Director of Public Prosecutions v Neill

[2022] VCC 1277

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT WARRNAMBOOL

CRIMINAL JURISDICTION

CR 23-00315

CR-23-00316

THE DIRECTOR OF PUBLIC PROSECUTIONS

v

BRYCE NEILL

SAMUEL LACHLAN EDWARDS

---

JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Warrnambool
DATE OF HEARING:
DATE OF SENTENCE:	21 July 2023
CASE MAY BE CITED AS:	DPP v Neill & Anor
MEDIUM NEUTRAL CITATION:	[2022] VCC 1277

REASONS FOR SENTENCE

---

Subject:

Catchwords:

Legislation Cited:

Cases Cited:

Sentence:

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr R. Pirrie
For the Accused Neill For the Accused Edwards	Mr P. Pathmaraj Mr R. Thyssen

HIS HONOUR:

1Samuel Lachlan Edwards and Bryce Neill, you have each pleaded guilty to one charge of home invasion which carries a maximum penalty of 25 years' imprisonment.

2You, Mr Edwards, have also pleaded guilty to causing injury intentionally, causing injury recklessly and damaging property.  Each of those crimes carries a maximum penalty of 10 years, five years and 10 years respectively.

3You, Mr Neill, have also pleaded guilty to two charges of common assault which crime carries a maximum penalty of five years' imprisonment.

4You, Mr Edwards, are now 23 having been 21 years of age at the time of the offending.  You pleaded guilty at a reasonably early opportunity and you get the benefit of that.  I will give you the benefit of remorse on the prospect of that plea and you must also get the utilitarian benefit.  The pleas are made at the time of Worboyes and accordingly noticeable discount must be given in relation to that.

5You have a very significant prior criminal history for one so young, only being 21 at the time that it occurred.  Those matters do not augur well but we will just have to see what the future holds.

6You, Mr Neill, are 19 and were 18 years of age at the time of the offending. 
As I understand it, it was only some four or five weeks past your 18th birthday.  Accordingly, you have only missed out on the Children's Court by about a month and that is a significant matter in my view.  In your particular situation it would have been very much my preference to have given you youth detention but that is just simply not possible due to the effluxion of events.

7You pleaded guilty at the earliest reasonable opportunity, bearing in mind you are entitled to test the case against you.  You also get the benefit of remorse.  You get the utilitarian benefit of that plea of guilty and you, as with Mr Edwards, get the benefit of Worboyes.

8You too have significant prior convictions involving dishonesty and violence and that is of concern as well.  You have a very different background to Mr Edwards and I will go through those matters fairly shortly.

9Insofar as the offending is concerned in respect of each of you I accept the milieu in which all of this took place.  That does not mean any unnecessary criticism of people but there is clearly drugs and what have you in the background of all this.  You can make moral judgements about it.  The fact of the matter is that you simply cannot do what you did whatever the reason for it may have been.

10But in any event, the two of you went round to the property in Henty Street in Casterton where a Mr Slater and Mr Pullen resided.  You all knew each other.  They were at home.  At approximately 11.45 the two of you went in to the property but left.

11Later on at 4 am the next morning, the two of you returned to the property and you, Mr Edwards, knocked on the front door.  Mr Slater walked to the door and unlocked the deadbolt.  Immediately upon doing this the door was forced in by you, Mr Edwards.  He stumbled and fell backwards and you, Mr Edwards, entered the doorway striking him with a baseball bat causing his eyes to water and his nose to bleed.  You then struck him again in an upwards motion and again on the top of his head.  That gives rise to the charges of causing injury intentionally and Charge 4 of common assault in your situation, Mr Neill.

12At that point Mr Pullen heard yelling and got up out of his bed to see what was going on and you, Mr Edwards, then began swinging the baseball bat in Mr Pullen's direction.  He caught it and threw it down the hall into the lounge and there was then a scuffle in the bedroom.  That again gives rise to the charge of causing injury recklessly and Charge 5, for you Mr Neill, of common assault.

13Mr Pullen then managed to push you, Mr Edwards, in the direction of Mr Neill and out the front door.  You were both locked outside.  You, Mr Edwards,
hit the front door a few times and as you walked off you apparently kicked the car.  The situation here, as I said, has taken place in the context of the milieu.  I am told that the house itself had a baton on a chain just inside the door.  I also note, for some reason I do not quite follow, there was a CCTV camera in the bedroom.

14As I say, you simply cannot do it and you have to be sentenced on that basis.

15Neither of the two victims needed medical assistance.  As I understand the situation they probably would not have reported the matter to police but for police coming on a welfare check.

16There are no victim impact statements before me.

17It is a situation where, as I said, you cannot do it.  I am not going to go into the authorities and all those matters.  It is just as simple as that.

18There are significant differences between the two of you insofar as parity is concerned.  Each of you have now had a significant period of time in custody on remand for these matters.

