R v Bryant-Dawson, Truong and Manneken
[2013] VSC 331
•27 June 2013
| Do Not Send for Reporting | ||
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. S CR 2013 0039
| THE QUEEN |
| v |
| JOSHUA BRYANT-DAWSON |
No. S CR 2013 0041
| THE QUEEN |
| v |
| PHAT TUAN TRUONG |
No. S CR 2013 0042
| THE QUEEN |
| v |
| JASON JOSHUA MANNEKEN (aka WALKLEY) |
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JUDGE: | BEACH J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 24 June 2013 | |
DATE OF SENTENCE: | 27 June 2013 | |
CASE MAY BE CITED AS: | R v Bryant-Dawson, Truong & Manneken | |
MEDIUM NEUTRAL CITATION: | [2013] VSC 331 | |
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CRIMINAL LAW - Sentencing – Intentionally cause serious injury – Unlawful imprisonment – Theft – Acting in concert – Torturing victim.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr N. Hutton | Office of Public Prosecutions |
| For the Accused Bryant-Dawson | Mr C. Pearson | Greg Thomas |
| For the Accused Truong | Ms L. Hartnett | Chris McLennan & Co |
| For the Accused Manneken | Mr J. Taaffe | Doogue O’Brien George |
HIS HONOUR:
Jason Walkley, Phat Tuan Truong and Joshua Bryant-Dawson, you have each pleaded guilty to one charge of intentionally causing serious injury, one charge of unlawful imprisonment and one charge of theft. The maximum term of imprisonment for intentionally causing serious injury is 20 years. The maximum term of imprisonment for unlawful imprisonment is 10 years. The maximum term of imprisonment for theft is 10 years.
The charges to which you have each pleaded guilty are as follows:
(a)Charge 1: Between 9 October 2012 and 10 October 2012, you unlawfully imprisoned Cameron Bradley Gable and detained him against his will.
(b)Charge 2: Between 9 October 2012 and 10 October 2012, without lawful excuse, you intentionally caused serious injury to Cameron Bradley Gable.
(c)Charge 3: Between 9 October 2012 and 10 October 2012, you stole a wallet containing personal documents and a mobile phone belonging to Cameron Bradley Gable.
On the evening of 9 October 2012, the three of you, together with Mr Gable, were present at the premises of one Smith. At about 9.00pm, Mr Gable asked Smith if he could sleep at the flat. He was permitted by Smith to go to a bedroom and sleep. While Mr Gable was in the bedroom, Smith said to you words to the effect, “He owes me money for drugs, what are we going to do about it?”. Two of you went into the room where Mr Gable was sleeping, and a short time later Mr Gable ran out and ran into another room. Mr Gable was grabbed and eventually taken to the kitchen. He was then tied up. Mr Gable’s pants and underpants were removed. Mr Gable was then tortured throughout the night and into the early hours of 10 October 2012, until about 5.00am.
Mr Bryant-Dawson, your involvement in the torture of Mr Gable included:
(a)poking Mr Gable with a knife and making little slices on his body and hitting him;
(b)carving the word “pedo” on Mr Gable’s forehead;
(c)cutting Mr Gable’s cheeks;
(d)placing scissors into Mr Gable’s mouth with one blade of the scissors on the inside and one on the outside, and then cutting Mr Gable’s cheek with the scissors;
(e)cutting the top of Mr Gable’s right nipple with a razorblade and then using your hand in an attempt to tear off Mr Gable’s right nipple;
(f)cutting Mr Gable’s right ear with a razorblade.
Mr Walkley, your involvement in the torture of Mr Gable included:
(a)putting cigarette butts out on Mr Gable’s chest and arms;
(b)participating in carving the word “pedo” on Mr Gable’s forehead;
(c)smashing a vase on Mr Gable’s head and cutting both sides of his cheeks;
(d)stabbing Mr Gable.
Further, both you, Mr Walkley, and you, Mr Bryant-Dawson, carved the words “dog” and “rat” on Mr Gable’s back.
Mr Truong, you were also an active participant in these offences. You kicked Mr Gable in the head. Further, you burnt Mr Gable with an ice pipe on a number of occasions and you also hit Mr Gable over the toes with a screwdriver.
Additionally, during what must have been a terrifying and extremely painful ordeal, there were attempts made to cut open Mr Gable’s nostrils; Mr Gable was stabbed with a steak knife in his left thigh, resulting in a large amount of blood; an aerosol can was used to light Mr Gable’s hair and he was struck and kicked at different times.
