Director of Public Prosecutions v Moyle

[2020] VCC 1537

IN THE COUNTY COURT OF VICTORIA  Revised
Not Restricted
 Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 20-00479

DIRECTOR OF PUBLIC PROSECUTIONS

v

DARREN MOYLE

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JUDGE:	HIS HONOUR JUDGE GUCCIARDO
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	25 September 2020
CASE MAY BE CITED AS:	DPP v MOYLE
MEDIUM NEUTRAL CITATION:	[2020] VCC 1537

REASONS FOR SENTENCE
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Subject:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr Z. Kendall
For the Accused	Ms N. Allison

HIS HONOUR:

1Darren Moyle, you pleaded guilty to one charge of attempted theft, Charge 1, a charge of burglary Charge 2, one charge of theft and one charge of aggravated carjacking, Charge 4.

2You also pleaded guilty to two related summary charges for this court to deal with being Charge 3 of committing an aggravated carjacking, indictable offence whilst on bail, and Charge 7 driving whilst disqualified.

3The circumstances of your offending were outlined in a document tendered by the prosecution upon your plea. For the purposes of this sentence, I will summarise these agreed facts. At about 1.30 am on 23 October 2019, you went to the Casey City Church carpark in Narre Warren, and there, attempted to force the driver's side window of a HiAce van intending to steal from the vehicle.  You tried to open the driver's door and two sliding windows but you were unsuccessful. 

4From the vehicle which was parked near the church, you then proceeded to the main church building.  You tried to open a rear window on the building using a spanner.  Again, you failed. You then took a shovel and tried to force entry.  Again, you failed.  By this time it was closed at 3 am. You armed yourself with a star picket from the adjacent church garden and tried to force entry to the church.  Again, you failed.

5At 4.17 am, you kicked the glass window panel repeatedly until it broke.  You then crawled through it and gained access to the church premises.  While there, you gained access to a safe and searched through drawers and cupboards.  You stole a set of keys and a bottle of water. You broke a set of drawers over a set of stairs and once they broke, you went through their contents.  All of this was captured on CCTV footage. You then left the scene.

6At the time of these offences, you can be seen carrying a distinctive bag wearing distinctive clothing.  By the morning of that day, the 23rd, you were feeling unwell. You attended at the Casey Hospital Emergency Department.  You were triaged and admitted into the emergency department and placed in a cubical. You were experiencing some mental health issues.

7Notes from the emergency department contain a summary of how you presented and what you told the clinicians and nurses. You were homeless, you had been using amphetamines all your life but had stopped taking them.  You gave them other symptoms like hallucinations.      

8One of the hospital workers, Maria Triantafillou, an employee of Monash Health had parked her car immediately next to the emergency department entrance at the hospital.  She was aged 55 and suffered from severe rheumatoid arthritis.  She relied on the use of a walking stick to assist her.

9Although you had left at 2.30 after some treatment had been started, by
5.21 pm you were still just outside emergency and you smoked a cigarette and remained in that entrance. You remained there for some time.  Your movements again were captured on recorded video on a CCTV camera.  After concluding her shift at 5.30 pm, Ms Triantafillou walked out to her vehicle in the disabled carparking spot nearby.  She put her belongings in the car and sat in the driver's seat.  The car was only a few steps away from you and you went to the vehicle, opened the passenger door, stepped towards the cabin, and asked Ms Triantafillou for a lift.

10She told you she was running late and asked you to get out from her car.  Instead, you sat in the passenger's seat and in an aggressive tone, again asked her for a lift to a location which later she could not recall.  She said, 'I'm not giving you a lift, I'm already half an hour behind.  Get out of the car now'.  You repeated, 'I just need a lift' and said this a number of times.  She told you to get out and then you reached into the front of your trackpants and pulled out a knife.  You produced the knife and said, 'Shut up or I'll stab you'.  You said this a number of times.

11Ms Triantafillou screamed for help while she tried to grab the keys out of the ignition.  As she was trying to get out of the car, you snatched the car keys from her hand and then forcefully pushed her out of the car.  She fell onto the ground, onto her right shoulder.  She landed on her shoulder very heavily.  By this stage, a couple of people had come to her assistance, but as she lay on the pavement, you moved into the driver's seat, started the car and yelled, 'Fuck off' to those helping Ms Triantafillou.

