Director of Public Prosecutions v Meyers

[2023] VCC 116

IN THE COUNTY COURT OF VICTORIA

AT Melbourne

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-22-00375

DIRECTOR OF PUBLIC PROSECUTIONS

v

DYLAN MEYERS

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JUDGE:	HIS HONOUR JUDGE CAHILL
WHERE HELD:	Wodonga
DATE OF HEARING:	16 January 2023
DATE OF SENTENCE:	10 February 2023
CASE MAY BE CITED AS:	DPP v Meyers
MEDIUM NEUTRAL CITATION:	[2023] VCC 116

Reasons For Sentence
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Subject:Recklessly cause serious injury and robbery     

Catchwords:          Guilty plea - 20 year old offender – now 21 – mid range offending – history of violent offending – disadvantaged background – foetal alcohol syndrome and ADHD

Legislation Cited:         Crimes Act 1958 (Vic); Bail Act 1977 (Vic); Road Safety Act 1986 (Vic); Sentencing Act 1991 (Vic).

Cases Cited:Warboyes v R [2021] VSCA 169; Postiglione v The Queen (1997) 145 ALR 408; Veen v The Queen (No 2) (1988) 164 CLR 465.

Sentence:Aggregate sentence of 21 months imprisonment and 18 month CCO ; presentence detention 488 days

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A Moore	Office of the Director of Public Prosecutions
For the Defendant	Mr J Mortley	Emma Turnbull Lawyers

HIS HONOUR:

1Dylan Meyers, you have pleaded guilty to:

(a)   one charge of robbery (Charge 1);[1]

(b)   one charge of recklessly cause serious injury (Charge 2);[2]

(c)   one charge of theft of a motor vehicle (Charge 3);[3]

[1]Crimes Act 1958 (Vic), s 75.

[2] Ibid, s 17.

[3] Ibid, s 74(1).

2You have also pleaded guilty to two related summary charges of commit an indictable offence while on bail (Summary Charges 5 and 10).[4]

[4]Bail Act 1977 (Vic), s 30B.

Circumstances of offending

Robbery and recklessly cause serious injury

3You engaged in this offending with a co-offender (‘your co-offender’).

4There was a victim in this matter (‘the victim’).

5At the relevant time, your co-offender and the victim and you knew each other.

6The circumstances of the offending are set out in the summary of agreed facts.[5]

[5] Exhibit A.

7On 17 July 2021, the victim met your co-offender at a Wodonga Primary School where he gave your co-offender $10 to buy cannabis. Your co-offender left with the money and then returned, with you.

8You approached the victim and punched him to the jaw. You then punched him several more times to the face.

9When the victim ran off, your co-offender grabbed the victim’s satchel bag and punched him twice to the back of the head.

10You blocked the victim’s way and punched him to the face. You also kneed him four or five times to the stomach. The victim felt a sharp pain and was winded.

11You demanded the victim’s clothes, shoes and mobile phone.

12With your co-offender, you left with the victim’s bag which contained his personal effects.

13Stealing the bag, and its contents, with force, constitutes the robbery charge.

14The victim ran for help. Eventually his father picked him up and took him home.

15During the evening he had severe pain in his ribs and stomach. His father took him to Wodonga Hospital. Doctors found he had a ruptured spleen which they removed. After surgery he was transferred to Albury hospital intensive care unit where he remained for five days. Because of the injury, he has been left vulnerable to infection will need to take prophylactic antibiotics for the rest of his life.

16He also suffered bruising to the left side of his chest and his abdomen.

17The prosecution case is you had agreed with your co-offender to commit the robbery and, in the course of it, you both assaulted the victim.

18It is the prosecution case you recklessly caused the victim the serious injury, that is, the ruptured spleen.

19By your guilty plea you admit these facts.

Theft of a Motor Car

20On 21 July 2021, at Beechworth, with two others, you got into a car after the owner had stepped out of it, leaving the keys in the driver seat foot well. Using the keys to start the car they drove off.

21Later that day, New South Wales Police found the car in Albury and arrested you.

22You were remanded in custody and extradited to Wodonga on 22 July 2021.

Arrest and interview

23When police interviewed you, you exercised your right to remain silent.

Bail Offending

24When you offended, on 17 July and 21 July 2021, you were subject to a police bail undertaking, which you entered on 9 July 2021, in respect of drug possession.

