Director of Public Prosecutions v Meyers
[2014] VCC 208
•20 February 2014
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-13-01712
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ANDREW MEYERS |
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JUDGE: | Her Honour Judge Patrick | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 20 February 2014 | |
CASE MAY BE CITED AS: | DPP v Meyers | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 208 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms C. Teague | |
| For the Accused | Mr J. McLachlan |
HER HONOUR:
1 Andrew Robert Meyers, you have pleaded guilty to one charge of destroying or damaging property, Charge 1; one charge of aggravated burglary, Charge 2; one charge of false imprisonment, Charge 3; one charge of causing injury intentionally, Charge 4; and one charge of possessing, carrying or using an unregistered Category A or B longarm, Charge 5.
2 The maximum penalty for aggravated burglary is 25 years' imprisonment. The maximum penalty for criminal damage, intentionally causing injury and false imprisonment is 10 years' imprisonment. The maximum penalty for possession of a firearm is 120 penalty units or two years' imprisonment.
3 The prosecution sought an order for the taking of a forensic sample from you, the forfeiture of the firearm, and disposal of certain items that were seized by the police. The making of those orders was not opposed.
4 The circumstances of your offending are set out in the Summary of Prosecution Opening upon Plea as Amended which was tendered as Exhibit A. The charges all arise from an incident involving your ex-partner. Your ex-partner left the family home in mid-2012 and commenced a relationship with a man with whom you and your ex-partner had been friendly. At the time of the offending on 13 June 2013 your ex-partner was living with that man. You and your two sons aged 18 and 20 were living in the family home.
5 At about 8.10 a.m. on 13 June 2013 you drove to your ex-partner's home. You drove in a car that you had hired two days earlier. You had with you a number of items including a double-barrelled side by side shotgun. You had sawn off the stock and barrel of the shotgun. In a bag you had a power nail gun, a crowbar, cable ties and rolls of gorilla tape, various knives and cutting tools, and a plastic drop sheet or poncho.
6 You smashed the rear sliding door of the premises and went in. You went upstairs to the main bedroom of the house. Your ex-partner, who was the victim in this matter, was in the ensuite bathroom. You banged on the door and called out to her. She thought it was her partner and opened the door. You were in the bedroom holding the shotgun. You told her that you had to talk. You allowed her to return to the ensuite and get dressed.
7 When she opened the ensuite door you were holding looped cable ties and told her to put them on. You pulled your ex-partner out of the ensuite into the bedroom and pushed her on to the bed. She was struggling at that time. You put one of the cable ties on her left wrist and tried to continue to put the other on her right wrist. You put your hands around her neck and pushed her thumbs into her throat, which meant that she had trouble breathing. You then put the other cable tie on her wrist.
8 The phone then rang. You told your ex-partner to answer the phone. She answered the phone. It was her partner. She told him what was occurring. You walked back into the room and your ex-partner pretended that it was her sister who was on the phone.
9 You told your ex-partner to sit on the bed. You were still holding the shotgun. She sat on the bed. You were just outside searching through your bag, and she managed to get one cable tie off her wrist and ran past you. Your ex-partner ran down the stairs. You followed her. As she opened the door you pulled her back by the hair and dragged her back inside.
10 You then lifted the shotgun above your head and said that you were sorry to have to do it, and struck the victim on the back of the head with the shotgun. She fell to the floor, feeling dizzy and with a laceration to the back of her head. Your ex-partner got back up. You raised the shotgun above your head again. She used her right arm to block the firearm as you brought it down towards her face.
11 There was then a struggle between the two of you. Your ex-partner was on the floor and you stuck your finger into her eye and bit down on the back of her head. You then rolled her on to her back and began strangling her again. Your ex-partner pushed herself along the floor. She managed to get up and run away. You then grabbed her and threw her back to the floor. You then pushed her past the door and told her to keep walking. You were carrying the shotgun.
12 Your ex-partner ran to the toilet and closed and locked the door. You forced the door open. You and your ex-partner then went back to the upstairs of the house. You put cable ties on her wrists and her ankles. You tightened them and joined them together so that she was on the bed unable to move. You then took the nail gun from the bag and sat on a chair outside the bedroom. You barricaded the upstairs area of the house by placing a mattress across the stairs.
13 At about that time, which was about 9 a.m., the police arrived. The police entered the house and called out from downstairs. You said not to come up. The police spoke to you. During that period you broke into an uncontrollable sob. You stayed at the top of the stairs with your ex-partner remaining tied on the bed.
