Director of Public Prosecutions v Moyle

[2019] VCC 779

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

AT GEELONG
CRIMINAL JURISDICTION

CR 19-00203

DIRECTOR OF PUBLIC PROSECUTIONS

v

DYLAN MOYLE

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JUDGE:	HIS HONOUR JUDGE LYON
WHERE HELD:	Geelong
DATE OF HEARING:
DATE OF SENTENCE:	30 May 2019
CASE MAY BE CITED AS:	DPP v Moyle
MEDIUM NEUTRAL CITATION:	[2019] VCC 779

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr G. Hayward
For the Accused	Mr J. Mortley

HIS HONOUR: 

1Dylan Moyle, you have pleaded guilty to one count of intentionally causing serious injury.  The maximum penalty for this offence is 20 years' imprisonment.  It is also now legislated as a Category 2 offence.  Accordingly, it is mandatory that I impose a period of imprisonment, (as it was conceded by your lawyer that a term in a youth justice centre was not available), unless a special reason applies.

2It was not suggested that a special reason applied in your case.  Accordingly, the plea proceeded on the basis that Mr May submitted that you are facing a period of imprisonment with a head sentence and a non-parole period to be set.

3You admitted your prior criminal history.  I shall return to the relevance of your prior matters later in these sentencing remarks.

4The prosecution tendered the amended summary of prosecution opening as Exhibit A.  A summary of your offending is as follows:

5At the time of the offending, you were 20 years of age.  Your victim, Andrew McMillan, was himself only 21 years of age.

6In the lead up to the offending on 11 November 2018, Andrew McMillan had been in a relationship with your former girlfriend, Brooke Trickey.  Throughout their relationship you remained entirely jealous and harboured tremendous animosity towards Mr McMillan.  The pair had lived together in Highton since early-2018, but by October 2018, the relationship was near its end.  Nevertheless, the pair continued to live together sporadically.

7You made your animosity towards Mr McMillan well-known.  In January 2018 when Trickey and Mr McMillan were still living together, you sent him a message stating that he should 'expect a knife in his guts.'  In September 2018, you posted a public message on social media about Trickey, stating that you would get her back, even 'killing her current.'  Then over the course of 9 and
10 November 2018, you exchanged messages with your friend, Gerard Brady, stating that you wanted to stab the victim in the stomach.

8On the evening of 10 November 2018, Ms Trickey and Mr McMillan argued.  
Mr McMillan asked Ms Trickey to pack her things and leave.  He then fell asleep at the house he shared with his father.

9A couple of hours later in the early hours of 11 November, you went to the house with Brady and Trickey.  You entered his room, ransacked it looking for drugs, and went into another room.  The victim followed and asked Trickey for his phone back.  He then returned to his room to grab some valuables.  He also grabbed a small axe which he had left at the front door.  The axe had a safety cover over the 15 centimetre blade.

10As he walked towards the hall, Brady told Mr McMillan to put the axe down, which he did.  Brady then threw the axe down the hallway.  McMillan turned to speak to Trickey when you struck him to the left side of the head with the axe.  You had removed the safety cover.  Mr McMillan raised his arms in
self-protection and he was struck further on the left arm and right hand, covering his face.

11Although he remained conscious, Mr McMillan had lost a massive amount of blood and firmly believed he was going to die.  In fact, he accepted his death was inevitable.  Ms Trickey drove him to hospital in Geelong.  He was flown to the Alfred Hospital and underwent seven hours of surgery. He sustained the following injuries:

·  A 15 cm long laceration to the head;

·  A fracture to the base of the skull;

·  Lacerations to the chest wall;

·  Laceration, fracture and tendon damage to the left forearm requiring the insertion of metal plates and screws, resulting in a permanent limitation to the use of the left hand;

·  A laceration and fracture to the finger;

·  Broken ribs;

·  A fractured cheekbone;

·  Facial nerve damage and torn facial muscles with bone fragments lodged inside, causing the permanent restriction of jaw movements; and

·  A burst ear drum.

12You were arrested later that morning and interviewed by police.  You made admissions to your offending.  You told police that after the axe landed on the floor, 'I picked it up and then just hit him with it repeatedly.'  You told police that you had done 'a terrible thing.'  You were remanded in custody.  You have now spent 200 days by way of pre-sentence detention.

13You told psychologist, Gina Cidoni, that you were abusing methamphetamines, GHB and Xanax around the time of the offences.  You were hardly sleeping and you were overcome with anger.  You told police and the psychologist that you had blacked out as you assaulted Mr McMillan.

14I note at this stage, on 6 September 2017, you were convicted of trafficking Xanax, possession and use of a prescription drug and using MDMA.  You were placed on a community corrections order for those offences.  More importantly, on 14 June 2018, you convicted of a public nuisance and of breaching the previous CCO.  You had posted public Facebook messages, indicating that you were going to commit a mass shooting.  Although you had no intention of doing so, you were under the influence of drugs and you were depressed at the time you did so and stated that you had posted the messages in order to gain attention.  You were placed on a further community corrections order.  Your offending on 11 November 2018 breaches the June 2018 CCO.  I can only conclude that the CCO had done nothing whatsoever to curb your drug use of drugs, or to influence or modify your behaviour over the five months you had been on the order.

