Director of Public Prosecutions v Van Dijk

[2019] VCC 1338

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-01423

DIRECTOR OF PUBLIC PROSECUTIONS

v

TYRONE VAN DIJK

---

JUDGE:	HER HONOUR JUDGE MARICH
WHERE HELD:	Melbourne
DATE OF HEARING:	12 March 2019
DATE OF SENTENCE:	21 March 2019
CASE MAY BE CITED AS:	DPP v Van Dijk
MEDIUM NEUTRAL CITATION:	[2019] VCC 1338

REASONS FOR SENTENCE
---

Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms A. French Ms C. Tulloch	Office of Public Prosecutions
For the Accused	Mr C. Baker	Criminal Lawyers Geelong

1HER HONOUR:  Tyrone Maurice Van Dijk, you have pleaded guilty to an indictment containing one charge of armed robbery, which carries a maximum penalty of 25 years' imprisonment; one charge of intentionally cause injury, which carries a maximum penalty of ten years' imprisonment; one charge of assault custodial officer on duty, which carries a maximum penalty of five years' imprisonment; and one charge of handling stolen goods, which carries a maximum penalty of 15 years' imprisonment.

2The circumstances in which you came to commit these offences are set out in the Summary of Prosecution Opening, dated 16 September 2018, which was read into evidence at your hearing and tendered as Exhibit A. The prosecution also tendered Judge Coish's Sentencing Remarks, dated 30 October 2014, in relation to an earlier offence, Exhibit B, and that relates, as I have said, to an earlier sentence that you received in this court.

3In addition to making oral submissions, your Counsel relied on a written Outline of Submissions in Mitigation of Plea, dated 7 March 2019, (Exhibit 1); and filed a Psychological Report prepared by Warren Simmons, dated 12 February 2019, (Exhibit 2); a Statement of Intellectual Disability from the Department of Health and Human Services, dated 12 September 2017, (Exhibit 3); and a Neuropsychological Assessment Report prepared by Dr Dawn Senathi-Raja, dated 16 July 2013, (Exhibit 4). 

4I have had regard to each of those exhibited documents in formulating my reasons for sentence, as well as the matters developed in oral argument.

Circumstances of the offending

5At the time of the offending you were 23 years of age and your co-offender, Tuahura Whata, was 26 years old.  You were unemployed and homeless. 

6The victim in this matter, Gregory Charles Perkins, was 20 years old at the time of the offences, and had been in Australia in for approximately six weeks on a working holiday visa.

7At around 4.15 am on Saturday 7 April 2018, you and Mr Whata were seated on a stone bench, smoking cigarettes on the Yarra Promenade near the Crown Casino. 

8Mr Perkins was in the casino. Whilst he was there he received a call on his mobile from his girlfriend and exited the casino because it was noisy and difficult to hear her.

9At approximately 4.15 am, Mr Perkins walked past you and Mr Whata, and stopped a few metres away, where he took up a seat on another stone bench to have a conversation with his girlfriend on his mobile phone. 

10At approximately 4.31 am, you approached Mr Perkins from behind. You used your left hand to grab Mr Perkins' face and with your right hand placed the blade of a box cutter over Mr Perkins right shoulder and against the left-hand side of his neck. You made repeated demands for Mr Perkins' mobile phone and wallet. Mr Perkins told you he was a tourist and that he needed his phone and offered you $50 instead. 

11You then became more aggressive, punching Mr Perkins to the left side of his head, close to his left eye, two or three times. As Mr Perkins was seated, the punches were directed in a downward direction and were very forceful. You then bit Mr Perkins' left ear and started choking him. You pulled Mr Perkins backwards off the bench and onto the artificial grass. Mr Perkins was facedown with his right arm pinned under him. You then choked Mr Perkins to the point that he could not talk or breathe. Mr Perkins then flicked his mobile phone, an Apple iPhone 6 Plus, out of his right hand onto the ground nearby.

