Director of Public Prosecutions v Roberg

[2019] VCC 797

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-02342

DIRECTOR OF PUBLIC PROSECUTIONS

v

DALLIN ROBERG

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Melbourne
DATE OF HEARING:	7 March 2019
DATE OF SENTENCE:	31 May 2019
CASE MAY BE CITED AS:	DPP v ROBERG
MEDIUM NEUTRAL CITATION:	[2019] VCC 797

REASONS FOR SENTENCE
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Subject:
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Cases Cited:
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APPEARANCES:	Counsel	Solicitors
For the Office of Public Prosecutions	Mr D. Gray	Office of Public Prosecutions
For the Accused	Mr K. Reynolds	James Dowsley and Associates

HIS HONOUR:

1Dallin Roberg, you have pleaded guilty to one charge of recklessly causing serious injury and one charge of recklessly causing injury.  Those crimes carry maximum penalties of 15 years and five years respectively.  You are 20 years of age at the present time and you were 18 years of age at the time of the offending.  Obviously you were a very young offender and indeed, so far as your prior history is concerned, you have two without conviction matters, though I note that each of them was in fact for violence.

2You pleaded guilty at the earliest reasonable opportunity and I accept that you now have profound remorse for what occurred. You must also of course get the utilitarian benefit of that plea of guilty.  What has occurred in this matter is that one of the gentlemen who was seriously assaulted back when this offending occurred, subsequently died.  It was then a situation where the matter had to be reviewed to see whether it was a matter of manslaughter or remained as a serious injury charge.  That has given rise to an extensive delay which is totally understandable, but which for one so young, has to play a significant part in this sentencing process.

3You had a co-accused in the matter, Mr Jacob Grant.  I sentenced him back on 7 March of this year to a head sentence of three years and three months, with a minimum term of twenty-one months.  You were also present on that day and a plea was conducted on your behalf.  It became clear during the course of that plea that you have a significant intellectual disability and your counsel very properly asked that I have you assessed for a community corrections order, with a justice plan, rather than leave you to what can only be described as the vagaries of the parole system.

4Accordingly you come back today, me having received a report, so far as a justice plan is concerned and also having received a report from Corrections which indicates that you are suitable for a community corrections order.  As it was indicated at the time, and has been indicated previously, that is the course I will be following.  However, what needs to be done is that the full process needs to be gone through and it needs to be made clear what this nature of the offending was and what the ramifications of it were.

5I am simply referring to the sentencing remarks I made when I sentenced your co-accused in terms of how all this occurred.  But the circumstances are that you in the early hours of the morning, with another man, assaulted two elderly men in the front yard of their house.  Graham Barnes was 77 years old.  He was non-verbal because of a stroke he had suffered some months earlier.  As I indicated, after this assault, he subsequently passed away, but that is not said to be as a result of this assault.

6On the afternoon of Saturday 30 September, you met your co-accused for the first time in Mildura while shopping for clothes.  You became friends and agreed to go to a party together that night.  You purchased a significant amount of alcohol and I accept that you drank a significant amount of alcohol.  Around about 7 o'clock, the two of you met and then went onto the party.  You were drinking alcohol throughout the night. 

7Shortly before midnight, you were dropped off in the CBD area of Mildura, where you took bottles of Corona and you went to local nightclubs.  At approximately quarter to one in the morning of 1 October, the two of you went looking to buy cigarettes.  There is CCTV footage of the pair of you walking around during the course of that night, but I do not need to refer to that.  As I have said in sentencing your co-accused, it is common ground what occurred.

8At around about 1 o'clock, the pair of you arrived at the front of the Caltex Petrol Station in Seventh Street, it was closed.  You then walked off and headed towards the victim's address at 94 Seventh Street.  Upon arrival at that address, you began to kick the side of the tin fence, kicking it several times.  The pair of you then moved to the front of the house. 

9Whilst at the front of the house, you would appear to have for some reason known or known of the victim, began damaging his letterbox on the frontline of the property.  Mr Barnes heard the noise, got out of bed and went outside to investigate.  He attempted to move the two of you on.  He is described as having used hand gestures to try and get you to move because he did not have the power of speech.  In any event, neither of you left and he sprayed at least you, with a garden hose to try and get you to stop harassing him and damaging his property.

