Director of Public Prosecutions v Payne
[2021] VCC 1857
•18 November 2021
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 21-00746
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DILLAN PAYNE |
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JUDGE: | HIS HONOUR JUDGE CARMODY |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 17 September 2021 |
DATE OF SENTENCE: | 18 November 2021 |
CASE MAY BE CITED AS: | DPP v PAYNE |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1857 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW – Sentence
Catchwords: causing serious injury intentionally – youthful offender – drug-induced offending.
Legislation Cited: Sentencing Act 1991; s5(2H)(c)
Cases Cited: Worboyes v The Queen [2021] VSCA 169, R v Wyley [2009] VSCA 17, Azzopardi v The Queen [2011] VSCA 372, R v Mills (1998) 4 VR 235
Sentence: Total effective sentence of five years and three months imprisonment with a non-parole period of three years and six months imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms K. Hamill | Office of Public Prosecutions |
For the Accused | Mr V. Peters | Rainer & Martini Lawyers |
HIS HONOUR:
1Dillan Payne, on 17 September 2021, at the County Court here in Melbourne, you pleaded guilty to the following charge on indictment L104479088:
Charge 1, cause serious injury intentionally to Sergei Bobilkov. This charge has a maximum sentence of 20 years imprisonment.
2You admitted your prior criminal history. In April 2017, you were convicted of aggravated burglary and other charges at the Frankston Magistrates' Court and you were ordered to serve a two year community corrections order. In the Frankston Children's Court in April 2015, you were found guilty of recklessly cause injury and other charges without conviction and placed on a good behaviour bond.
3You have been on remand, at the time of your plea, for a total of 572 days, not including that day and you have served a further 62 days of pre-sentence detention up until this day.
Circumstances of your offending
4I will refer in reasonable detail to the summary that was tendered by the prosecutor, the Prosecution Opening on Plea dated 20 August 2021. It was Exhibit “A” on this plea. The prosecutor read the relevant parts into the record at the plea hearing.
5At the time of your offending, you were 22 years old, soon to turn 23. The offending occurred at the public housing flats in Simmons Court in South Yarra. Your victim Sergei Bobilkov had been a resident of Unit 1 since 1993.
6On the morning of 23 February 2020, Mr Bobilkov's cousin, Andre Tarasevici was present at the unit. You were staying with the tenant at Unit 4 which was upstairs from Bobilkov's unit. About 8 o'clock in the morning, Mr Bobilkov went upstairs to Unit 4 to ask the resident of Unit 4, who is known as Veronika, for a cigarette. It was a request that he had made of her regularly. He knocked on the door and yelled through the peephole. You, responded saying that she had left. Mr Bobilkov then went to leave, but then he heard you say something to him. He could not make out what you had said, so he returned to the door. You then opened the door of the unit and let Mr Bobilkov in, closing the door behind him. Mr Bobilkov had seen you around before, when he was installing some speakers in Veronika's apartment, but he had never had a conversation with you.
7Without saying anything, you produced a hammer that you had concealed behind your back and hit Mr Bobilkov on the head with it. Mr Bobilkov asked you 'What are you doing?' You have continued to hit him. You then produced a knife and stabbed Mr Bobilkov with it. Mr Bobilkov's called out for help and ran from the unit. He fell over and then down the stairs when he was hit by you. He ended up on the landing between levels 1 and 2. You, followed Mr Bobilkov down the stairs and stabbed him several times with the knife while he was laying on the ground.
8Mr Tarasevici had heard the big commotion upstairs. He had not paid much attention to that commotion because it is a common occurrence at the flats. He only went out to investigate when he heard Mr Bobilkov, his cousin, repeatedly screaming for him to get out there. He saw you on top of Mr Bobilkov and saw you stabbing him twice to the body and once to the head region with the kitchen knife.
9Mr Tarasevici tried to prise the knife from your hand for about 15 seconds or so, telling you several times 'Just let it go, I think you've done enough'. You then relaxed the grip on the knife and Mr Tarasevici took possession of it. You then ran upstairs and Mr Tarasevici heard a door slam. Mr Bobilkov's head and abdominal region was covered in blood. He returned to his own unit and got into the shower. Mr Tarasevici placed the knife in the kitchen sink and called the emergency services. The operator instructing to get Mr Bobilkov out of the shower straight away.