15I received two victim impact statements on the plea; one from Andrew McMillan and one from his mother, Linda Dempsey. Although both were read in court, it is necessary to refer to the contents of those statements in some little detail. It is apparent that Mr McMillan is having tremendous difficulty coping with the mental scars of the injuries you caused to him and also the limiting effect of the injuries themselves.  They have reduced his confidence and enjoyment of everyday life.  You have made him scared to go out, but also uncomfortable in his own home where the attack occurred. Mr McMillan refers to the fact that you assaulted him to the point where he actually thought and accepted that he was going to die.

16Linda Dempsey witnesses the mental scars that you have caused her son.  She also writes of the toll you have taken on their family.  Mr McMillan’s father has had to give up work so he could look after his son.  The pair now live on unemployment benefits.  It is apparent that Ms Dempsey fears for her son and his future.  She finds it stressful and upsetting to watch what he is going through on a daily basis.  It cannot be taken lightly when she says, 'I can only hope that he is strong enough to go on and can overcome his struggles.'

17The seriousness of your offending is obvious.  That the offence carries a maximum of 20 years' imprisonment and now carries a mandatory period of confinement, demonstrates that all cases of this offence must be met with stern punishment.

18In this case, you assaulted the victim in his own home in the middle of the night.  You entered the home, not at his invitation, but that of his partner who gave you access.  I accept, as was urged, that your use of the axe as a weapon was not premeditated.  Nevertheless, this was a vicious and sustained attack.  For the fact that Mr McMillan had brought out the axe out and then put it down, there was no act on his part which could ever entitle you to pick it up, let alone repeatedly striking him to various parts of the body. He was entirely defenceless to your conduct.

19The physical injuries and consequent scarring will stay with this young man for the rest of his life.  It is not clear how deep the psychological scarring goes, but at present, it is life-changing for him.

20Some of the factors by which the court is able to assess the gravity of your offending are as follows:

·First, your proven intent.  Was it to cause serious injury, or really serious injury, or the maximum possible injury;

·Second, the seriousness of the injury actually caused both immediate and long-term consequences to the victim;

·Third, how vulnerable the victim was;

·Fourth, the use of the weapon and the type of weapon used;

·Fifth, the duration of the attack on the victim; and

·Sixth, whether you acted alone or in company.

21Of these factors, your intent and the seriousness of the injuries are considered the most important in judging the objective seriousness of your offending.  In this case, your repeated use of the blade of an axe to strike your victim to the head, limbs and torso speaks of the seriousness of your intention to cause him very serious injury.  Your actions have caused the victim to lose some of the use of his left hand.  He has a constant reminder of the injuries you caused to him every time he uses his jaw.  These injuries remain with the victim for the rest of his life.  It is impossible to say how long the psychological scarring will stay with him.  I can only assess this as a serious instance of a serious offence.

22Moreover, the attack was made in the dead of night, waking the victim from his sleep, with the use of a heavy bladed weapon in entirely unprovoked circumstances.  That makes this a serious example of this type of offending.  Although you attended in the company of others, you acted alone.  Your attack was not momentary.  Mr Brady tried to pull you off and you acted again before he was able to finally pull you away from Mr McMillan.  Your conduct attracts the principles of deterrence, denunciation, just punishment and a measure of protection of the community.  People are entitled to feel protected and safe in their own homes.

23The legislation provides for the imposition of a mandatory period of imprisonment in this case.  Mr May, on your behalf, conceded that a head sentence and non-parole period must and ought be imposed.  The sentence
I impose upon you must send a clear message of deterrence.  Drug-fuelled, unchecked violence causing injury, the use of weapons and in this instance, the appalling opportunistic use of such a potentially lethal bladed weapon, can only be met by stern punishment.  You, Mr Moyle, face a long period of imprisonment.

24I turn now to your personal circumstances.  You are 21 years of age and were born on 13 April 1998.  You were 20 years of age at the date of the offending.

25You were born in Warrnambool and raised in Geelong by your parents.  Your parents separated when you were 16 years of age.  You have twin sisters age 17 and one brother age 16 living at home with your mother.

26You attended Leopold primary and then secondary schooling at St Ignatius College in Geelong to Year 12.  You worked casually at Target from 14 but resigned at the age of 19 because you had to travel from Ocean Grove.

27You started using cannabis daily from age 15 and then from age 18, you were smoking ice and taking ecstasy on weekends, as well as GHB.  You also admit to abusing Xanax.  You drank heavily in your teenage years and often blacked out as a result of excessive drinking.  Your substance abuse has never been treated.

