Director of Public Prosecutions v Bamford

[2019] VCC 764

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-00489

DIRECTOR OF PUBLIC PROSECUTIONS

v

RICKY BAMFORD

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JUDGE:	HER HONOUR JUDGE WILMOTH
WHERE HELD:	Melbourne
DATE OF HEARING:	13 May 2019
DATE OF SENTENCE:	22 May 2019
CASE MAY BE CITED AS:	DPP v Bamford
MEDIUM NEUTRAL CITATION:	[2019] VCC 764

REASONS FOR SENTENCE
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Subject: Criminal law - sentence            

Catchwords:   Pleas of guilty in the Koori Court to one charge of aggravated burglary, two charges of theft and one charge of causing injury recklessly – offender aged 19 at the time, 22 at sentencing – relevant prior history – periods of youth detention – chaotic lifestyle immediately before offending – drug abuse – guarded prospects for rehabilitation – remorse – some emerging insight into causes of offending.     

Sentence: 3 years and 6 months; non-parole period 2 years and 3 months.     

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	MS C. BADCOCK	OPP
For the Accused	MR S. KENNY	Stary Law

1HER HONOUR:  Ricky Bamford, you have pleaded guilty to one charge of aggravated burglary, two charges of theft, and one charge of causing injury recklessly.  You were 19 years old when you committed the offending, and at the time, you were on a Community Correction Order imposed by the Magistrates' Court, only a few months earlier.

2The charge of aggravated burglary occurred when, on 27 December 2017, you and three other people drove to a house in Doncaster.  The two co-accused were Teira Bennett, and Kane Goninon.  The fourth person has not been identified.  Mr Thong Nguyen and his family lived in the house, and when you arrived in the early hours of that morning, they were all asleep.  His family included his wife, his infant daughter and his brother in law.  Mr Nguyen's two cars, a Honda Accord, valued at $15,000, and a Mazda valued at $45,000, were parked in the driveway.

3Mr Nguyen was woken at about 5.30 am by the sound of a door slamming, and he heard some cars driving away at a fast speed.  He checked, and found his two cars had gone, as had his car keys that had been next to the front door.  You and the other three had arrived at the house in a small, black hatch vehicle.  Security cameras were installed at the property, and CCTV footage obtained later showed Bennett walking along the driveway carrying a crowbar, and Goninon carrying an axe.

4You were seen carrying a pair of bolt cutters, which you used to remove a padlock on the side gate, allowing entry of the two co-accused into the back yard.  The three of you tried to open the laundry door but could not, so you forced open the rear glass sliding door into the house.  In the family room, you took various items, including an iPad, $10 in New Zealand currency, a handbag, a camera, Mr Nguyen's wallet, containing cash and cards, and the car keys.  The stolen bags contained old family photographs, of great sentimental value.

5The three of you then left through the front door, slamming the screen door as you left.  You drove away in the car you arrived in, and the two cars you stole.  The police who investigated found a finger print on the sliding door, which matched that of Goninon.  Although Mr Nguyen was grateful that his cars were later returned to him, he felt terrified by the fact that this crime took place, while his wife and child were asleep in the house.

6The other charges arose immediately after you left Doncaster, and drove to Bayswater North.  At 5.40 am, Mathew Baldyga was delivering produce to a store there, and parked his truck alongside the store.  He began to move stock to the delivery area, about 12 metres from the truck, and he left the engine running, to power the truck's refrigerator.  About half an hour later, you and the co-accused arrived there, in the small black car, and the two stolen cars.

7You got into the cabin of the truck, and stole Mr Baldyga's backpack, which contained his mobile phone and wallet.  He saw you climb out of the truck and run towards the Mazda.  You jumped into the passenger seat of the Mazda, which was being driven by Bennett, and Mr Baldyga grabbed his bag through the front passenger window.  He felt his forearm being grabbed, and someone saying, 'Go, go, go.'  The Mazda moved off, and Mr Baldyga tried to run with it, as his arm was trapped inside the car.

8He was dragged for about 10 metres, as the car veered towards his truck, and he fell off, near the rear tailgate of his truck.  Blows were struck to him, although none by you.  He was aware of you and Bennett laughing as the car drove away.  CCTV footage was also captured at the scene of this location, and shows what I have just described.  Further footage shows the stolen Mazda driving through a Coles Express service station, with Bennett driving, and you in the passenger seat.

9Mr Baldyga suffered a number of injuries from the incident.  A medical report dated 30 May 2017 lists them as follows:  bruises to the right side of his forehead, contusion to his right arm and elbow, swollen left forearm, soft tissue injury to his right wrist, a huge abrasion to the right hip region, soft tissue right foot pain, meniscal damage to both knees requiring surgery, supraspinatus tear to the right shoulder, and bursal thickening requiring surgery.

