Director of Public Prosecutions v Meyers

[2021] VCC 493

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-20-01743

DIRECTOR OF PUBLIC PROSECUTIONS

v

KAHN MEYERS

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JUDGE:	HANNEBERY
WHERE HELD:	Melbourne
DATE OF HEARING:	4 March 2021, 16 April 2021
DATE OF SENTENCE:	27 April 2021
CASE MAY BE CITED AS:	DPP v Meyers
MEDIUM NEUTRAL CITATION:	[2021] VCC 493

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:             one charge of recklessly causing serious injury – doused victim in petrol – ignited victim – did not take victim directly to hospital – remorse – unsuitable for Youth Justice Centre order - very low to low average range IQ – general deterrence – denunciation.

Legislation Cited:     Sentencing Act 1991.
Cases Cited:            R v Verdins (2007) 16 VR 269.

Sentence:                 Imprisonment for three years and nine months – two years and three months non-parole period.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr D. Cordy	Solicitor for the Director of Public Prosecutions
For the Accused	Mr D. Carolan	MMO Lawyers

HIS HONOUR:

1Kahn Meyers, on 4 March 2021 you pleaded guilty to Indictment number L11740268 containing one charge of recklessly causing serious injury.  The maximum penalty for this offence is 15 years' imprisonment.

Circumstances of offending

2Tendered as Prosecution Exhibit 1 was the Summary of Prosecution Opening dated 15 February 2021.  In short, on Monday 20 July 2020, you and two others, Mr Sherwell and your victim Mr Edwards, were smoking cannabis at an address in Thirteenth St, Mildura.  You provided Mr Edwards and Mr Sherwell with $7.00 in order to attend a nearby Caltex Petrol Station for the purpose of buying petrol for your lawnmower.  Mr Edwards and Mr Sherwell bought 6.05 litres of unleaded petrol before returning to Thirteenth St, Mildura and giving you the petrol.  You enquired as to what petrol Mr Edwards had bought and he said 'unleaded petrol'.  You became angry as you had told Mr Edwards to buy two stroke petrol.

3

You then said words to the effect of 'I'm going to set you on fire' before dousing Mr Edwards' crotch and lower torso area with petrol.  You demanded

Mr Edwards stand next to a bungalow wall while you spoke with your brother about his car.  Once your brother left your attention returned to Mr Edwards where you instructed him to follow you to the south-west corner of the yard.

4Mr Edwards removed his jumper and t-shirt which were soaked in petrol.  You then grabbed a garden hose and made a puddle of water on the ground next to Mr Edwards. You said words to the effect of, 'If it gets too big, just hop in the water and roll on the grass' before producing your lighter and attempting to ignite Mr Edwards.  As the petrol had dried, Mr Edwards' clothes did not ignite.  You then splashed more petrol onto Mr Edwards' exposed torso and his jeans before using your lighter to ignite Mr Edwards who burst into flames.

5You grabbed the nearby garden hose and attempted to douse Mr Edwards before wrestling him to the ground into the puddle.  Once the flames were extinguished you helped Mr Edwards to get into a cold shower, however you did not call an ambulance.  You gave $50 to Mr Sherwell to attend a chemist and buy burn creams however after Mr Sherwell explained the extent of Mr Edwards' injuries, the chemist attendant advised Mr Sherwell that Mr Edwards would need to go to hospital.  Mr Sherwell returned to the Thirteenth St, Mildura property and advised you of the chemist attendant's comments.

6You subsequently dressed Mr Edwards in a pair of your pants before telling him to give a false account of his injuries; namely, that Mr Edwards was filling up the lawnmower whilst he had a cigarette in his mouth, the cigarette fell onto the lawnmower, and the lawnmower exploded causing the injuries.