12Her bags were in the car, her phone, and a leather case.  She was very scared and shaken, and you drove off with both front doors open as she was taken inside the hospital, to be assisted and x-rayed.  That revealed a fracture at the top of the right humorous close to the shoulder joint.  The incident was captured on CCTV footage. 

13When police arrived at the hospital soon thereafter, they were told of your identity from your patient label, and they seized the property, including the bag I mentioned before.

14You drove the car to Wantirna South, the address of an associate of yours.  That person called police about your arrival.  A couple of minutes later, police came to that address and arrested you. You were wearing the same clothes as on the CCTV footage and you still had on a hospital wristband.  A doctor came to the police station where you had been taken and found you were unfit to be interviewed.  At the time, you were disqualified from driving for two years, from 15 April and on bail for an offence charge of intentionally cause injury ordered on 16 January 2019 at the Melbourne Magistrates' Court.

15Ms Triantafillou prepared a victim impact statement, which was read to the court and tendered as an exhibit.  She writes that her right arm was fractured in many places. Her right arm became immobilised, she lost her independence, and was highly emotional and distressed. She could not drive, she became hypersensitive, hypervigilant in public, anxious about her personal safety and her work prospects.  Many of the usual tasks she had previously performed professionally and physically, she no longer could.  She has experienced nightmares and social disassociation.

16She has undergone a number of surgical procedures, including a shoulder reconstruction with immobilisation and rehabilitation lasting months.  The right upper arm required open reduction internal fixation surgery. Her detailed statement outlines a series of serious consequences upon her, which were made more traumatic upon her because of her existing medical problems, a disability which before your actions she had managed and had not made public.

17The car had to be written off, and she was forced to rely on taxis with the attendant costs and although covered by WorkCover to some extent, she has also endured financial loss and uncertainty for her future financial security.  She remains at high risk of future injury, given the injury suffered that caused her to become even more fragile and at risk of falls and injury that before your conduct.  I take this statement into account.

18You were arrested and remanded on 24 October, and soon after the first committal case conference you were convicted and sentenced in this court by His Honour Judge Carmody.  In March 2020 at the second committal case conference, the matter resolved.  A plea of guilty was indicated.  The sentence imposed by His Honour ended 15 July and you remained on remand up until today.  You pre-sentence detention will be taken into account.

19I take into account your plea of guilty.  It was made at the earliest opportunity.  It has a utilitarian value of having avoided a criminal trial, and thus the need for the victim and the police and civilian witnesses to give evidence. It is of particular value at this time of the pandemic, which has reduced the operations of the criminal justice system.  I accept that as an acceptance of your criminal conduct. I accept that a plea can be some evidence of remorse. I am not persuaded that in your case I can take the plea to be accompanied unequivocally by remorse, nor is there any other material from which to glean that particular significant element.

20It was argued that remorse could be inferred from the fact that you were waiting for the police to arrive the following day, and that you did not seek to avoid arrest. I do not accept that this is an indication of remorse for your actions, beyond a mere acknowledgement and consciousness of wrong-doing with your inevitable apprehension by police.  Your plea will be given credit and will reduce your overall sentence.

21I take into account your personal circumstances. You are 45 years old.  You were raised by both of your parents until they separated at your age seven or eight. You have reported that your father was violent to your mother and yourself.  Your mother you described as an alcoholic.  Aged 12, you were placed in Baltara for some months and then lived on the streets or with friends.  You were regularly truant from school but completed Year 11.  You then completed a diploma in Information Technology.

22Your first employment, however, was as a glass cutter for a couple of years, but you then suffered a workplace injury, when a glass pane fell on your back.  You have since been on a disability support pension.  Between ages 16 and 20, you drank alcohol in binges and from 13 onwards, you used speed regularly.  You then began to inject ice every day.  Until the age of 30 from the age 21 you used to inject heroin regularly.  You have been methadone thereafter for some
14 years.

23At age 17 you went into Odyssey House for a couple of weeks without rehabilitative success.  You reported two serious relationships; the first lasted some 14 years, the second three years.  Both were blighted by drug use.  You have a 10 year old son whom you do not see, a 23 year old daughter who in turn has her own child.  You see neither.  Of late, you have had difficulty maintaining stable accommodation and you are unsure where you will live upon your release.  You have chronic pain associated with your back injury and the other past events. 