Criminal Record

25You have admitted a relevant criminal history which includes a number of violent offences.

26You were sentenced in the Children’s Court for violence and property offences in August 2016, August 2017, October 2017, May 2018, November 2018, May 2019 and June 2019.

27On one occasion you were sentenced to Youth Attendance orders, twice, and Youth Detention, twice.

28On 23 February 2021, at Wangaratta Magistrates Court, you were sentenced to 9 months’ imprisonment with an 18 month Community Correction Order for violence and driving offences.

29You were subject to the Community Correction Order when you offended on 17 and 21 July 2021.

Sentence Indication Hearing

30You were to stand trial on the more serious charge of intentionally cause serious injury at the Wodonga sittings of the Court commencing 16 February 2023.

31On 16 November 2022, after a sentencing indication hearing, you indicated you would plead guilty to the charges now on the Indictment.

Personal Circumstances

32You are 21 years old.

33You have two siblings.

34Your parents separated when you were an infant. They both had substance abuse problems.

35Your upbringing was severely disrupted. You moved regularly between the households of your mother, father and grandparents.

36You were exposed to parental substance abuse, family violence, inappropriate discipline and a lack of appropriate care.[6]

[6] Exhibit 3, at [1].

37Child Protective Services first intervened when you were 5 years old.[7]

[7] Exhibit 2, at p.7.

38You also experienced multiple childhood trauma including a serious physical assault by your father, witnessing your uncle’s death, and, when your mother re-partnered, witnessing family violence against her.[8]

[8] Ibid.

39You had strained relationships with family members with the exception of your uncle. His death had a marked impact on you.[9]

[9] Exhibit 2, at p. 7.

40You attended a special school program for children who are socially disadvantaged, have a mental illness and/or an intellectual disability.[10] You struggled, with repeated expulsions, and have reading and writing problems.

[10] Exhibit 2.

Psychological opinions

41Through your involvement in the Juvenile Justice System you were assessed by a number of health professionals.

42Dr Karen Scally, neuropsychologist, assessed you in January 2018.[11]

[11] Exhibit 3, at pp.16-17.

43Your Full-Scale Intelligence Quotient (‘FSIQ’) score of 74 put you in the borderline to low average range of intellectual functioning.

44In her opinion you met the criteria for Attention Deficit Hyperactivity Disorder (‘ADHD’), Oppositional Defiant Disorder (‘ODD’) and Conduct Disorder.

45She reported that;

“…the most likely explanation (for your) learning difficulties, and impaired social functioning, and poor emotional regulation …to be foetal alcohol syndrome”.[12]

[12] Ibid, at p.17.

46You saw Susan Colmer, counselling psychologist, in March 2018.

47She agreed with Dr Scally’s diagnoses and assessment.[13]

[13] Ibid, at p.18.

48In her opinion, it was unclear whether your violent behaviours and lack of empathy are reflective of conduct disorder, or neurodevelopmental difficulties, or Post-Traumatic Stress Disorder.[14]

[14] Ibid.

49Another neuropsychologist, Peter Dowling, assessed you in February and March 2019,[15] at the request of the Department of Health and Human Services. You were then in custody at Malmsbury Youth Justice Centre.

[15] Exhibit 4.

50Your full-scale IQ score was 84 which put you in the low average range and well above the range of intellectual disability.

51He noted, that when you were in primary school, you were diagnosed with ADHD which likely contributed to your learning difficulties.

52He supported a diagnosis of Foetal Alcohol Spectrum Disorder (‘FASD’) due to your mother’s alcohol consumption during her pregnancy.

53Peter Dowling stated:

“… the development of prosocial behaviour and the avoidance of further offending is a significant challenge for a person with FAS and/or ADHD. The person has to bring to mind the potential or likely negative consequences of antisocial behaviour when he experiences the impulse to commit an offence or is encouraged by others to commit an offence, either by word or action. Whilst he readily appreciates the consequences when he is in custody, he may give little thought to this when he is in the community and facing a choice about acting in an antisocial or pro social way. Hence, if Dylan is placed on a community order or, when he is granted parole after serving a custodial sentence, he needs to have constant and frequent reminders about the consequences of further antisocial behaviour, including a high likelihood of a prompt return to custody or another period of time in jail… Having his time occupied with activities that give him a sense of purpose and achievement will not only reduce the time available for him to be led into to crime but it will also give him the opportunity to be successful, which he did not experience at school. This should enhance his self-worth… it will take time for him to change his behaviour and learn how to manage is ADHD/FASB so as to minimise its negative effects on his day-to-day life.”.[16]

[16] Ibid, at p.17.

