Director of Public Prosecutions v Neyland
[2012] VCC 967
•13 July 2012
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-11-01526
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DREW NEYLAND |
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JUDGE: | HIS HONOUR JUDGE CARMODY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 9 July 2012 | |
DATE OF SENTENCE: | 13 July 2012 | |
CASE MAY BE CITED AS: | DPP v Neyland | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 967 | |
REASONS FOR SENTENCE
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SUBJECT – CRIMINAL LAW
CATCHWORDS – Intentionally cause serious injury – unprovoked attack – use of weapon – motivated by retaliation for complainant’s actions – offender using amphetamines and cannabis daily prior to the offending – reasonable prospects of rehabilitation – 3 years' imprisonment – non-parole period of 18 months
LEGISLATION CITED – Sentencing Act 1991
CASES CITED –
JUDGMENT –
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms J Malobabic | Solicitor for Office Public Prosecutions |
| For the Accused | Mr K Oldis | Cahiodo & Madafferi |
HIS HONOUR:
Introduction
1 Drew Neyland, you have pleaded guilty to one charge of intentionally causing serious injury to Shane Justin Studman. The offence occurred on 4 February 2011.
2 You have also admitted two prior Court appearances. You admit that on 24 August 2006, at the Werribee Magistrates’ Court you were dealt with for a number of criminal damage charges and charges of unlawfully on premises and trespass related charges arising from your graffiti offending. The Court ordered you were to be placed, without conviction, on an adjourned undertaking and ordered you to perform a number of voluntary hours’ work. The next Court appearance was at the Melbourne Magistrates’ Court on 17 March 2008. On that day you pleaded guilty to robbery and intentionally damage property. You were convicted and placed on a community-based order for a period of twelve months. You were also ordered to perform 100 hours’ unpaid community work. It was submitted on your behalf by Mr Oldis that these offences also arose out of your graffiti activities. The robbery is said to be when you took the bike from a pursuing victim of your graffiti activities.
The Circumstances of the Offence
3 The complainant in this case is Shane Studman. Shane Studman was known to you as a person who had attended school at approximately the same time and the two of you used the same trains to get to and from your schools.
4 In 2005, Studman was found guilty of and sentenced in the County Court at Melbourne for armed robbery and causing serious injury to a friend of yours, Damian Gregaric. In the course of his offending, Studman had stabbed Gregaric. Mr Studman served his term of imprisonment and was released. Upon his release, Mr Studman became aware through graffiti and tagging of that graffiti that he was under threat from friends of Mr Gregaric. Mr Studman identified one of the tags as being your graffiti tag.
5 On 4 February 2011, at approximately 7.40 pm, Mr Studman was at the Central Square Shopping Centre in Altona Meadows. He had attended there to collect some takeaway food and do some shopping at the Coles supermarket. As Mr Studman approached his vehicle in the car park, he observed you and two other men standing in the vicinity.
6 As Mr Studman approached his vehicle in the car park, he heard words to the effect of “cop this you fucking dog”. Mr Studman was then struck on the head with a tyre iron. As a result to the hit to the head, Mr Studman fell to the ground. Whilst he was on the ground, he was repeatedly kicked, punched and hit with the tyre iron. As he attempted to get up from the ground, he was again struck in the left eye region with the tyre iron. He identified you as the person with the tyre iron.
7 In the course of the plea, Mr Oldis submitted that the weapon used by you was in fact electrical cable and not a tyre iron. I find that, as a sentencing consideration, it does not matter whether it is a tyre iron or metal electrical cabling that was used as a weapon. In either case, it is a metal object used for the purposes of inflicting injury to Mr Studman.
8 A number of people in the vicinity of the shopping centre collected around the scene of the assault and you and your two co-offenders left the scene by running in the direction of your vehicle. Mr Borg, a witness who saw you and your two co-offenders running from the scene, followed and noted the registration number of the vehicle that you used to leave the shopping area. That vehicle, a Mitsubishi Triton, registered number RNX561, was your vehicle.
9 Mr Studman sustained a left medial wall orbit fracture and a displaced nasal bone fracture. He also suffered black eyes and a scalp laceration together with other soft tissue injuries to his arms and body as a result of the assault. Mr Studman was taken to the Sunshine Hospital for treatment.
Conduct of the Case
10 The offence occurred on 4 February 2011. On 19 February 2011, you were arrested and charged by police with the assault on Mr Studman. You exercised your right to make a “no comment” record of interview. You have not identified the co-offenders to the prosecuting authorities.
11 On 16 August 2011, a contested committal was heard. At the committal, Mr Studman and a number of other witnesses, who would be described as the identification witnesses, were cross-examined. At the end of that committal, you entered a plea of not guilty to the charge.
12 On 15 May 2012, you entered a plea of guilty to one charge of intentionally cause serious injury to Mr Studman. You confirmed that plea on 9 July 2012.