10Both Mr Bobilkov and Tarasevici described seeing Mr Bobilkov's guts hanging out. The first attending police and ambulance drivers arrived at about 8.20 am. They observed Mr Bobilkov in a conscious state, but very pale. They also observed multiple puncture wounds to his abdomen and chest area and lacerations to his head and neck, and his internal organs were visible through a stab wound in his torso. You can see these in the photographs which were part of Exhibit “B”.
11Mr Bobilkov was taken from the units to The Alfred Hospital where an exploratory laparotomy was undertaken. Bleeding from the fatty layers within the abdomen was controlled, stab wounds to the neck, face and hands were cleaned and closed with sutures. Mr Bobilkov, was also found to have a fractured mandible, that is his jaw. Mr Bobilkov had the following injuries that did not require surgery:
·two lacerations to the back of his head;
·an abrasion to his right forehead;
·an abrasion to the right side of his head;
·an abrasion to the left side of his head;
·a small laceration to his right lip;
·superficial wounds behind both of his ears;
·a swollen hand;
·a wound to his left hip; and
·a graze to his left shoulder.
12He also suffered a number of injuries which required medical intervention. These injuries were as follows:
·A penetrating neck injury, comprising a cut running across his neck to the left side. This injury was explored and washed out, using general anaesthetic and two wounds were found, one measuring 7 centimetres and the other 3 centimetres. Both were stapled closed.
·A right ear laceration through the tragus, which was closed during surgery.
·Two penetrating abdominal wounds, one of which had the bowel on view. Exploratory surgery found penetration of the peritoneum and some bleeding, however the bowel and internal organs were not damaged. I just add here, that was good luck rather than good management.
·A comminuted, that is a fragmented fracture of the right mandible body, that is to his jaw, and a nondisplaced left jaw fracture, secondary to at least one application of blunt force.
·Open wounds to the right and middle and ring fingers and the left thumb. These were explored and repaired during surgery and hand therapy was arranged to assist in returning his hand to full movement. Such wounds are consistent with defensive wounds, when one tries to grab a knife or when a knife slips through the hands.
·An additional small abrasions over the lower breast bone and lower left chest wall, which did not penetrate the chest cavity.
13As I have said, several of the wounds required surgical intervention. Without that intervention, the abdominal and hand injuries would have been unlikely to have healed without significant and serious complications. The injuries will give rise to the likelihood of scarring, which may be permanent.
14Mr Bobilkov was ultimately discharged from hospital on 27 February 2020.
15Your attack on Mr Bobilkov was sustained, unprovoked, brutal and persistent and only ceased after the intervention of Mr Tarasevici.
16Ambulance officers attended for Mr Bobilkov, police set up a crime scene around Unit 4 which was where you had come from. You had gone upstairs to Unit 8 and tried to gain entry, so you could have a shower. You were clothed in underpants and covered in blood.
17After about ten minutes, you came down from the stairway and encountered police who were maintaining the crime scene at Unit 4. You were told to remain where you were and you were handcuffed. You were compliant with police directions. When asked details, you gave them the name of 'Dickie Cooper' and an incorrect date of birth. You were arrested and cautioned and you advised the police that you had injuries 'on the back of your head, your finger and shit' as described by you. When asked whether you had been involved in an assault, you said 'I don't know what you're talking about'. You were then transported to Prahran police station where your true identity was confirmed by Face Fit.
18At about ten to ten on that day, ambulance staff attended the police station and dressed your injuries which were described as minor. Your injuries comprised of two to three centimetre incision wound to the palmar surface of the right index finger and a laceration at the back of your forearm, however the latter injury appeared to be a re-opening of a previous wound which had been sutured. You also had purple bruising on your right lower inner lip, which was an associated laceration showing some healing.
19You were photographed and then transported to hospital at approximately 11 am for suturing cuts to your arm and hands before being returned to the police station where you were interviewed the following evening, on 24 February 2020.
20In interview you said due to trauma, a lump on your head, all you could recall of the previous day was being brought outside, being put in the back of the divvy van and then put in the ambulance. You said that you had woken up at home in Cranbourne the day before and had breakfast and when asked about your day you said 'I don't feel comfortable answering that question'. This answer was a repeated response to further questioning.
21Photographs of the crime scene, in particular, Unit 4 were taken. A selection of those photographs were Exhibit “B” on the plea. A knife was seized at the scene. Later a bloodstained hammer was found inside Unit 4. There were bloodstains and spattering all over Unit 4. You resolved this matter to a charge of intentionally cause serious injury on the day of the contested committal. I regard your plea as an early plea.