54Another neuropsychologist, Jane Lofthouse, assessed you on 27 October 2021.[17]

[17] Exhibit 2.

55Your Depression Anxiety Stress Scale (‘DASS’) results put you in the severe range for depression and anxiety and moderate range for stress.[18] In her opinion the symptoms place you at risk of experiencing significant psychological distress and she recommended intensive psychiatric and/or psychological treatment in the longer term, and particularly upon your release from prison.[19]

[18] DASS is a self-report measure of psychological symptoms.

[19] Ibid, at p.19.

56Your intelligence testing scores fell in the average and low average ranges. While you showed some difficulties with language, memory and thinking, in her opinion, you do not have a mental disability.[20]

[20] Ibid, at p.17.

57You reported a significant history of illicit substance abuse, from the age of 12, commencing with cannabis and then progressing to amphetamine, heroin and methyl amphetamine. You said you stopped taking drugs for some months after your daughter was born in July 2020. You have been in enforced abstinence while you have been in custody.

58In prison, you contracted COVID-19. As a result of an incident where you damaged a toilet, and three episodes of self-harm, you have spent much of your incarceration in a protection unit.

59You struggle with the isolation and hope to reintegrate with mainstream. On the upside, you speak with your mother daily.

60You had been speaking with your former partner until Corrections were alerted to a Family Violence Intervention order (‘FVIO’) which was made when your daughter was born in July 2020.

61The phone calls with your partner were stopped but recently she sent you a letter.[21] She wrote she misses you and hopes your daughter and her “get to see you when you’re out”.

[21] Exhibit 6.

62She also wrote, with some insight, she hopes you stay away from “gronks.”

63Your aim, when your release from prison, is to reunite with her and your daughter. Unlike your own, you want to be a good father.

64With NDIS funding assistance, “Social Plus” will assist you to get accommodation in the Albury/Wodonga area when you are released.

Defence submissions

65Mr Morley, who appeared for you, in comprehensive written[22] and oral submissions, submitted a combination sentence of imprisonment and Community Correction Order can meet the sentencing objectives in your case.

[22] Exhibit 1.

66He acknowledged your offending is serious.

67In mitigation of penalty relied on the following factors:

(a)   the high utilitarian value of your guilty plea, including the Worboyes[23] consideration;

(b)   your background of disadvantage;

(c)   your ADHD and FASD, in combination with your low average intelligence;

(d)   your relative youth; and

(e)   the additional hardship of prison during the public-health pandemic.

[23]Warboyes v R [2021] VSCA 169.

68He submitted the opportunity to reconcile with your partner and to help parent your child is a strong motivation for you to not reoffend.

Prosecution submissions

69Mr Moore, who appeared for the prosecution, submitted, considering the seriousness of your offending, the imposition of a prison term, with a non-parole period fixed, is warranted.

Analysis

70The maximum penalty for recklessly cause serious injury is 15 years’ imprisonment. It is a serious offence.

71Sentencing practices show, over a five year period, nearly 9 out of 10, or 87.4%, of offenders were given a custodial sentence.[24]

[24] Sentencing Advisory Council, Sentencing Snapshot Number 264 dated December 2021.

72Your attack, with your co-offender, two against one, a younger boy, who appears to have been unable to defend himself, was cowardly.

73It was also cruel. The two of you laughed while you assaulted him and took his clothes and other belongings from him.

74The injuries you caused are serious. Because he has lost his spleen, he is at increased risk of becoming sick or getting serious infections for the rest of his life.

75While your attack on Ramsey was premeditated, the planning was not sophisticated, the episode was not protracted and you had no weapon.

76I assess the objective gravity of your offending to be mid-range.

77You have a concerning history of violent offending which is relevant to the need for specific deterrence and your prospects of rehabilitation.

78There are mitigating factors.

79You are entitled to a demonstrable sentencing discount for your guilty plea which I regard as comparatively early considering you were to stand trial on the more serious charge of intentionally causing serious injury.

80The Worboyes consideration also applies.[25]

[25] Warboyes v R [2021] VSCA 169.

