Director of Public Prosecutions v Perri

[2019] VCC 1949

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-19-00600

DIRECTOR OF PUBLIC PROSECUTIONS

v

DYLAN PERRI

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JUDGE:	HER HONOUR JUDGE RIDDELL
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	22 November 2019
CASE MAY BE CITED AS:	DPP v Perri
MEDIUM NEUTRAL CITATION:	[2019] VCC 1949

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr J. Pruden
For the Accused	Mr R. Backwell

HER HONOUR:

1Dylan Perri, you have pleaded guilty to one charge of causing injury intentionally and one charge of possession of cannabis.

2These offences were committed alongside your co-offender, Thomas De Bias.  You were born 20 July 1999 and at the time of the offences, you were 19.  You are now 20.  Mr De Bias was 20 years old and is now 21.  The victim in this matter is Lachlan Morris.  At the time of the offending, he was 18 years old.  You and he did not know each other; however, he was known to your
co-offender.

3On 2 October 2018, Mr Morris and De Bias exchanged messages via Facebook during the afternoon and arranged for Mr De Bias and yourself to purchase from Morris a quarter of cannabis.  For that purpose, they arranged to meet at a car park outside the Balaka Place milk bar in Bundoora.  You and Mr De Bias then both attended that location at about 5 pm.  You were together in Mr De Bias's car.

4Mr Morris approached and got into the back seat of the car and sat on the driver side.  Mr De Bias was in the front driver seat and you were in the front passenger seat.  After entering the car, Mr Morris tried talking to De Bias but he was silent.  Mr Morris then pulled out a box cutter.  In response, you and Mr De Bias both pulled out knives.  Mr De Bias had a switch knife and you had a flick knife with a blade of about 10 centimetres long. 

5Mr Morris got out of the car, kicked it and tried to open the front door apparently to have a confrontation.  Mr De Bias placed his knife in the car's cupholder and then got out of the car.  He and Mr Morris began punching one another before they both fell to the ground at the rear of the vehicle grappling with each other.  That behaviour constituted an affray to which Mr De Bias pleaded guilty.

6Mr De Bias and Mr Morris were both lying on the ground on their sides when Mr Morris heard the passenger door of the car open.  He saw you running towards them and then felt something hit his back.  You had stabbed him in the back with your knife.  That is the offence of causing injury intentionally.

7You then yelled out to Mr De Bias to get in the car.  Mr Morris stood up and saw a cascade of blood pouring towards his feet.  He then realised he must have been stabbed and ran across the road to his friend's address where he had come from to get help and for someone to call 000.  You and your co-offender fled the scene and you were not able to be located.

8Mr Morris was taken to the Austin Hospital with a 10 centimetre laceration to his back that was 3 centimetres deep.  He was discharged the next day but suffered pain and bruising for approximately 1.5 months.  Despite significant blood loss fortunately that injury did not cause any medical complications, no underlying organs were damaged.

9Your co-offender was arrested and interviewed on 3 October 2018.  On 4 October, you surrendered yourself to the Mill Park police station where you were arrested and interviewed.  Turning yourself into police was a positive though you were not forthcoming in your interview, making up a story about a third co-offender and denying you had possession of a knife or that you had stabbed Mr Morris.  You admitted your possession of cannabis.

10Despite your initial obfuscation, your matter resolved reasonably soon after.  Your plea of guilty to the charges before me was entered on 19 March 2019 prior to any evidence being called at a committal hearing.  I regard that as an early plea of guilty and you receive the benefit of that plea of guilty.

11Of great concern is your use of the knife in this matter.  It was completely out of proportion with any threat posed by your victim.  You inflicted injury on him when he was engaged in the brawl with your co-offender and when he was lying on the ground with his back to you.

12Using a knife to inflict injury on another person in those circumstances places this offence at the higher end of offences of this type.  It is an aggravating feature of this offending.  It is completely unacceptable.  The fact that the victim had produced a knife offers you no excuse.  There is no reason to carry a knife.  Saying it is for your protection only says you are willing to use it on others as you did here.  You are very lucky that the injury caused to your victim was not more serious.