Personal circumstances
22You were nearly 23 years old when you committed this offence. You are now 24. You have spent 634 days on remand, not including this day. You have been in custody for the whole period of the COVID-19 pandemic and its related lockdowns for the State of Victoria. At the time of your offending, you had been residing with your mother and three youngest step-siblings. Your mother describes your relationship with her three children as a caring and very good relationship. You were visiting your girlfriend's residence when this offending occurred. I note that you have a five year old son now who lives with his mother and that you have access, or had access with your son when you were at liberty.
23When you were three years old, your own father committed suicide. Your mother had a number of partners during your childhood. At age four, you were subjected to emotional and physical abuse by one of those partners. You had a number of DHS (as it was called then) placements, in disbursed with periods of time of living both with your mother as you grew up and your own grandmother. You commenced using cannabis at age 14 and by 16 years of age, you had commenced on ecstasy and MDMA. You had smoked ice and speed.
24You have had two hospital admissions for drug induced psychosis and anxiety. The first episode was in March 2018. The second time you attended was in July 2019.
25In 2019, your mother and siblings had moved in to care for your grandmother who had been diagnosed at that stage with lung cancer. You saw your grandmother die, this affected you deeply.
26You were using methylamphetamines daily up until the time of this offending.
27You have limited formal education. You completed primary school to Grade 6 level. You later returned to school in Year 9 and 10. After school, your longest period of employment was as a bricklayer for a period of approximately six months when you were an 18 year old. More recently, I have been told that you had a go at roof tiling, but even more recently, you have been on Centrelink payments and doing casual jobs for cash. Your life was dominated thoughout by the use of methylamphetamine.
28You have been examined by Dr Leon Turnbull, a psychiatrist, for the purpose of this plea hearing. Dr Turnbull prepared a report dated 4 November 2021. This was Exhibit 6. He assessed you on 3 November 2021. In his opinion:
'I doubt this man has a schizophrenic diagnosis or any chronic psychotic condition outside of direct use of illicit substances'.
29He further stated:
'Not surprisingly, the psychosis went away with the absence of ongoing drug use. He is not medicated with any psychotropic medications at the moment and I do not think he needs to be. In my view, there should be a simple education for him about what a drug induce psychosis is and that he is fortunate that at this stage, he has so far eluded developing a chronic psychotic condition. If he returns to illicit substance use, his risk of developing schizophrenia or some other major mental illness will be increased. His condition probably affected the early stages of incarceration, in terms of making it difficult for him to fully grasp his situation and take care of himself, however, his mental state has improved and that is also endorsed by his mother and in my view, he does not have an ongoing psychiatric condition making incarceration more onerous'.
30In Dr Turnbull's opinion, you do not require any medications, but would benefit from counselling to assist with drug use and self-improvement upon your release.
Sentencing considerations
31The basic purpose for which a court may impose a sentence are just punishment, deterrence, both specific and general, rehabilitation and denunciation of your actions and the protection of the community. In sentencing you, I must have regard to a range of factors such as the seriousness of your offending, your culpability for it and your personal circumstances.
32I am also required to balance the interest of the community in denouncing your criminal conduct, with the interest of the community in seeking to ensure as far as possible, that you as an offender are rehabilitated and reintegrated into society.
33I am required to take into account current sentencing practices in fixing your sentence. That enquiry is directed particularly, but not exhaustively, to the kind of sentences imposed in comparable cases and the statistics for the sentences. I have had the benefit of being referred to certain cases relevant to intentionally cause serious injury. I have considered those cases and the statistics and I am mindful that each case must be considered in the light of its own particular circumstances and many of the cases would be distinguishable from your case, as indeed they are from one another. Nevertheless, current sentencing practices is only one of the matters I have to take into account in this process.
34The charge of intentionally cause injury is a Category 2 offence, consequently a combination sentence, that is imprisonment and a CCO disposition cannot be imposed unless you, the offender, proves on the balance of probabilities, the matters set out in s5(2H)(c) of the Sentencing Act. In your case, there is no evidence to support the proposition that you have an impaired mental functioning that was causally linked to your offending that would reduce your moral culpability. If you were impaired in any way, it was due to your self-induced intoxications through the use of methylamphetamines.
35The opinion of Dr Turnbull supports that conclusion. Dr Turnbull also opines that you do not suffer from any impairment of mental functioning, that would increase the burden of imprisonment upon you. Consequently, the only appropriate sentence for you is a term of imprisonment with a non-parole period, and I note for completeness that your counsel does not rely on Verdins principles in this sentencing process.
