Director of Public Prosecutions v Tryhorn

[2025] VCC 845

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

AT MELBOURNE

CRIMINAL JURISDICTION

CR 25-00236

DIRECTOR OF PUBLIC PROSECUTIONS

v

DECLYN TRYHORN

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JUDGE:	HER HONOUR JUDGE BRECKWEG
WHERE HELD:	Melbourne
DATE OF HEARING:	30 May 2025
DATE OF SENTENCE:	17 June 2025
CASE MAY BE CITED AS:	DPP v Tryhorn
MEDIUM NEUTRAL CITATION:	[2025] VCC 845

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW - SENTENCING

Catchwords:              Attempted armed robbery – 1 charge; youthful offender; serious drug and alcohol abuse; mental health issues

Legislation Cited:      Crimes Act1958 (Vic); Sentencing Act 1991 (Vic).

Cases Cited:R v Boland [2007] VSCA 242; Rootsey v R [2018] VSCA 108; Bugmy v R [2013] HCA 37; Umi v The Queen [2013] VSCA 211;

Sentence:                  3 years community correction order with conviction; 200 hours of community work; mental health treatment; drug abuse treatment; judicial monitoring; forfeiture order.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms C. Jeong	Solicitor for the Office of Public Prosecutions
For the Accused	Mr H. Moodie	Victoria Legal Aid

HER HONOUR:

1Declyn Tryhorn, you have pleaded guilty to one charge of attempted armed robbery contrary to ss321M and 75A of the Crimes Act 1958 (Vic). The offence carries a maximum penalty of 20 years' imprisonment and/or a fine of 2400 penalty units, which represents Parliament's view of the seriousness of the offence.

2The facts of your offending are set out in the summary of prosecution opening for plea and these were not in dispute.

3On 5 November 2024 at 12.35 am you left your apartment in Flinders Street and at 12.37 am entered the City Mart convenience store at 566 Flinders Street wearing a black balaclava.  There were around five other customers in the store.  You approached the side of the cash register counter, produced a knife from your pants and pointed it at the cashier Mr Sherpa who was serving a customer.  You told him, 'Pull out all your money', but he said he could not open the drawer.  You then said, 'Open it, open it', and Mr Sherpa replied, 'I cannot, I cannot'.

4Whilst this interaction was occurring, you were waving the knife at Mr Sherpa, who believed it was about 50 centimetres long, and you went behind the counter.  A customer threw a bottle of water at you which missed you, but you backed away and fell over.  The customer threw another bottle of water at you while you were on the ground which nearly hit you and you got to your feet and ran from the store.  Mr Sherpa then called Triple 0.  Nothing was stolen from the store and you immediately returned home, arriving at 12.39 am.

5On 12 November 2024 police executed a search warrant at your apartment.  You immediately admitted the offending and you directed police to the shoes you wore and knife you used during the offending.  Police located the black balaclava and runners you were wearing.

6In your record of interview with police on 12 November 2024 you stated that:

(a)you had consumed about 17 to 18 standard drinks and at least a gram of cocaine at the time of the offending;

(b)you said you wanted to get money to buy another bag of cocaine;

(c)you were not in your right mind and made an irrational decision which you were not proud of;

(d)you said you should not be using cocaine; and

(e)you did not intend to hurt the victim.

7You have no prior convictions, but you were found guilty of obstructing a police officer in 2021 and were without conviction fined $500.  I do not place any weight on this matter given it is dated and of a different nature to your present offending.

Victim impact statement

8I have had regard to the victim impact statement prepared by Mr Sherpa.  He described how scared he was during the incident and how he was fearful and confused for many weeks afterwards.  He had to take time off work as he was scared another incident would occur, which impacted his income.  Eventually he felt he could no longer work in the same environment and obtained another job elsewhere where he feels safer.

Sentencing principles

9In sentencing you, I have had regard to the purposes for which a court may impose sentence set out in s5 of the Sentencing Act and to the matters outlined in s5(2), which include the maximum penalty for the offence, the nature and gravity of the offence, the offender's culpability and degree of responsibility for the offence, the impact of the offending on any victim, an offender's prior character and the presence of any aggravating or mitigating factors or other relevant circumstances.

10In sentencing for the offence of armed robbery the principles of general deterrence, denunciation and protection of the community are of particular importance, especially where the victim is a “soft target”, as was the case here.  Employees of convenience stores and the like are vulnerable targets, as they handle cash and often work alone and late at night when there are few people around.  They have the right to undertake their employment without fear of being the target of predatory and violent actions from people like yourself, whose actions shatter their sense of security.  It is for this reason that in sentencing for offending involving the armed or attempted armed robbery of a “soft target”, sentences involving immediate imprisonment are frequently imposed.[1]

[1] Umi v The Queen [2013] VSCA 211, [42].