The Seriousness of the Offence
13 Mr Oldis, on your behalf, did not seek to downplay the seriousness of the offence. You have accepted the Crown outline of the offence. Your counsel submitted that the offending occurred at a time when you had been taking methylamphetamine and cannabis daily for a period of time leading up to the day of the offence. He relied upon the report of psychiatrist, Mr Bernard Hickey, wherein you gave a history of not having slept for four days prior to the offence. Dr Hickey gave the opinion that high doses of amphetamines impairs judgment and increases impulsiveness and aggression.[1]
[1]Exhibit 2 on the Plea
14 Mr Neyland, I find that you have engaged in serious criminal behaviour in this case. The aggravating features of your offending are:
(a)You have assaulted Mr Studman with a weapon; be it a tyre iron or an electrical cable, it does not matter.
(b)You have assaulted Mr Studman in circumstances where you had two other people assisting you. I note that you have not identified your co-accused to the authorities.
(c)The assault with the other two people on Mr Studman included kicking and punching him whilst he was on the ground and in a defenceless position.
(d)The assault to Mr Studman caused him a fracture to his left orbit and a fractured nose. He also suffered cuts and bruises from the strikes with your weapon and the kicking and punching that he was given at the time of the assault.
(e)There was some level of planning involved in this offence; first of all because of you had a weapon with you and, secondly, as I find you positioned your car in a “get away” position.
(f)The motivation for this assault, unprovoked as it was, is a sense of retaliation by you against Mr Studman for his offending in 2004/2005 where he stabbed a friend of yours. Mr Studman had been convicted and had served a term of imprisonment for that offending. The aggravating feature here is that you have taken upon yourself to impose a further punishment on Mr Studman by assaulting him in the manner previously referred to in this sentence. In effect, you have taken upon yourself to administer the law yourself.
15 The mitigating factors in respect of this offending are:
(a)In the course of his evidence on 16 August 2011 at the committal, Mr Studman was asked the following questions and gave answers:
“Q:What’s the situation with your health at the moment, are you fully recovered?
A:Ah, just about , I'm still getting some difficulty with my eye in the top left hand corner, still aches every now and again.
Q:I see, and so your recovery is effectively complete now?
A:Almost.”
It is now some eleven months since Mr Studman gave that evidence at the committal. I find that Mr Studman has made a reasonable recovery from the physical injuries he has received as a result of the assault by you.
Mr Studman was also offered the opportunity to prepare and file a Victim Impact Statement in this case. Mr Studman has declined the opportunity to file a Victim Impact Statement. I conclude that Mr Studman’s recovery has continued since the time of the committal and that he now no longer has ongoing substantial issues with his injuries as a result of the assault.
(b)Mr Neyland, you have pleaded guilty to this charge. That is an acceptance of your responsibility for your actions and an indicator of your remorse.
Your Personal Circumstances
16 You are aged twenty-five. At the time of the offence, you were twenty-four years old. At the time of the offence, you were living in a share house with other young men.
17 Mr Neyland, you have the support of your family. Your mother and father were in Court. Your father gave evidence in support of your position. His evidence was even handed, frank and realistic as to the position you are in. He has visited you in gaol and will continue to support you in your future life.
18 You were educated to Year 12. The first part of your secondary education was at MacKillop College. At the end of Year 11, you then moved to Footscray TAFE to complete your Year 12. Immediately upon finishing school, you commenced an outdoor education course. This course was ceased because of your fear of sharks. You then commenced work as a labourer, emptying and stacking containers for shipment.
19 At the end of your employment as a labourer, your father through connections of his own, organised for you to commence an apprenticeship as an electrician. The path of your electrician’s apprenticeship has been bumpy due to your use of cannabis and amphetamines. It was clear from your father’s evidence that he had made representations on your behalf to your employers and smoothed the way for your return to employment as an apprentice electrician. You have completed three full years of a four year apprenticeship. Upon your release from prison, your family will support you in your efforts to continue with your apprenticeship as an electrician so that you may become a fully qualified tradesman. Ultimately, that is up to you.
20 Your drug taking has upset the family cohesion. Your mother and your older and younger sister as well as your father have been impacted upon by the use of amphetamines and cannabis by you. It is clear that you identify that you have a problem with drug use. You have gone into rehabilitation at the Raymond Hader Clinic. You remained in that rehabilitation until 20 November 2011. You also sought the assistance of an organisation known as SHARC. In the report dated 15 April 2012 from SHARC, with its attached drug testing, clearly showed that up to 14 December 2011, you were returning negative tests for drugs.
21 You have also been attending psychiatrist, Dr Bernard Hickey, in order to deal with your addiction to drugs. Dr Hickey has attended you in the Metropolitan Remand Centre for the purposes of preparing a report in this Court. The report is Exhibit 2. He diagnosed you with a condition of paranoid delusional disorder, which he thought was drug induced. You have been prescribed the drug Seroquel. You are taking 300 milligrams of that drug on each night. Dr Hickey is of the opinion you have insight into your illness of drug addiction and I accept that your efforts prior to your incarceration to seek treatment for that addiction confirm his opinion. Dr Hickey is of the view that if you are able to beat your drug addiction, you will become a productive and constructive citizen in our society.
