Director of Public Prosecutions v Myers

[2017] VCC 883

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-00417

DIRECTOR OF PUBLIC PROSECUTIONS

v

RUSSELL MYERS
JOHN MYERS
FRANK TAKTO

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JUDGE:	HIS HONOUR JUDGE GUCCIARDO
WHERE HELD:	Melbourne
DATE OF HEARING:	16 June 2017
DATE OF SENTENCE:	29 June 2017
CASE MAY BE CITED AS:	DPP v Myers & Ors
MEDIUM NEUTRAL CITATION:	[2017] VCC 883

REASONS FOR SENTENCE
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Subject:
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Cases Cited:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr S. Ginsbourg
For Accused Myers	Mr N. Leslie
For Accused Myers	Mr L. Richter
Accused Takto was not represented

HIS HONOUR: 

1Russell Myers, John Myers and Frank Takto, you all pleaded guilty to charges in relation to an event in 2015.  Russell Myers and Frank Takto, you both pleaded guilty to one charge of intentionally causing injury.  John Myers, you pleaded guilty to one charge of recklessly causing injury.

2The circumstances of your offending are as follows and contained in a summary of the prosecution case which was exhibited will be retained on the court's file.  In March 2015 you, John Myers, along with a friend, Damien Lindsay, commenced renting a three bedroom house in Keilor Downs.  You advertised for a third tenant.  The victim, Kanyo, responded to this ad and upon your invitation inspected the house.  You and Lindsay later agreed that he could move in to the room, provided he paid a monthly rent which would be due by the fifth day of each month.  The victim immediately paid you $630 for the first month's rent as well as an additional $630 for the bond and moved in the following week. 

3On 13 April 2015 the victim answered a phone call from the landlord's agent informing that the rent payable was outstanding.  The victim was shocked as he had previously paid his share of the rent to you and believed that Lindsay had also done so. 

4Later that day he confronted you regarding that rent which was outstanding.  You said that his money had been stolen by ‘beings’.  The following day the victim informed Lindsay what had happened and Lindsay himself confronted you regarding the rent money.  You claimed that the money had been stolen. 

5Later on that evening while you were out of the house, the victim and Lindsay searched your room, found a sum of money that amounted to the overdue rent.  They took the money and the following day the victim went to the bank and deposited it directly into the landlord's agent's bank account to account for the outstanding rent.

6Lindsay later explained to you, Russell Myers, that he and the victim had found what they believed to be the missing rent money in your brother’s and had taken it to pay the landlord. 

7On 16 April, a CAT was called to the property to assess you, John Myers.  You had been displaying some disturbed behaviour.  You were admitted to a hospital as a psychiatric patient and remained there for ten days.

8Upon returning home, you accused the victim of stealing the bond money from you.  The victim then spoke to you, Russell Myers, and explained what had been going on with the unpaid rent and your brother's disturbed behaviour leading up to his hospital admission.  Over the following weeks, you, John Myers, behaved aggressively towards the victim and Lindsay.  You refused to pay rent and in May the victim and Lindsay were forced to pay the entirety of that month's rent, covering your share between them.  They later confronted you about the rent and you again became aggressive.  Lindsay was forced to call Northwest Mental Health Services for assistance who referred him to the police who attended and spoke with you.  They told Lindsay and the victim that it was a civil matter and left.

9Whether that money was being withheld for repairs is not a matter that I need to make a finding about.  It may have been the case but in any event following the argument with the victim regarding the rent, police attended for a second time in May.  You informed them that you were withholding the payment of rent until the landlord completed certain remedial works on the house.  Police again told the victim that the dispute was a civil matter and left.

10Later that evening the victim was alone in his bedroom.  The door was locked.  He had installed locks on the door following concerns about you and your increasingly disturbed and aggressive behaviour.  At about 9.30 you, Russell Myers, knocked on his bedroom door.  You claimed that you wanted to discuss with him the issue of the rent money.  Soon after he opened the door, a violent scuffle erupted between the three of you, Russell Myers, John Myers and Takto and two other unidentified men and the victim. 