10What occurred after that, you are both equally responsible for.  There is some disagreements as to who threw which punch.  That simply does not matter in this situation.  The fact of the matter is that the two of you jumped the front fence, ran towards him and began assaulting him by punching into his face and head area.  The probabilities are it was you who threw the first punch.  You were standing over him as you were assaulting him. 

11His brother, who was 81 years of age, heard the noise and came out to investigate.  He saw his brother lying on the ground being assaulted and he could see he was not fighting back in any way.  He tried to assist his brother, but was prevented from doing so, when you hit him causing him to fall to the ground.  That gave rise to the charge of recklessly causing serious injury to Graham Barnes and recklessly causing injury to Brian Barnes.  That is a very simplified version of what took place.  It was a disgraceful attack on two defenceless old men by who it was said previously, two drunken young hoons.  You were subsequently both arrested and charged with the offending and with some toing and froing, insofar as records of interview were concerned, but in the end, you both admitted it and accepted responsibility for what you did. 

12Graham Barnes suffered the following injuries.  A type three fracture to the right side of his face.  Depressed fracture of the orbital floor bilaterally, that is both eye sockets.  Displaced comminute fracture of the nasal bones and bony septum.  In other words, a broken nose.  Displaced fracture of the outer table and septum of the frontal sinus.  That is a skull fracture which extends into the sinus and an injury to the left forehead and a swelling or abrasion to the back of the head.  The forensic material indicates clearly that there were at least three impacts to the head of Mr Barnes and as I said, I am not going to buy into who actually threw which punches.  The pair of you are equally responsible.

13Mr Brian Barnes received facial bruising assigned to his eyes, nose and cheek area and was later released from the Mildura Base Hospital.  As I said, when sentencing your co-accused, the elderly people are these days afraid living by themselves, afraid of being attacked by younger stronger men and very conscious of their inability to defend themselves. It is a common fear and conduct such as this simply entrenches it.

14I have read the victim impact statement of Mr Brian Barnes.  He lived in that house since he was a small boy.  Born there I think as I recall.  I have read other victim impact statements in relation to it all.  I have got to be careful to sentence for what the assault brought about, not what subsequently followed.  But those victim impact statements, as I have said again, when sentencing your co-accused, bring home clearly the sense of fear, the anger and the disbelief that two young men could do this to, as I said then, two vulnerable and essentially defenceless older men.  The offending is obviously serious and a gaol sentence is the only sentence open. 

15General deterrence and specific deterrence must play a part and clearly, denunciation and appropriate punishment must also be given their part.  It is unfortunate that the matter did take so long to come on because in those circumstances, I would have given each of you, as I indicated, a youth justice sentence of real significance.  These days you can get four years of youth justice detention and they would have been the sort of area that I was looking at.  I think that would have been far better for each of you to try and rehabilitate under, but I am about to relate what you have been able to achieve since you have been in adult gaol and that is very much to your credit.

16The situation is that you have now been in custody for 606 days.  You have been in custody ever since the matter occurred.  Your background was simply set out in the sentencing submissions on your behalf by Ms Hollingworth.  As she pointed out, you were 18 at the time of the incident.  You were born in the Murray Bridge area and you are of Aboriginal parents.  Your family had moved around a lot.  Your mother and father separated and your father went to Broken Hill and your mother and sister moved to Tasmania.

17There was no physical violence when you were growing up, but your father was clearly an alcoholic and there was obviously mistreatment in a form of verbal violence.  You, at the age of 18, are already the father to three children.  The first of them when you were possibly 13 or 14 years of age.  It became clear when you were younger that you had a disability.  You had been diagnosed with ADHD.  You had behavioural problems starting from when you were very young and you were only able to attend even Grade 6 on a part time basis.

18The behavioural problems involved fighting and aggression and it is to your credit in fact that your criminal history is of relatively short duration, bearing in mind the seriousness of the difficulties that you have faced.  You have been diagnosed with a mild intellectual disability.  Those who understand what that means know that that is a very significant disability indeed.  You went to different high schools, but were ultimately expelled in around about Year 12.

19Of real significance in your life is that when you were aged 16 years of age, a friend of yours killed himself.  He told you that he was going to kill himself, but you never thought he would.  You felt guilt about that ever since and described to your counsellor, at least, that that death was the most upsetting event that had happened in your life.