13It is of real concern in your case that on 20 September 2018, that is 13 days prior to this offending, you were before the Magistrates' Court for a raft of offending including a charge of recklessly causing serious injury.  That offence occurred in January 2018.  The serious injury on that occasion was inflicted with a knife.  It was inflicted in circumstances of a drug deal gone wrong.  On that occasion, you were the trafficker.

14I will return to those circumstances in due course, however, they highlight issues pertaining to your prospects of rehabilitation and the need for specific deterrence in your case.

15Principles of general deterrence, denunciation and community protection are also at the forefront of sentencing considerations in this case; that is I must impose a sentence which denounces your behaviour and which, in turn, deters other young men from being involved in confrontations and in particular from using knives.

16This matter originally came before me as a plea of guilty on 25 July 2019.  At that time and by way of written submissions, your counsel submitted that you were in need of inpatient rehabilitation followed by intensive outpatient treatment.  He submitted I should release you for that purpose onto a community correction order with or without a period of imprisonment or in the alternative that I have you assessed for a Youth Justice detention order.  The prosecution submitted that your offending warranted a term of imprisonment with a non-parole period.

17The matter was adjourned and at that point, I requested a community correction order assessment.  You were assessed as being high risk of reoffending, however, you were found to be suitable for such an order.

18On further consideration of your matter, I requested an assessment to determine your suitability for Youth Justice detention.  That assessment report was authored by Steven Riordan, senior court advice officer, Youth Justice, and Robert Ross, Youth Justice practice advisor, and was dated 3 September 2019.  In it, you were assessed as unsuitable for Youth Justice detention.  The recommendation, however, was that you needed inpatient rehabilitation treatment.

19When the matter returned on 17 September 2019, time was requested to obtain information as to availability of inpatient beds at a residential rehabilitation facility.  The matter could not return during October due to my unavailability.

20I will return to the issue of inpatient rehabilitation, however, to state what is blindingly obvious to persons who work in these courts, the demand for places far exceeds availability.  It is not possible unfortunately under the current sentencing framework to neatly craft an appropriate sentence which would see you released straight to an inpatient facility.

21Turning to your personal history.  Your history is outlined in the psychological assessment report of Consultant Psychologist Luke Armstrong and referred to in a number of other documents tendered on the plea including a letter from your general practitioner, Dr Mabo, psychiatrist, Dr Rahimikia, as well as from your family and other friends and also report of Ivan Matheson, clinical psychologist who has seen you since 2015.

22Your history in general summary is as follows.  Your mother is of South African descent while your father was born in Australia.  You were born in South Africa and then lived in the UK for a period of two to three years before your family moved permanently to Australia.  Your father was a musician, however became and is now a trainer in first aid.  Your mother has worked full time in administration.

23You attended primary school in Templestowe and then Doncaster Secondary College for Years 7 and 8.  You describe your family life as dysfunctional.  There were difficulties in your relationship with your parents.  You say the household was often volatile and there was fighting.

24From as early, you say, as eight or nine years of age, you experienced persistent suicidal ideation in addition to self-harming behaviour.  You experienced persistent depressed mood compelling you to isolate yourself in your bedroom.  You report a chronic experience of very poor positive social relationships with few friends.

25Despite being a good student with intelligence and an apparently high IQ, you had emerging behavioural problems at school characterised by disruptive behaviour, oppositional and occasional fighting.  You were suspended at least eight times before being asked to leave Doncaster Secondary College.  You then attended Eltham high school for Years 9 and 10.  You were by then isolating yourself both from your peers and your family.

26You had apparently commenced using cannabis at around age 14.  You began consuming hallucinogens including magic mushrooms.  The school were apparently aware of your drug use and placed consequences on you, however, you subsequently left of your own accord.  You then attended Templestowe high school managing to complete Year 10 and part of Year 11.  You were found with drugs at school, however, and were eventually expelled.