24You reported to mental health professionals who were assessing you, that in February of 2013 you were assaulted, and your skull was fractured, as well as other serious injuries.  A report from July 2013 was tendered to the court from a neuropsychologist for the purposes of the case, a manager of the
Court Integrated Services Program when at that time you were charged with burglary and theft and other theft-related offences.  I will come to your prior history in a moment.

25That assessment was in order to clarify your then level of cognitive functioning.  The reporting psychologist, Ms Anderson, wrote that you were positive for
Hep C and that you were on methadone and Endone.  You were depressed but she found no perceptual or thought disturbances, with an average level of
pre-morbid intelligence.  However, your level of function was significantly below same age peers in a number of areas.  She considered you were highly likely to have sustained a traumatic brain injury from the assault and an acquired brain injury secondary to drug use.

26She noted that neurological recovery does plateau typically and stabilises within one or two years following a traumatic brain injury and she suggested a
follow-up assessment.  In October of 2019 and in January 2020 leading up to the sentence of this court, in January 2020 by His Honour Judge Carmody that I mentioned before, two other reports were obtained and were tendered when you appeared on this plea before me.  The first, by Ms Kennedy, a psychologist, recited your drug abuse history.  You additionally reported to her being involved in a motor vehicle accident apart from the assault, relayed to Ms Anderson in 2013 though you could not say when it had occurred.

27You still reported chronic back pain, asthma, and high blood pressure.  You told your legal representatives and Ms Kennedy you had had a stroke whilst in custody in 2019 with mini strokes in the last five years.  I note that in the referral letter from St Vincent's Hospital for Port Phillip Prison dated 21 March 2020, contained in the depositional material the referring doctor notes that you are a poor historian and noted no signs of stroke and poor compliance with medication. That you were supposed to be seen in neurology in 2019 but refused to go to hospital, and that Sunshine Hospital at the request of
Port Phillip Prison had conducted a CT brain scan and that a stroke was ruled out.

28You have been on heart medication and on Elanzepine.  Ms Kennedy undertook an assessment and again found your pre-morbid intellectual ability was average, with some specific abilities lower and demonstrated a well-planned approach, complex task, and visual-spatial organisation was intact.  Although you displayed severe symptoms of depression and extreme levels of anxiety, Ms Kennedy found these were more likely than not to represent an exaggeration of your symptoms, portraying a more negative impression that might be warranted.

29The six year span between assessment made the task of commenting on the extent of recovery difficult, but you demonstrated average to high average general abilities and your general cognitive ability including general reasoning would have been intact, confirming that the improvement forecast in the 2013 report had likely occurred.  It was the drug use which Ms Kennedy found would be likely to have diminished your reasoning at the time of the offences which was concerned with committed in 2016. 

30Notably also, Ms Kennedy noted that you did not demonstrate any significant negative impact of being on remand.  She opined you would require assistance to transition from prison into the community, if you were not to sustain any rehabilitation obtained while in reclusion.  It is clear that that did not eventuate on the occasion after the sentence of April 2019, in which you received
10 months' imprisonment from a Magistrates' Court.  You were released in late September 2019, so you had been out in the community for about a month before committing the offences I am dealing with here. 

31The second assessment received before the sentence of January 2020 was from Dr Cunningham dated 23 January 2020.  He repeats much of the material I have already summarised.  He again find an elevation of anxiety and major depression, post-traumatic stress, and paranoid style.  In his opinion, your brain injury has aggravated your mental health with emotional dysregulation and impulsivity as auditory hallucinations which, however, again was related to what you reported as being a stroke.

32Mr Cunningham's unusually brief report speaks of a stroke years ago as well as head injuries which aggravated your symptoms.  In his opinion, your drug use and ongoing association with drug-using peers are your main risk factors for offending.  I take this mental health history and assessments into account, as well as the impact of drug use upon it.

33You have a significant criminal history, both in Victoria and New South Wales.  It begins in 1992 when you were aged 17 and proceeds with a number of appearances for dishonesty, theft of cars, burglary, deceptions practically every year to the year 2000, including also assault, assault with a weapon, trafficking heroin, and breaches of progressively more serious dispositions from youth training to the corrections orders, community-based dispositions, suspended sentences, and ultimately prison terms.