Nature and gravity of the offending

11In terms of the nature and gravity of the offending, as your counsel conceded, your offending was terrifying for Mr Sherpa, was extremely dangerous and predatory.  Mr Sherpa was a “soft target” who was working alone after midnight in a convenience store.  You attended the store armed with a knife and wearing a balaclava to disguise your identity with the sole intention of trying to obtain money to purchase drugs.  You used the knife to approach Mr Sherpa and menace and make demands of him and you moved to behind the counter, closer to him.  Despite these features, and whilst attempted armed robbery is a serious offence, it is accepted by the prosecution that your offending is not the most serious example of the offence.  Your offending was generally unsophisticated, impulsive, naïve and lasted only around a minute in duration.

Personal circumstances and matters in mitigation

12In terms of your personal circumstances and matters in mitigation, you were 22 (almost 23) at the time of the offending and are now, at the time of sentence, 23 years old.  Whilst you were not a child when you committed the offence, you are a youthful offender and a person of immature years.  As held in R v Boland,[2] although you fall to be sentenced as an adult, 'common sense and fairness' dictate that an assessment of the nature and gravity of the crime and your level of moral culpability should take into account, '…that what was done was done as a child, or a person of immature years, and not as an adult or a person of greater maturity'.  I accept that your moral culpability for the offence is reduced, as is the weight to be given to general deterrence, given your young age.

[2] [2007] VSCA 242 at [16].

13I have had regard to the psychological report prepared by Ms Pitts (Exhibit 1) , who opined that at the time of your offending you were experiencing severe alcohol use disorder and severe cocaine and cannabis use disorders.  She noted that you have a significant history of drug and alcohol abuse extending over many years but have not received any treatment for your addictions.  She also opined that you have neurodevelopmental and psychological problems (you reported unresolved trauma and your testing scores indicated that you were experiencing symptoms of PTSD, depression and anxiety plus you reported a past diagnosis of autism), but Ms Pitts was unable formally to diagnose any conditions given the significant impact your continued use of alcohol and drugs will have on your presentation.  Indeed, she noted that you were intoxicated during the assessment with her.  She also noted that you have not had any treatment for mental health problems.

14In the months before your offending you were also in an accident where a man died after being hit by a car you were a passenger in, which affected you greatly and resulted in an escalation of your substance use and the development of possible PTSD.  You gave a statement to the police identifying the driver of the car, a man who was your boss and your friend, which resulted in the cessation of the friendship.  By the time of the offending in November 2024, your life was almost exclusively devoted to using alcohol and drugs.  Ms Pitts assessed you as being at a high risk of suicide.  You have now for the first time appreciated your need for treatment to address your substance abuse issues.

15Whilst Ms Pitts opined that your offending occurred in the context of your substance abuse and mental health vulnerabilities, as was conceded by your counsel, your mental health does not fit neatly within the parameters of Verdins, especially as your diagnoses are unclear and, in any event, it would be difficult to disentangle any formal mental health diagnoses from drug and alcohol us for mental health issues to be a realistic causative factor of your offending. I do however take your substance abuse and poor mental health into account generally as providing context and an understanding of the circumstances in which the offending occurred.

16Your family and personal background is set out in the report of Ms Pitts.  You are an only child of your parents but have three half-sisters.  You grew up living with your mother and half-sisters in Queensland and you reported a positive childhood.  You did not see your father very often during your childhood but had a good relationship with him and continue to do so now.  You have recently moved in with your mother and your parents are very supportive of you, as is your partner.

17You reported a diagnosis of autism as a child and you had a teacher's aide at school because of speech problems, reported being the victim of severe and constant bullying at school.  You have a good employment history and have worked in fields such as carpentry and car repairs.

18You pleaded guilty to the charge at the earliest opportunity, being at a committal case conference on 18 February 2025.  Your plea being entered just over three months after the offending warrants a clear reduction in sentence to reflect its utilitarian value in saving the community the time and expense of a trial and witnesses from having to give evidence.  Your plea also demonstrates acceptance of responsibility, a willingness to facilitate the course of justice and remorse.

19In your case I am satisfied that you have also demonstrated remorse for your offending over and above that reflected by your plea alone.  Your contrition is evident from what you said to Ms Pitts during the psychological assessment with her (Exhibit 1) and in the letter of apology you wrote to the court (Exhibit 3), in which you took full responsibility for your offending, apologised to Mr Sherpa and demonstrated insight into how your actions caused mental and financial harm to the victim and may also have affected those in the store.  You also expressed remorse and demonstrated some insight into your offending to the author of the Community Correction Order (CCO) assessment report.  You also made full admissions to police and cooperated fully in their investigation, including giving them access to your apartment, drawing a diagram of your movements before and after the offending, which further represents your acceptance of responsibility and remorse.