28Psychologist, Gina Cidoni, assessed you as having cognitive functioning in the low/average range.  Ms Cidoni reports that the assessment of your personality revealed some mild anti-social traits, depression, anxiety, some psychosis and paranoid ideation that is most likely drug-induced. Accordingly she concluded that you meet the criteria for substance abuse disorder with stimulant intoxication, according to the diagnostic manual.

29Since being remanded in prison, you have completed a number of
drug-awareness and some vocational courses.  You have returned negative drug screens.

30Importantly, you have expressed unsolicited remorse for your conduct.  You told the police how sick you felt at your actions.  You said you spoke to God whilst in the holding cells and you decided to tell the whole truth.  The answers you gave in the record of interview conducted hours after the attack, impress as truthful.  Further, when you were interviewed by Ms Cidoni on 16 May 2019, you again confirmed that you were immediately sickened by your actions.  You expressed your sorrow for what you had done to him.  Ms Cidoni concluded that you were remorseful for your conduct.

31In a comprehensive plea conducted on your behalf, Mr May submitted that the following factors ought to mitigate your offending:

32First, your plea of guilty was made at the earliest stage. The plea was augmented by the full admissions you made to the offending and your acknowledgement to the police of the seriousness of your conduct.  In addition to the utilitarian benefits of the plea, it was submitted that it should be taken as evidence of remorse.

33Remorse is a word that is much used, but little evidenced in many pleas conducted in this court.  However in this case, I do consider that there is support for the submission that your plea in this case was made with an element of genuine remorse.  I consider that the sentence that I impose upon you should be mitigated, taking into account both the utilitarian benefit of the plea and your remorse.

34The next aspect of Mr May’s submission was that your limited prior criminal history should not invoke a particularly stern measure of specific deterrence.  Whilst your most recent prior matter is disturbing, I am prepared to find that you do not have prior matters for direct violence.  The concern that I have already expressed, however, is that through 2017 and 2018, you had opportunities to comply with court orders, yet you readily breached both of them.  The second breach is serious, as you remained drug-affected when you breached the community corrections order.  This offending demonstrates your low regard for the opportunities afforded to you and your complete failure to take responsibility for your substance abuse issues.

35Finally, Mr May submitted that you must be treated as a youthful offender and that rehabilitation remains an important factor.  In assessing your prospects for rehabilitation, Mr May submitted that weight should be placed on the programs you have undertaken in prison, the provision of clean random drug screens and the fact that before you were assaulted in custody, you were completing the Everton mission-based program at the Ravenhall prison.  That was interrupted by the fact that you were assaulted whilst in custody and you have now been moved to a different prison.

36Mr May submits that your prospects for rehabilitation are also enhanced by the support still shown to you by your family, who were present in court during the plea, your absence of any violent offending previously in your criminal history and your recognition of the fact that your prospects for rehabilitation are inextricably linked to you remaining abstinence from using illicit drugs.  Mr May submitted that your prospects for rehabilitation probably remain guarded until you are able to demonstrate an ability to remain drug-free outside the confined environment of prison.

37Mr Hayward, on behalf of the Crown, agrees that your youth means that your prospects for rehabilitation should factor in both the head sentence and
non-parole period. Nevertheless, the Crown submits that I should have regard to the fact that the mitigating effect of youth may be somewhat diminished by the seriousness of this offending.

38In the end, I consider that your youth should be used to mitigate both the head sentence and the non-parole period, and that I must give some more weight to your prospects for rehabilitation. The reality is though that you have been trapped for some time in a cycle of multi-drug abuse.  Your prospects for rehabilitation will not be properly tested until you are released from prison and return to the community and the freedom of everyday life.  I recognise that you will need a substantial structure and support on your eventual release from prison.  This will come in the form of parole.  You will need to work hard in prison to give yourself the best chance of release on parole.  The real work will come when you are granted parole and beyond, if your prospects for rehabilitation are to come good.

39In the course of his submissions, Mr Hayward referred to the case of Nash.  Apart from the factors by which the seriousness of the offence is to be considered, Mr Hayward referred to the table of cases at the end of the decision in Nash.  Whilst Mr May submitted that your offending should be seen towards the lower end of seriousness, Mr Hayward submitted that by reference to the cases, your offending should be seen towards the upper end, rather than towards the lower end.  However, as Mr Hayward submitted, and I agree, whilst comparable cases might provide illustrations of sentences imposed in other cases, sentencing practices are not constraining on me.  I must have regard to the unique circumstances of this case and to your circumstances and to reach a balance to achieve the just sentence in this case.

40Mr Moyle, can I ask you to stand please.

41On the charge of intentionally causing serious injury, you are convicted and sentenced to a period of six years and eight months' imprisonment. 

42I order you serve a non-parole period of four years and two months' imprisonment. 

43I declare the period of 200 days pre-sentence detention reckoned as already served.

44But for the plea of guilty, I would have sentenced you to a period of eight and a half years, with six and a half years to serve.    

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