11You, Takto, took hold of the victim in headlock at some point while he was punched by some of the other men, giving rise to the first charge of causing injury intentionally. 

12You, Russell Myers, took possession of a hammer belonging to the victim.  It's not able to be said whether or not he was holding the hammer when you took possession of it.  You struck the victim with the hammer at least twice on the back of the head and once on the wrist.  Also Charge 1.

13John Myers, whilst it cannot be said your involvement was anything more than your presence in the room during the assault, your mere presence at the time of the assault and holding yourself out as available and willing to provide assistance to your co-accused constitutes Charge 2, causing injury recklessly.

14The three of you then left the room.  The remaining two unidentified men began destroying personal belongings in the room.  They threw an empty beer bottle at the victim before subsequently leaving. 

15The victim was left on the floor bleeding heavily from the wounds he had sustained when struck by the hammer.  He got up and locked the door, he tied a pair of boxer shorts to his arm and a towel to his head to try and stop the bleeding.  He tried to use his mobile phone to call for help but it had been damaged in the confrontation and did not work.  Fearing that you would return, he climbed out his bedroom window into the backyard and armed himself with an axe that he obtained from the shed for protection.  He then climbed over the side fence into a neighbourhood property where he was able to use a telephone to contact emergency services. 

16Police as well as an ambulance attended about 30 minutes later and the victim was conveyed to the Royal Melbourne Hospital.  He had two large lacerations to the scalp, one on his left wrist, swelling to both arms.  He required sutures to close the wounds and was kept in hospital for five days. 

17After speaking with the victim, the police arrested you, John Myers, on 10 May.  In your record of interview you denied that your brother Russell had come over the previous day or that you had been involved in an assault on the victim.  After being shown photos of his injuries you claimed you had not seen the victim with those injuries previously and could not say how he might have sustained them. 

18Russell Myers, you were interviewed on 22 May.  You admitted you were aware of an incident on 9 May, however you denied assaulting the victim.  You claimed that you had attended the Keilor Downs property with a group of friends, including Takto, after your brother telephoned you and said the victim had been harassing him.  Upon your attendance, you said you asked the victim to open his door to discuss the issue of the rent.  You said that he opened the door armed with a hammer and that he then attacked you, striking you with the hammer.  You said you managed to take the hammer off the victim before fleeing outside with your brother.  You said your friends had remained in the house but you did not know what had happened, however you said you later saw one of the men exit the house with blood on their socks. 

19Takto, you were interviewed by police on 2 July 2015.  You said you were aware of an incident on 9 May.  You said that you and two friends had accompanied Russell Myers to the Keilor Downs property after he told you that his brother had been having issues with a housemate.  He said that the housemate had stolen money from him.  You said that upon your attendance Russell Myers had knocked on the victim's bedroom door asking to talk.  You said that the victim came out of his room swearing and wielding a hammer.  You said a scuffle ensued and you punched the guy once or twice in the face.  You said the other men also punched the victim.  You said that you had committed the assault to protect your friends.  You said you could not remember whether or not the victim was held down whilst the assault occurred.  You did not think that Russell had hit him with the hammer.  You also said that sometime after the incident Russell Myers called you and asked you to inflict an injury on him with a hammer so as to be able to tell police that he had been injured with the hammer during the incident and you told him you could not grant his request.

20A victim impact statement was received from the victim Kanyo.  He writes that the assault has affected any enjoyment of his life.  He finds himself more introverted and reclusive.  His consequent change in behaviour has cost him intimate relationships and friendships.  He expressed periods of paranoia and fear, sleeplessness and loss of work.  He has remained two years after the event still struggling with the effects.  The wounds required medical intervention and hospitalisation.  Fortunately he has made an apparent full recovery.  The financial impact has been substantial with lost work over months and lost valuable property which though not attributable directly to you was related to the assault at the hands of others.  He had to vacate and live in his car for three weeks before being able to secure more expensive accommodation. 

