less impulsive.
Explanation for Offending
35Your counsel said that before the 2019 matter your life was on a downward spiral, that you had broken up with your girlfriend, and were having issues at home. On the evening of the offence you had been drinking substantial amounts, and had taken Xanax which combined with the alcohol made you disinhibited.
36In April 2021 you were again intoxicated at night.
Matters in mitigation
Youth
37You were 18 at the time of the 2019 offence and 20 at the time of the 2021 offending. You are still only 21 years old. Generally, when sentencing a person of your age the principal factor influencing the sentences to be imposed is the importance of rehabilitation. Although you are legally an adult you are still developing mentally and as a young person you have yet to fully develop your judgment and adult persona. A young person such as yourself is more vulnerable to the influences of company and place, and it is undesirable to put a young person in custody where negative influences can have a profound effect.
38This general principle carries less force, however, where the offending is serious or is an offence of a type often committed by a young person. Alcohol fuelled street violence is regrettably not uncommon. Unprovoked attacks of the type you inflicted on Mr Nestoriwskyj , and on Mr Sherchan are regularly seen in the Courts. You are not a stranger to violent offending, having multiple prior matters for violence, and three prior findings of guilt for armed robbery.
39Whilst I do take account of your youth, and the benefits to both you and the community if you can rehabilitate, this principle carries, in your case, less weight that it would if you were a first time offender, or if the offending were less serious.[1] It is concerning to me that you were on bail for the 2019 matter when you committed the 2021 offences. Despite strict conditions, the job you had and the support of your mother, you were out drinking, selling Cannabis, and engaging in violence with a knife.
[1]DPP v Lawrence [2004] 10 VR 125, 132 [22]
Plea of Guilty
40A powerful factor in mitigation is that you have entered pleas of guilty to these offences.
41In respect to the 2019 charge, this plea was not early, and you conducted a contested committal. As the issue was whether the injury was “serious” within the definition in the Crimes Act, the victim and other civilian witnesses were not called. You indicated that you would plead guilty to the charge of RCSI on 20 July 2021.
42The 2021 charges resolved on the basis to which you have pleaded guilty before me prior to witnesses being called at the committal. I was told that the issue was the same, that is, how the injuries should be characterised.
43The utilitarian benefit of your pleas is real, the more so in respect to the 2021 offences. The discount of your sentence on this basis is all the greater by reason of the impact of the pandemic on the operations of the court, and that you are aware that conditions in custody are more onerous than usual for the same reason.[2] I also note, at this point, that your time on remand has been made much more onerous by reason of the pandemic and I take this into account in mitigation of your sentences.
[2]Worboyes v The Queen [2021] VCA 169
44Furthermore, your acceptance of guilt reflects that you know you did the wrong thing. Your mother said (prior to the 2021 offending) that you were disappointed in your behaviour towards Mr Nestoriwskyj, that you were remorseful and you wished you could erase your actions. Despite those expressions you went on to breach your bail and commit the 2021 offences. I accept that when you are sober you regret your actions.
Prospects of Rehabilitation
45Your ability to address the causes of your offending, and cease offending in future are a concern. You had done well for around 2 years before the 2019 matter, then were again going well up until April 2021. The 2021 offending occurred when you were living at home and had a full-time job. You took your 17 year old sister out, in breach of your bail, and were drinking late at night in a strip club. Your lack of judgment in that case is stark.
46You have been on remand since 3 April 2021. You are facing more time in custody, as you must know. I hope that the time you have and will spend in jail for these matters makes you re-think your past behaviours and motivates you to cease drinking and to live a steady law abiding life that does not lead you back into jail.
47You are still young, and despite your criminal history, you can still reform your way of life. Whilst I have concerns about your ability to do so, you are by no means a hopeless case. I will make orders allowing for a long period of parole to assist you with your rehabilitation.
Totality
48The 2021 offences were committed whilst you were on bail. The Sentencing Act provides that unless I order otherwise the sentences for offences committed whilst on bail should be served cumulatively on the other sentences. This is subject to the principle of totality.
49The orders for cumulation will reflect that I am sentencing you for two distinct episodes, with three victims. I am mindful of not imposing a sentence which crushes your hopes for the future, and thus inhibiting your desire to take a better path, and I have moderated the orders which otherwise would have been made in respect to cumulation.
Gravity of Offending
2019 Offence
50This was a random attack upon a person with whom you had no previous interaction. Mr Nestoriwskyj at first had his hands in pockets, and whilst it appears that there was some verbal interaction before you struck him, Mr Nestoriwskyj did not make any aggressive move. It is clear from footage that your punch was very powerful. I am not able to say if it was the blow with your fist that caused him to become unconscious, or the fall, but either way your attack was the cause.
51Your culpability is high. You attacked another person who had not been aggressive towards you. You delivered a powerful blow, knocking him to the ground and unconscious. It was acknowledged by your counsel that your punch unexpected and cowardly. The explanation was that you were heavily affected by alcohol. You have accepted by your plea that when you struck Mr Nestoriwskyj you foresaw the probability of serious injury resulting, and proceeded anyway. The high degree of risk must have been obvious to you, even whilst intoxicated.
52You have a prior finding of guilty for a charge of recklessly causing serious injury, in the Children’s Court. That charge was dealt with in the same hearing as charges of recklessly causing injury, affray, assault and intentionally damaging property. Your counsel told me that the charge of recklessly causing serious injury in the Children’s Court had some similarities in the circumstances to the event before me.