36You have pleaded guilty to this charge. Whilst the plea was finalised after some negotiations, it is an early plea. It has obviated the need of your victim to give evidence or to relive the events that bring you to court. Further, your plea does have the utilitarian value of allowing for the orderly and effective administration of justice. There is a certainty of outcome and a resolution of the substantive issues raised by your offending.
37Your plea allows for the preservation of court and police resources to deal with other matters and your plea vindicates the public confidence in the legal process set up to protect the community. Your plea is also a clear acknowledgement by you, that you accept responsibility for your criminal behaviour on this occasion. Your plea also recognises you are willing to facilitate the course of justice in the community and I accept that your plea to this charge indicates and demonstrates remorse on your behalf.
38Your plea of guilty also has further utilitarian value because a plea is given in times when, due to the COVID-19 pandemic, you have not sought to delay the finalisation of this charge, by conducting a trial at some indeterminant date in the future. This is sometimes referred to nowadays as the Worboyes discount.
39The Court of Appeal in the case of Worboyes v The Queen [2021] VSCA 169, set out a number of considerations that were particular to a plea of guilty, in the course of the COVID-19 pandemic and even more so on the sentencing process.
40Most recently, these considerations were reinforced by the Court of Appeal in the case of Rossi v The Queen [2021] VSCA 296, which recited paragraph 35 to 39 of Worboyes and highlighted the following paragraphs and I will read it:
'We therefore consider that, whilst the courts of this State continue to labour under the adverse effects of the pandemic, a sentencing court should view a plea of guilty as carrying with it a greater utilitarian benefit than at other times and in other circumstances, and, concomitantly, as attracting an augmented mitigatory effect on sentence, simply because the plea will benefit the beleaguered administration of justice. Given the unhappy state of the courts' lists, the courts must, in an endeavour to alleviate the strain on the system, encourage those accused who are guilty to so plead. Such encouragement must come from an actual and palpable amelioration of sentence'.
41The Court of Appeal further stated:
'For these reasons, we consider that all other things being equal, a plea of guilty entered during the currency of the COVID-19 pandemic is worthy of greater weight in mitigation than a similar plea entered at a time when the community and the courts are not afflicted by the pandemic's effects. A plea of guilty during the pandemic ordinarily should attract a more pronounced amelioration of sentence than at another time. Although a sentencing judge need not quantify the extent of any 'discount', he or she must ensure that the plea of guilty results in a perceptible amelioration of sentence'.
42In addition, lockdown restrictions on prisoners such as yourself and limited visits and courses available to prisoners during COVID-19 pandemic conditions in gaol, have made your time more onerous than it would have been in normal times and I take these matters into account when fixing your final sentence for this offence.
43At the time of your offending, you were actually 22 years of age. Whilst you have previous court appearances, this period on remand is your first time in custody.
44You are a youthful offender. It is a principal of sentencing law that when a young offender such as yourself is to be sentenced, the sentencing disposition should be tailored, taking into account all other sentencing considerations to promote the offender's rehabilitation. This approach serves interests of the individual offender and the community.
45In the case of Mills, which your counsel has inadvertently referred to, by that I mean, he did not name the case but he talked about you being a youthful offender, the three propositions of sentencing are set out:
(1) Youth of an offender, particularly a first offender, which is not you, should be a primary consideration of a sentencing court where the matter properly arises.
(2) In a case of a youthful offender, rehabilitation is usually far more important than general deterrence. This is because punishment may in fact lead to further offending. Thus, for example, individualised treatment focusing on rehabilitation is to be preferred. In short, rehabilitation benefits the community as well as you, the offender. In your case, that will be reflected in a non-parole period.
(3) A youthful offender is not to be sent to an adult prison, if such a disposition can be avoided, especially if he is beginning to appreciate the effects of his past criminality. The benchmark of what is serious as justifying adult imprisonment may be quite high in the case of a youthful offender, and where the offender has not previously been incarcerated, a shorter period of imprisonment may be justified. The last proposition in particular, is a general principle expressed in s 5(4) of the Sentencing Act.
46In more recent times, the Court of Appeal has made pronouncements on the consideration of youth in sentencing practices. In the case of R v Wiley, President Maxwell said as follows:
'Mills constantly reminds sentencing courts and this court on appeal, that there is great public benefit in the rehabilitation of offender and in maximising the prospect that the offender will carry on a law abiding life in the future. But that consideration is not unique to young offenders, nor is there any one correct answer as to how the balance is to be struck between that consideration and others, which may point towards a period or a long period of imprisonment, rather than a non-custodial sentence. Thus, understood, the latter cases of the DPP v Lawrence and R v Nguyen, are not to be viewed as excluding the principles of Mills, but simply as instances of how those principles are to be applied.