21Despite your mental health issues, John Myers, the situation which you created as to the rent was no doubt difficult for the victim to remedy.  Though his decision to find the money owed to the landlord was a circumstance of self-help which was ill-advised and which precipitated these events, it created only another ill-advised and foolish response on your part, that of your decision to seek to redress whatever wrong you perceived had been done to you and Russell Myers, to your brother in the company of a number of others in support. 

22This type of retribution by way of vigilante like action is unacceptable, inherently dangerous and violent and must be denounced and dealt with by the court on behalf of the community which is fed up with the instances of violence and threatened and real force to achieve dubious ends.

23The victim was at least entitled to remain safe in his room.  It would appear from all the material, the hammer was his.  It was seized and it was used against him.  He was set upon by all of the invaders, led by you, Russell Myers, assisted physically by you, Takto, again through a totally misguided sense of loyalty.  The very number of people and the willingness that you all each displayed to get into a fight or to assault leads to a clear inference you intended to assault and cause injury, if not prior to entry then certainly once you entered, to confront the victim. 

24You, John Myers, stood back, having created the dispute in the first place, but your presence nonetheless by its nature constitutes an offence.  I will take the victim impact statement into account, to be confronted and then assaulted by a number of men with a dangerous tool not only causes physical injury but trauma related to fear and distress.

25I take your plea into account, each of you.  The pleas came relatively late in the process in the sense that the three of you were originally committed on a more serious charge.  So though the matter resolved only after a directions hearing for trial, the plea in another sense has been offered relatively early to the plea indictment.  I will assign a discount to the plea as an appropriate acceptance of responsibility, carrying both a utilitarian value, having avoided a criminal trial, and accompanied by remorse for your actions. 

26While you were charged one day from the offences in 2015, there have been three adjournments at crucial stages of proceedings which have delayed this matter from earlier finalisation.  These have been due to the three instances of hospitalisation of you, John Myers. 

27I take your individual backgrounds into account.  You, Russell Myers, were 37 at the time of the offending and you are now 39 years old.  Your parents separated when you were six months old and your mother and stepfather brought you up.  They divorced when you were about 30.  That relationship was dysfunctional and you experienced family violence often fuelled by alcohol abuse.  John Myers, your co-accused, is your brother.

28You were educated to Year 12 and you completed a course of civil engineering at RMIT whilst working fulltime.  You have no prior criminal history which is an important consideration.  You have been in a relationship with your partner for some eight years.  You have no drug or alcohol issues.  You lived for a while with your father and stepmother before they divorced and you found adolescence transient and dislocated, going from having a number of siblings around you to being alone and often sad. 

29This matter has caused distress in the relationship and has caused delay in your otherwise worthy plans of marriage and starting a family.  Your partner is supportive of you and that is a positive element in the assessment of your prospects of rehabilitation being good. 

30I accept your involvement in this situation which escalated to violence was due to your concern for your brother and his state of health, his diabetes in particular and his mental health.  I accept that you are remorseful for your conduct. 

31I received a number of documents on your behalf.  The first was a letter from Mr Harcourt of APP Consultants who engaged you to do some landscaping work and wrote of your professionalism and trustworthiness.  A letter from
Mr Hack was received in which he confirmed that you now run your own urban energy landscapes business which provided services to him of high quality. 
Mr Maitland also wrote a reference, a friend for some 20 years, which was reflective of your good character.  References were also received in the same terms from Alfred Wong, an architect.  I was shown a number of photographs which exemplified your work as well as certificates which relate to your academic results from the Melbourne Institute of Technology, including a Victorian Certificate of Education, 2010, and another various certificates attesting to your qualifications. 

32I accept further that you have involvement, current and voluntary, in the community.  You appear to have a community minded set in number of initiatives which highlight your prosocial attitude and will auger well for your future.  In my view your prospects, I repeat, are positive.

33Although specific deterrence in your case is not an irrelevant consideration, in my view it can be moderately and adequately moderated.  The court, however, should and does denounce your conduct and will seek to impose appropriate and just punishment for this offending.  The need for general deterrence remains relevant although community protection can also be properly moderated, given your positive involvement in the community. 