14 Your ex-partner was trying to talk to you about your sons and you calmed down. Your ex-partner asked you for something to clean up where she was bleeding. You looked at her and burst into tears, and said you could not believe what you had done. You said "This didn't need to happen. You should have let me tie you up."
15 Your ex-partner told you she was feeling sick. You then cut the cable ties and began washing her face. You then told her that she could go. At about 11.45 a.m. your ex-partner walked out of the house to the police. You remained on the premises. You wrote various things on the wall. At about 3 p.m. you surrendered yourself to the police.
16 Your ex-partner was taken to the Box Hill Hospital. As a result of your offending she suffered a laceration to her head which was H-shaped. The limbs of that laceration were approximately three and four centimetres. She had bruises to both forearms and over her right shoulder tip, and to both sides of her upper neck. She had minor grazing above her left eye.
17 A victim impact statement from your ex-partner was tendered as Exhibit B. There were certain matters within that victim impact statement and the psychological report which was attached that would be inadmissible as part of a victim impact statement, and I have disregarded those matters.
18 Taking into account the admissible matters in the victim impact statement, it is clear that your actions had a very terrible impact on your ex-partner. She describes the impact on her in terms of her feelings now of helplessness, vulnerability, paranoia and fear. She remains afraid of you.
19 She says that her stress levels have increased greatly since the attack. She relives things that occurred during that time. She is fearful when she leaves the house and she is concerned about your sons. She says that she is receiving medical help to help her through the various psychological issues resulting from the attack. She also describes the pain that she suffered and the physical impact on her as well as the social impact. She says that she is now isolated as a result of her response to this attack.
20 In sentencing you I have taken into account your personal circumstances. You are now 56 years old. You were born in Melbourne and adopted when you were very young. You completed school and an electrical fitting apprenticeship.
21 When you were 21 you were involved in a very significant incident. You were riding your motorcycle and were hit by a car. You suffered serious injuries and spent nine months in hospital. You have had ongoing medical problems as a result of that. Despite attempts you have not been able to work since that collision. You met your ex-partner whilst you were in rehabilitation and you married in 1994. As I have said, you have two sons.
22 You have a very limited and dated prior criminal history with three court appearances. For the purposes of sentencing you in relation to this matter I have disregarded those matters.
23 Reports from the Royal Melbourne Hospital which were Exhibit 5, and from the Blackburn Clinic, Exhibit 4, set out your extensive medical history which has included more than 80 operations which mostly concern the consequences of the motor vehicle collision. You have had ongoing problems with chronic pain and depression. You have been prescribed high doses of opiates for a considerable period of time.
24 Doctor Sullivan in his report, Exhibit 3, describes your personal history, medical history, psychiatric history and substance abuse history. Doctor Sullivan is of the opinion that you have had a longstanding severe substance use disorder arising from the use of prescribed medications. He says you are dependent on opiates and on occasion have overdosed. It is his opinion that these medications that you are taking for pain may still impact on your "cognitions and mood".
25 Doctor Sullivan also says that you have a history of chronic mood disorder which he describes as likely to be a persistent depressive disorder (dysthymia). He says this has not responded to treatment over many years. Dr Sullivan says:
"In part there is an overlap with chronic pain but also with the impairment which arises from past injuries and the resultant impact on his work capacity. It is likely that the treatment of his depression is best undertaken in the future by a psychiatrist, particularly one with experience with chronic pain."
26 In respect of the offending Dr Sullivan says that at that time you were facing imminent appearances in the family law jurisdiction in relation to your property dispute with your ex-partner. He says:
"He was embittered at the end of his relationship and its effect on him and his children. He is chronically despondent at his life and limited capacity to work through chronic pain."
27 Doctor Sullivan says that you at the time of these offences had "hatched a plan which was foredoomed". He says you had hostile thoughts towards your wife and her partner and suicidal ideation. It is Dr Sullivan's opinion that your depressive disorder impaired your capacity to think clearly or make calm and rational choices. He says your judgment was impaired and "the intent of the offence was obscured through the irrationality of his plans and their lack of consonance with his expressed goals to assist his children".
28 In sentencing submissions your counsel relied on a number of matters. In particular he relied on (a) your guilty plea, (b) your remorse, (c) the absence of any significant criminal history, (d) your difficult life for the past 35 years as a result of the motor vehicle accident, (e) imprisonment being more burdensome for you because of your chronic pain, physical difficulties and depressive illness, (f) imprisonment being likely to have a deleterious effect on your mental health, and (g) that imprisonment would be more burdensome for you because of your distress as to the impact on your sons.