As counsel properly conceded towards the end of his submissions, there a role for general deterrence to play in relation to every class of case. In relation to certain classes of case, however, general deterrence ay have a particularly important part to play, the present case is of that kind. Violence of this kind, and that is what this case is about here, in circumstances of this kind is so prevalent that the general deterrence is seen to have particular importance, but again, the role of general deterrence will vary in the circumstances of the case'.
47Your offending calls for a measure of general deterrence. These issues were recently considered in Azzopardi v The Queen, where Justices of Appeal Redlich, as he then was and Justices of Appeal Coghlan and Macaulay agreed with him and they said as follows:
'The general proposition which flows from these authorities is that where the degree of criminality of the offences, requires sentencing objectives of deterrence, denunciation, just punishment and the protection of the community to become more prominent in the sentencing calculus. The weight to be attached to youth is correspondingly reduced. As the level of seriousness of the criminality increases, there will be a corresponding reduction in the mitigating effects of an offender's youth, but only in the circumstances of the gravest criminal offending and where there is no realistic prospect of rehabilitation, may the mitigatory consideration of youth be viewed as all but extinguished'.
48Your offending is serious. The factors that are indicators of the level of seriousness are as follows:
1. Your victim was vulnerable when you initially attacked him from behind;
2. Your attack was done by using two separate weapons, initially a hammer and then a knife;
3. Your attack was sustained and protracted and you persisted with your attack after your victim had escaped the apartment you were in and you pursued him down the stairwell;
4. You continued your attack on your victim after he was clearly incapacitated and defenceless on the stairway;
5. Your attack was only ceased due to the intervention of a third party, that is your victim's cousin;
6. The injuries to your victim were serious, requiring hospitalisation;
7. You engaged in a self-administered drug induced rage, taken out on a defenceless person. Your culpability for this offending is high.
49There has been considerable delay between the day of your arrest and the finalisation of these matters. The delay is not attributable to any fault on your part. The COVID-19 pandemic has been a cause of many delays in court proceedings. I take into account that your future has been held in abeyance due to this delay and as such, has been an additional burden, whilst you have been waiting on remand in custody.
50You have admitted your prior criminal history. Your prior matters included offences of aggravated burglary, criminal damage by fire, recklessly cause injury and other dishonesty and driving offending. Your offending history coincides with your drug taking history.
51You have the advantage of a supportive family when you are released from custody. I have heard evidence from your mother today and it is clear that there have been times when you have lived with her, and other times when you have not, but she continues to maintain contact with you whilst you are in custody and she has expressed her support for you whilst she was here giving evidence today. This fact will assist you in your rehabilitation. I have fixed a non-parole period so that you will be released in a supervised and structured manner, to reinforce your drug rehabilitation and your return to your family in a law abiding way. Hopefully for a law abiding life in front of you.
52I sentence you as follows. On the charge of intentionally cause serious injury, you are convicted and sentenced to five years and three months imprisonment. I fix a non-parole period of three years and six months imprisonment.
53Section 6AAA declaration is but for your plea of guilty, I would have sentenced you to seven years and nine months, with a non-parole period of five years.
54I declare that you have served 634 days pre-sentence detention, not including this day and I have signed the disposal order that was sought by the prosecution. Is there anything else?
55MS HAMILL: No, Your Honour.
56MR PETERS: No, Your Honour.
57HIS HONOUR: Thank you. Mr Payne, You do not have to listen to any of this, I have finished the sentencing remarks. For you in the future, it is a really simple equation, really simple. You stay off the drugs and your life will be okay. You get back on the drugs, you know where you go. It is that simple.
58OFFENDER: I understand, Your Honour.
59HIS HONOUR: Yes. Thank you. Sorry, you want a chance to speak with your client on the video link, I think we've still got some time on it?
60MR PETERS: If it's possible, yes Your Honour.
61HIS HONOUR: Yes certainly and his mother can remain. I'll facilitate that and I'll just ask ‑ ‑ ‑
62MR PETERS: Thank you, Your Honour.
63HIS HONOUR: ‑ ‑ ‑ the rest of us all vacate the space. Thank you. Did you hear that Mr Payne? You just stay there for a minute, yes.
64OFFENDER: Thank you, Your Honour.
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