7Mr Edwards was admitted to the Mildura Base Hospital having suffered 20.5 per cent total body surface area burns of mixed superficial partial thickness to deep dermal thickness.  Mr Edwards' mother, Ms Millhouse, subsequently attended the Mildura Base Hospital where you contacted her and told her the concocted story of how Mr Edwards sustained his injuries.  However, later that night,
Ms Milhouse was told by a friend of Mr Edwards, a Ms Gleeson, how Mr Edwards' injuries in fact occurred.  Ms Milhouse then reported the matter to the Mildura police.

8Later that night, police attended the Thirteenth Street, Mildura property and arrested and conveyed you to the Mildura police station for interview.  After being given time to rest you were interviewed and you gave the following account:  You were lighting your hands on fire and slapping each other before Mr Edwards went to have a cigarette and you found him on fire, and that you did not call an ambulance because it would be too expensive.

9A search warrant was subsequently executed on the Thirteenth St Mildura property and a number of items were seized.  A second interview was conducted where you admitted to the offending and also stated, 'I gave 'em all fair warning that I am a bit - bit psychopathic at times and if I give you one job and you fuck that up, I'm gunna be angry'.  You admitted you did not call an ambulance for fear of getting into trouble.

Effect on the victim

10Tendered as Prosecution Exhibit 2 was the victim impact statement of Adam Edwards.  The effects upon a victim are a relevant sentencing consideration, see s 5 of the Evidence Act 1991.  However, I must not allow the effects upon a victim to swamp the sentencing process.  What that statement reveals is that he has been profoundly affected by your conduct.  He constantly re-lives this incident and now has difficulty trusting his family and friends.  He was in excruciating pain that was only exacerbated by your failure to call an ambulance.  The subsequent treatment of his burns was similarly painful and has left scarring that is a constant and enduring reminder of your conduct.

11Tendered as Prosecution Exhibit 3 was the victim impact statement of Debbie Milhouse.  She felt helpless and scared seeing her son in the ICU and disgusted at the extent of his injuries.  Your conduct has had an adverse effect on
Ms Milhouse's entire family.  She is deeply concerned about Mr Edwards' mental health now and how her family will be able to move past this event.

Personal circumstances

12You are now 20 years old, and were 20 years old at the time of the offence.  You grew up in Mildura.  You are the youngest of three children of Mark Burns and Ms Anna Meyers.  Your childhood was one of substantial difficulty.  Your parents separated when you were 12 months of age.  You remained in the care of your mother.  You were not in contact with biological father until you have recently reconnected with him via phone.  You were subject to frequent family violence episodes throughout your childhood.  You have reported significant difficulties with your stepfather.  You instruct that he would regularly steal from the family and perpetrate domestic violence against your mother.

13You have had very little by way of formal education.  I am told that you dropped out of school during year six, struggling academically and being the subject of bullying from other students.  You were accepted into a TAFE course at age 17 however you did not complete this course.  I am told you are functionally illiterate.

14You have no prior convictions.  There are however, three prior appearances in the Mildura Children's Court.  These appearances related to property damage, theft and other minor offences.  All were dealt with by way of probation and adjourned undertakings without convictions being recorded.

15The period that you have spent on remand since 21 July 2020 is the first time you have been in custody.

16I have been provided with psychological and neuropsychological reports prepared by Ms Wendy Leane, Mr David Ball, and Dr Linda Borg.[1] All of those reports provide significant detail about your personal circumstances, your mental health, and your intellectual functioning.  I will deal with the contents of those reports in the context of the submissions made by counsel on your behalf.

[1]Exhibits D2, D3, D4 and D5.

Gravity of offending

17The offence of recklessly causing serious injury is one that can be committed in a broad range of circumstances.  Your offending must be assessed by reference to its own unique circumstances.  I take the following matters into account in determining the gravity of the present offence.

