Director of Public Prosecutions v Myatt and Maynard

[2014] VCC 215

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

AT LATROBE VALLEY

CRIMINAL DIVISION

Case No. 13-02092

DIRECTOR OF PUBLIC PROSECUTIONS

v

CHRISTOPHER DAVID MYATT
CODY MAYNARD

---

JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	LaTrobe Valley
DATE OF HEARING:
DATE OF SENTENCE:	3 March 2014
CASE MAY BE CITED AS:	DPP v Myatt & Maynard
MEDIUM NEUTRAL CITATION:	[2014] VCC 215

REASONS FOR SENTENCE
---

Subject:  
Catchwords:            
Legislation Cited:     
Cases Cited:            
Sentence:                 

---

APPEARANCES:	Counsel	Solicitors
For the DPP	Ms J Taylor	Mr C. Hyland Solicitor for Public Prosecutions
For the Accused Myatt	Ms K McFarlane
For the Accused Maynard	Ms B Nowak

HIS HONOUR:

1       In regard to indictment C 1309144, you, Cody Maynard and Christopher David Myatt, have pleaded guilty to one charge of aggravated burglary and one charge of theft.  Those crimes carry maximum penalties of 25 years and ten years respectively.

2       You, Christopher David Myatt, on indictment number C 1309003, pleaded guilty to one charge of recklessly causing serious injury and one charge of criminal damage.  Those crimes carry maximum penalties of 15 years and 10 years respectively. 

3       You, Mr Maynard, at the time of the offending were 19 and you are now 20.  You, Mr Myatt, were 24 and are now 25.  The offending happened, in your situation, within a few months. 

4 Firstly in relation to each of you, I make an order pursuant to s.464Z of the Crimes Act that you provide a saliva sample for DNA purposes. That order having been made, I must advise you that should you refuse to provide such a sample, police may use reasonable force to take it from you. That order is now made and I will sign them later.

5       Each of you have pleaded guilty at the earliest reasonable opportunity so far as these matters are concerned and within your respective limitations, have expressed appropriate remorse. 

6       Each of you must, of course, get the utilitarian benefits of your pleas of guilty and somewhat surprisingly, neither of you have any prior convictions, though you, Mr Myatt, have, as I understand it, some other matters pending in a Magistrates' Court which are no concern of mine.

7       I will deal with the matter where you are co‑accused.

8       There was a third offender involved in that matter, and Mr Milner, who is to be dealt with in the Children's Court.

9       On 22 January 2013, you, or all of you, spent the evening together with ‑ you, two, sorry, with Tyler Milner, at your residence in Helen Street, Morwell, Mr Myatt. 

10      During the evening there were discussions, watching movies and it led to the decision to commit an armed robbery, the motivation to obtain money to enable the purchase of alcohol.  You, Mr Myatt, began searching the house for disguises and weapons to use in the offending.  You obtained a wooden bat similar to a baseball bat, a large rain jacket and a hooded jumper.  Mr Milner collected a “scream” mask which covers the entire face, and a large hooded jumper.  He also collected a wooden bat similar to a baseball bat, and a backpack.  You, Mr Maynard, grabbed a large pull over hooded jumper and a kitchen knife.

11      You remained at your residence, Mr Myatt, to plan the offending, and it was decided to make the target the BP service station in Morwell, which operates for 24 hours.

12      On the night of 23 January 2013, the operator, Mr Anama Nido, was working the night shift.  You waited until the early hours of the morning and left Mr Myatt's residence at approximately 2 am in possession of the disguises and weapons.  You walked from Helen Street to the other side of Morwell and approached the service station.  You, Mr Maynard, were the first to approach the door.  The door, when the attendant saw you coming, was locked using a remote button.  Initially the door would not open and you, Mr Maynard, kicked it and that permitted entry. 

13      As your group entered, the victim fled in fear towards the back staff room and locked himself inside. 

14      You, Mr Maynard, and Mr Milner, were yelling at him demanding he return saying "Get back here".  He did not come back. 

15      You two approached the counter.  You, Mr Myatt, remained at the door to prevent it from locking you all inside.  You, Mr Maynard, stabbed the cash register with the knife in an attempt to force it open but that did not work. 