34In 2000, there is a break to 2005 but you must have gone to New South Wales in that time.  In 2001, you appeared in three different local and district courts there.  Convicted and sentenced for dishonesty, driving dangerously, using an offensive weapon to prevent apprehension twice, assault with intent to rob armed with an offence weapon.  You were imprisoned for two years.

35In 2005, you are back in Victoria sentenced to three and a half years for dishonesty offences and reckless conduct endangering serious injury.  Then soon after release in 2008 you are sentenced to partially suspended period for dishonesty, burglary, and assault offences.  In 2010, that suspension was reinstated, and you were re-sentenced.

36In 2016, a large number of offences were dealt with, again burglary and theft, family violence offences and contraventions.  In April 2019, as I mentioned, you received a 10 month sentence for burglary, theft, handling, violence offences.  You had just been released when you committed these offences.

37In January 2020, you were sentenced to eight months for intentionally cause injury by this court, as has been mentioned.  On that occasion the court dealt with an assault in which you and two offenders assaulted a victim.  You were armed with an iron bar; the victim's leg was broken apart from other injuries. 
I recite these priors in order to assess your prospects of rehabilitation which must in my view be very guarded.

38Apart from noting your unfortunate upbringing and injuries, both to your brain and body, your drug taking and the company of like-minded men, I agree with His Honour that your life has been ravaged by drug abuse, that you are at risk of institutionalisation.  Upon release you went back to ice use and discontinued your medication.  I take these circumstances and history into account. 

39Aggravated car-jacking committed by an adult is classified as a Category 1 offence under s.3(1) of the Sentencing Act.  Under s.5(2G) the court is mandated to make an order for imprisonment under such an offence.  No other order was contended for upon your plea.  The offence carries a maximum penalty of 25 years' imprisonment.  By this maximum the legislature has indicated the very serious nature of this prevalent offence which is one guidepost in the instinctive synthesis involved in a sentence.

40Aggravated car-jacking also has a statutory minimum mandatory non-parole period of three years' imprisonment pursuant to s.10D of the Sentencing Act.  In addition the term of the sentence must be at least six months more than the non-parole period pursuant to s.11(3) of that Act.  There is an exemption to those provisions, if the court finds that a special reason exists in accordance with s.10A of the Act.  There was no submission on your behalf that a special reason exists. The minimum non-parole period I have mentioned is another yard stick which together with the maximum penalty indicates the seriousness with which this offence should be viewed.

41I have had regard to Mamoletti v R 2020 VSCA, as regards the mandatory
non-parole period operating as a guidepost in relation to this relatively new offence.  Whilst not interfering with established principles, and in accordance with the methodology which the court traditionally engages that of instinctive synthesis. Mamoletti provides guidance in respect to current sentencing practices for the aggravated car-jacking offence.

42I have considered it together with a number of cases; DPP v Bright 2020 VCC 1410, DPP v Brooks 2020 VCC 1185, DPP v Harrison 2020 VCC 1025,

DPP v Rauroro 2020 VCC 565, DPP v Cootes 2019 VCC 1690, DPP v Palmer 2018 VCC 2011, DPP v Kennedy 2018 VCC 1769, DPP v Amanamoi 2018 VCC 1507, DPP v Bysouth 2018 VCC 1471, DPP v Barker 2018 VCC 592, and
DPP v Arvidson 2017 VCC 1264.

43In my view, this is a serious offence of clear objective seriousness.  Apart from the aggravation that the offence was committed whilst you were on bail, you effectively attacked a defenceless woman while brandishing a knife and making threats to stab her. This conduct was terrifying for her and it had a great traumatic impact upon her.  She was injured and it occurred just outside a hospital entrance in broad daylight.  The car-jacking was done by you alone and the seizing of the car was relatively of short duration and not committed in company.

44However, it must be denounced by the court in strong terms. General deterrence with stern punishment must be considered a primary aim here, to deter others from this type of behaviour.  In my view, you attract also specific deterrence.  Your prior history raises the need that you be deterred from such conduct and the community rightly looks to the court to be protected from such wanton criminality.

