Director of Public Prosecutions v Meyer
[2019] VCC 1311
•18 August 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-15-00809
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| VINCENT MEYER |
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JUDGE: | HER HONOUR JUDGE HAMPEL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 24 July 2017 and 12 August 2019 | |
DATE OF SENTENCE: | 18 August 2019 | |
CASE MAY BE CITED AS: | DPP v Meyer | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1311 | |
REASONS FOR SENTENCE
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Subject:
Catchwords: Sentence – intentionally cause serious injury in circumstances of gross violence – late guilty plea – flight – absconding after pleading guilty – outlaw motorcycle gang allegiance – gang violence – inconsistent accounts of offending given to forensic psychologist and previous sentencing court – absence of remorse – guarded prospects
Legislation Cited:
Cases Cited:
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr J. Shaw (for plea) Ms B. Yildiz (for sentence) | Office of Public Prosecutions |
| For the Accused | Mr R. Van De Wiel QC (for plea – 24 July 2017) Mr Z. Khan (for plea – 12 August 2019) Mr D. Kradolfer (for sentence) | Stephen Andrianakis & Associates Toomey Defence Lawyers |
HER HONOUR:
1 Vincent Meyer, you are to be sentenced for 1 charge of intentionally cause serious injury, in circumstances of gross violence.
2 The maximum penalty for that offence is 20 years imprisonment and, by s 10(1) of the Sentencing Act, that is an offence for which Parliament has directed a court must impose a term of imprisonment and fix a non-parole period of not less than four years, unless a special reason exists for imposing a lesser non-parole period.
3
The offence occurred on 21 July 2014. It was an attack in company. On
14 July 2016, two years later, I sentenced your co-offender, Hawre Sherwani, for his role in the attack.
4 The victim, Danny Siracusa, managed a business in Johnston Street, Collingwood. At about 1.50pm on 21 July, Sherwani went into the premises, asked for Mr Siracusa and, when he was told that Siracusa was not there, left, saying he would return later. About forty minutes later, Mr Siracusa returned to the premises. CCTV footage shows Sherwani approaching him and shaking his hand. You then appeared and began punching Mr Siracusa to the head.
5 Mr Siracusa fell to the ground, partly under the rear of a car. He was motionless and in a foetal position. The CCTV footage shows that you and Sherwani punched and kicked him to the upper body, the arms and head, as he lay motionless on the ground, offering no resistance. At one stage, the CCTV footage shows Sherwani pulled him out from under the car and the kicking continued as he still lay motionless on the ground. The attack lasted for about forty-five seconds. I have viewed the CCTV footage. It is clear that both you and Sherwani participated in the attack but you played a greater role in punching and then kicking Siracusa as he lay on the ground.
6 Eventually, at a time of your choosing, you stopped kicking Mr Siracusa and you and Sherwani left him where he lay and walked out.
7
A measure of the brutality of that forty-five second attack is the injuries
Mr Siracusa sustained. Both his arms were broken and the breaks to his arms were such as to require surgery in each of them, to insert plates. In addition, he suffered multiple head and facial injuries.
8 The injuries sustained by Mr Siracusa clearly constitute serious injury. It is your conduct in kicking Mr Siracusa after he had fallen to the ground, when he was offering no resistance and lying motionless, that is, when he was incapacitated, that constitute the circumstances of gross violence.
9 Mr Siracusa told police when they attended that he was a former member of the Comancheros, that the assailants were Comancheros and that the assault was related to the fact he had not made a payment to the Comancheros when he left, as is apparently expected. After that initial statement to the attending police, he refused to cooperate with the police investigation. He did not make a statement and he has been unable to be located.
10 Your fingerprints were found on the rear of the vehicle under which, at one stage, Mr Siracusa fell. You were recognised by police who had had recent dealings with you, when stills taken from the CCTV footage were circulated. A warrant was executed at your home about a week later, on 31 July 2014. Some of the clothing that you were seen to be wearing in the CCTV footage, along with a fully patched Comanchero vest and a Comanchero hoodie, were found.
11 You were arrested and, when interviewed, made a no comment interview.
12 Your trial was first listed for hearing in May 2016. The prosecution accepted a plea of guilty to recklessly cause serious injury from your co-accused Sherwani. After a series of requests for the disclosure of additional evidence and listings for further pre-trial arguments in relation to the admissibility of evidence occurring over the next twelve months, your relisted trial was finally due to commence on 24 July 2017.