20At the time of your arrest, to your credit again, were working, doing landscaping.  It was your first proper job and you were going well.  You lost that job obviously upon being remanded, but you have a desire to work again upon release.  Whilst you had been in custody, you worked as a unit billet and in woodwork.  As I said, you have now been for some 606 days, which is a long period of time for one of your age.  You had been receiving some psychological assistance before you went onto remand and clearly that is going to have to continue.

21You were assessed for the justice plan and it is a very informative report.  That report goes through - this is the overview, goes through the circumstances of your background and the rather bizarre situation that your mother, and I think I have already indicated, both parents are Aboriginal, made a decision to leave the family to pursue a life in Germany with a man she had met on the internet.  You were then left in the care of your older sister Sarah, who as I recall, was present in court to support you in Mildura when you were approximately 12 years of age.  It is clear from then on, your behaviour became very problematic.

22You have now indicated that you would like to have more contact with your children.  You would like to have more time with your father who lives in Broken Hill and that you would like to try and connect with the Aboriginal community, and Aboriginal relations.  The report goes onto mention a number of other matters and I think importantly, this may be of importance to the family of the victims as well.  You have over the last year or so, I understand and believe, gained a proper understanding of what you have done.

23When spoken to by the justice plan people, they said that it brought about a dejected expression and you said that you 'Not stopped thinking about it'.  You, when asked how it made you feel, simply nodded in agreement that they were unpleasant thoughts.  You have expressed genuine remorse.  You indicated to them and they are used to dealing with situations where they are being misled and they clearly do not believe that with you, that you appear committed to alter your behaviour, to participate in the services identified in the justice plan.

24You have expressed to them a desire to be referred to a professional who could assist you to address anger management and longstanding emotional problems.  There will be a disability justice coordinator who will be continuing to address you.  You will be given the opportunity, under this community corrections order, to try and deal with the other aspects of your life which have been in disarray for a long period of time.

25Once that report came to hand and was available to all of the parties, I then had you assessed for a community corrections order.  That corrections order was - you were assessed by Ms Johncock, who if I might say so, invariably provides a very detailed and helpful report.  She says much the same thing as what the justice people said.  But I think again this is important that it be understood that for one so young, this is a dramatic improvement in your sense of yourself, in the sense of your obligations to a community.

'As Mr Roberg intends on seeking fulltime employment upon release, this would enable to build meaningful prosocial relationships with fellow employees.  Upon reflection of the offences, Mr Roberg referred to the night as the worse time of his life.  That if he could take it back, he would.  He said at the time he went into a state of shock and recalled that the event was hard to speak about and felt immense remorse.

He further articulated that had he not been sent to prison, he has not made the appropriate changes to his attitude and behaviour.  This was the wake up he needed in life.  He reflected upon himself as being a selfish and violent person, prior to his remand'.

26She then went onto say:

'In conclusion, this certainly assesses Mr Roberg as suitable for a community corrections order.  There were known concerns regarding his intellectual capacity and appeared to understand all information put forward to him.  He has adopted a collaborative approach with prison staff and has used the time in custody to commence programs, education and employment training and build appropriate relationships with prison staff.  Indeed I note that when you were assessed, one of the Corrections officers that had been working with you in the gaol came along as a support person'.

27It is not often that young men in your circumstances makes such a considered effort to turn their lives around.  Quite often they simply hang their heads and sulk which achieves nothing for anybody.  As I have indicated, you have now served 606 days in an adult gaol.  It may be one or two more than that, but I am not going to risk any mistakes.  That should have been in my view, in a Youth Justice Centre, it is a significant punishment indeed.  Nothing will ever restore to the family and friends of your victims, the sense of self-assurance and safety that they once had.  Though it is obvious that you have received a significant and prolonged punishment.

28What is to occur now is that you will definitely get some sort of benefit out of this dreadful situation, for the benefit of the community and as well as yourself.  Accordingly, on the two charges, I sentence you to be imprisoned for an aggregate period of 606 days.  I declare that 606 days be reckoned as having been served under this sentence.

29The prospects of your rehabilitation, if you can continue the way you have conducted yourself and you do have secure accommodation to go to, should be good.  The risk of you reoffending would appear to be totally dependent upon your rehabilitation.  Though it is somewhat reassuring to see that prior to this dreadful day, your offending had been relatively moderate despite the obvious and very onerous difficulties of your childhood.