12You kicked the phone out of Mr Perkins' reach and Mr Whata picked it up.  This is Charge 1 on the indictment. It was submitted by Counsel for the Prosecution that the offending constituting the armed robbery included the applications of force, leading to the appropriation of the iPhone and the employment of the box cutter during that act and it then concluded with the appropriation of the iPhone. I will sentence you on that basis.

13You stopped choking Mr Perkins but then kicked him approximately two times to the head, Charge 2 on the indictment. Mr Perkins felt pain to his head and ear, he sustained swelling to his left eye area, red marks to his face and neck and soreness in those areas. I have been informed by Counsel for the Prosecution that the subject of Charge 2 is the injury caused by the kick at least comprising the resulting pain. I will sentence you on this charge on the basis of the conduct occurring after the victim parted with his iPhone. In doing so, I have of course taken care not to punish twice for any particular injury that may have resulted from your application of force to the victim whilst you committed Charge1.

14At approximately 4.33 am, you and Mr Whata ran towards the King Street pedestrian bridge. 

15Mr Perkins was dazed and shaking. He approached a group of people and asked to use a mobile phone to telephone police, but they were reluctant to hand their phones over. Mr Perkins went back to the casino and reported the incident to a security officer, who rang 000.

16As a result of Mr Perkins' description that one of the offenders was wearing a white jacket, and examination of CCTV footage, at approximately 5 am, police located and arrested you and Mr Whata outside the Melbourne Aquarium on the corner of Flinders Street and King Street. 

17The stolen mobile phone was located in a duffel bag you had in your possession. The SIM card had been removed from the phone. 

18At approximately 5.30 am, you and Mr Whata appeared at the Melbourne West police station. 

19You were verbally and physically aggressive towards the custodial officers.  You were placed in a holding cell. Due to your behaviour, your handcuffs were not removed. You were placed face down on the cell bench by three custodial officers, one of whom was Sergeant Tom Windlow. Sergeant Windlow told the other two officers to release their hold on you and leave the cell. As Sergeant Windlow sought to back quickly out of the cell, you rushed at him and kicked out with your right leg, making contact with Sergeant Windlow's groin; Charge 3 on the indictment. This caused immediate discomfort, which lasted for approximately 30 minutes. One of the other custodial officers pushed you back into the holding cell and the door was secured. 

20Your property was further searched at the Melbourne West Police Station.  Two bank cards in the name of May Jen Wang were found; those cards were reported to be lost or stolen on 6 April 2018, Charge 4 on the indictment. 

21You declined to be interviewed by police, as is your right.

Effect on the Victims

22No victim impact statement was made by either Mr Perkins or Sergeant Windlow. I infer that this would have been a very distressing incident for Mr Perkins, occurring when he was distracted on the phone, a box cutter being applied to his neck, he was punched, bit, choked, and pinned to the ground, choked to the point that he could not talk or breathe, and then kicked while he was on the ground. I have also mentioned Sergeant Windlow's pain and discomfort as a result of your attack upon him.

Plea of guilty and remorse

23You pleaded guilty at the very first available opportunity, which was at the committal mention on 6 July 2018. 

24I accept and take into account that you pleaded guilty at the earliest stage and, as submitted by your Counsel, that this plea is indicative of remorse as well as having utilitarian value.

25I note that Mr Whata pleaded guilty to a charge of theft at the Broadmeadows Magistrates' Court on 14 June 2016, and he was convicted and sentenced to three months' imprisonment on this charge. Given the manifest differences between the charges that you face and the charge faced by him, and the significant differences in roles that you played, parity plays a most limited role in the sentence that I will impose on Charge 1 on the indictment.

Personal circumstances

26You are now 24 years of age, and were 23 at the date of offending. You are single with no dependents. 

27You were born in South Brisbane and are the fifth of six children. I was told you had a grossly dysfunctional childhood. You do have contact with your siblings, Sylvia, Carl, Nicole, Charmine and Destiny, and look up to your brother Karl in particular.