13 On that day, the morning of the commencement of the relisted trial, you entered a plea of guilty to the charge of intentionally cause injury in circumstances of gross violence.
14 On your behalf, your counsel made an application to adjourn the plea and extend your bail as I was told your youngest daughter, then a baby, was about to undergo a surgical procedure and you wished to be present to support your partner and the child. The material provided that day in support of your application was deficient and the hearing was adjourned and your bail extended until the following day for further material to be obtained and provided.
15 On the following day, 25 July 2017, you did not appear in answer to your bail. A warrant was issued for your arrest. As is now clear, you fled the country overnight on a false New Zealand passport, or rather, under a false name, using a genuine New Zealand passport which had been issued just over two weeks earlier to another person. On your plea, I was told you initially went to London.
16 On 14 June 2018, you were arrested using that same false identity passport as you sought entry into New Zealand from Bali, Indonesia. That resulted in a conviction in New Zealand for possessing a false New Zealand passport. You were sentenced to a term of imprisonment of 18 months and you unsuccessfully appealed that sentence to the High Court of New Zealand. At the expiry of that sentence, on 18 April 2019, you were surrendered into the custody of Victoria Police and extradited to Australia and you have remained in custody, awaiting plea and sentence in this matter, since.
17 Even after your return to Australia, matters did not go smoothly. Your first plea date was vacated when the lawyers you had retained, withdrew. You appeared on the listed day for the plea unrepresented. Although you told me you wanted to be represented, you had taken no steps to retain other lawyers, or otherwise prepare for your plea. You eventually re-retained the lawyers who had been retained for the plea after your extradition. The lawyers who had represented you up to the time of entry of your plea of guilty and the time of your absconding had, not surprisingly, withdrawn and ceased acting. The listing of the plea was further delayed even after legal representation was reinstated, at the request of your lawyers, for the commissioning of a psychological report. That report, when provided, contained some remarkable gaps and provided a version of events which was markedly differed from the evidence before the court.
18 It follows that, although the offence occurred five years ago, the delay between offence and sentencing is due almost entirely to your conduct. You vigorously contested matters that, by your plea of guilty, you ultimately admitted. Although, at the final directions hearing conducted two months before the trial was first listed in July 2016, the court had been advised you were ready for trial, your request for further information from the prosecution necessitated an adjournment of that trial.
19 A further twelve months of fragmented additional pre-trial hearings, involving further requests for information, requests to cross-examine witnesses and make pre-trial applications for exclusion or inclusion of evidence, followed. Ultimately, after that twelve months, on the day that the refixed trial was due to commence, you finally entered your plea of guilty to the charge. You then absconded overnight on the false passport, leaving your partner and children behind to manage alone with the youngest undergoing a surgical procedure, if in fact that was what she needed, and you spent the next two years out of the country.
20 In those circumstances, delay is not a matter which operates to mitigate the sentence otherwise appropriate.
21 It also follows that, by absconding and through the other circumstances surrounding the entry of the plea of guilty, the reduction in the sentence by reason of your plea of guilty is to be assessed only by reference to the utilitarian benefits of a court door plea. You conducted a protracted and contested committal, and protracted pre-trial hearings, where you contested matters which were ultimately admitted. You required the prosecution to prepare twice for a trial, in which little was admitted. The weight to be given to the guilty pleas advancing the interests of justice is further diminished by your absconding immediately after the entry of your plea of guilty and the circumstances surrounding it, namely the use of a New Zealand passport, which itself had been issued only weeks earlier and your use of the illness of your young daughter and an asserted desire to support your partner in caring for her, as a ruse to adjourn the plea hearing and abscond.
22 The psychological report to which I have made reference was prepared by an experienced forensic psychologist, Ms Carla Lechner. She interviewed you by video link from Fulham. Remarkably, there is no reference in her report to your acknowledged membership as a fully patched member of the Comancheros, nor to the motivation or explanation for the attack on Mr Siracusa, namely a Comancheros reprisal for his failure to pay his dues when he left the Comancheros, which was a central part of the prosecution case against you.