27Through your young teens, you saw several psychologists in relation to your behavioural difficulties and apparent depression.  Despite difficulties in your relationship with your parents, it is apparent that they have done their best to support your engagement with a variety of treaters.  They clearly love and continue to support you.

28Your father in a letter tendered to the court states that you have been under the care of your family GP, a psychologist, psychiatrist and naturopath over that time.

29Reports vary in relation to your age when you were admitted to the inpatient unit at the Austin Hospital Child and Adolescent Mental Health Service in relation to depression and drug-induced psychosis.  According to the report of Mr Riordan, you were about 13 years old; according to Mr Armstrong, you were about 15 years old.

30At that time of your admission, in addition to abusing cannabis, you were consuming large quantities of cough syrup and were engaging in heavy binge drinking.  You remained an inpatient for somewhere between six to 12 weeks, depending on the report, and you were provided with treatment during and after your admission to the facility.

31However, your drug use continued.  On admission to the Austin, you were apparently prescribed Valium which unfortunately led to an addiction following discharge.  Most worrying, you have been using ice intermittently since you were 15, using it most weekends from the time you were 18 years old until your arrest.

32Any attempts of employment have been largely thwarted by your own drug use.

33According to psychologist, Mr Armstrong, a feature of your drug-taking from a young age was the quantity and self-reported recklessness in terms of quantity and nature of substances used.  He says this represented a form of self-harm in the context of what he describes as a chronic history of suicidal ideation.

34According to the Youth Justice report, your drug-taking at least at this stage has become something of an obsession.  You have continued in the pattern of using a vast array of substances repeatedly overdosing.

35In the context of your drug abuse, you have committed a number of criminal offences.  A number relate to drug possession and carrying weapons.  Those are all relevant to my considerations here.  Further, you have a prior conviction for resisting emergency workers on duty, resisting police, contravening a family violence interim intervention order and, of most significance, the charge of recklessly causing serious injury to which I have referred.

36Despite your young age, you now have a chronic and entrenched drug addiction.  On remand, you have admitted using buprenorphine at least during the early period of your remand.  I am told you have since managed to complete some random urine screens which have been negative.

37Be clear, drug use does not in any way excuse your behaviour.  I have read your comments to Mr Armstrong that you know and you do not believe you are violent when not using drugs.  You are a young man with some intelligence.  Mr Armstrong estimates that your intelligence is in the average to high-average range.  You can understand therefore the link between your drug use and your violent behaviour.  In effect, you are on notice that if you continue your drug use, you risk further violent offending.

38According to Mr Armstrong, your presentation and history is consistent with a severe borderline personality disorder and also with severe polysubstance abuse.  You have not been diagnosed with any mental impairment.  Your general practitioner refers to major depressive disorder and social anxiety although those are not confirmed by the psychiatrist who treated you in 2018 or at least not in that report.

39Considerations of Verdins were not urged upon me and given your mental health history is complicated by the severe overlay of chronic drug abuse, that would have been a difficult submission to make.  I do, of course, take into account those matters in the general sense.

40A number of recommendations were made by Mr Armstrong in relation to the need for a highly structured program aimed at your rehabilitation on your release from custody.

41Having received the report of Mr Riordan and Mr Ross, I now understand that you spent approximately three months on remand in adult custody for the recklessly cause serious injury offence committed in January 2018.  You were then released on bail in April 2018 under the structure and auspices of Youth Justice.  In line with your bail conditions, you were undertaking weekly sessions with YSAS, the Youth Support and Advocacy Service, to address your substance abuse, initially weekly but then you were required to attend three times per week.

42Mr Riordan also saw you, he says, 21 times between April and your final court appearance on 20 September 2018.  Mr Riordan noted that whilst your mental health is of great concern, your pattern of drug-taking is the more pressing and immediate issue.  Your drug-taking has caused considerable discord within your family environment.  He says during your time on bail, your substance use was out of control.  At times, you were incoherent.  He says a safety plan was implemented at one stage with recommendations made that you enter a detoxification facility.  Arrangements were made with your general practitioner to prescribe medication to assist in your detoxification and for you to enter Western Health Youth Community Residential Withdrawal Unit and then a YSAS residential unit.  You agreed to the plan, however, after five days at the Western Health Youth Community Residential Withdrawal Unit, you discharged yourself.  Mr Riordan says you are to some degree obsessed with drug use and not motivated to remain abstinent. 