16      After the victim refused to return, the group of you took chocolate bars and bread before fleeing.

17      The victim phoned the police and you were all ultimately detained.

18      As far as you two are concerned, you both made full and frank admissions and I take that into account insofar as the mention I made before of the reasonably early pleas of guilt and remorse.

19      There is a victim impact statement which relates to each of you and I think it is very simple and very concise: 

After this incident, I am too much stressed and whenever I work night times it's like a nightmare for me.  This incident changed my life for nearly four to six months.  I can't able to sleep properly and when even I am working, if I hear any noise I was tensed.

20      That is why, effectively armed robbery, though it is described as an aggravated burglary, is such a serious offence.

21      Clearly that offending calls for the application of general and specific deterrence in the normal course of events as well as denunciation and punishment.  I will deal with each of you separately and deal with you first, Mr Maynard, because I then need to deal with Mr Myatt and his other offending.

22      In your situation, Mr Maynard, the submission was that a Community Corrections order would be sufficient.  The situation is that I would not have given you adult imprisonment but had obviously to consider, bearing in mind the seriousness of the offending, the imposition of a Youth Justice Centre order.  I have had you assessed both for Community Corrections order and Youth Justice and you are suitable for each.

23      Tendered on your behalf were a report from Mr David Bruce, psychologist, a letter from your mother, a letter from yourself and a letter from a residential support worker.  They indicate that you have been doing your best and the conduct was something that surprised them. 

24      Mr David Bruce's report points out your background, which I will not have to go into in great detail.  He said that you never met your father and had no knowledge of him.  You and your brother got along well your mother and over the years you had been, though literate, unsuccessful in gaining employment. 

25      It points out that you have no prior convictions and nothing pending. 

26      You have a history of intermittent use of cannabis and methamphetamine, with minimal alcohol.  You claim that on the night of this offending you and the others were using ice. 

27      Ice, I interpolate, is an extremely dangerous drug and has been the subject to of much discussion in this court over the last week.  It totally disinhibits and can cause people to behave in a way they might not otherwise do and can react with extreme violence.  One can only think that it is probably lucky that that gentleman was able to lock himself out the back and not remain to have to deal with the three of you.

28      You have a partner.  At the time of the offending you were not living at home.  I am not quite sure where you were.  You might have been with another co‑accused.  You are now at your mothers.

29      In any event, you have not re‑offended since this offending occurred.  You spend most of your time at home with your girlfriend of nine months, or visiting relatives.  You are described there, in that report, as being generally quiet with no element of aggressiveness or confrontation.  Mr Bruce thought that the offending was out of character and he said could be attributed to the deleterious effect of the discussion that were used.  That can never mitigate a crime.  It just simply puts it into a context.

30      In your circumstances, Mr Maynard, you have been assessed as a low risk of re‑offending.  You participated in the Koori court sentencing conversation and whilst you were at times somewhat monosyllabic, you certainly did your best.  By reason of that conversation, it does not reduce your offending per se, but I accept that you are ashamed of what you did and at somewhat of a loss to understand why you did it.  Your mother was present at that conversation and was also able to speak on your behalf.  I thought you engaged with the elders well and displayed a desire to rehabilitate with, I fear, not that great an understanding of how to go about it. 

31      As I have indicated, the various reports were obtained. 

32      I also take into account, on your behalf, insofar as parity is concerned, that Mr Myatt, it is virtually agreed, will be receiving a Community Corrections order. 

33      He was five years older than you.  Neither of you had any prior convictions but he has a very significant intellectual deficit, which I will be referring to later on.  However, I have to take into account that parity insofar as that is concerned and also insofar as Mr Jago is concerned, when I deal with Mr Myatt.

34      The Court of Appeal in the matter of Tomguenen, referred to a couple of earlier decisions, such as the DPP v Leach where Neave JA said: 

“It is particularly important that this court should not devalue or deny the right of a sentencing judge to act mercifully in a case where it seems to the judge to be an instance where an opportunity for reformation of the offender ought be grasped.  That, after all, may be the decision which rebounds very much to the benefit of the community.”

35      Maxwell P said in DPP v Tocava: 

A sentencing judge should be astute to investigate whether a non custodial disposition is to be preferred, even in the case of a serious offence, if, in the long‑term, the community's interest will be best served by that course.  This course should seek to promote public understanding of the fact that apart from the (indistinct) of the individual who it is sought to rehabilitate, an important interest in itself, is a vital community interest in maximising the prospects of rehabilitation of an individual who has been convicted of a serious crime.”