22 You have also had a long term relationship with Stephanie Tyrell who your father describes as your girlfriend. As a result of your drug taking, that relationship ceased in or about September of 2011. Your father gave evidence that just prior to Christmas 2011, you had resumed your relationship with Ms Tyrell. I note that this was at a time when you had had some success with your rehabilitation from drug use.
23 You have now been in custody since 2 March 2012 for this offence.
Sentencing Considerations
24 I have taken into account your plea of guilty to the charge. The Crown have described the plea as being at an early stage. I note, however, that you have had a contested committal prior to your plea being entered.
25 The plea of guilty by you to this charge has a utilitarian value to the community. Not least the cost of the trial process to the community has been spared. There are savings in the area of Court costs, prosecution costs, the cost of defending your case, witness expenses and the use of the Court facilities. By your plea, you have given certainty of outcome for the community of this charge. For the complainant, Mr Studman, you have spared him the experience of giving evidence in a trial and that consideration applies to all the other witnesses.
26 A plea of guilty is evidence of your remorse. I do not accept that you have much empathy for the complainant, Mr Studman in this case. I do, however, accept that you are remorseful for the disruption and effect you have had on your family and family members as a result of your offending and drug use. I accept that your plea of guilty is a clear display of your willingness to facilitate the course of justice in the community. Your plea of guilty also fully displays an acceptance of your responsibility for your criminal actions on 4 February 2011.
27 I also have taken into account the impact of a term of imprisonment on you. Your father’s evidence in this regard is compelling. You have been in custody since 2 March 2012. Your father has visited you whilst in the Metropolitan Remand Centre on a weekly basis. Your father stated in evidence:
“He knows he can never go back and have any drugs or he will have nothing to do with our family, but he looks great. I mean he is physically not a skinny little wreck anymore, he looks really, really good. He looks healthy.”
28 I have taken your father’s evidence into account.
29 I regard your prospects of rehabilitation as fair to good. It is very difficult for someone who has used drugs for the period of time that you have to overcome your drug addiction. You have shown a desire to beat your addiction to drugs. This is your first period of imprisonment. Your family will support you upon release to engage in your further training as an electrician. If you remain drug free and are able to complete your training as an electrician there is every prospect that you will continue on in a rehabilitative path.
30 The basic purposes for which a Court may impose a sentence of imprisonment are punishment, deterrence, both specific and general, rehabilitation, denunciation and protection of the community. In sentencing you, I must have regard to a range of factors such as the seriousness of the offence, your culpability for it, your personal circumstances and those of the complainant, Mr Studman. I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that, as far as possible, offenders are rehabilitated and reintegrated into society.
31 The Crown submitted that the offending calls for an immediate term of imprisonment. The maximum sentence for this offence is twenty years’ penalty. The Crown submitted that the considerations of general deterrence and specific deterrence and denunciation were to be accorded full weight given the involvement of a weapon, assault with other offenders, that the offence took place in a public place, that the offence was motivated by retaliation, and that the complainant, Mr Studman suffered serious injuries as a result of the assault.
32 Your counsel, Mr Oldis, submitted that your prior convictions did not really relate to violent offending. I note, however, one of your prior convictions is robbery, but the disposition in the Melbourne Magistrates’ Court of a community-based order indicates that it was in the context set out by your counsel in the course of the plea that a bicycle had been taken from the pursuer at the time of your offending as a graffiti vandal.
33 I accept that considerations of general deterrence and specific deterrence and denunciation are very significant considerations in sentencing you. I have previously outlined the seriousness of the offence and the aggravating features of it. The assault was brutal and sustained.
34 Fortunately, the complainant, Mr Studman, appears to have made a reasonably good recovery from the injuries inflicted on him by your actions. I give some weight to the fact that he has recovered from his injuries.
35 I have taken into account all submissions made on your behalf by Mr Oldis. I also take into account your plea of guilty. Most importantly, I take into account the evidence of your father, Peter Neyland. It is clear from his evidence that you have some insight into your difficulty and with his support and the support of your immediately family, you will, if motivated upon your release from prison, be able to finally put this offence and drug addiction behind you.
36 Taking into account all of the competing considerations I sentence you as follows:
37 On the charge of intentionally cause serious injury, you are sentenced to three (3) years' imprisonment. I direct that you serve eighteen (18) months before being eligible for parole. I declare 133 days of pre-sentence detention pursuant to s.18 of the Sentencing Act 1991.
38 I will make the forensic sample order and the forfeiture order as sought by the Crown on 9 July 2012. You do not oppose these orders.
39 Pursuant to s.6AAA of the Sentencing Act 1991, I declare that had you not pleaded guilty to the charge, I would have imposed a sentence of four years' imprisonment and fixed a three year minimum term.
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