19The situation is that you, Mr Edwards, are significantly, in this situation, older.  Your prior convictions are significantly worse.  You were the principal, I accept that and you, Mr Neill, were acting in an accessorial basis.  Also Mr Neill from you there is no actual violence and you essentially stayed in the background.  It is a bit difficult to work out exactly when you came into the house.  It seems to me there are some very significant differences between the two of you although each of you must receive a custodial sentence with a head sentence in a minimum term.  In my view no other sentencing option would be available.

20I was given very helpful submissions by both counsel on each of your behalf and also each of you had filed on your behalf psychological assessments which have been of assistance to me.

21You, Mr Edwards, as I have said, were 21 at the time of the offending.  You were born in Portland and you were raised over here in the western district.  Your mother lives in Casterton and is a horse trainer.  Your parents separated when you were around about three years of age.  I note that each of your parents was watching during the course of the plea so clearly you still have a level of family support.

22You spent the majority of your education and childhood with your mother although you did live at times in the Northern Territory with your father. 
You went to school up until Year 10 with what would appear to have been a fairly significant non-attendance record.  You have had learning issues but you can read and write.  You have had numerous jobs over the years mainly in labouring and farm work.  You worked as a shearer, a mechanic, bottle shop attendant, machine operator and such things.

23You have been in gaol on remand and since you have been in Hopkins Unit you have been doing horticulture work and that is indeed to your credit.

24Your particular personal situation was that you began using cannabis around about the age of 14.  You have smoked and injected ice.  You had problems with alcohol abuse but it would seem pretty clear from the material that ice addiction has been your main problem.

25You seem to have been clean since being incarcerated and are currently on methadone and Avanza.  You need to know at this stage that this offending occurred within 10 days of having been released from 158 day sentence. 
So we need to be conscious from the point of view of totality you have been incarcerated for a very significant time already and it only took you a week or so to get back into this situation.

26I will not be referring to the report of Mr Simmons in great detail.  I do not think there is any need.  There are matters there involving the suicide of a friend and other matters which I accept have caused you great grief over the last few years.

27You are now in a situation where you are in a positive relationship with a Ms Turner who is a child care worker and lives in Hamilton.  I have a letter from her which professes to give positive support for you.  She is a non-user of drugs and it is to be hoped that that will assist you upon your ultimate release.

28Clearly you are still a young offender.  I am told that you do have the support of your mother and brother who live locally and you apparently will have work available to you when you are ultimately released.

29The report of Mr Simmons essentially says that your family did it hard.  That you went to a few schools.  You had difficulty at school and you went significant periods of time working as a roustabout and the like, as I have already said.

30You started using methamphetamine at the age of about 16 and a half which ties in with your prior convictions.  Of some benefit and of some hope actually, you have indicated to Mr Simmons that you do see your future as positive. 
You do not feel hopeless or suicidal and you have been endeavouring to do things within the prison to help you deal with your emotional state and what is occurring in life.  Hopefully, as I just indicated, that is a positive move.

31It seems to me that insofar as your risk of reoffending is concerned with your criminal history it has to be regarded as high.  Almost certain if you start using ice again.

32Your prospects of rehabilitation are hard to judge for somebody who has now been effectively in custody, leaving aside that 10 day period, for something like 600 days.  That is all going to be a matter for you.  Unfortunately despite your youth I do have to leave that to the parole board.

33You do appear to be, as your counsel pointed out, very much capable of working and getting jobs although they usually appear to be short lived, in all probability because of your drug use and the like.

34I am also, in your particular situation, aware that you have been diagnosed as having ADHD and clearly Verdins has a part to play insofar as that is concerned. 

35As I have already indicated, positive factors are employment and accommodation when you get out and a positive non drug relationship.  For one so young one can only hope that you take full advantage of that.

36You, Mr Neill, as I indicated had only just turned 18 when this took place. 
You came very close to having been dealt with in the Children's Court which may have given a very different disposition indeed.  The fact of the matter is though you are here and I will be going through your background in a little more detail in a moment.

37You were born in Shepparton.  You have told at least one person that you are of Aboriginal descent.  I am not too sure where that comes from or the detail of it but in any event you were born to a Mr Christopher Neill who has done significant time in gaol over the years and is still there I think, as I understand it.  Your mother, Ms Dance, I notice is watching these proceedings via the video link.  You have a younger sister.  Your parents separated when you were three years old.  Your father used illicit substances and was violent and you have also received violence at the hands of other partners of your mother.

38Between 2004 and 2006 and I have read these reports, there is no need to go into them, reports were made to Child Protection concerning the emotional and physical safety of you from your parents.  Your mother, after your parents separated, commenced an eight year relationship with a Mr Smart.  Mr Smart was physically abusive both to yourself and to your mother.  After that she began to live with a man by the name of Bosworth who had a very significant criminal history.  During that time your mother's drug use increased and was out of control by 2017.  The family obviously then had periods of transience often living in motels.

39In May 2018 you were taken to Terang Hospital after your grandfather reported to the police that Mr Bosworth had punched you to the jaw and your mother had done nothing about it.