At one stage during the course of the night of 9 October, Mr Gable managed to run to the front door of the flat. However, he was caught and brought back. In the course of catching and restraining Mr Gable, Mr Gable was choked until he lost consciousness. He thought he was going to die. Each of you participated in catching, restraining and unlawfully imprisoning Mr Gable. When Mr Gable awoke, he was back in the kitchen. The torture continued.
Each of you was acting in concert with your co-accused. During the course of pleas made on your behalf, each of your counsel accepted that each of you was liable for the various injuries inflicted on Mr Gable in the hours during which he was tortured by you.
During the course of the hours of torture you subjected Mr Gable to, the three of you took Mr Gable’s wallet and telephone. Ultimately, you released Mr Gable, but you did not return his wallet or telephone. The theft of Mr Gable’s wallet and telephone constitutes charge three.
While the acute effects of his physical injuries may have now healed, Mr Gable’s physical scarring remains. Additionally, I have no doubt that he has been mentally scarred by his ordeal. In his victim impact statement, Mr Gable states:
My personality has been changed dramatically. I have a loss of confidence. I have agoraphobia whereby I don’t go out sometimes for days. I have recurring nightmares of that night which leave me extremely anxious so that I don’t want to go back to sleep yet I don’t want to get up either. I wake up feeling sick and sweating most mornings.
The experience of being choked to the point of blacking out had a huge impact on me. I thought at the last stages of that moment that I had actually died. The level of aggression shown, told me that I wasn’t going to be leaving alive. That terrified me then and still does to this day. Then to wake tied up on the floor, with a man proceeding to slice me in various different areas of my body leaving permanent scars, was something that I myself could never do to another and thus was unthinkable.
Then later in the early hours of the morning to be stabbed all the way through my left leg with a steak knife, I saw a lot of blood shooting from my leg wound and within minutes passed out. Over the next few hours I was passing out frequently and all I could think was that once these people had taken their offence to this level I would not survive this. These permanent scars I have now constantly remind me of the event and the way I look to persons in public.
Mr Bryant-Dawson, you were 18 years old at the time of this offending. You are now 19 years of age. You have limited prior convictions – although your previous offending includes one count of robbery, one count of recklessly causing injury and one count of attempted robbery.
As is recorded in the history you gave to the psychologist Mr Bilyk, and as said by your mother in evidence, your father was at times violent towards you when you were a child. Mr Bilyk expresses the opinion that your early history is characterised by maladjustment, including family violence and homelessness, and that you seemingly engage in a range of maladaptive responses, including substance abuse and aggressive and violent behaviour, as a means of managing an emotionally disregulated state. Further, Mr Bilyk has expressed the opinion that you present as a moderate risk of violence generally according to testing performed by him.
However, Mr Bilyk goes on to note improvement in your behaviour following your placement into custody late last year. Indeed, in the course of the plea on your behalf, your counsel tendered a number of certificates and documents showing that you have completed various appropriate courses while you have been in custody. I have taken all of these matters into account.
Mr Truong, you were 34 years of age at the time of this offending. You are now 35 years of age. You have extensive prior convictions dating back to 1996, including convictions for unlawful assault, assault in company, assault by kicking and affray.
You came to Australia from Vietnam when you were approximately ten years of age. Your parents sent you to Australia as a refugee, in the company of a Vietnamese lady who became your foster mother. Eventually, your relationship with your foster mother broke down and, within a few years of you having arrived in Australia, you ran away and lived on the street in crisis accommodation and in various foster homes.
According to the forensic and consultant psychologist, Mr Mackinnon, your functional intelligence falls within the normal adult range. Mr Mackinnon has expressed the opinion that you appear to be suffering from symptoms that meet the clinical criteria for a depressed mood disorder and a poly-substance abuse disorder. The poly-substance abuse disorder has involved the habitual abuse by you of opioids and methylamphetamine. Mr Mackinnon also expresses the opinion that, as you have been in prison before and are familiar with the prison environment, you are likely to cope satisfactorily with imprisonment.
Mr Walkley, you were 24 years of age at the time of this offending. You are now 25 years of age. Like Mr Truong, you, too, have extensive prior convictions. Your prior convictions date back to 2004 and include convictions for unlawful assault, intentionally threatening serious injury, carrying a controlled weapon without excuse, assault with intent to rob, assault an officer and assault police.
Mr Walkley, the DHS material subpoenaed by your solicitor, and referred to by your counsel during the course of the plea on your behalf shows that there were significant deprivations and difficulties experienced by you during your childhood. While all of the matters referred to provide context so far as your offending is concerned, they do not, of course, provide any justification for engaging in the behaviour you engaged in with respect to Mr Gable on 9 and 10 October 2012.