53Another factor to consider is the nature of the injury suffered. A doctor gave evidence about this at the committal hearing. She said that whilst there was no evidence that Mr Nestoriwskyj’s airways were occluded, the potential was there, and that potential increased the longer a person was unconscious.[3] She considered that the risk of that occurring was very high, and that if a person presented to her having been unconscious for 8 minutes she would consider that to be a medical emergency.[4] She said a person can die within 4 to 5 minutes from lack of oxygen to the brain.[5]
[3]Depositions Version 2.0 page 437
[4]Depositions Version 2.0 page 429
[5]Depositions Version 2.0 page 436
54In Mr Nestoriwskyj’s case he recovered consciousness without suffering such an airway occlusion, and without medical intervention. Your counsel submitted that thus his injury was less grave than a person who suffered an injury which would have been fatal without timely medical intervention. The prosecution conceded that this was not at the upper end or worst case level, but submitted that it was nevertheless a serious instance of a serious injury.
55I accept that the degree of seriousness of the injury is relevant under both limbs of the definition. The injury here was to the head, it caused unconsciousness for around 8 to 9 minutes and it presented a high risk of death. That did not occur, fortunately, but the risk was real. It is difficult to apply a tag such as low, medium or high to such an injury, and the focus in sentencing is not the label but the actual injury and its consequences. I accept that this injury is not at the highest end, but as an injury which endangered Mr Nestoriwskyj’s life, I do not think it falls into the lower end of the spectrum of serious injuries.
56I also consider that the ongoing physical effects are relevant despite the injury amounting to “serious injury” under the endangerment of life limb. Mr Nestoriwskyj has had ongoing issues with his nose, teeth and headaches.
57General deterrence, specific deterrence, denunciation, just punishment and protection of the community all have significant weight in the sentencing exercise for this offence. Random attacks on people such as this, in context of alcohol consumption, are a significant concern to the community and call for denunciation and general deterrence.[6] In 2004 a Justice of Appeal said:
Violence in the context of physical fights and assaults at or near places like hotels, bars and clubs seems to have become more prevalent in the community in recent times and I consider that it is important that those who propose to engage in such conduct … should be made aware through the sentencing process that courts will not treat such conduct lightly, but will, in the appropriate case, impose condign punishment on the offender. The enjoyment and relaxation of those attending such venues should not be marred by such incidents.[7]
[6]DPP v Betrayhani; Betrayhani v The Queen [2019] VSCA 150 [47], Al Wahame v The Queen [2018] VSCA 4, [82]
[7] DPP v Cook (2004) 141 A Crim R 579, 585 [14]
58That statement, and other similar views, were endorsed more recently in the judgment of DPP v Betrayhani; Betrayhani v The Queen.[8]
[8]DPP v Betrayhani; Betrayhani v The Queen [2019] VSCA 150
2021 Offences
59The charges of armed robbery and intentionally causing injury were committed using a knife you had in your hand as you entered the laneway. The armed robbery was committed in company. The fact that you followed your sister and Mr Sherchan outside, and had the knife in your hand when you entered the laneway strongly suggests that you went into the laneway to rob him. The subsequent attack on Mr Sherchan was also carried out in company, with a knife in your hand, and has resulted in a very large cut to his face, which could remain visible for at least two years.
60Your explanation to police as to why you went into the laneway is inconsistent with your pleas of guilty to these charges.
61You committed these offences whilst on bail, in breach of your curfew condition and the prohibition on you consuming alcohol. You are to be sentenced also for offences of committing an indictable offence on bail, and breaching the condition that you not attend licenced premises, and so I will not treat those two aspects as aggravating this offending.
62You have had previous court appearances for three charges of Armed Robbery, three charges of recklessly causing injury, two charges of assault, and three charges of committing an indictable offence whilst on bail.
63Whilst the violence in 2021 was not of the same nature as the 2019 offending, the need for general deterrence is still a powerful sentencing consideration, for the same reasons.
Other Sentencing Factors
64The community expects that people who engage in alcohol fuelled violence, particularly unprovoked attacks such as yours, should receive condign punishment. Furthermore, the sentences should stand as an indication that whatever the age of the offender such offending will result in stern sentences.
65I will now tell you what the sentences are:
· on Indictment K12569629.1, Charge 1, recklessly causing serious injury, the sentence is five years' imprisonment;
· on Indictment M10680285, Charge 1, trafficking a drug of dependence, three months' imprisonment;
· Charge 2, possession of a drug of dependence, one month imprisonment;
· Charge 3, armed robbery, three years' imprisonment;
· Charge 4, intentionally causing injury, three years' imprisonment.
66In the related summary offences:
· Charge 8, committing an indictable offence on bail, two months' imprisonment;
· Charge 9, contravention of a conduct condition of bail, two months' imprisonment;
· Charge 12, unlawful assault, two months' imprisonment.
67The sentence on Charge 1 of the recklessly causing serious injury, which was a five-year sentence, will be the base. I direct that one month on the charge of trafficking, six months on the charge of armed robbery and nine months on the charge of intentionally cause injury, one month on the charge of committing an indictable offence on bail and one month on the charge of unlawful assault be served cumulatively upon each other and upon the base sentence.
68By my calculations that leads to a total effective sentence of six years and six months. I set a non-parole period of four years.
69Pursuant to s18 of the Sentencing Act I declare that you have served 542 days as pre-sentence detention and I direct that this declaration be entered into the records of the court.
70I will make the forfeiture and disposal orders sought by the prosecution, which are not opposed.
71Pursuant to s6AAA, I declare that if you had not pleaded guilty, I would have sentenced you to eight and a half years' imprisonment with a non-parole period of five years.
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