36      It is also in a situation such as this, important to note that the dispositions available are, for you, YTC or a CCO.  The optism of a suspended sentence is no longer there.

37      In the reading speech, the attorney said: 

The purpose of the CCO conditions is to allow a court greater flexibility to impose a less restrictive order that imprisonment, where appropriate, potentially leading to a reduction in sentences of imprisonment with advantages such as the promotion of the offender's rehabilitation and the preservation of family and community ties. This supports the broader purpose of the Sentencing Act to prevent crime and promote respect for the law by providing sentences that deter re‑offending and allow the court to denounce the criminal conduct, including the harm caused to the community and (I interpolate the victim) by the crime and to provide sentences to facilitate the rehabilitation of offenders and ensure that offenders are punished to the extent justified by the offence.

38      There is a number of matters in your situation, Mr Maynard, which have led me somewhat hesitantly, I must say, to the view that a Community Corrections order in this situation suffices. 

39      Firstly, it will be with conviction, which is a punishment in itself. 

40      Secondly, you have now returned home and have stable accommodation.  You have not used, I accept, for some 13 months.  You have no prior convictions and you have nothing pending.  You are in a situation where you have commenced to rehabilitate and to impose a custodial sentence upon you now, albeit a Youth Justice one, would, to my mind, not suit any useful purpose. 

41      It is also difficult to see how I could do that to you when that is not what will be happening with Mr Myatt.

42      I also take into account, as I think I have indicated, that the risk of you re‑offending is, according to Corrections, low.

43      Accordingly, if you agree, I am proposing to order a Community Corrections order but there are a couple of things you need to understand before you agree to it. 

44      You are now 20.  If you breach it, the odds are very high that the sentence that is imposed in breach will be adult gaol.  At 21, you cannot be put on a YTC and I think you would struggle in gaol, Mr Maynard.  I really think you would.  I think you know that.

45      Also, you have indicated that you have not worked and that you have been waiting for this matter to be dealt with.

46      The conditions that I am going to put in the Community Corrections are, as I said, it will be with conviction, I will put in the drug and alcohol component.  There will be 300 work hours over three years.  I direct that treatment hours can be counted as against the work hours and I think that is sufficient punishment and sufficient supervision for you in this situation. 

47      What I am also going to do is that in that order I am going to have a condition of judicial monitoring.  I will be back here in May.  On 30 June, you will come back before a Koori court and you will tell the elders what has happened in the meantime, and I make this clear to you.  Nothing occurs unless you breach, either by offending or by non complying with the conditions, okay?  But when I see you back here, on that day, I expect you to have a job, all right?  If you haven't got a job, you can tell the elders why not and I want you to bring material showing that you have been trying to get a job if you haven't, okay?  You're a very lucky man today and you cannot risk adult custody, all right?  So we'll do that. 

48      That order is made.  You can leave the dock. 

49      Now, so long as everyone in the family understands the situation he's in, if he messes this up, he's in, adult, okay? 

50      Insofar as you're concerned, Mr Myatt, I have little confident that you're going to follow this for very long but I'll do what I can. 

51      You, as I have indicated, have additional charges.  They relate to a circumstance where you and a Mr Jago and a Mr Goodall were drinking at an address in Elgin Street, Morwell.

52      During the course of that night, you told the others that you believed that the person you were residing with was a woman beater and a rapist.  The three of you then formulated a plan to attend at his address and to confront him.

53      At approximately 9.15 pm, the three of you attended that address.  He was in the bathroom having a shower.  The three of you burst into the bathroom.  He was kicked in the chest, causing him to slip over in the bath and strike his head on the side of the bath.  Each of you punched and elbowed him while he was in the bath, to his head and his body.

54      He was then dragged from the bath into his bedroom by you and Mr Goodall and you continued to assault him. 

55      At some stage his TV was smashed, which I understand to be the criminal damage. 

56      He was then dragged into the loungeroom by you and Mr Jago where you continued to repeatedly kick and punch him all over his body.

57      A short time later he ran out in the road.  You and Jago followed him, kicked his feet out from under him and continued to punch and kick him.