23 Ms Lechner reported you telling her you had been exposed to your father’s violence towards your mother and yourself as a child and that you were concerned about leaving your mother alone. You reported you had limited contact with your father during periods of parental separation and you took your parents' separation hard. Although you told her that in 2009 you moved from Sydney, where your family had been based, to Melbourne with your father and his new partner, again there is no reference in the history she recounted, that she had been given by you, to the evidence of your close association with your father and his long-term association with the Comancheros. The evidence before me for the purposes of the trial and the plea included the fact that your father was sergeant-at-arms of the Williamstown or Hallam branch in the period leading up to the attack on Mr Siracusa. The only reasonable inference, so far as I am concerned, for the absence of any reference to your association with the Comanchero, the nature of your association with your father and his association with the Comancheros at the time of the commission of the offence, is that you did not tell her.
24 Ms Lechner reported that you told her you left the country after entering your plea because you had become frightened when it emerged that you would most likely be imprisoned for the offending. Given the charge, which by the time you absconded you had been facing for three years, was a relatively newly introduced offence, carrying a maximum penalty of 20 years imprisonment, with the mandated four year non-parole period unless special circumstances were found to exist, it beggars belief that you could not have been aware of the prospect of imprisonment as a result of a conviction for a plea of guilty, until the day you entered your guilty plea.
25 This too must be seen in the context that I had, twelve months before you absconded, sentenced your co-offender Sherwani on the lesser charge of recklessly causing serious injury, which carries a maximum term of imprisonment of 15 years, to a term of imprisonment of six years, with a non-parole period of four. Therefore, it can hardly have come as a surprise to you, at the time that you entered your plea of guilty a year after that, that you might go to gaol. There is nothing in Ms Lechner’s report to suggest that she was aware of the sentencing of Mr Sherwani twelve months earlier or the length of sentence imposed on him.
26 Ms Lechner also reported that you told her that your motivation or reason for attacking Mr Siracusa was that you had been told by a friend, a person with whom you had become friendly in prison, shortly before the attack, that there was a rumour that Mr Siracusa had been sleeping with the friend’s wife. You told Ms Lechner that you felt you had to act on your friend's behalf out of loyalty, that you and the victim had gotten into a fight and that you acknowledged that your behaviour had gone too far, once the victim had stopped fighting back. You also told her that nothing in the attack was planned or that the attack was not planned.
27 This account of the reason for the attack is at odds with the significant body of prosecution evidence. Your account that you and the victim had gotten into a fight is demonstrably untrue. I viewed the CCTV footage. As Sherwani approached Mr Siracusa, he stretched out his arm, in a clear invitation to shake hands and Mr Siracusa responded and shook his hand. As that happened, you ran in from behind Sherwani and began punching Mr Siracusa to the face over Sherwani’s shoulder. The footage shows that, from the first punch thrown by you, and this is while Mr Siracusa's right hand is being held down by Sherwani's, because of the handshake that he had offered, Mr Siracusa offered no resistance and did not engage in any retaliatory or defensive counterblows.
28
Your counsel, Mr Khan, submitted that, at the very start, Mr Siracusa offered at least a threat of punching. I have watched the footage and looked specifically for any sign he did so and I have not seen any such move by Mr Siracusa. When pressed on how I should resolve the conflict between what you told
Ms Lechner and instructed Mr Khan was the explanation for the attack, Mr Khan advised that you maintained your instructions that you attacked Mr Siracusa because of the rumour that he had slept with your prison friend’s wife, that Mr Siracusa offered at least a threat of violence, justifying the characterisation of a two sided attack at the start and one which then went too far, only when Mr Siracusa stopped resisting. However, Mr Khan specifically disavowed any intention of adducing evidence from you, or anyone else, to support that version.
29 I am satisfied, on the basis of the footage, that this was no fight. It was a one-sided, two-on-one vicious, sustained and brutal attack. I am also satisfied, based on Sherwani’s earlier visit that day to the premises looking for Mr Siracusa, the call records which were part of the trial material, which showed where you were during the day, who you called and when your phone was turned off, that is, during the period of the attack itself, that there was clearly planning to this attack.