Full scale IQ testing suggests that your IQ is of the order of 63. The neuropsychologist, Dr Lindsay Vowels, has expressed the opinion that you could possibly be considered as disabled at a mild to moderate level on the basis of a longstanding intellectual disability and cognitive alterations in your competence arising from your premature birth and an assault when you sustained a fractured skull when you were 14 years of age. Dr Vowels goes on:
It seems that Mr Walkley may also have an acquired brain impairment probably related to his acknowledged previous period of ongoing substance abuse and the head injuries suffered in a concerning incident in 2001 of being assaulted to the point of receiving a fracture of the skull and perhaps damage to the underlying brain.
You have also been examined by the consultant psychiatrist, Lester Walton. Dr Walton has expressed the opinion:
I note that concern was expressed that Mr Walkley may have an additional psychiatric illness but I believe that can be excluded and, in particular, he is not suffering from a borderline personality disorder. It is to state relatively little, but the most appropriate psychiatric diagnosis would be that of antisocial personality disorder.
There is an extensive history of poly-substance abuse. I believe that Mr Walkley is properly described as a substance-dependent person.
…
Mr Walkley does not require psychiatric treatment as such but he certainly could be usefully included in an alcohol and drug rehabilitation program especially as that has obvious implications in relation to recidivism.
Each of you indicated an intention to plead guilty, and pleaded guilty, prior to a contested committal. In the circumstances of this case, I accept that each of you pleaded guilty at the earliest reasonable opportunity. By your pleas of guilty, you have shown remorse. Indeed, in your case, Mr Truong, Mr Mackinnon expressed the view that you appeared to be genuinely remorseful about the offences which bring you before the Court. That said, both you, Mr Truong, and you, Mr Walkley, have, as I have said, significant criminal histories; and the offending that all three of you engaged in on 9 and 10 October 2012 was not of a quick spur of the moment nature – but rather was protracted over some hours.
I have looked carefully at the prospects of rehabilitation for each of you. While the levels of remorse that you have each shown are suggestive of corresponding prospects of rehabilitation, the past criminal history of each of you does not fill one with confidence so far as your prospects of rehabilitation are concerned. This is particularly so in respect of the criminal histories of you, Mr Truong, and you, Mr Walkley.
Prospects of rehabilitation might probably best be assessed by reference to, at least, the age of the offender, the offender’s past history and any remorse shown in respect of his or her past criminal conduct. In the present case, your age, Mr Bryant-Dawson, and your more limited criminal history, is suggestive of some prospects of rehabilitation which are not insignificant. While I accept that the report of Dr Vowels shows that you, Mr Walkley, also have some prospects of rehabilitation, a full consideration of all of the material suggests that these are more limited in your case. Again, so far as you are concerned, Mr Truong, while I also accept that you have prospects of rehabilitation, your age and criminal history suggests that these are perhaps more limited than those of Mr Walkley.
While, to some extent, the disgraceful conduct of each of you may be explained by the consumption of varying levels of alcohol or drugs on the night, this, as each of your counsel correctly conceded, does not provide any legitimate excuse for the conduct of any of you. As each of your counsel rightly conceded during their pleas on your behalf, this was serious and disgraceful criminal conduct engaged in by each of you. Mr Truong, it is little answer on your behalf to say that the actual physical acts performed by you were less significant than those performed by Mr Walkley and Mr Bryant-Dawson. You were as much a willing participant in the totality of the events the subject of these charges as they were.
Mr Bryant-Dawson, you are a young offender. In the case of a youthful offender like you, rehabilitation is usually said to be more important than general deterrence because punishment may in fact lead to further offending. It is correctly said that the incarceration of a young person in the adult prison system, carrying as it does a real potential to cause damage of a kind for which both the offender and the community may pay dearly in the long term, should not be ordered unless the Court is satisfied that the powerful factors which have been accepted by the legislature and the courts as requiring and justifying the existence of a separate youth correctional system have been very clearly displaced in importance in favour of the adoption of a more punitive approach.[1]
[1]R v Misokka [1995] VSC 215 (Vincent AJA).
That said, in the circumstances of this case, the primacy of rehabilitation as a sentencing consideration must be moderated by the need for the Court to express the community’s denunciation of your part in the criminal conduct and to deter you and others from engaging in similar conduct in the future.[2] However, while the primacy of rehabilitation as a sentencing consideration needs to be moderated in this case, the considerations to which I have just referred require that any sentence of imprisonment imposed upon you must, in any event, also be moderated to appropriately reflect the fact that you are a young offender.