81Since childhood, which was marred by disadvantage, you have had difficulties with language, memory and thinking, attributed to FASD and ADHD, which have impaired your social functioning and emotional regulation.

82These conditions have impaired your social functioning and emotional regulation.

83Accordingly, I am satisfied your FAS and ADHD reduce your moral culpability.

84I have also moderated your sentence to take account of the increased hardship of COVID-19 related restrictions and your isolation in protection.

85You are a youthful offender, being 21 years old.

86Your reformation is a primary sentencing consideration.

87Your FAS and ADHD present a challenge to your rehabilitation. You need therapeutic interventions.

88I have had your assessed for a Community Correction Order.

89You have a history of non-compliance with previous Community Correction Orders.

90In your discussions with the assessing officer, you failed to show any insight into your offending. This response is entirely consistent with your psychological profile as assessed by Dr Scally, Ms Colmer and Mr Dowling.

91You were found unsuitable unless a Justice Plan could be put in place to provide you with additional supports.

92You do not meet the definition of intellectual disability under the Disability Act 2006. Accordingly, you are not eligible for assessment for a Justice Plan.

93Mr Spilleria, from Disability Justice Services, told me, because you are registered with NDIS, you will be able to voluntarily access Disability Justice specialist services in cooperation with Community Corrections Services.

94I am concerned, in prison, you are vulnerable and at risk of being subjected to undesirable influences which will hinder your rehabilitation.

95In my view, sentencing purposes can best be achieved will by a therapeutic Community Correction Order combined with the punishment of prison.

96In reaching that conclusion I have also taken into account:

(a)   The parity principle to take account of the differences in the sentence I imposed on your co-offender, your co-offender, and the sentence I will impose on you.

(b) The totality principle, because you are to be sentenced for multiple offences,[26] and to take into account that you have served an unrelated five month prison term while you have been in custody, since 21 July 2021.

(c)   The proportionality principle, to impose a sentence which is proportionate to the seriousness of your offending,[27] considering all the circumstances.

(d)   The parsimony principle, to impose legally severe sentence necessary to achieve the purposes of sentencing.

[26] Postiglione v The Queen (1997) 145 ALR 408, [416]-[417]. To ensure that the aggregate sentence is "a just and appropriate measure of the total criminality involved".

[27] Veen v The Queen (No 2) (1988) 164 CLR 465, [471]–[472], [485]–[487], [490]–[491], [495]–[496].

97Notwithstanding your assessed unsuitability, I am prepared to give you the opportunity to undertake a Community Correction Order, after you have served a prison term, provided you consent.[28]

[28] Mr Dylan Meyer’s consented to the Community Correction Order on 10 February 2023.

98Because the offences occurred in two episodes, only four days apart, I will impose an aggregate sentence upon you.

99By the sentence I impose I must denounce your conduct, punish you, and deter you, and others, from committing crimes of the same or similar kind. I must also look to your rehabilitation.

100Considering the circumstances of your offending, your personal circumstances and antecedents, and endeavouring to produce a sentence which reflects and promotes the purposes of sentencing in a manner appropriate to you on the charges of

(a)   Robbery;

(b)   Causing serious injury recklessly;

(c)   Theft; and

(d)   the two bail contravention offences;

you are sentenced to 21 months’ imprisonment in combination with an 18 month Community Correction Order.

101The Community Correction Order will commence upon your release from prison.

102In addition to the core conditions, I attached the following special conditions to the order, namely

(a)   Supervision;

(b)   Mental health treatment and rehabilitation;

(c)   Drug treatment and rehabilitation;

(d)   Alcohol treatment and rehabilitation; and

(e)   Judicial Monitoring.

103I direct you appear at this court on 13 October 2023 at 9:30AM for Judicial Monitoring.

104I declare you have served 488 days imprisonment by way of presentence detention

105While there is some artificiality in the process, doing the best I can, I declare, but for your guilty plea I would have sentenced you to 3 years’ and 3 months’ imprisonment and imposed a non-parole period of 2 years’ and 3 months’.

106On the charge of theft of motor car I make the mandatory order for cancellation of all driver licenses and permits held by you.[29] Additionally, you are disqualified from obtaining any license or permit for a period of three months’ from today.

[29]Road Safety Act 1986 (Vic); Sentencing Act 1991 (Vic), s 89(4).