30If you agree upon completion of that sentence, which on my calculation will be today, on Monday of next week, you will commence a community corrections order.  That community corrections order will go for a period of two years.  The justice plan that will be subject to it will be also for two years, which as I understand it, the longest time that I can order that a justice plan be complied with.

31The other conditions that will be put upon that community corrections order are that it will be with conviction.  It will have treatment and rehabilitation for drugs and alcohol.  There will be a supervision condition, mental health assessment and offending behaviour programs.  The report indicated that judicial monitoring - sorry and also comply with the justice plan.  The report indicated that judicial monitoring would be of benefit and I have got no doubt that that is correct, but you will be living ‑ ‑ ‑

32TIPSTAFF:  We have lost the link.

33HIS HONOUR:  That is all right.  You will be living in Mildura.  I have got to get him to sign it.  I will finish it and come back on the Bench.  Living in Mildura and that will not be readily available. 

34Accordingly if you agree to sign it, that will be the sentence that I impose.  We have lost the link.  I will simply stand down until he comes back.  My understanding, Mr Gray, is that he has a document with him.

35MR GRAY:  Yes, Your Honour.

36HIS HONOUR:  If we can get him back on the link, I will simply get him to sign that with me watching and that will be the end of that.

37MR GRAY:  He does have the document.

38HIS HONOUR:  He does?

39MR GRAY:  Yes.

40HIS HONOUR:  And also can I simply say this also, and his - I do not think his counsel is listening either, but I will get the written sentencing remarks, 6AAA is five with a three.

41MR GRAY:  Thank you, Your Honour.

42HIS HONOUR:  Which is not probably true because I would have given him youth justice, but I have got to say that. 

43MR GRAY:  I understand.

44HIS HONOUR:  So you do not mind waiting just for a moment while we try and get him back and his lawyer.  All right, what we will do ‑ ‑ ‑

45MR GRAY:  Maybe we just stand down and see how long it takes.  It shouldn't take very long to get it back.

46HIS HONOUR:  Or we can ring if need be.

47MR GRAY:  Yes.

48(At this stage the court proceeded with another matter.)

49HIS HONOUR:  Yes, can you hear Mr Roberg?

50OFFENDER:  Yep, I can hear you.

51HIS HONOUR:  Yes, all right.  The link dropped out so what I am simply saying to you is this and I have already made what I am going to do.  It will be, if you agree, and I understand you have got it there with you, it will be a two year community corrections order with condition.  You will have to comply with the justice plan for two years and there will be assessment for alcohol, programs to reduce reoffending, mental health and there will be supervision.  The gaol time of 606 days I have declared as being served and just so that you understand, the benefit that you have got from putting your hand up to all this and not trying to fight it out, if you pleaded not guilty and got found guilty by a jury, I would have given you five years, with a minimum term of three, all right?

52OFFENDER:  Yep.

53HIS HONOUR:  Do you follow all that?  All right, now what I will get you to do is in front of you there you should have - no, hopefully there is somebody in there with you, thank you.  If you can sign that community corrections order where it has got for you to sign.

54OFFENDER:  Yep.

55HIS HONOUR:  And give it to the Corrections officer and they will send it back to me and then I sign it.  All right, now what you need to understand is that the - you have done well for someone so young in a gaol situation, but you have got to understand that if you do not comply, that is, if you do not go along with the community corrections order and make a mess of it, you get brought back and I will be sentencing you again.

56OFFENDER:  Yep.

57HIS HONOUR:  All right?  And if you have made a mess of it, well you will be going right back where you are now.  Fair enough?

58OFFENDER:  (Indistinct words), understood, thank you.

59HIS HONOUR:  All right.  I do not think I need to do anything else formally do I ‑ ‑ ‑

60MR GRAY:  No, Your Honour.

61HIS HONOUR:  ‑ ‑ ‑ Mr Gray? 

62MR GRAY:  No.

63HIS HONOUR:  Thank you.  There is a disposal order here, I have already made that in Mildura.

64MR GRAY:  I wasn't aware of that.

65HIS HONOUR:  No, I have already made that.

66MR GRAY:  Thank you.

67HIS HONOUR:  Rather than that, we're okay?  Yes, thank you Mr Roberg.

68OFFENDER:  Sweet, thank you (indistinct). 

69HIS HONOUR:  Thanks counsel.

70OFFENDER:  Appreciate it.

71HIS HONOUR:  That's it.

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