R v Robertson
[2013] VSC 625
•6 November 2013
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT WARRNAMBOOL
CRIMINAL DIVISION
S CR 2013 0084
| THE QUEEN |
| v |
| DYLAN BERNARD ROBERTSON |
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JUDGE: | CURTAIN J | |
WHERE HELD: | Warrnambool | |
DATE OF HEARING: | 28 October 2013 | |
DATE OF SENTENCE: | 6 November 2013 | |
CASE MAY BE CITED AS: | R v Robertson | |
MEDIUM NEUTRAL CITATION: | [2013] VSC 625 | |
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CRIMINAL LAW – Sentencing – Assist offender – Assisted the alleged principal offender in the immediate aftermath of the shooting – Plea of guilty – Favourable prospects of rehabilitation – Sentencing Act 1991 (Vic) s 5(2AB), 6AAA.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr T. Hoare | Office of Public Prosecutions |
| For the Accused | Mr M. Turner | Dwyer Robinson Pty Ltd |
HER HONOUR:
Dylan Bernard Robertson, you have pleaded guilty to one count of assisting an offender and have admitted prior convictions.
On 15 October 2012 you were in the company of Leonard Sciascia, Wayde Landmark and Michael Perry-Karaitiana. Leonard Sciascia had arranged to meet Troy Hocking to settle a dispute over monies owed over a drug debt. It had been arranged that he and Troy Hocking would meet at Pivot Beach, Portland that afternoon to sort out their differences. You were Leonard Sciascia’s driver and you drove to 48 Willunga Street, Portland so that Michael Perry-Karaitiana could obtain some “back-up” for the meeting.
The car you sere driving, a green Holden Rodeo utility, was parked in the driveway at 48 Willunga Street, Portland. Leonard Sciascia was the front seat passenger and Landmark and Perry-Karaitiana were seated in the rear. Troy Hocking was the front seat passenger in a white Holden Rodeo utility, being driven by Roy King with Christian Knight seated in the back seat. King drove the white Holden down Willunga Street and parked it next door at number 46. The passenger side of the white utility, driven by King, was then adjacent to the driver's side of the green utility, driven by you.
Wayde Landmark, from your car, approached Troy Hocking, had words with him and punched him in the face while he was still seated in the car. Leonard Sciascia then approached Troy Hocking, also had words with him, produced a firearm and pushed it up against Troy Hocking’s head. Sciascia then stepped back and discharged the firearm into Troy Hocking, striking him in the hand and lower-left chest. As I understand it, you remained seated in the green utility throughout and did not know at that stage that Sciascia had a gun until you heard what appeared to be shots.
Sciascia returned to the utility with the gun, which you saw in his possession, and you then drove him and Landmark to Landmark's premises where the firearm was hidden in a paddock across the road, and Sciascia took the opportunity to have a shower and change his clothes.
You then drove Sciascia and Landmark back to pick up Perry-Karaitiana who had been left outside the house at No. 48, and then you drove Sciascia and Landmark to a drive-in bottle shop where alcohol was purchased so that Sciascia’s image could be captured on the CCTV footage, thereby purporting to establish an alibi. In the meantime the white utility with Hocking, King and Knight, was driven by King directly to the Portland Hospital.
Troy Hocking was treated for gunshot wounds to the left lower chest and hand. He underwent surgery; a point 22 bullet was removed. He suffered a cardiac arrest and excessive bleeding, and in the early hours of 16 October was air lifted to the Royal Melbourne Hospital. He there underwent further surgery but suffered another cardiac arrest and could not be revived. A later post-mortem concluded that the cause of death was a gunshot wound to the abdomen.
Leonard Sciascia was interviewed on 15 October and interviewed again after Troy Hocking had died. He was subsequently charged with murder. Wayde Landmark was interviewed by the police and subsequently charged with assisting an offender. You were interviewed on 18 October and made a no comment record of interview. You were subsequently charged with murder and you have been remanded in custody since that date.