10Two years later, as of 1 May 2019, he has had four surgeries; two on his right shoulder, and one on each knee.  The last surgery was very recently, in April.  He still suffers significant pain that is managed with medication, and he is still not working.  He provided a victim impact statement, in which he describes how he still suffers from the pain and immobility caused by the injuries.  He cannot walk because of his knees, and he has put on a lot of weight because of immobility.

11The surgery on his knees was not successful, and he says he will require pain and nerve medication for the rest of his life.  His marriage has broken down, as he has been unable to care for his wife, who has particular needs.  Being unable to work, he has lost a lot of money, and has to fight WorkCover to pay for his medication.  He fears that his independence has been taken away from him, and he will have no one to look after him, as he grows older, still needing care.

12You were arrested on 14 January 2017, and when interviewed, you denied that you were depicted in the images from the CCTV footage.  According to a chronology prepared by the Prosecution, you were then remanded on other matters, and served periods of youth detention.  On 22 January 2018, you were released on parole, to attend a residential rehabilitation program, at Baroona Youth Healing Centre.  You completed the program, and left there in June 2018.

13However, you were again remanded in custody on 22 October 2018 in relation to subsequent offending, and your bail for these matters was revoked on 7 November.  You have remained in custody since then, a total period of 187 days by the date of the plea hearing. A further nine days has elapsed since then, making a total of 196 days.

14I turn now to your background.  You are aged 22, the son of an Aboriginal mother from Alice Springs, and a non-Aboriginal father.  You were raised in Alice Springs, and your father, who was a violent alcoholic, left when you were 2 years old.  Your mother re-partnered, and you have a full brother aged 20 and a half-brother aged 17.  You are very close to those brothers, and you also have another half-brother, your father's other son, and your step-father has a daughter too, with whom you are in contact.

15You have an amicable relationship with your father, and you lived with him for about a year when you were younger.  You went to several secondary schools and struggled, because you started drinking and using drugs during your teenage years.  You began getting into trouble, and spent time in youth detention.  You have had some employment in various jobs, the most recent one in retail.  You have a daughter from your only long-term relationship, which ended more than two years ago, and she is in the care of your mother.

16At the time of the offending, you were living alone, not working, and using ice daily.  You were using other drugs as well, in large quantities, and you told the psychologist, Mr Newton, that your drug use at the time of the offending had been particularly intense, and your life was chaotic and unravelling.  The co-accused were casual acquaintances, whom you knew through drug-using circles, and that is how you got involved.

17A committal hearing took place in March 2018, at which Mr Baldyga was cross-examined, although attempts to resolve the matter had taken place before the committal.  The case was listed for trial, and you pleaded guilty in October, just before the trial.  Although it was not an early plea, it did avoid the trial, and spared the witnesses from having to give further evidence, which has significant utilitarian value. It can also be accepted as evidence of remorse which you expressed at the plea hearing before the respected Elders in the Koori Court. 

18Your counsel has submitted that I should impose a combined sentence with a prison term not exceeding a year, and a Community Correction Order, but the prosecution's submission was that the gravity of the offending was such that a longer prison sentence was called for with a non-parole period fixed.

19The seriousness of this offending calls for a stern sentence, because of the need to deter others from such offending.  As Mr Kenny conceded the events of this night are certainly not to be characterised as being at the lower end of the range of seriousness for this type of offending.  The court has a particular role to play in denouncing offending of this type when members of the public are terrorised, a man going about his work is badly injured, and property is stolen.

20The burglary was committed at night in the company of others, and most significantly, Mr Baldyga suffered injuries which still cause him to suffer pain, with the need for recurrent surgery until very recently.  Even though you did not inflict any physical blows on Mr Baldyga, your guilt is made manifest by your role with the co-offenders.  It would seem, however, that that part of the offending was not pre-meditated.

21These matters need to be balanced against several mitigating factors, including the early plea, and your remorse to which I have already referred.  You are still a young man, for whom rehabilitation remains an important aspect of sentencing.  It is important not just for yourself and your family, but for the protection of the wider community, that your rehabilitation is successful.

22Your prior history for similar offences and repeated offending during a short period of time over the past few years suggest that you have not learned from the punishment imposed on you so far.  Unfortunately, this is often the case, where longstanding drug dependence lies behind a reason for committing crimes.

23Mr Kenny submitted that any sentence imposed on you should require you to address your substance abuse once again, in a rehabilitative setting.  Your mother has also written in support of your rehabilitation in the community with your transition back into the community to be encouraged and supported by your family.  On your release, that support will doubtless assist you in reaching that goal.