28You have had no contact with your father. Your mother died ‘a while ago’; however, you are not certain what from, nor her age at the time of her death.  You reported that your mother abused drugs and alcohol while she was pregnant with you and was in and out of gaol throughout your life.

29You moved to Victoria with your family when you were young and shortly after Child Protection became involved due to concerns of neglect and abuse. 

30The Neuropsychological Report prepared by Dr Dawn Senathi-Raja states that you were placed in foster care at the age of three. I understand that you have advised your Counsel your recollection is that you were much younger than three when you placed in foster care.

31In your assessment with Mr Warren Simmons, Consulting Psychologist, Exhibit 2, you recounted that your foster family, Ray and Janet, would always try to do what they could for you. You remember them involving you in playing sports and you always had what you needed. They had two older daughters, who were also supportive of you. You believe that your defiant behaviour pushed your foster family away, and eventually they were unable to manage you.

32From the age of 13, you spent time in secure welfare, residential units, Youth Justice Centres and incarceration. 

33You attended Leopold and Wellington Primary Schools as well as St Augustine's Special School. 

34From your early primary school years, you were reported to have ‘borderline’ cognitive abilities which impacted on your ability to socialise with peers and to follow social cues and behavioural norms. You have admitted that you were violent at school, frequently fighting with your peers, being aggressive towards your teachers, and you had very few friends. 

35There were short periods where you attended Bellarine Secondary College, but that education was limited. At approximately 15 years of age, you recall being expelled due to physically aggressive behaviour and property destruction, and it appears that your schooling ended, as no other school would accept you. After you were expelled you had one‑to‑one tutoring and accessed educational programs, particularly while in custody, but have had difficulty with engagement. 

36You have reported that you managed to complete Year 12 whilst incarcerated, and I commend you for that. 

37At the age of 16, you report that you worked in concreting and this kept you out of trouble for approximately 12 months. Issues, however, arose with your sister's partner and this employment broke down.

38You report that you have had no long term relationships but have had no trouble finding a girlfriend. You say your criminal history and limited time spent in the community since you were 18 have made the opportunity to form a lasting relationship difficult. Mr Simmons opines in his report that you struggle to form any emotional bond in relationships.

39For most of your adult life you have been homeless, generally spending time in the Melbourne CBD. You revealed that, prior to the offending, whilst sleeping rough you had been the victim of a stabbing, and had taken to arming yourself, such as with the box cutter which you used in commission of Charge 1.

40From the age of 18, your finances have been managed by the State Trustees.  I have been told by your Counsel that you declined to interact with the State Trustees, which leaves you with no other access to money, and indeed no funds for medication, which is a subject to which I will return.

41At the age of nine, you were introduced to cannabis by your older siblings.  At age 13, you commenced using other drugs including methamphetamines, cocaine and others. You report that you have used every drug you could find except heroin because it had such a negative impact on your mother, although there have been two or three occasions where you have used heroin.

42You reported to Mr Simmons that you injected methamphetamines on a daily basis, and used GHD more regularly than any other drug. 

43You have reported you do not consume alcohol frequently but when you do it is always to excess. 

Previous criminal history

44You admitted a history of criminal offending comprising over 30 separate court dispositions. You have not appeared before the court for the offence of armed robbery, but there are a great many prior appearances for theft and assault and burglary, and making threats to kill, of assaulting police, and resisting police.

45As I have mentioned, you were detained in Youth Justice Centres when you were less than 18, and in 2012, you received your first sentence of imprisonment, for charges including theft, assaults and a threat to inflict serious injury and assault with weapon. After that, you then went back into Youth Custody, and then in October 2014, you were sentenced by Judge Coish in this court for sexual penetration of a child under 16. 

46Gaol sentences then followed in 2016, including for the offences of resist emergency worker whilst on duty, robbery and possess dangerous article in a public place. You were gaoled in 2017, and 2018, including on 13 February 2018, just short of two months prior to this incident, you were sentenced to 90 days' imprisonment, with 60 days pre-sentence detention reckoned as served. Upon your release on 13 March 2018, you committed these offences within the month. You were on bail for other offences at the time.