34In my view, a non-custodial supervision, one in which the Crown has agreed, is within range.  By way of a community corrections order is precisely the sort of sentence envisaged in Boulton's case.  I will impose such an order upon you.

35John Myers, you face a lower ranked charge of recklessly causing injury which carries a five year maximum as opposed to ten years for intentionally causing injury.  You are 41 years old.  Your participation was minimal but you were the catalyst for these events.  Although you appear to be peripheral to the physical violence offered, your presence, nevertheless, important, though at the lower end of participation in an aiding and abetting sense. 

36You live alone and have significant mental health issues which seemed to arise or have been exacerbated by a car accident in which you were injured in 2005.  Your childhood was marked by some violence towards you but you remain nonetheless in contact with your parents.  You did not have academic or behavioural problems at school but dropped out in Year 12 and you supported yourself after that by running and maintaining vintage parlour machines and arcade console games, although it appears you have not worked now for some time.

37The injury has also impacted your self-employment and are in receipt of a disability support pension.  I received the report from Dr Danny Sullivan of Forensicare.  He took a history related to the injury and a psychiatric history which encompassed a number of admissions to psychiatric units with some long inpatient stays.  You have been on long acting antipsychotic medication and have been on a community treatment order which monitors your medication and without which you have indicated you would probably not comply with voluntarily.

38Dr Sullivan noted your prominent Parkinsonian tremors, your reported epilepsy and associated brain injury and diabetes as well as the medication aimed at each of these conditions.  Dr Sullivan noted some past reports which indicated diagnosis of organic psychosis and schizophrenia following an acquired brain injury following the car accident.

39You have limited insight into your mental health difficulties.  A report of November 2016 by Professor Carroll noted the psychosis to be in remission on treatment and a neurocognitive disorder due to traumatic brain injury, which condition would create impairment of judgment and insight and as Dr Sullivan expresses it, likely to impact upon cognitive functioning, an impairment which is likely I accept to have been apparent at the time of the offending.  You may require guardianship in the future.  I note in February of this year you were admitted to Monash Health, receiving treatment for several medical conditions. 

40You also have no prior criminal history.  Your plea was similarly late in the proceedings prior to the commencement of a trial but I will assign it a discount given your history and given such a plea has utilitarian value and I accept is accompanied by some regret on your part.

41It was submitted and I accept that your condition enlivens the second limb of Verdins' principles as well as the fifth and the sixth.  Although Dr Sullivan's report does not draw a nexus between participation in the offending and your mental illness, it is clear to me that your condition affects your moral culpability and particularly the application of certain principles of just punishment and deterrence, both general and specific, given that you are not a proper for each of these matters to a significant extent.  I note also in terms of extra curial punishment that you have spent time on remand referable to this matter, some three weeks. 

42I had you assessed for a community corrections order also, as a preliminary exploration of sentencing alternatives.  The report came back unsuitable due to what was perceived to be your lack of motivation to complete the order.

43Although ultimately you signed a consent to the order, there is a further danger in creating a situation of disengagement from this order and the community treatment order in that it may trigger disengagement from medication, currently successfully administered and controlled through the CTO team.

44In my view, the distinguishing matters as to the offence, your low level of participation and the circumstances pertaining personally to you in particular militate the imposition of an order against it. 

45I am satisfied that the sentencing purposes require and are satisfied by an undertaking to be of good behaviour for a period, given also that you spent time on remand.  You will be placed on a bond for 12 months with conviction.

46Frank Takto, you were 29 years old.  You live at home with your mother, grandfather and siblings.  You came to Australia as a refugee from Thailand after spending 12 years in a camp on the Thai-Burma border as a child.  You are currently studying theology at the Parkville campus of Whitley College.  In addition to this study and volunteer church duties, you work some number of hours per weeknight, night shift for Rodpak which manufactures wooden pallets. 