58      As a result of that he suffered serious injuries. 

59      On the report that was provided for police, he was in pain, suffered bilateral black eyes, he was tender over the mid line cervical and thoracolumbar spine, had bruises on his right shoulder and his left thigh, had multiple abrasions and superficial lacerations on his left shin, but the most serious injury, I think, was the multiple facial fractures, bilateral zygomatic arches left orbital floor low out, right orbit floor, right zygoma, right maxilla and maxilla sinus nasal bone and pterygoid plates bilaterally. 

60      As I said to Mr Jago, that man was given a hell of a hiding by you three.  They are serious injuries indeed.

61      I have read Mr Willis's victim impact statement as I recall, from dealing with Mr Jago.  There are matters in that which I do not take into account but what it does do, as I said to Mr Jago, is describe vividly the terror that man felt being attacked by the three of you for reasons apparently unknown to him and not even giving him the opportunity of explaining himself. 

62      Obviously I take that victim impact statement into account. 

63      You, upon being arrested, made full admissions and told police that you had an intense hatred of rapists as your sister had been a victim.

64      I do not know how much of that is true.  Again, as I said to Mr Jago, but in the end of the day you did make full admissions.  It is also important to understand that in the lead up to this you were clearly in a state of psychiatric distress. 

65      You were observed in the police cells beforehand behaving very strangely indeed and I suspect it was with some reticence that you were released.

66      The situation is, and I can do this briefly, I think, because I will direct that all the reports remain on the court file.  I don't want to have to put Mr Myatt through this for a quarter of an hour.  We all know what the situation is.

67      The situation is, Mr Myatt, that you have an intellectual disability and are eligible for disability services.  You have been since around about 2003.

68      You have an IQ of 53 which is, to say, unusually low is on understatement.  I am well aware of the authorities in regard to such situation as yours and clearly the principles of general deterrence, specific deterrence and moral culpability have to be reduced in respect of all the offending which you have pleaded guilty, although it is, obviously, serious offending.

69      Tendered before me are the reports of Dr Carroll, Dr Walton and the DHS intellectual disability report, together with an overview.  I also, back in December with these matters were first raised, had you assessed for a Community Corrections order and you were deemed to be suitable. 

70      You have had an unfortunate life and it is described in the reports that have been tendered. 

71      The assessment for eligibility report, which I have seen dates back to when you were 14 and points out the difficulties that you were having at that stage, very few friends, difficulties at school and the like.  That would appear to have continued on and Dr Carroll has described you in the following terms, and this is just very much me taking that as out of that report, as I have indicated, the entire report will remain on file.

72      Dr Carroll, of course, is a psychiatrist.  He said: 

73       "Although he was cooperative throughout, rapport was somewhat limited by his rather theatrical, insouciant style of presenting himself and his evident desire to shock the interviewer as to the extent of his lack of concern about his health, himself and his behaviours".

74      He went on to describe how, in late 2012, not long before this offending occurred, you had found your father's dead body which, apparently because of the time of death, was somewhat grotesque in appearance.  It is clear that that has thrown you and when reading this out I am taking very much in to account, as I have indicated, the quite astonishing, I think, fact that you have no prior convictions bearing in mind your background. 

75      You do report having sometimes heard voices.

76      You have, subsequent to this offending, been admitted to the psychiatric unit at Gippsland and you have been there before.  You cannot describe the circumstances that got you in there but seem to believe it was drug induced psychosis.

77      You have never worked.  You first used cannabis at the age of 13 and I continued to do so.  You have used amphetamine, although I do not think that is really a problem in this situation.

78      The overall description given by Dr Carroll was: 

He described an isolated, marginalised existence.  He lives alone in a flat and mainly exists on take away food, rarely cooking for himself.  He did not have any social supports outside of his DHS supports claiming that "Most people are too afraid to come near me".  He spends his time playing video games and feels that he is incapable of work.  It was unclear as to whether he was in receipt of a disability support pension.

79      It seems, from Dr Carroll's report, that your father's support of you, bearing in mind that you did not know your mother, was very significant and the loss of him has caused you great concern. 