43Despite your depression and anxiety, he says you have coped previously in the adult custodial environment including the three months on remand prior to obtaining bail and the eventual CCO.  Ultimately, he concluded you did not meet criteria for Youth Justice detention.

44In summary, according to him, the glaring issue is your constantly high level of substance use in the community.  He describes it as prolific and frequently dangerous to yourself and others.  He says essentially if you are to address any underlying mental health issues, the main aim must be for you to abstain from drug use so that you can address those issues.

45His ultimate recommendation was that I release you onto a community correction order with a condition to place you on a long term residential rehabilitation program.  To that end, as I have said, when the matter returned, time was sought so that enquiries could be made regarding availability of such program.

46I am told that your family have been attempting to obtain accommodation for you at a variety of residential rehabilitation facilities.  None are able to guarantee a start date for admission to a program; however, it is hoped that finalising your sentence today will provide date certainty of your release and assist in out-of-custody assessments being undertaken.

47Your counsel in all circumstances submitted that I should release you onto a community correction order with stringent conditions to allow for the fact that I cannot release you directly to an inpatient facility but with a view to an inpatient rehabilitation facility placement.

48The prosecution reiterate their submission that I should impose a sentence which has a non-parole period though allowing for the time that you have now spent on remand.

49For completeness and before I turn to sentence, I want to address the issue of parity and so that you understand, I have passed a very different sentence on your co-offender to the one I will passing on you.  Your offending here is very different.  He pleaded guilty to an affray.  There was no use of a knife by him.  That brawl, though violent, did not result in any injury because of Mr De Bias's actions.  It was brief and interrupted by your actions which, as I have outlined, escalated the situation in an extreme way.  You must be punished differently because of that behaviour which is aggravated by the use of the knife, not just by using it but by stabbing him at a time when he was on the ground and vulnerable. 

50Your circumstances are aggravated by the fact that you were on a community correction order for similar offending and one that had only been recently imposed. Mr De Bias, in contrast, was a person without any prior criminal history.  He had spent nine days in custody which was his first and only time. 

51Fortunately for him, he obtained bail and was able to put some runs on the board with regard to counselling and rehabilitation efforts with a psychologist and psychiatrist.  When he came ultimately to be sentenced, he was in full-time employment, a stable relationship and remaining living with his family.

52In short, the circumstances both in relation to his offending and his personal circumstances were quite different.  I think the words used by the prosecutor was that there was a gulf of difference between you and him and in those circumstances very different sentences were, in my view, warranted.

53I turn now to your circumstances and your ultimate sentence.  You have now spent 416 days on remand in adult custody.  You are only 20 years old.  So I take that matter and your remand time into account.

54I have taken into account your plea of guilty and the utilitarian benefit that that results in; that is it saves the time and expense of a trial.  It also saves your victim having to give any evidence.

55It is unclear to me if your plea of guilty represents any remorse.  I have not read really any expressions of remorse by you; however, I do accept that it is an acceptable of responsibility by you of your offending behaviour in this instance.

56I take into account your mental health history that I have read. 

57In particular, I take into account your young age.  Higher courts have repeatedly emphasised the greater focus on rehabilitation for a young offender.

58Your prospects of rehabilitation are very guarded in the circumstances I have described.  The first step clearly is getting your drug use under control so that you can address any underlying issues of your mental health.

59You are clearly an intelligent young man and not without talent.  I have read that you had successfully applied for and auditioned to undertake a Diploma in Music at Box Hill TAFE but you could not enter that because you were remanded.  You have expressed a desire to pursue that line of interest.

60You have expressed some desire to pursue employment and I have a letter regarding previous employment in office work type duties.  You had also been offered some employment with a removal company and you had undertaken work with a carpentry business as a labourer.