29 Your counsel also submitted that your moral culpability should be regarded as reduced because your capacity to think clearly and make rational decisions was impaired by your psychiatric condition. He also submitted that for that reason general deterrence should be given less weight in sentencing you.
30 It is clear from what your counsel said and from what you told Dr Sullivan that this offending occurred in the context of a family law dispute in relation to property between you and your ex-partner. It appears that you were in a heightened emotional state because the hearing was due the next day. You were upset in relation to some matters in affidavit material and worried that you would lose the house. It appears that you wanted to talk to your ex-partner to get her to tell the truth. You also had plans to commit suicide.
31 Your counsel submitted that the appropriate sentence would be a community correction order with or without a further three months of imprisonment.
32 In relation to your prospects of rehabilitation, your counsel submitted that you are unlikely to reoffend because of your age, lack of criminal history, character evidence given by a friend, your remorse, and your experience so far in custody where you have been on remand for some period of time.
33 The prosecutor was not invited to give a sentencing range but did make submissions on the type of sentence that ought to be imposed and referred implicitly to a range within that. These submissions were made prior to the decision of the High Court in Barbaro v Zirilli (2014) H.C.A. 2. In the light of that decision and the way the prosecutor's submissions as to range were put, I have disregarded them when determining the appropriate sentence in this case.
34 The prosecutor addressed the seriousness of your offending and the effect of it on the victim. The prosecutor accepted that you had shown remorse and that there ought to be some limited moderation of sentence to reflect your reduced moral culpability and impairment in thinking. The prosecutor submitted that some moderation of general deterrence would be appropriate, although general deterrence remained a very important sentencing consideration.
35 In relation to general deterrence the prosecutor referred to a report from the Sentencing Advisory Council titled "Aggravated burglary current sentencing practices". The prosecutor referred to that report in support of the proposition that aggravated burglary in the context of an intimate relationship is the second most common type of aggravated burglary and is prevalent. From material in the report I am not able to conclude that this type of aggravated burglary is a prevalent offence or that its prevalence is increasing. The prosecutor accepted that time in custody would weigh more heavily on you because of your physical and mental health difficulties.
36 Mr Meyers, the offending in which you engaged was very serious. You forcefully entered the victim's home. You have pleaded guilty to a charge that you entered with the intent of assaulting a person and had with you a firearm. This is a serious example of aggravated burglary. You had planned what you were doing. You took with you a firearm which you had shortened yourself. You also took with you a nail gun. You had other items which clearly were intended for the purposes of potentially restraining the victim. It must have been a terrifying experience for your ex-partner. That is reflected in her victim impact statement. The consequences of your offending are likely to remain with the victim for some period of time.
37 You used a shotgun to threaten the victim. You hit her, caused her injury and tied her up. You prevented her leaving. You physically restrained her, as I have said, in a very determined fashion. Despite her attempts to struggle against you, you persisted with your object of tying her up. Despite police arriving, you continued to detain her for a considerable period of time. You behaviour was violent, threatening, intimidating and cruel.
38 I accept on the basis of Dr Sullivan's report that your capacity to make calm and rational choices was impaired by your depressive disorder. I am not able to conclude that your use of opiates had any such impact. You clearly set out deliberately with a very muddled and irrational plan which was inevitably going to be entirely counterproductive. That said, I have no doubt that you knew that what you were doing was wrong. Your moral culpability is reduced but to a limited extent by reason of your mental state.
39 I accept that you are genuinely remorseful. You expressed your remorse at the time to your ex-partner and to the police. You pleaded guilty at the earliest opportunity. You are entitled to a significant discount for your plea of guilty. By your plea of guilty you have saved the trauma and expense of a trial. I accept that your plea of guilty, as I have said, is an expression of your genuine remorse. You have no history of similar offending. I accept from the evidence of your friend and written references from your son's school chaplain, Exhibit 6, that this offending is out of character for you.
40 Despite that and despite your remorse, I have concerns about your prospects of rehabilitation which I assess as being reasonable. You continue to have significant mental health and physical problems. It is likely that your ability to make rational choices is still impaired. You still harbour some bitterness towards your ex-partner from what you told Dr Sullivan. The property matters remain unresolved. I am concerned that if you again become overwhelmed by irrational thinking and suicidal thoughts, you could engage in further offending against the victim.
41 A sentence needs to be imposed which discourages you from any further offending and which encourages you to seek appropriate treatment. It appears that you have been treated for pain unsuccessfully over many years and despite many attempts. I note Dr Sullivan suggests that treatment in the community could potentially assist you. Such treatment would reduce the risk of reoffending, as would resolution of the family law matters.