On 30 April 2013 you made a statement to the police. You admitted being the driver. You said you had heard arguing and people saying, “No, no”, and then the sound of a gun going off. You did not know of the presence of the gun before the shooting, but did see it afterwards. You said you followed the other car, at Sciascia’s direction, and that you were not present when Landmark stashed the gun in the paddock. You told the police that Sciascia was giving the orders, that you drove under his direction to Landmark’s house, back to Willunga Street, then to the Thirsty Camel bottle shop in Bentinck Street, and then back to Landmark’s premises.
On 13 May 2013, on the first day of the committal you pleaded guilty to one count of assisting an offender, which offence relates to the serious indictable offence of murder alleged to have been committed by Leonard Sciascia.
Troy Hocking at the time of his death was 20 years old. He was the only son of Geoff Hocking and Trudi Steff. He had attended the Branxholme Primary School and Secondary College, and later the Portland TAFE. He did not complete his studies at TAFE and instead became the full time carer for his father, who was disabled by reason of a back injury. At the time he died he was living with his girlfriend, Kelsey Albert, and his father.
Victim impact statements made by Troy Hocking’s mother, Trudi Steff, his father, Geoff Hocking, his girlfriend, Kelsey Alberts and his sister, Kymberley Huggins speak of the grief, distress and sorrow each has endured as a result of the death of their beloved son, brother and partner. You of course are not being sentenced in respect of the murder of Troy Hocking, but you played a role in the events of that day and the days leading up to the shooting.
The offence to which you have pleaded guilty, that of assisting an offender, is a serious offence. It carries a maximum penalty of 20 years’ imprisonment. This was a significant example of a serious offence, and any sentence imposed must have due regard to the nature and gravity of the offence here committed.
Your conduct in driving the car allowed Sciascia and Landmark to flee the scene and provided Sciascia with an opportunity to shower and change his clothes, to hide the firearm and then to establish a purported alibi. So it is that you provided significant assistance to the alleged principal offender in the immediate aftermath of the shooting. It must have been apparent to you that a firearm had been discharged by Sciascia and that Troy Hocking had been very seriously injured.
I accept, however, that these events unfolded somewhat unexpectedly and that you drove to Willunga Street not for the purpose of confronting Hocking there, but rather so that Perry-Karaitiana could garner more manpower, and that you understood that a confrontation of some sort was to take place later at Pivot Beach. Nonetheless, your assistance was critical in removing Sciascia from the scene, providing him with the opportunity to hide the weapon and to shower and change his clothes, thereby reducing the prospect of any physical evidence associating Sciascia with the shooting and in purporting to establish an alibi further dissociating Sciascia from the shooting.
Any sentence imposed must seek to punish you and act in denunciation of your conduct. It must also seek to give effect to general deterrence, so that like-minded people will know that if they are caught up in events such as these and act as you have done here, they can expect condign punishment.
I turn now to matters personal to you.
You are 33 years old. Your family comes from Portland, but you were educated to Year 10 at the Hamilton Good Shepherd College. At the age of 17 you moved to Warrnambool. At the age of 19 you moved back to Portland and at this time commenced a relationship with Ruth Abrahams, which produced a son, Kirk, now aged 14. You have been in a de facto relationship with Ms Kim Leason which has endured intermittently over the last 16 years. You have two children from that relationship, aged 11 and six. Ms Leason also has a daughter whom you regard and raise as your own. The relationship with Ms Leason has had its difficulties and an intervention order was taken out against you.
On 13 July 2012 you were charged with breaching that order and on 12 February 2013 you were sentenced to seven days’ imprisonment in respect of that breach. The future of your relationship with Ms Leason is uncertain, but nonetheless, Ms Leason has supported you in your present predicament.
You have the continued support of your parents and sister, testimonials from Tanya Bonner and Geoffrey Watson, tendered in evidence as Exhibit 1, attest to your qualities, your strong family supports and your commitment to your children. You are described as a loving, caring father. You have worked variously in meat works, as an apprentice electrician and as a shed builder.
You have completed an apprenticeship as a boilermaker and you were previously employed for nine years at Fechner Engineering where your father was the manager. The managing Director, Stewart Fechner, in a testimonial also tendered on your behalf as Exhibit 1, describes you as a very good and reliable tradesman, and it appears that he is prepared to continue your employment once you are released from prison.