61As I have said, you have a supportive family.  Your parents have been here on every occasion and are here again today.  Your father in his letter says you are loved by a large extended family who are all ready to support you.

62In all the circumstances, I have concluded that the appropriate sentence in your case is one of imprisonment combined a community correction order rather than one that sees you released onto parole.

63If you could stand please, Mr Perri.

64The sentence I impose in relation to the charge of intentionally cause injury is a sentence of 14 months' imprisonment.

65I declare that you have already served 416 days in relation to that term of imprisonment.

66That sentence is combined with a community correction order of two years' duration.  In the first three months of that order, it will be an intensive community correction order; that is, you will be required to reside with your parents or at a residential rehabilitation facility as directed by the Office of Corrections.

67You are to be under a curfew; that is you must remain at your parents' residence between 10 pm and 7 am and you must abide by that curfew or any curfew set by any residential facility.  So if the residential facility is a 24-hour locked facility, that is where you remain.  If they have a different curfew, well, you will abide by their curfew.  It is as they direct you.

68You are not to associate with Thomas De Bias.  That condition remains in place also.

69The residential condition goes beyond the first three months.  So, in other words, if Corrections direct you to enter or remain at a residential facility at any time during the two years of your order, that is what you must do.

70You are also to be under a condition of supervision.

71You are to undertake drug and alcohol treatment as directed by Community Corrections and that includes drug treatment at a residential facility pursuant to s.48D(3)(c) as directed by Community Corrections.

72You are to undertake mental health treatment as directed by Corrections and you are to undertake any offence-specific treatment as directed by Corrections.

73You are to return to this court before me for judicial monitoring on Wednesday, 18 December at 9.30 am.

74In relation to the possession of drug charge, you are convicted and that matter is discharged.

75But for your plea of guilty in relation to the charge of intentionally causing injury, the sentence I would have imposed would have been one of three years' imprisonment with a non-parole period of 22 months' imprisonment.

76Have a seat there.  I will just have that order printed out and, if needed, I will go through those conditions again for you.  Thank you.

77Now, there were applications for disposal and a 464ZF application from memory and, from memory, Mr Backwell, they were not opposed.

78MR BACKWELL:  That is correct, Your Honour.

79HER HONOUR:  Yes.  So I will make those in the terms sought.

80MR PRUDEN:  If the court pleases.

81HER HONOUR:  Thank you.  Please.  Thank you.

82Mr Pruden, do you have a copy of the disposal order with you?  If not, we will just print another one off.

83MR PRUDEN:  I am afraid I do not, Your Honour.

84HER HONOUR:  That is all right.  We will print one out.

85Mr Perri, while the order is being prepared and printed out, on my calculation, my sentence will see you released in roughly - I think it is about 10 days.  I will be providing my reasons to Corrections in the hope that they will have some things in place for you when you get out and, by in place, I mean supervision will be lined up and if there is no residential placement for you, then at least you can be connected to some drug and alcohol type of treatment testing et cetera as soon as possible.

86I encourage your family to keep looking for beds.  I know it will be very hard for you to come out of a significant time in custody and then think about not going and staying back at home but all the people who have dealt with you are recommending this is what you need so that you do not come out of this sentence, bounce back into drug use, reoffending and back into remand.

87That is the risk you are at.  That is the serious risk you are at.  So I really hope that there are more endeavours made to try and get you into a rehabilitation facility so that that is not the course of your life going forward because that is what it looks like in some part now. But, as I said, and I meant it, you have got some things going for you; intelligence, some talent, your family.  A lot of people who come here do not have any of those things.

88So ultimately now you are 20.  It is going to be a matter for you to decide what your life looks like.  Thank you.

89MR PRUDEN:  In relation to 464ZF order, ‑ ‑ ‑

90HER HONOUR:  ZF.  Yes.

91MR PRUDEN:  ‑ ‑ ‑ Your Honour has overlooked the need to tell Mr Perri ‑ ‑ ‑

92HER HONOUR:  Thank you.  I will do that.  Thank you.

93MR PRUDEN:  If the court pleases.