80      The report of Dr Walton I think simply confirms what is in Dr Carroll's report and talks about you having been admitted with drug induced psychosis in varying conditions.  He points out also that you are substantially illiterate, have marked deficient arithmetical skills.  He said you were unable to accurately orient yourself in time and memorising was deficient.  He said it is clear evidence of disability.

81      He said that he thought that it was your perceptions were more the rather bazaar imagining of an intellectually disabled person rather than a genuine, enduring psychotic illness such as schizophrenia.

82      I have already been through the victim impact statements and I do not see any real need to do that again.

83      There is a justice plan that has been put in place which requires you to undergo regular mental health checks and I think that the justice plan is very sensible.

84      As I indicated to counsel, what I am going to do is because I can only impose a justice plan, which lasts for two years, on completion of that, the drug, alcohol and mental health provisions of the Community Corrections order will kick in. 

85      I think in your situation, where you now seem to be, at least, complying better and looking more for help from DHS, that a period of four years is the appropriate time for the Community Corrections order.

86      Insofar as all this matter is concerned, I also take into account the following.  You have made an offer to assist in the prosecution of the co‑accused of Mr Goodall and I give you the benefit of that.

87      You have not given an undertaking but watching you the other day as that plea was taking place, I do not think it would have assisted us too much.  I accept that you will probably be called by the Crown insofar as Mr Goodall is concerned and you must get the benefit of having made that offer.

88      You have also been in incarcerated for 14 days in relation to the matter which would be a significant difficulty for you.

89      It is clear, even though you have this blithe, as I think Dr Carroll described it, disregard for imprisonment, that you would struggle very much, long‑term, in an adult gaol.  It is clear that there are people within the disability client services who are concerned about you and indeed Ms Berry was here on Friday and has come along again today.  She is going to endeavour to assist you with carrying out the 464 application and matters such as that. 

90      I do not think there are is any much point in me saying much more as I do not think you are listening.

91      On the matters relating to Mr Jago, which is indictment C 1309003, you are sentenced to be imprisoned for a period of 14 days to be followed by a Community Corrections order in the terms that I have described.

92      I direct that 14 days be reckoned as having been served under this sentence and the sentence is therefore complete. 

93      Insofar as the other matters are concerned, that is indictment C 1309144, a four‑year Community Corrections order, these are with conviction, which is a punishment in itself, in the same terms and conditions.  Obviously there is no gaol attached to that one.

94      I direct that the two Community Corrections orders run concurrently and that the justice plan be attached thereto and the appropriate reports made. 

95      Those orders are made.  As indicated before, this is a situation where I have endeavoured to take parity very much type account with all this.  Mr Jago is doing well in his Community Corrections order.  I would be very surprised if Mr Maynard re‑offends and Mr Myatt has got the opportunity, so we will see how it all works out.

96      Those Corrections orders are made. 

97      Ms Berry, you will be assisting him in terms of attending within the next 48 hours and getting all that stuff done.  I just don't want him back next week.  Thanks for that.

98      Ms Taylor, the 464 that I've got is the custody one.  Would you be able to email to my associate?  The order's made but it will be ‑ that's in regard to Mr Maynard.  I've got Mr Myatt's and I've signed that.  I'll hand that down now.  Mr Myatt's is made and handed down and my associate will send you a copy of that but Mr Maynard's, I need the non custodial one. 

99      MS NOWAK:  So the order for Myatt is okay and ‑ ‑ ‑

100     HIS HONOUR:  That's made and handed down, yes.

101     MS NOWAK:  I thought I actually handed up both, Your Honour, for Maynard.

102     HIS HONOUR:  No, not for Maynard, no, it was just the one.  Unless I've lost it and I'll take responsibility for that.

103     MS NOWAK:  Anyway, I will email it to your associate again.

104     HIS HONOUR:  I would appreciate that as, indeed, will Mr Maynard. 

105     There are no other orders I need to make or there are no forfeiture ‑ ‑ ‑

106     MS TAYLOR:  Nothing else, Your Honour.

107     HER HONOUR:  No forfeitures in relation to Mr Myatt.  I think that all happened with Mr Jago, didn't they.

108     MS TAYLOR:  Your Honour, I believe ‑ I asked the informant anyway and I wasn't asked to get them, so ‑ ‑ ‑

109     HIS HONOUR:  That's okay.  If you haven't been asked, we won't do it.  

‑ ‑ ‑