18You inflicted serious burns upon the victim.  His injuries required hospitalisation in an intensive care unit.  He had to be placed into an induced coma.  He has required multiple subsequent surgeries.  The injuries you inflicted resulted in what must have been excruciating pain for the victim over a prolonged period.  While I accept the nature of the injuries is not of such catastrophic nature as would place them at the highest end of the scale for offences of this kind, the injuries are still very serious.  The victim must endure lifelong scarring to his abdomen and legs.  It is also unsurprising that the injuries and the trauma of the way in which they were inflicted has had a serious and ongoing psychological effect on him.

19I also note that the injuries were inflicted in circumstances that were peculiarly cruel.  The apparent reason for your unhappiness with the victim was the trivial matter of him purchasing the wrong type of petrol.  He posed you no threat.  He had done nothing but try to help you purchase what you requested.  For making what you regarded as an error, you subjected him to a substantial period of fear that preceded an extraordinary act by you.  Your actions were unprovoked and utterly unjustified.  They involved you bullying the victim.  He was forced to stand in petrol soaked clothing, no doubt in fear for his personal safety, and endure one unsuccessful attempt by you to set his clothes on fire.  When after this he removed his petrol soaked jumper and T-shirt, you did not desist from your actions.  Rather you created a pool of water before splashing him again with petrol, this time on his pants around his crotch area and on the bare skin of his torso.  You then used a cigarette lighter to ignite the petrol.  As I said your actions were inexplicably cruel to somebody who had done nothing to provoke you.

20By your plea of guilty to the charge of recklessly causing serious injury, you are acknowledging that at the time you committed those actions, you knew that the probable result would be serious injury to the victim.  You went ahead anyway.

21After setting the victim on fire I note that you have then made immediate efforts to douse the flames.  You then assisted him to get under a cold shower.  These actions, when viewed in isolation, were an attempt by you to reduce the suffering on the victim that you had just inflicted.

22What followed, however, were actions that had the effect of prolonging unnecessarily the suffering of the victim.  Rather than immediately taking the victim to hospital, calling an ambulance or at least permitting him to go to hospital, you instead specifically prevented him from doing that.  Those actions of themselves resulted in the victim enduring more pain than might otherwise have been the case.

23Your actions in the period that followed your infliction of the injury were not only indifferent to the suffering of the victim, they were motivated by self-interest on your part.  Your initial instinct to stop the victim getting to hospital was to avoid responsibility for what you had done.  The lies you told and directed others to tell about the way the victim had been injured were similarly designed to get you out of the trouble you perceived you were in.

24I note, however, that the lies to cover up the true situation did not of themselves adversely impact on the victim as your initial reluctance to permit him to attend hospital had.  The lies themselves do not aggravate the offending as the other actions do, but they do have some relevance in assessing your level of remorse and the moral culpability which I will comment on later.

Plea of guilty and level of remorse

25You have pleaded guilty to the offence at a time that is properly regarded as the earliest reasonable opportunity.  You are entitled to substantial credit for that.  By your actions in pleading guilty you have spared the victim the stress and inconvenience of giving evidence at any stage of these proceedings.  Your plea of guilty is especially significant in the current pandemic environment which has placed enormous pressures on the capacity of courts to list matters.  There is substantial utilitarian value in your plea.

26Your plea of guilty is also relevant in determining that you have some remorse for your actions.  It is, however, not the only evidence that I must consider in determining whether you are remorseful, and the extent of that remorse.  Apart from your plea of guilty, you have also made statements to Dr Borg consistent with remorse and having some empathy for the suffering of the victim.  This is to your credit.  However, when the whole of the evidence is considered, I am unable to accept the submission of your counsel that you are 'profoundly remorseful and horrified by [your] actions'.

27There are other matters directly relevant to your level of remorse.  One of these is clearly your conduct in the hours after the offence.  Rather than taking responsibility for your actions, you instead embarked upon an endeavour to conceal what you had done.  You told lies.  You instructed others to tell lies.  These lies were told to people including the mother of the victim.  Those actions are not consistent with you being remorseful at that time.

28Neither were your actions in delaying the attendance of the victim at the hospital.  I have mentioned those actions in the context of an assessment of the gravity of the offence but they also have some relevance in determining your remorse.