30
Whether or not you were motivated by a desire to attack a man you had been told was rumoured to have slept with a cellmate’s wife, or as a Comancheros-related attack, is, for the purpose of assessing the weight to be given to
Ms Lechner’s opinion, of little moment because neither of those matters are mitigatory. You have either acted on a rumour that two adults engaged in consensual sex, one of them was, you had been told, in a relationship with someone else and, not knowing whether they were in a sexual relationship or not, had decided to attack the other one, a person you did not know, as punishment for having sex with a cellmate’s partner. Alternatively, you engaged in a vicious act of outlaw motorcycle gang retribution for breach of the Comancheros’ rules. Even if your cellmate’s partner had engaged in consensual sexual activity with Mr Siracusa, she is an autonomous human being, not a possession. She was free to make choices and entitled to do so without fear of retaliatory violence, as was Mr Siracusa.
31 As the evidence provided before trial revealed, your membership as a fully patched member of the Comanchero meant that you adhered to their code above everything else, including the law. Neither explanation therefore supports the conclusion advanced by Ms Lechner that you are cognitively, socially and emotionally immature. A further concern about the account you advanced to Ms Lechner, and on which she relied to base her opinion, is the conflict with the explanation advanced by you when arrested trying to enter New Zealand on the false passport. The High Court reason for decision in respect of your appeal against sentence there notes the following in paragraph 7:
'In his interview with the author of the pre-sentence report, Mr Meyer disclosed an affiliation with the Comanchero gang and said that the offending in Australia, to which he pleaded guilty, was gang-related. He says that he was in fear of his life and therefore purchased a false passport to leave the country'.[1]
[1]Meyer v Police [2018] NZHC 3434, [7].
32 Leaving the motivation issue aside, the other conflicts with the trial evidence and omissions of relevant history are sufficient in themselves to reject the evidentiary basis on which Ms Lechner relied to form her opinions and, in particular, the opinion that you impressed as cognitively, socially and emotionally immature and found it hard to engage in reflective and consequential thinking.
33 Similarly, having regard to the circumstances surrounding your flight from Melbourne, I reject her conclusion, based on your explanation to her for absconding, that your problem-solving skills are limited, that you tend to be impulsive in nature and that you only consider consequences after the event.
34 It is clear therefore that, subject to considerations personal to you, denunciation, just punishment and general deterrence must be given considerable weight.
35 Turning then to your personal circumstances. You are now 29 and you were 24 at the time of the attack. Your family is of Samoan origin, according to what you told Ms Lechner, and you were born and raised in Sydney. You report a childhood marked by instability, your parents separating and reconciling a number of times, your schooling being interrupted as a result of moving house and your being exposed to your father’s violence. There are conflicting reports in the materials before me about whether you stayed with your mother after the final separation in 2009 or accompanied your father and his new partner to Melbourne. In any event, not long after the separation, you ended up in Melbourne and remained there and report a close relationship with your father.
36 You have two children, now aged four and six. I am told the relationship with their mother continues. After you fled, she returned to Sydney with the children to live with, and be supported by, her parents, but she has been in Melbourne for each of your court appearances since your return and I note she is here again today. She must be a remarkably forgiving woman, if indeed the relationship is, as I am told, a continuing one.
37 You have spent much of the time that you have been in the relationship with her in custody or on the run out of the country. But in any event, a continuing relationship is a positive factor, counting towards an assessment your prospects for rehabilitation. And although it does not appear that that relationship, or parenthood, has stopped your offending in the past, one can only hope that it may provide an incentive in future for you to change your ways.
38 Similarly, I am told that you have the continued support of both your parents and they too have been at court on each occasion to support you and I note are here again today. Again, parental support has the potential to act as a positive incentive for change. What you make of it is clearly a matter for you, but the sentence takes into account the fact that they are potential positives, weighing in your favour in assessing your prospects for rehabilitation.
39 You have a limited educational and vocational training history and you report periods of engagement in the workforce, mainly in labouring or other unskilled, or semi-skilled jobs. There is nothing to suggest that you do not have a capacity for work and nothing to suggest that you do not have the capacity to acquire valuable vocational skills and work experience in custody, should you choose to do so and which will stand you in good stead upon your release.