Medical and psychological history 

47Mr Simmons, in his psychological assessment and report, notes that you have received many diagnoses including Foetal Alcohol Syndrome, Attention Deficit Hyperactivity Disorder, and Oppositional Defiant Disorder; and see also those diagnoses in the report of Dr Senathi-Raja, Exhibit 4.

48Mr Simmons notes that there were varying opinions in earlier diagnostic reports relating to whether you have an intellectual disability as well. However, I note as per Exhibit 3 that the Department of Health and Human Services has accepted that you have an intellectual disability within the meaning of the Disability Act, i.e. that you have significant sub-average general intellectual functioning, and significant defects in adaptive behaviour.

49The Neuropsychological Report by Dr Senathi-Raja, which was prepared for a purpose unrelated to sentencing, but which I found very useful from a diagnostic perspective, also referred to potential frontal lobe abnormalities, with a subsequent assessment by her indicating that following assessment, a diagnosis of primary generalised epilepsy has been made. Dr Senathi‑Raja also concluded that you have an acquired brain injury.

50You suffer from curvature of the spine which causes pain. 

51You have difficulty sleeping and ruminate when you lay down. You indicated to Mr Simmons that both your memory and concentration are variable, that you are irritable and that your mood is also quite variable. You have had a history of suicidal thoughts and have experienced ‘voices’ since you were a child.

52Mr Simmons notes that you are currently treated for your psychological presentation with Seroquel, 200 milligrams, and Avanza, 45 milligrams. 

53I will set out in full a number of paragraphs from Mr Simmons' report, as I intend to resolve the relevance of your mental health presentation to this sentencing task more so in relation to the symptoms that your presentation demonstrates, rather than focusing exclusively upon the diagnostic labels.

54I will read from paragraphs 32 to 36 of that report.

"…there is general agreement over the fact that Mr Van Dijk has poor emotional recognition and regulation, is impulsive and has a degree of disinhibition. He tends to perceive the world as against him and has a general desire to get back at people. Even during the interview, it was fairly clear from his description that he should not be handcuffed, he would almost certainly have assaulted any prison officers moving him. 

While not wishing to add additional diagnoses for Mr Van Dijk, there is clear evidence of frontal lobe abnormality and a Reactive Attachment Disorder. Certainly, Foetal Alcohol Syndrome does appear consistent with the findings of neuropsychological testing. Irrespective of the diagnoses, it is clear that Mr Van Dijk has significant issues with emotional regulation, disinhibition and impulsivity, as well as poor social skills and a general hostility towards the world.

Given that these almost certainly arise from an acquired brain injury, it is unlikely that any significant interventions will have an impact upon Mr Van Dijk's behaviour. Attempts to address his attachment disorder are unlikely to be successful because of Mr Van Dijk's disinterest in treatment and the fact that he is likely to be disinhibited and impulsive in sessions. 

With regard to the issue of a personality disorder, this is almost essentially a diagnosis by exclusion with the criteria indicating it should only be made when other diagnoses do not better explain the behaviour. In Mr Van Dijk's case, it was felt that while there may certainly be anti-social personality traits, these are almost certainly arising from his cognitive difficulties. As such, Mr Van Dijk is almost certainly going to re-offend when he is in the community as there is little that can be done to ameliorate his underlying difficulties of hostility, impulsivity and disinhibition.

Given that Mr Van Dijk's difficulties seem to have an organic basis and he has an acquired brain injury, Mr Van Dijk does have an impaired ability to control his behaviour and therefore, has a diminished responsibility for his actions. While he is aware of right from wrong, his inability to inhibit his desires results in impulsive behaviour, no doubt aggravated by substance use.