45Your drug use and personal circumstances provide a context but neither an excuse nor an explanation.  The earlier offending in terms of the dishonesty offending seems to follow a long pattern of dishonesty and criminality in your past.  Even though it did not garner much by way of goods taken, nevertheless, you appear to be a contumacious thief and burglar.  This also must be reflected in the deterrent aspect of the sentence. Burglary and theft carry a 10 year maximum, attempted theft five years.

46Although your history of brain injury must be taken into account, in my view your moral culpability is not diminished greatly by or impacted significantly beyond requiring a proportionate and parsimonious response to your criminality.  It was argued that the state of your mental health was aggravated by the brain injury, particularly the diagnosis of major depressive disorder. It was submitted this enlivens Verdins limbs 4 and 5.  In my view, this aspect of your mental health is conditioned by the matters which I have mentioned in some detail before.

47Nevertheless, it is reasonably clear I should take into account your mental health, as affected by injury and some depression in sentencing you in the amelioration of sentence, and I do so.

48I take into account the fact that your plea and incarceration takes place in the midst of the COVID-19 pandemic situation.  This has impacted on the delivery of correctional services, however, the provisions of emergency management days credited to prisoners, the low rates of infection in reclusion, and that continuation of some programs having proved the overall situation in recent times.  Nevertheless, the strictures are more frequent and longer lockdowns, a limit on visits and contact, the unavailability of work and educational programs, the anxiety over distancing and contamination both inside and for loved ones outside must be taken into account, and I do so.

49You were sentenced in January of this year.  I take into account the principle of totality in sentencing you, in order to avoid extinguishing prospects of rehabilitation which are able to be accessed in your future, and the risk of institutionalisation as I mentioned.

50On the attempted theft from the van on 23 October you are convicted and sentenced to two months' imprisonment.

51On the burglary upon the church premises you are convicted and sentenced to six months' imprisonment.

52On the theft from the church you are convicted and sentenced to four months' imprisonment.

53On the aggravated car-jacking you are convicted and sentenced to three years' and nine months' imprisonment.

54On the summary offence Charge 3 of committing an indictable offence on bail you are convicted and sentenced to one month.

55On the summary offence Charge 7 of driving whilst disqualified you are convicted and sentenced to three months' imprisonment.

56I order that four months on count 2 and one month on the drive whilst disqualified summary offence be cumulative on the base sentence.  All other counts to be concurrent.

57That makes a total effective sentence of four years and two months.  I order a non-parole period of three years.

58But for your plea, I would have sentenced you to five years with a non-parole period of three and a half years.

59There is a disposal order in relation to some scheduled items which I have signed.  Mr Kendall, is cancellation and disqualification relevant in relation to Mr Moyle and his license?

60MR KENDALL:  Yes, there is, Your Honour.

61HIS HONOUR:  I am sorry?

62MR KENDALL:  Yes, there is, Your Honour.

63HIS HONOUR:  I am sorry.  I just cannot catch that, Mr Kendall.

64MR KENDALL:  Sorry, Your Honour.  Yes, there is.

65HIS HONOUR:  Is there a minimum or is it discretionary?

66MR KENDALL:  It is mandatory.

67HIS HONOUR:  What is that period?  What is the mandatory period.

68MR KENDALL:  Just one second, Your Honour.

69HIS HONOUR:  Yes.  I just want to know the mandatory minimum.

70MR KENDALL:  There is no period, Your Honour.

71HIS HONOUR:  There is no period?

72MR KENDALL:  No period, Your Honour.  No.

73HIS HONOUR:  So, that must mean that it is a discretionary period.  I note that he is charged and convicted for driving whilst disqualified and just pardon me for a moment. Yes, I think the Crown opening simply mentions license cancellation.  So, I will impose a period that is appropriate in the circumstances, pursuant to that particular conviction.  I was endeavouring to look at his priors and I think there are a number of thefts of motor vehicles in his past at the very least, which would enliven.  There are also driving offences which pertain to being suspended, unlicensed, or drive whilst disqualified.

74Mr Moyle's license will be - all licenses will be cancelled; he will be disqualified from obtaining a license for a period of three years.

75Are there any other ancillary orders, Mr Kendall?

76MR KENDALL:  No, Your Honour.

77HIS HONOUR:  Thank you. 

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