29Similarly, your claims to police in your record of interview that you were 'playing with fuckin' petrol, slap on it on the hands, fuckin' lighting up' were neither truthful nor consistent with remorse.  You did go on to admit that you were the one who lit Edwards on fire, though your admissions fell some way short of what might be considered fully honest and contrite.

30I also note the comments of the pre-sentence report prepared for the purpose of assessing your suitability for a Youth Justice Centre order.[2] The report's author states as follows: 'In discussion with Mr Meyers regarding this offending, he expressed little remorse for the victim, when encouraged to elaborate about the impact on the victim he repeated "I have no words" then navigated the subject back to how the offending has impacted him.  He displayed egocentric behaviours throughout conversations and attempted to manipulate the writer to provide him with the outcome of the assessment on multiple occasions'.

[2]Exhibit D12.

31Having regard to all of those matters, it is my assessment that you have some remorse, but it is limited.  It falls some way short of reflecting true empathy for what you have inflicted on Mr Edwards.  That said by your plea and certain of your statements to Dr Borg, you have shown a capacity to accept responsibility for the wrongfulness of your actions.  It is a complex and at times contradictory circumstance in relation to remorse and in my view, in all those circumstances, it is appropriate to give it some but moderate consideration in determining sentence.

Offender's youth

32I also take into account your youth.  You are only 20 years old.  This is your first time before an adult court.  I acknowledge that in such circumstances it is usually appropriate for rehabilitation to be the primary sentencing consideration.  However, the circumstances of this case mean that there is also the need to consider the sentencing purposes of denunciation, deterrence and just punishment.  The more serious the matter, the more considerations other than rehabilitation assume prominence even having proper regard for your youth.  In your case, I have already noted the seriousness of the offence.  Rehabilitation does however retain some prominence despite the gravity of the offending.

Prospects of rehabilitation

33There are a number of matters relevant in determining your prospects of rehabilitation.  Your youth and lack of prior convictions is one matter.  I also note the material that has been provided indicating your engagement with courses whilst in custody, and your positive attitude towards continuing to engage in such courses.  You have indicated to the author of the pre-sentence report that the programs on offer at Marngoneet correctional facility were beneficial.  These are all matters that promote optimism for your rehabilitation.

34However, I must also consider the fact that your offending is, in relative terms, still very recent.  It was only a matter of months ago that you have engaged in these extraordinarily cruel acts.  I am also aware that you have long-standing issues in relation to the use of drugs.  I am instructed that your use of drugs was of some significance, you say, in your choice to behave in this manner towards Mr Edwards.  It is logical then that your prospects of rehabilitation may depend to some significant extent upon your ability to overcome this drug problem.  It is then to your credit that you have recognised this and engaged in opportunities as they have presented in custody to address this issue.

35

In the course of your plea, there were a number of exhibits tendered that were also supportive of your prospects of rehabilitation and I take those into account.  Exhibit D7 was a series of clear drugs screens.  Exhibit D8 was a bundle of certificates confirming your completion of a variety of courses whilst in custody.  Exhibit D9 was a supportive reference from your older sister.  Exhibit D10 was a reference from peer listener, Mr Rosida.  Exhibit D11 was a letter from

Mr Delorenzo, a psychologist working at Marngoneet.  And I have also noted the additional certificates, D13, the reference from Carley Post, D14 and the reference from Mark Burns, D15.  All of those exhibits supported the contention that there has been some progress in  your rehabilitation and that there is a basis for hope that this may continue.

36Overall, I am prepared to accept your prospects of rehabilitation at this stage to be reasonable.

Applicability of R vVerdins[3] principles

[3](2007) 16 VR 269 ('Verdins').

37It has been submitted on your behalf that Verdins limbs 1 and 3 are engaged.  That is, it is contended that on sentence it should be concluded that you have a mental impairment that reduces your moral culpability for the offending, and further that your mental impairment means the consideration that would otherwise be given to general deterrence should be moderated.