40 You have a limited, but concerning criminal history. At the time of the commission of this offence, you were on parole. That related to a charge of conspiracy to commit an indictable offence, namely intentionally cause serious injury. In company with three other men, you were arrested by the Special Operations Group, as a result of a surveillance operation, as the four of you were about to storm a house and attack the occupant. When arrested, you were armed with knuckledusters, which the surveillance materials showed you had sourced and purchased for the purpose. To your knowledge, all co-offenders were armed, at least one other, like you, with knuckledusters and one with a firearm. Your involvement was described, when you were sentenced for that offence, as that of a hired thug. That you apparently did not receive the promised payment as a result of your arrest before the attack could be carried out was rightly dismissed by the sentencing judge as a factor relevant to an assessment of the seriousness of that offending.
41 You also have a Children's Court history, but I specifically exclude that from my consideration. The eight year gap between your last Children's Court appearance and the commission of this offence means, in my view, anything you did as a 16 year old or even younger should not be counted against you. And what you did up to the age of 16 has no relevance to sentencing you as the 29 year old you are today.
42 What the 2013 matter, the fact you were on parole at the time of this offending, absconding after you pleaded guilty to this charge and the various accounts you have advanced for your involvement, means is that your prospects for rehabilitation are at best guarded. Although I give your plea of guilty weight for its utilitarian benefit, I do not consider it is evidence of remorse. Given my rejection of the account that you gave Ms Lechner, I do not consider your expression of remorse or regret to her to be genuine. Expressions of remorse therefore do not operate so as to make your prospects for rehabilitation any better than guarded.
43 Of course, absence of remorse is not an aggravating feature and I do not regard it in that way. It simply means it is one less factor to take into account when giving positive weight to your prospects for rehabilitation. I am satisfied that you have the potential and the ability to lead a law abiding life, working, living with and supporting your family, if you choose to do so and I factor that in.
44 Whatever childhood disadvantage you suffered, and the evidence of your childhood and circumstances is scant and unconfirmed and, for the reasons that I have already expressed, I have reservations about the truthfulness and reliability of what you told Ms Lechner and your counsel, there is no evidence before me to satisfy me that the principles in Bugmy[2] and Marrah[3] are enlivened.
[2]Bugmy v R (2013) 249 CLR 571.
[3]R v Murrah [2014] VSCA 119.
45 It was acknowledged by Mr Khan, given the gravity of the offending and your history, that specific deterrence as well as general deterrence was a factor in sentencing which needed weight.
46 I adopt what I said when sentencing your co-offender Sherwani. Those who associate with gangs, who participate in violence, whether by reason of allegiance to a gang and in accordance with its dictates, or who are prepared to lend their brute force to other gang members to exact violence, must know they will be sternly punished. Those who seek to attack someone for what is at best a rumour that they have slept with the partner of a friend must also know that they will be sternly punished.
47 A civilised community cannot and does not condone the conduct of those who consider themselves to be above or outside the law. The sentence must act as a deterrent to you personally. It also must serve the purposes of denunciation and general deterrence. By your single significant previous conviction, the circumstances of this offending, your flight, the lies you told your lawyers and Ms Lechner about the circumstances of the offending and your circumstances generally, you have shown a contempt for the law. You demonstrate that you are prepared to say and do what you think suits your purpose or is to your advantage, without regard for the truth, the laws of this country or the right of others.
48 The sentence therefore must reflect punishment and denunciation of that behaviour. The punishment of course must be just and proportionate in the circumstances. The sentence to be imposed on you will be greater than that imposed on Sherwani. Your role, having watched the CCTV footage, is greater. The maximum sentence is higher, 20 years as opposed to 15 for the charge of recklessly cause serious injury to which he pleaded guilty and you pleaded guilty later than he did and then fled.
49 Could you now please stand. Vincent Meyer, on the charge of intentionally cause serious injury in circumstances of gross violence to which you have pleaded guilty, you are convicted. You are sentenced to be imprisoned for a period of eight years and six months. I fix the period of seven years as the time that you must serve before being eligible for parole.
50 I declare that you have spent 120 days in pre-sentence detention and direct that that be counted and reckoned as part of the sentence already served. I declare pursuant to s 6AAA of the Sentencing Act that, but for your plea of guilty, I would have sentenced you to a term of imprisonment of nine years and six months and fixed a non-parole period of eight years. I make a disposal order sought. Are there any further orders that are required to be made?
51 MS YILDIZ: No, your Honour.
52 HER HONOUR: And do the orders that I have pronounced reflect what I said I intended to do? Thank you. Could you remove Mr Meyer please.
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