Dr Lester Walton, in his report tendered in evidence as Exhibit 3, described you as being of normal intelligence. He describes you as expressing a mixture of emotions, a sense of loss surrounding the death of Troy Hocking, who was indeed a friend of yours, and some residual anger at the principal offender for placing you in this position. Through your counsel, Mr Turner, after the victim impact statements were read in court, you expressed your remorse for the part you played in Troy Hocking’s death and acknowledged the suffering and grief endured by Mr Hocking's family.
Dr Walton made reference to your lengthy history of cannabis abuse, and more recently your use of ecstasy and amphetamine. Indeed you have 12 prior convictions, eight of which relate to drug offences, including trafficking cannabis, possession of amphetamine and possessing LSD. In May 2012 you were placed on a Community Corrections Order for drug offences and ordered to undergo assessment and treatment for drug abuse or dependency.
Nonetheless, you do not, according to Dr Walton, appear to be substance dependent. So it is that you were on a Community Corrections Order at the time you committed this offence and had been charged with breaching an intervention order. I note however, that this offence occurred in the context of the drug milieu, that is that you were associating with persons involved in the illicit drug trade in Portland and it appears, at least according to Dr Walton, that in the lead-up to 15 October you were sleep deprived by reason of amphetamine use and addled by cannabis, which he said may have contributed to a lack of judgment on your part.
Mr Turner has submitted that your lack of offending during the years 2001 to 2007, as demonstrated by your lack of prior convictions in that time, is demonstrative of your ability to be a productive member of the community, focused, as you were at the time, on your relationships, committed to your partner and your employment.
Various certificates as to your participation in programs while in custody have been tendered in evidence as Exhibit 2, and while in custody you have been working in the steel industries. Mr Turner further submitted that your time in prison has had a salutary effect upon you and you have developed an insight into the nexus between drug use and criminal activity.
I accept that if you remain drug free and with the support of your family and your employer, and given what has been described as the salutary effect of your time in custody to date, that your rehabilitation is not without prospect.
In sentencing you I take into account your plea of guilty and give you a discount for it. I take into account that by reason of your plea you have facilitated the course of justice and have saved the community the cost of a trial and the family of Troy Hocking the ordeal of one.
I take into account that you indicated your plea of guilty at a relatively early stage and that you indicated your preparedness to assist the authorities also at a relatively early stage.
I take into account that you have also given a sworn undertaking to the court that, in accordance with your statement, you will give evidence on behalf of the Crown in the prosecution of Leonard Sciascia and Wayde Landmark. Such course entitles you to a significant discount on the sentence otherwise to be imposed. By adopting such a position and cooperating with the authorities you have further facilitated the course of justice and placed yourself in jeopardy in the prison environment.
You have, since indicating your preparedness to cooperate with the authorities, been held in protection while on remand, thus denying yourself the privileges and programs otherwise available to mainstream prisoners.
I take into account also your age, your remorse, your family supports and your favourable prospects for rehabilitation. In short I take into account all matters which go in your favour.
You have been in custody since 18 October 2013. Since then you have served sentences in respect of other offences, and a period of 195 days is to be reckoned as pre-sentence detention under the sentence to be imposed in respect of this offence. But I also propose to take into account, consistently with the principles enunciated by the Court of Appeal in The Queen v Renzella,[1] the period that you have otherwise served.
[1][1997] 2 VR 88.
In sentencing you, I declare that I have imposed a sentence which is less severe than would otherwise have been imposed by reason of the undertaking you have given, to assist after sentencing in the prosecution of two offenders, and I make this announcement and declaration pursuant to s 5(2AB) of the Sentencing Act 1991 (Vic) and will cause it to be noted in the records of the court the fact that the undertaking was given and its details.
Accordingly, for the crime of assisting an offender, you are convicted and sentenced to 18 months’ imprisonment. In order to address your prospects for rehabilitation, I order that you serve a period of 12 months’ imprisonment before becoming eligible for parole. I declare that you have already served by way of pre-sentence detention a period of 195 days.
I declare pursuant to s 6AAA that, were it not for your plea of guilty, I would have otherwise sentenced you to two and a half years’ imprisonment with a non-parole period of two years’ imprisonment.
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