38Mr Cordy on behalf of the prosecution submitted that no such Verdins' considerations applied in your case.  This is put in mitigation of sentence, and as such, it is for the defence to establish these matters on the balance of probabilities.  In assessing whether any application of Verdins' principles are appropriate, it is necessary to consider both the available expert evidence, and the broader circumstances of the offending.

39In your case there has been evidence relevant to this submission from the report of Dr Borg to the following effect.  Her testing revealed that you had a full-scale IQ of 77.  This places you in the very low to low average range.  She further diagnosed you as suffering from a severe specific learning disorder.  She does, however, note that your learning disorder is not considered to be a contributing factor to your offending.

40There were also matters relied upon in the report of David Ball, a forensic psychologist.  He determined that you presented with symptoms of post-traumatic stress disorder.  He said that you met the DSM-5 criteria for PTSD.  He said, however, that you fell short of the criteria for diagnosis with borderline personality disorder.

41Reliance is also placed upon Dr Ball's observation that you were 'a man with impairment to his capacity for generally good judgement and his ability to plan and execute positive self-sustaining behaviours'.

42There is also the report from Ms Leane in 2017 that suggested you have an IQ of 69. [4]  It would seem that this report has been the basis upon which you have qualified for government support on the basis of an intellectual disability.  This earlier report would place you below an IQ of 70, a measurement that is used for some purposes as a mark to distinguish between low intelligence and a diagnosed intellectual disability.

[4]Exhibit D6

43For the purposes of this application, or I should say, for the purposes of this submission from Mr Carolan, I regard the more comprehensive report of Dr Borg, prepared in 2020 and clearly more comprehensive in its investigation, to be the factual basis that I rely upon most in assessing whether there is any reduction in moral culpability, or any reduction in the application of general deterrence in all the circumstances of this case.

44I must also consider what the circumstances of the case reveal about your comprehension of the wrongfulness of your actions.  I have already noted that this offence was not one of spontaneity.  There was a period of minutes from the time you first splashed petrol onto Mr Edwards to the time he was ignited.  During that period you created a pool of water around his feet.  You made one unsuccessful attempt to light him.  You had ample time to consider your actions, the actions you were taking and the preparations you made regarding the water revealed an understanding by you of the probable consequences of your acts.

45Further, by your plea you admit a mental state of recklessness about the prospect that what you were doing would result in serious injury.  That is, you acknowledge at the time that you knew your actions would probably cause serious injury but went ahead anyway.  You must have appreciated that it was at least more likely than not that Mr Edwards would suffer serious burns.  Otherwise you would simply not be guilty of the charge before the court.

46I also consider the actions you have taken subsequent to the offending.  I have already recited them and will not repeat that exercise, except to say that your actions reveal that you were very conscious of the potential by you to be in trouble as a result of what you did.  Your actions both before and in the period immediately after the offending would suggest a very high degree of moral culpability, namely, that you were aware of the wrongfulness of what you were doing and did it anyway.

47Having regard to these matters, and the lack of causal connection between your low-average intelligence, or indeed any other mental impairment, and the commission of the offence, I am unable to accept that limb 1 of Verdins has any application in this case.

48Neither am I satisfied that your intellectual deficits, which on the evidence may or may not reach the level of a mild intellectual disability, reveal there to be circumstances that mean that general deterrence as a sentencing purpose ought be moderated in your case.

49That is not to say, however, that the material revealed in the expert evidence provided does not have relevance to this sentence.  The material provides important insights into your circumstances.  As previously mentioned, as a youthful offender with no prior convictions, rehabilitation remains a significant sentencing consideration, albeit somewhat diminished by the seriousness of the offending and the requirement that other sentencing priorities, including punishment, denunciation, specific deterrence and general deterrence are given appropriate weight.