20I now turn to your risk of reoffending and your prospects of rehabilitation.  You have accepted responsibility for your actions, shown remorse and are prepared to accept the consequences of your offending.  You have no prior convictions, a finding of guilt only for a minor unrelated matter and no pending matters.  You have a very supportive family with both your mother and father prepared to offer you accommodation.  You have since the plea moved in with your mother.  Your father also provided a reference on your behalf (Exhibit 2) and wrote that he was prepared to obtain employment for you.

21Your prospects of rehabilitation depend very largely on your willingness to engage in treatment to address your mental health and substance abuse issues.  Ms Pitts concluded that you would likely need significant intervention to address your pattern of using substances to cope or 'self-soothe' and your antisocial behaviours arising from mental health issues.  Ms Pitts noted that there are factors which may present barriers to your successful engagement with treatment, including that your substance abuse and mental health issues have not been addressed in the past, you displayed ambivalence about engaging in treatment or accessing supports and you dislike speaking.  Against these, however, you indicated your willingness to engage in treatment in your letter of apology, you told Ms Pitts that you know that you should have treatment, you were candid in your assessment, you disclosed past trauma for the first time and you have the support of your family and partner.

22You are also willing to engage in treatment conditions as part of a CCO and in your recent assessment you indicated that you had now stopped using 'hard drugs' and were supportive of substance abuse treatment, especially alcohol treatment, because previous detox attempts made you nauseous and you would appreciate help with this process.  You told the author of the Mental Health Advice and Response Service (MHARS) report that you continue to use cannabis and alcohol daily but had ceased using cocaine.  You indicated that you wanted practical advice on how to manage your alcohol and (medically prescribed) cannabis consumption so you could focus of securing employment and improving your mental health.

23I note that the author of the CCO assessment concluded that you are at a high risk of reoffending.  However, the report did not conclude that this made you unsuitable for a CCO, rather that supervision and judicial monitoring conditions be imposed to provide additional and continued oversight.  In addition, a condition that you participate in programs to reduce violent reoffending was recommended as a further factor to reduce your risk of reoffending.  The author of the MHARS report also recommended that any CCO include a condition directed at you having ongoing treatment for your mental health issues to reduce your risk of reoffending.

24On balance I find that you have quite good prospects of rehabilitation if you abstain from alcohol and drug use, access treatment for your mental health issues and participate in programs designed to reduce your risk of reoffending.  I also find that the weight to be given to specific deterrence can be modified in your case, given your level of remorse and positive prospects of rehabilitation.

25Ultimately your counsel submitted that you should be placed on a CCO.  The prosecution agreed that a CCO was an appropriate disposition that reflected the gravity of your offending whilst also giving due weight to the matters relied on in mitigation.

26I am satisfied that a sentence of imprisonment is not required in the specific circumstances of your case and that a CCO with appropriate conditions is a sentencing disposition that provides a measure of general and specific deterrence and represents a balance of both punitive and therapeutic and rehabilitative sentencing objectives.  Having regard to current sentencing practices, I am also satisfied that the imposition of a CCO in your case is not wholly outside the range of available sentencing options available to me, despite the offence being one which normally attracts a sentence involving a term of imprisonment.

27The CCO assessment has found you suitable to be placed on such an order.  And do you consent to the making of a community correction order?

28OFFENDER:  Yeah, I consent, Your Honour.

29HER HONOUR:  Thank you.

Sentence

30Mr Tryhorn, could you please stand.  On charge one, you are, with conviction, placed on a CCO, a community correction order, for three years.

31The mandatory conditions apply.  In addition, I impose the following discretionary conditions.

32You are to perform 200 hours of unpaid community work over three years.

33You are required to undergo assessment and treatment, including testing for drug abuse or dependency.

34You are required to undergo assessment and treatment, including testing, for alcohol abuse or dependency.

35You are required to undergo mental health assessment and treatment.

36You are required to be supervised, monitored and managed as directed by the Secretary to the Department of Justice or his or her nominee.

37I also impose a judicial monitoring condition.  I would like to check in with you and see how you are going and the date I have set is 9.30 am on 28 August 2025 this year.  I will at that time set a date for a further review, but that is really just so I can see how you are going, if you are going okay.

38OFFENDER:  Yeah (indistinct words).

39HER HONOUR:  And as time goes on, if you are going all right, the times that I will speak to you will be reduced, longer periods in between.

40OFFENDER:  Okay, thank you, Your Honour.

41HER HONOUR:  I also order that all hours of treatment and rehabilitation satisfactorily undertaken are to be counted as hours of unpaid community work for the purposes of the unpaid community work condition.  So all hours of treatment and rehabilitation that you do as part of the order can be taken off the balance of the unpaid community work.

42OFFENDER:  Okay.  Awesome, thank you, Your Honour.

43HER HONOUR: And pursuant to s6AAA of the Sentencing Act 1991 the sentence I would have imposed but for your plea of guilty is three months' imprisonment combined with a community correction order for two years.

44I make the Disposal Order for the knife and balaclava used during the offending.

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