47Your plea was post-committal and before commencement of trial, similarly to the others.  Though not an early plea, it will attach a discount for its utilitarian value.  I accept it is accompanied by regret and remorse.

48Your participation during the assault was, I accept, not premeditated.  You had not known previously neither the victim nor John Myers.  You went along in a misguided sense of friendship and loyalty to Russell Myers.  You did not wield the weapon but you did hold the victim in a headlock while others punched and you admitted yourself to hitting him.

49You have no prior or subsequent criminal matters.  You have no underlying substance abuse issues or mental health concerns.  I accept that you are otherwise a person of good character.

50There is an incongruous paradox that someone engaged in theological studies and involved in church activities like yourself should get himself entangled and involved in conduct of this kind.  It might bring into doubt your commitment to the principles you say you aspire to follow and perhaps teach to others.  There is hypocrisy in this and you are said to be embarrassed and ashamed for yourself and your family.  You should be.

51Since coming to Australia it appears you integrated well while supporting your own community.  You are said to be well regarded by peers and mentors within that community, volunteering with youth groups and others in the Baptist community to which you belong at Westgate. 

52A number of references were received on your behalf.  They speak highly of you.  Your course is called Transformation Course.  Your transformation is obviously not complete and the order of the court aims to achieve aims of deterrence, punishment and community protection.  The court must denounce conduct like yours as completely unacceptable.

53I have taken the references and their detailed support of you as well as the support of your family into account as providing a solid basis for hope in your rehabilitation prospects.  Although the community corrections order report indicate an unsuitability arising out of a lack of consent, it was made clear in the consequent mention that you had expressed it as a matter of preference that commitment to the order was somewhat conditioned upon your work requirements as well as travel commitments, travel of a quasi-missionary nature in the near future.  It was indicated that you would consent to an order and that the authorities would and could be flexible in relation to both aspects of travel and work.  It is clear you will have to sacrifice some of your volunteer work to do the unpaid community work. 

54In relation to you, Russell Myers, your counsel submitted I should make the order without conviction.  Although such a matter was said to impact on your economic wellbeing and your business, I am not persuaded that such impact will flow and to an extent it was an assertion which was centred primarily on the consequences due to missed or diminished opportunities for counsel tendering.  I am not persuaded that such a matter sufficiently qualifies the recognition in the sentence of the seriousness of the offending and its consequences.  An order against you and Takto will be with conviction.  It will also be the case in relation to the undertaking for John Myers.

55The community corrections order for Myers and Takto will require supervision and 100 hours of unpaid community work and will remain in place for 12 months. 

56But for your plea, Russell Myers and Frank Takto, the sentence would have been of six months' imprisonment with a community corrections order for 18 months.

57In the case of John Myers, you would have received a community correction order for 18 months. 

58Mr Ginsbourg, are there any ancillary orders that I have omitted?

59MR GINSBOURG:  No, Your Honour. 

60HIS HONOUR:  When the documentation is ready, they can each sign those documents and I will countersign them. 

61Mr Takto, are you living close to Werribee?

62OFFENDER TAKTO:  Yep.  Yes, Your Honour.

63HIS HONOUR:  Yes.  The correctional services office which will administer your order will be in that area.  Yes, take a seat.

64The three of you can come out of the dock.  Come and sit behind your counsel.

65Yes, thank you.  When those have been signed, you can make a copy and give counsel a copy.  Just make copies of them.

66I think for all of you and I am sure your counsel will emphasise this, the obligations of the community corrections order will mean that you are going to have to be attending appointments now and again for supervision and you will have to receive directions as to the work that you are to do.  If you do not comply with those directions, if you miss appointments or otherwise, you may well find yourself in breach of this order and you will be brought back before me.  You can be penalised for the breach of that order and you can be resentenced for these particular offences.

67In relation to you, Mr John Myers, that undertaking means you are essentially making a promise to the court to be of good behaviour for a year.  If any of you commit any further offences you are likely to breach the order and the bond that I have imposed today.  Do you understand?

68I have some material to read before we recommence with the next matter.  I will return at 10.30 or so.  Thank you. 

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