Appropriateness of a Youth Justice Centre Order

50It was also submitted on your behalf that a Youth Justice Centre order may be appropriate in the circumstances. To this end, a pre-sentence report pursuant to s.32 of the Sentencing Act 1991 was prepared.[5] Further submissions were heard after receipt of that report.

[5]Exhibit D12.

51I should note that Mr Cordy did not oppose a report being prepared to determine your suitability for such an Order, the prosecution was content that in all the circumstances of the case, it was appropriate to impose a period of adult imprisonment with a head sentence and a non-parole period. Whilst the conclusion of that report was a recommendation that you were unsuitable for such an Order, I note that in and of itself does not mean that the court still does not still have discretion to impose one. Section 32 creates certain criteria that enliven the power to impose such an Order. First, a pre-sentence report must be sought and prepared. This has been done. Second, the legislation requires that either one or both of two conditions be met. If it is determined that you have reasonable prospects of rehabilitation, and/or you are found to be either vulnerable or impressionable, the court is then empowered to impose a Youth Justice Centre Order. As I read the legislation, the mere fact that the report is unfavourable does not remove this discretion.

52I have however, concluded in your case that it would be inappropriate to make a Youth Justice Centre Order. Whilst I have assessed that your prospects of rehabilitation are reasonable, and have noted that rehabilitation is a significant sentencing consideration, that is not the end of the inquiry. I place significant weight upon the matters within the pre-sentence report, prepared as it was by an advanced case manager. She expressed several concerns about your suitability. Also, and importantly, she noted your report to her that 'the programs on offer at Marngoneet correctional facility were beneficial and that he is experiencing no bullying or other influential concerns in the current environment to this point'. As such, I have considered that there is some evidence in the report provided to suggest that even outside of a Youth Justice Centre, there are opportunities for you to further your rehabilitation. Section 32 also requires that I consider the nature of the offence generally and I have already noted what are regarded to matters relevant going to the seriousness of the offence.

53I am also required to have regard for your age, character and past history.  Taking all of these matters into account, I have determined not to make such an Order.  In the alternative Mr Carolan on your behalf submitted that if a Youth Justice Centre Order was not appropriate that a sentence involving a combination of imprisonment and community corrections order should be imposed.  In all the circumstances of this case I have determined that I agree with the prosecution submission that a period of imprisonment with a non-parole period is the appropriate outcome.  I note, however, that the prosecution conceded that, having regard for your youth and lack of prior matters, that it was open to impose a non-parole period that represented a lesser portion of the head sentence than might normally be the case.  I intend to impose a sentence of that nature.

54In making that order, I take into account that you have been in custody during a time of pandemic.  I take into account that this means you have been subjected to certain restrictions within the prison environment that make imprisonment more burdensome than would otherwise be the case.  I also note that being incarcerated during this time might reasonably cause some anxiety for your personal health and that similarly increases the burden of imprisonment.

Sentence

55Mr Meyers, on the charge of recklessly causing serious injury, you are convicted and sentenced to imprisonment for three years and nine months.

56I direct that you serve a period of two years and three months before you are eligible to apply for parole.

57Pursuant to s.18(4) of the Sentencing Act 1991 I declare that 280 days of pre-sentence detention be reckoned as time already served.

58Pursuant to s.6AAA of the Sentencing Act 1991, I declare that but for your plea of guilty, I would have imposed a sentence of four years and six months with a three-year non-parole period.

59Are there any other orders that are required?­

60MR CORDY:  No, Your Honour, I do not believe so.

61HIS HONOUR:  And the pre-sentence detention, does everyone agree that it is 280 days?

62MR CAROLAN:  Yes, Your Honour.

63MR CORDY:  Yes, Your Honour.

64HIS HONOUR:  Thank you.  Thank you both for your assistance during this matter.  I will adjourn the court until 10 o'clock.

65MR CORDY:  If Your Honour pleases.

66MR CAROLAN:  If Your Honour pleases.

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