40So up until that age you have seen violence in a somewhat dreadful background.  It was at that point in time that Child Protection took you and your sister and you were placed in the custody of your grandfather.  Because of all this your schooling was very disrupted and in May 2018 you were reported to be about three to four years below the expected level for literacy and numeracy.

41By October 2018 you absconded from Mr Dansel's home.  You were back living with your mother and at that point in time mixing with inappropriate associates.  In April 2019 your mother went to gaol.  While she was in prison you were left in the care of her new boyfriend, a Mr Griffiths, who was only 22 years of age.

42You dropped out of school around about that time having completed Year 10. 
I am not sure of the results.  They would not have been too good I would have thought.  In any event, your life was on a downward spiral clearly.  You were still only about 16 or 17.

43In late 2021 your mother was again remanded into custody and your criminal offending was well under way by that stage.  You were using ice and GHB.

44In February 2022, just a couple of months before this offending took place, you were admitted to the Hamilton Hospital for mental health treatment due to suicidal ideation.

45The report of Ms Vikokich effectively confirms what I just said about you being removed, being placed into care and I have read the DHS material on that.

46It is clear that at some stage you have been diagnosed with ADHD and it has obviously been a problem for you. 

47I do not have to go through what she said about all the drug using and the suicide attempts and the like.  It has all been pretty well summarised by your counsel.  She is concerned that you have a tendency to minimise your behaviour but she said that she considered you to be highly impressionable and agreeable young person.  She describes you as a moderate risk of reoffending.  Rehabilitation would appear to be in your own hands but at the age of only 19 now it is all very concerning.

48As I indicated, I would have much preferred to have you in a youth justice disposition but that is simply not possible.  As with Mr Edwards I have to take into account the principles of totality but because of those factors I have already outlined, I do regard you as being in a different category.

49You obviously have the benefit of the matters referred to in Bugmy and you also have the benefit of the matters referred to in Verdins.

50You also in this situation have done, as I understand it, over 80 days in regard to unrelated matters and I take that into account in a general way, whether it be by Renzella or totality.  Again, as I have said, you are in a significantly different position to Mr Edwards.

51I do not think I really need to go into any more detail about this.  Each of you are still very young.  Each of you must know by now that if you continue to behave like this you will spend the majority of your life in gaol.  That is easy to say.  I am well aware that people in your circumstances do not seem to grasp that sometimes until they are about 30 or so but be that as it may.  I can only sentence you according to law bearing in mind your, as I have said to you for about the fifth time, young age.

52Accordingly Mr Edwards, on Charge 1, four years.

53Charge 2, six months concurrent.

54Charge 3, six months concurrent.

55Charge 6, one month concurrent.  I could have done that in a number of ways.  That just seemed to be the simplest.

56That gives a total effective sentence of four years.

57I direct that you serve a minimum term of two years and four months before becoming eligible for parole.

58On each of the two summary matters, seven days concurrent.

59I direct that 454 days be reckoned as having been served under this sentence.

60Pursuant to 6AAA of the Sentencing Act I say that but for your plea of guilty you would have been sentenced to be imprisoned for a period of six years with a minimum term of four.

61You Mr Neill, Charge 1, 18 months.

62Charge 4, two months concurrent.

63Charge 5, two months concurrent.

64That gives a total effective sentence of 18 months.

65I direct that you serve a minimum term of 10 months before becoming eligible for parole.

66I direct that 209 days be reckoned as having been served under this sentence.

67Pursuant to s6AAA of the Sentencing Act I say that but for your plea of guilty you would have been sentenced to be imprisoned for a period of three years with a minimum term of two.  Bearing in mind that my much preferred disposition would have been youth justice.

68Any other orders I need to make, gents?

69MR THYSSEN:  No, Your Honour.

70HIS HONOUR:  No?  Do you need to talk to your client?

71MR THYSSEN:  I'll have a quick word if - - -

72HIS HONOUR:  Yes.  I'll let Mr Henko work that out.  No other orders, gents?  That's all?  There were a couple of other summary matters floating around that were double ups.  I've struck them out.  There was an unlawful assault, you know just on the system.

73MR THYSSEN:  Yes. 

74HIS HONOUR:  I've just struck them out just so they don't come up.  I've got to do that to get it off the system.

75MR THYSSEN:  Yes, Your Honour.

76HIS HONOUR:  Are you challenging my arithmetic, Mr Pirrie or - - -

77MR PIRRIE:  No, I'm just making sure I've got it down.  No, I'm not
challenging - - -

78HIS HONOUR:  No, I'm just - - -

79MR PIRRIE:  Mr Neill it was 18 months - - -

80HIS HONOUR:  Eighteen months.

81MR PIRRIE:  Minimum 10?

82HIS HONOUR:  Minimum 10, yes.

83MR PIRRIE:  Correct, yes, I've got it.

84HIS HONOUR:  All right.  Thanks, gents.

85MR THYSSEN:  Yes, Your Honour.

- - -