[2]See generally, R v Mills [1998] 4 VR 235, 241 (Batt JA); R v Tran (2002) 4 VR 457, 462 [14] (Callaway JA).
Mr Walkley, I accept because of your intellectual deficits that your moral culpability is, to some extent, diminished – although I note Dr Walton’s opinion that there is no suggestion that your intellectual impairment is of such a level that there was a formal mental state defence available to you. Further, I accept that in the light of your intellectual deficits, imprisonment may weigh more heavily upon you than someone with a more normal intellect.
As well as the maximum sentence and the matters referred to in s 5(2) of the Sentencing Act, the Court must consider the purposes for which sentences may be imposed, being:
(a) to punish the offender to an extent and in a manner which is just in all the circumstances;
(b) to deter the offender or other persons from committing offences of the same or a similar character;
(c) to establish conditions within which it is considered by the Court that the rehabilitation of the offender may be facilitated;
(d) to manifest the denunciation by the Court of the type of conduct in which the offender engaged; and
(e) to protect the community from the offender.[3]
[3]Section 5(1) of the Sentencing Act requires these purposes to be considered individually, or if relevant, in combination.
Mr Bryant-Dawson, there is one additional matter to be taken into account in respect of the sentence to be imposed upon you. You are currently serving a six month sentence in a Youth Justice Centre in respect of matters that occurred in August of last year. This sentence is due to expire on 13 July 2013.[4] In sentencing you, I must have regard to the principle of totality so as to ensure that the totality of consecutive sentences imposed upon you is not excessive.[5]
[4]T 59.4 – 59.9.
[5]DPP v Rouge [2013] VSCA 160 [20]-[24].
Taking all of the matters to which I have referred into account, and having due regard to the principles of parsimony and proportionality, I will impose the following sentences.
Mr Bryant-Dawson, on the charge of intentionally causing serious injury to Mr Gable (charge 2), I sentence you to a term of imprisonment of six years. On the charge of unlawfully imprisoning Mr Gable (charge 1), I sentence you to a term of imprisonment of 18 months. On the charge of theft (charge 3), I sentence you to a term of imprisonment of six months. I will order nine months of the 18 month sentence and three months of the six month sentence to be served cumulatively with each other and cumulatively with the sentence on charge 2. This makes a total effective sentence of imprisonment of seven years. I fix a non-parole period of four years. I declare that, pursuant to s 18(4) of the Sentencing Act, you have already served a period of 100 days in custody, and I direct that this fact be noted in the records of the Court.
Mr Truong, on the charge of intentionally causing serious injury to Mr Gable (charge 2), I sentence you to a term of imprisonment of nine years. On the charge of unlawfully imprisoning Mr Gable (charge 1), I sentence you to a term of imprisonment of two years. On the charge of theft (charge 3), I sentence you to a term of imprisonment of six months. I will order one year of the two year sentence and three months of the six month sentence to be served cumulatively with each other and cumulatively with the sentence on charge 2. This makes a total effective sentence of imprisonment of ten years and three months. I fix a non-parole period of seven years and three months. I declare that, pursuant to s 18(4) of the Sentencing Act, you have already served a period of 258 days in custody, and I direct that this fact be noted in the records of the Court.
Mr Walkley, on the charge of intentionally causing serious injury to Mr Gable (charge 2), I sentence you to a term of imprisonment of eight years. On the charge of unlawfully imprisoning Mr Gable (charge 1), I sentence you to a term of imprisonment of 22 months. On the charge of theft (charge 3), I sentence you to a term of imprisonment of six months. I will order eleven months of the 22 month sentence and three months of the six month sentence to be served cumulatively with each other and cumulatively with the sentence on charge 2. This makes a total effective sentence of imprisonment of nine years and two months. I fix a non-parole period of six years. I declare that, pursuant to s 18(4) of the Sentencing Act, you have already served a period of 260 days in custody, and I direct that this fact be noted in the records of the Court.
Pursuant to s 6AAA of the Sentencing Act, Mr Bryant-Dawson, if you had not pleaded guilty, I would have sentenced you to a total effective sentence of imprisonment for nine years with a non-parole period of six years. Mr Truong, if you had not pleaded guilty, I would have sentenced you to a total effective sentence of imprisonment for 12 years and six months with a non-parole period of nine years and six months. Mr Walkley, if you had not pleaded guilty, I would have sentenced you to a total effective sentence of imprisonment for 11 years and three months with a non-parole period of eight years and two months.
Finally, I will make the disposal order and forensic sample retention orders sought by the prosecution.
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