24The hope would be that having spent time in custody and having had the opportunity to reflect on your choices in life, you could gain insight into the causes of your offending and desist in future.  Your positive engagement with the respected Elders during the Koori Court plea hearing demonstrated some insight, and perhaps some increased maturity, but your prospects for rehabilitation remain guarded.

25In determining an appropriate sentence, I have taken into account your decision to appear before the Koori Court, and face the challenges that presented for you.  It is, as I have said, a positive sign, and lends weight to the effort you are making in custody to reform yourself.  I include here the interest you now have in Aboriginal art, and the talent you have demonstrated.

26The time you spent at Baroona Youth Healing Centre last year appears to have been beneficial for you, according to the letter written by Ms La Rosa, who was your youth justice case manager.  Mr Newton reported, after having assessed you earlier this year, that your mental health diagnosis include:  post-traumatic stress disorder, but in partial remission; panic disorder; and severe methamphetamine-use disorder, which is in early remission, in a controlled environment, that is to say, prison.

27Mr Newton said you demonstrated developing insight into your addiction, although at a basic level, and it would seem that the best hope for you is that you expressed a strong desire to continue with treatment when you are released.  Mr Newton added that you were suffering from these conditions at the time of your offending, but he said, and I quote, ”…there is no evidence to suggest that they would have precipitated your offending.”[1]

[1] Report of Mr Newton dated 4 May 2019 paragraph 43(3)

28It follows that the Verdins principles do not apply, except for limb two, in the sense that your conditions from which you suffer, may have a bearing on the kind of sentence that is imposed, and the conditions in which it should be served.

29Whilst I take that into account, I cannot conclude that a sentence of 12 months or less, combined with a Community Correction Order, is adequate to reflect the seriousness of your offending.  The guarded prospects for rehabilitation arise partly from your criminal history, which dates back to when you were very young, and has continued into adulthood.  Since then, you were placed on a Community Correction Order, as I said earlier, which did not deter you from further offending, and these charges, of course, could result in a charge of contravening that order.

30The maximum penalties for the charges that you are facing today are 25 years for aggravated burglary, 10 years for theft, and five years for causing injury recklessly.  An additional factor to consider is that of parity.  The co-offender Teira Bennett was sentenced to six years and two months imprisonment, with a non-parole period of three years.

31He was sentenced in relation to a much larger number of charges, many of which were much more serious than those you are facing, including being the driver that night, when Mr Baldyga was injured.  He was aged 18 at the time, about a year younger than you.  In considering how the principle of parity should operate in sentencing you, I take into account his greater role, and more serious offending overall.

32Kane Goninon was sentenced by the Children's Court to two years' detention in the Youth Justice Centre for a number of consolidated charges, and his sentence can play no useful role in determining an appropriate sentence in your case.  Will you stand now, please.

33I sentence you to the following terms of imprisonment: 

for Charge 1, aggravated burglary, two years and six months imprisonment;

for each of Charges 2 and 3, which are the theft charged, eight months imprisonment;

for Charge 4, causing injury recklessly, two years imprisonment. 

The sentence for Charge 1 is the base sentence, for purposes of cumulation. I order that two months of each of the sentences for Charges 2 and 3, and eight months of the sentence for Charge 4, be served in cumulation upon the base sentence. That results in a total effective sentence of three years and six months. 

I order that you serve a minimum period of two years and three months before being eligible for parole.  That provides for a period on parole, during which you will be able to continue with treatment, after your release from prison, and stabilise your life. 

I declare, as already served, the period of 196 days in pre-sentence detention, and I shall cause that to be noted on the court record.

34If you had pleaded not guilty to these charges, I would have sentenced you to five years imprisonment, with a non-parole period of three and a half years.  The prosecution seeks orders for compensation:  one for $300 payable to Mr Baldyga, and one for $1,000, payable to Mr Nguyen.  A disposal order is also sought in respect of a pair of bolt cutters.

35Just before I make those orders, I will just check with Mr Kenny.  I did not note whether they were consented to, Mr Kenny, or not opposed.  What is the situation there, do you know?

36MR KENNY:  I don't recall if there was a discussion but I don't seek to be heard in relation to those.

37HER HONOUR:  Very well.  I'll make those orders, on the basis that they are unopposed.  Are there any other matters that I've neglected or omitted?

38(Discussion ensued re pre sentence detention.)

39HER HONOUR:  It is 196 PSD, is it?

40MR KENNY:  I apologise, it is 196.

41HER HONOUR:  All right, thank you.  Thank you, Mr Bamford may be taken now, officers.  Thank you.

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