42 General deterrence remains a very important sentencing consideration. Family property disputes are common. It is very important that others be deterred from similar offending or taking action against the other party in the context of those disputes. Family disputes frequently arouse strong emotions in the parties to those disputes. Violence in the context of those disputes can be extremely dangerous. It is very important that people in the community understand that they must sort out these kinds of difficulties without resorting to violence or aggression. I have reduced the weight given to general deterrence in sentencing you because of your mental health issues, but again to a limited extent.
43 I accept that imprisonment has been and will remain more burdensome for you because of your distress in relation to your sons. Your older son gave evidence and is clearly finding your imprisonment very difficult. It appears from your friend's evidence that you acknowledge the terrible impact your actions have had on your sons.
44 There remains the further significant mitigating factor of your physical and mental health problems. These issues are clearly interconnected and I accept that you have had, and will have in the future, significant difficulties in custody because of your physical problems and the difficulties in managing your chronic pain. I accept that you have increased anxiety because of your concerns about your physical difficulties and how they will be able to be dealt with. I accept incarceration is likely to make your mental health problems worse.
45 I note the following passage from Dr Sullivan's report:
"Mr Meyers is experiencing incarceration as burdensome. He considers he is on inadequate pain medication and is at risk of being stood over for this as it is prone to abuse and rarely prescribed in prison. Generally morphine is switched to methadone. He is in a unit for people with psychiatric needs and is at escalated risk of self-harm. His mood disorder remains despite medication, reflecting a poor response and also entrenched mood problems which are unlikely to remit easily with medical treatment alone. He would be a challenging patient for a psychologist and these have limited prison availability."
46 As I have said, Dr Sullivan recommends that on your return to the community you obtain treatment from a psychiatrist or psychologist specialised in the management of chronic pain.
47 The seriousness of your offending is such that a sentence of imprisonment is warranted, despite the matters that I accept operate in mitigation of sentence. A sentence of imprisonment is warranted for the purposes of denunciation, just punishment, general deterrence and specific deterrence. I do not consider that a community correction order would adequately reflect the sentencing considerations, even taking into account the time you have already spent in custody and that I could impose a further three month sentence of imprisonment.
48 In determining the appropriate sentence and degree of cumulation, I have taken into account that there is a considerable degree of connection and overlay between the offences. Nevertheless, the false imprisonment and causing injury charges reflect additional significant offending towards your ex-partner. I consider some degree of cumulation warranted in respect of these sentences to reflect the additional offending.
49 In determining the sentences to be imposed and degree of cumulation, I have applied the principles of totality and proportionality. I have also moderated the sentence so as to ensure that I have not imposed double punishment. In view of your difficulties in custody and the desirability of you obtaining appropriate treatment for your chronic pain and depressive disorder, I am setting a non-parole period which is shorter than I would have otherwise. Would you please stand up, Mr Meyers.
50 On Charge 1, criminal damage, you are convicted and sentenced to four months' imprisonment.
51 On Charge 2, aggravated burglary, you are convicted and sentenced to three years' imprisonment.
52 On Charge 3, false imprisonment, you are convicted and sentenced to 12 months' imprisonment.
53 On Charge 4, causing injury intentionally, you are convicted and sentenced to 12 months' imprisonment.
54 On Charge 5, possession of a firearm, you are convicted and sentenced to six months' imprisonment.
55 The sentence on Charge 2 is the base sentence. Three months of the sentence on each of Charges 3 and 4 is to be served cumulatively on each other and on the sentence on Charge 3.
56 The total effective sentence is a term of imprisonment of three years and six months. I fix 18 months as the period you are required to serve before being eligible for release on parole. But for your plea of guilty I would have sentenced you to a term of imprisonment of four years and 10 months with a non-parole period of three years. I declare that you have served 252 days of this sentence by way of pre-sentence detention to be deducted administratively.
57 I have made orders for the forfeiture and disposal of certain items. I make an order for the taking of a forensic sample from you. I am making that order because of the seriousness of the circumstances of the offending and that the making of the order was not opposed.
58 Mr Meyers, I am required to tell you that there are certain things that follow if you do not cooperate with the authorities when they come to take the forensic sample. The forensic sample will be taken by a buccal swab, a swab of saliva in your mouth. I am sure that you will cooperate with the authorities. If you do not cooperate with the authorities, they are allowed to use reasonable force to take a sample, and to take a blood sample rather than a buccal swab sample. I am confident that will not be required in this case but I am required to tell you that.
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