94HER HONOUR:  Mr Backwell, the address is still 13 Elsa Court, Eltham?  That is the parents address.

95MR BACKWELL:  Elsa Court?

96VOICE (from body of the court):  No, we've got a new address.  405 ‑ ‑ ‑

97HER HONOUR:  Yes.

98VOICE:  ‑ ‑ ‑ Reynolds Road, Eltham.

99HER HONOUR:  R-e-y-n-o-l-d-s?

100VOICE:  That's correct.

101HER HONOUR:  All right.  405?

102VOICE:  405.

103HER HONOUR:  All right.  Thank you.  Yes.

104And, Mr Pruden, apparently there is no disposal order on file in relation to Mr Perri.  I know I made one in relation to the other matter.  Do you want to send that through and I will sign it?

105MR PRUDEN:  Yes, my instructor will ensure that happens, Your Honour.

106HER HONOUR:  Perfect.  All right.

107While that is being printed, Mr Perri, so it is a two-year community correction order.  You will need to attend South Morang Community Correctional Services within two days of the commencement of the order.  So it commences on the day you are releases.  So within two days of being released, you will need to attend at South Morang.

108There are mandatory terms that apply to all community corrections order.  They are listed there.  In short, you have got to comply with the directions and what is required of you by Corrections and you must not breach the order by any further offending.  Do you understand that?  Yes.

109OFFENDER:  Yes, Your Honour.

110HER HONOUR:  You just have to say, 'Yes', rather than nod.

111You will be under supervision.  You must undergo assessment and treatment including any testing for drug abuse and alcohol abuse.  You must undergo assessment and treatment including testing at a residential facility for drug abuse as directed and you must remain at that facility so long as you are directed to remain there by Corrections Victoria.

112You must undergo any mental health assessment and treatment as directed and you must participate in any programs or courses to address any factors that are involved in your offending.  You must not associate with your co-offender for the period of the order and in the first three months of the order, you must reside at 405 Reynolds Road, Eltham, or at a residential rehabilitation facility as directed.

113You must remain at either your parents' premises or whatever residential facility you are in between the hours of 10 pm and 7 am for that first three-month period.  If you fail to comply with any of those conditions, you will be in breach of the order.  You must return and reappear here in front of me on 18 December at 9.30 am.

114Do you understand those conditions of the order?

115OFFENDER:  Yes, Your Honour.

116HER HONOUR:  And do you agree to comply with that order?

117OFFENDER:  Yes, I do.

118HER HONOUR:  You understand any breach, whether it is reoffending or not complying will bring you back before me and I will have to resentence you on the intentionally cause injury charge.

119OFFENDER:  Yes.

120HER HONOUR:  All right.

121While your counsel is having a look at that and you are welcome to approach to the dock, ‑ ‑ ‑

122MR BACKWELL:  Thank you, Your Honour.

123HER HONOUR:  ‑ ‑ ‑ Mr Backwell.  In relation to the forensic sample, so that is a sample of saliva that the police are authorised to take from you and I just advise you that if you refuse to provide that, reasonable force can be used to take that sample from you.  All right?  Do you understand that?

124OFFENDER:  Yes.

125HER HONOUR:  All right.  Thank you.

126All right.  And you have signed that agreement to comply by that order, Mr Perri.  All right.  Thank you very much.  Yes, Mr Pruden, was there something else you wanted to raise?  No.

127MR PRUDEN:  No.

128HER HONOUR:  All right.

129MR PRUDEN:  At that stage, Your Honour still had not given the warning about the 464 course.

130HER HONOUR:  All right.  No, I had not forgotten.

131MR PRUDEN:  Thank you, Your Honour.

132HER HONOUR:  All right.  And that order is made there and I will make the disposal order in the terms sought.

133All right.  Thank you, Counsel, for your cooperation and your assistance and your patience.  All right.  Thank you.  Thank you.

134MR PRUDEN:  May it please the court.

135MR BACKWELL:  If Your Honour pleases.

136HER HONOUR:  Actually, we will take Mr Perri I think first.  Thank you.

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