[And lastly], while the disposition is a matter for the court, it was felt there is little that can be offered by way of interventions for Mr Van Dijk. That is not to say that attempts should not be made to engage Mr Van Dijk in treatment, particularly in helping him to develop some stable relationships with workers who may be able to provide him with some support, as well as continuing on medication with a regular and experienced treating medical practitioner. 

Otherwise, it was felt that Mr Van Dijk's prospects for rehabilitation are extremely poor. While long term containment is not ideal or even appropriate for any individual, it was felt that Mr Van Dijk will find himself serving further periods of incarceration into the future, as the community struggles to maintain his behaviour."

55Your Counsel urged me to apply all relevant Verdins factors - (Verdins, Buckley and Vo (2007) 16 VR 269, at paragraph 32) - to reduce the relevance of denunciation, general and specific deterrence in your case, to find that your moral culpability was reduced, and to observe that the existence of your condition will mean that a given sentence will weigh more heavily upon you than it would on a person in normal health. This is particularly so, it was said by your Counsel, in circumstances where by reason of your impulsive and anti-authoritarian acts you find yourself in a cycle of misbehaviour against prison authorities, which leads to disciplinary consequences, which makes service of your sentence very unpleasant for you.

56The prosecution accepted that you have a psychiatric illness, and, as I understand it, accepted that I could moderate the weight to be attached to general deterrence in this case and, to a certain degree, the weight which I could attach to specific deterrence given your marked difficulties with impulse control. It was accepted that, as a result of your difficulties in controlling your behaviour in the custodial environment, you perpetuate a cycle in which you cause your sentence to be served in more onerous custodial conditions.

57I have given the application of Verdins principles in this case very careful consideration. For the first four Verdins principles to apply, there must be a connection between the mental impairment and the offender's moral culpability for his offending, or between the mental impairment and the need for general or specific deterrence. To demonstrate that connection an offender must establish that at the time of the offence, the mental impairment:

(a) affected his ability to appreciate the wrongfulness of the conduct; or

(b) obscured his intent to commit the offence; or

(c) impaired his ability to make calm and rational choices or to think clearly.[1]

[1]DPP v O'Neill [2015] 47 VR 395, [74] - [75].

58In the circumstances of this case, the evidence at its highest points to your mental impairment impairing your ability to make calm and rational choices, or to think clearly. 

59You have also conceded regular use of ice, in the course of your assessment by Mr Simmons. As I understand it, you have not been sleeping, soundly or at all, prior to the commission of the offending, the subject of counts 1 to 3, and have no clear memory of the incidence.

60I find that I am prepared to allow some modest moderation of your moral culpability, and of the weight to attach to general, and specific deterrence, on the basis of Verdins factors 1, 3 and 4.

61I find also that your condition, and the behaviour that you manifest as a result of that condition, will mean that a sentence will weigh more heavily upon you than it would on a person in normal health. A migratory weight will also attach to the operation of Verdins factor 5, in this case.

62Whilst on the topic of moral culpability, in Bugmy [2013] HCA 37, the High Court recognised that the impacts of social disadvantage during an offender's formative years do not diminish over time. The majority said at paragraphs 43 to 44:

"…a background of that kind may compromise the person's capacity to mature and to learn from experience. It is a feature of the person's make‑up and remains relevant to the determination of the appropriate sentence, notwithstanding that the person has a long history of offending.

Because of the effects of profound childhood deprivation do not diminish with the passage in repeat offending, [the High Court said] it is right to speak of giving “full weight” to an offender's deprived background in every sentencing decision. However, this is not to suggest, as the appellant's submissions [in that case] were apt to do, that an offender's deprived background has the same (mitigatory) relevance for all of the purposes of punishment.

Giving weight to the conflicting purposes of punishment is what makes the exercise of the sentencing discretions so difficult [both in that case, as well as this case]. An offender's childhood exposure to extreme violence and alcohol abuse [in that case] may explain the offender's recourse to violence when frustrated such that the offender's moral culpability for the inability to control that impulse may be substantially reduced. 

However, [in that case] the inability to control the violent response to frustration may increase the importance of protecting the community from the offender."

63Those comments apply equally to this case.

Prospects of rehabilitation

64You were 23 years of age at the time of offending, and are now still only 24.  On one hand, you attract the very last traces of youth as a mitigatory factor, and I have considered that fact in evaluating your prospects for rehabilitation.

65However I must inevitably conclude, consistent with Mr Simmons opinion, that you have poor prospects for rehabilitation, as, leaving to one side your organic psychological state and brain injury, there is little that can be done that can ameliorate your underlying difficulties of hostility, impulsivity, and disinhibition. There is also your lack of stable accommodation, your access to money and to substance abuse.

Objective gravity of the offending

66Your Counsel advised me, as I have said, that the offending occurred in circumstances in which you are homeless. By your choice not to interact with State Trustees, you had no money as well. You were not taking any medication, you were sleep deprived having not slept for a number of days.  Indeed, you have no recollection of the offending itself or the lead up to it.

67I consider that this offence of armed robbery, as submitted by the prosecution, was opportunistic, it relied on your use of a weapon already in your possession. However, there are serious and concerning features of the offence, including not only your presentation of the box cutter, but your application of its blade to the victim's neck, your escalation of the situation where Mr Perkins refused to hand over his phone, and you eventually got what you needed by punching him, biting him and choking him. 

68The act of causing injury intentionally was entirely gratuitous, as by this stage you applied force by kicking Mr Perkins twice to the head, you had the phone that you wanted, and Mr Perkins was physically vulnerable on the ground.

69Sergeant Tom Windlow was just performing his duties, and you kicked him in the groin, causing him discomfort for half an hour.

Relevant sentencing principles and current sentencing practices 

70I take into account the purposes for which sentence must be imposed including the need for deterrence, both general and specific, moderated in your case for the reasons I have explained. 

71The sentence I will impose will punish you and denounce your behaviour and allow for community protection, the last of which is acutely relevant and necessary in your case, given your recidivism and poor prospects for rehabilitation. 

72I am obliged to have regard to current sentencing practices in determining sentence, though in this regard I note the guidance of the High Court in Director of Public Prosecutions v Dalgliesh (2017) 349 ALR 37, and those principles have been applied many times in many subsequent cases. That is, current sentencing practices are one of the many factors that must be taken into account in sentencing and should not predominate.

73During oral submissions, the Prosecution tendered two authorities in support of their submissions, R v McNamara [2006] VCA 267, and Youil v The Queen [2013] VCA 228, which I have read and considered carefully. I have of course noted and taken into account the points of similarity and dissimilarity between this case and those cases as urged upon me by both Counsel.

Sentence

74On the charge of armed robbery, you are convicted and sentenced to four years and five months' imprisonment;

75On the count of intentionally causing injury, 12 months' imprisonment, 2 months to be served accumulatively upon the base sentence, which is the sentence imposed on count 1 and all other sentences.

76On the charge of assault custodial officer on duty, also 12 months' imprisonment and three months' accumulative on the base and on the sentence imposed on count 2. 

77And on the charge of handling stolen goods, three months' imprisonment to be served wholly concurrently with all other sentences. 

78The total effective sentence is four years and ten months imprisonment, and I will order that a minimum of three years and three months' imprisonment be served before you are eligible for parole. 

79Now, in relation to presentence detention, I have temporarily lost the - no, I have not, 348 days presentence detention excluding today.

S 6AAA declaration

80And pursuant to s 6AAA of the Sentencing Act 1991 of Victoria, I declare that had you pleaded not guilty to all charges and been found guilty of them, I would have sentenced you to six years' imprisonment with a non-parole period of four years.

Ancillary orders

81I will make the disposal order in the terms sought by the prosecution specifically with respect to the Wang bank cards.  Is there anything I have overlooked?

82MS TULLOCH:  No.  Thank you, Your Honour.

83HER HONOUR:  Thank you very much.  I'll make those orders and we will stand down, with thanks. 

‑ ‑ ‑