Director of Public Prosecutions v Bullard
[2023] VCC 442
•21 March 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 22-01615
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| RICKY BULLARD |
---
JUDGE: | HIS HONOUR JUDGE HIGHAM |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 12 December 2022, 17 February 2023 |
DATE OF SENTENCE: | 21 March 2023 |
CASE MAY BE CITED AS: | DPP v Bullard |
MEDIUM NEUTRAL CITATION: | [2023] VCC 442 |
REASONS FOR SENTENCE
---
Subject: CRIMINAL LAW
Catchwords: Sentence – possession of a drug of dependence – aggravated burglary – plea of guilty – rehabilitation
Legislation Cited: Sentencing Act 1991 (Vic)
Cases Cited:
Sentence:60 days’ imprisonment and a Drug and Alcohol Treatment Order, with a custodial part of 47 months
---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms A. Dearman | Office of Public Prosecutions |
For the Accused | Mr J. Dean | Emma Turnbull Lawyers |
HIS HONOUR:
1Ricky Bullard, you have pleaded guilty to one charge of aggravated burglary (Charge 1) for which the maximum penalty is a term of imprisonment of 25 years; and one charge of possess a drug of dependence (Charge 5) for which the maximum penalty is a term of imprisonment of one year.
2Exhibit 1 on the Determination Hearing was a Summary of Prosecution Opening which set out the agreed facts of your offending. In brief, the circumstances of your offending were as follows.
3On 18 January 2022, at approximately 2:47 AM, you, Hakan Dolasan and Christian Movondo were captured on CCTV footage leaving your apartment in Docklands. You got into a stolen Volkswagen Amarok with Mr Dolasan. Your other co-accused Mr Movondo got into a Honda Accord driven by another
co-accused Alan Tago.4At approximately 3:04 AM, both cars entered the car park at Altona Gate Shopping Centre. You and your co‑accused stayed in the vehicles for a short period of time, before moving to the car park across the road, adjacent to private residences. Your arrival awoke a witness, who recalls hearing male voices for approximately seven seconds, followed by a 'very loud sharp bang' which he believed to be a gunshot. CCTV footage from the area shows a flash of light in the vicinity of the cars at the time.
5Shortly after, you sent Mr Movondo a text message telling him to meet at 'Rosala av corner and glade av'. Mr Movondo and Mr Tago then joined you and Mr Dolasan in the stolen Amarok.
6At 4:12AM, the Amarok was captured on CCTV entering a driveway at Hatherley Grove, Altona North. Your victim, Belal Hablas, was asleep in his bungalow at the rear of the property, while his mother and her grandchildren were asleep in the main residence.
7You, Mr Movondo and Mr Tago exited the car and walked up the driveway. CCTV footage at the residence shows Mr Movondo carrying a large handgun. Mr Dolasan remained in the vehicle.
8After finding the front door and garage door locked, you and your co-accused forced entry through a side gate and proceeded to the rear of the property, where the bungalow and a shed converted into a lounge room were located (Charge 1). After searching the shed, you removed a small black satchel bag. You then followed your co-accused to the bungalow. CCTV footage captures the bungalow lights turning on.
9Mr Hablas woke up to find 'two people in my bungalow, one white, one Islander.' One of you found Mr Hablas' bum bag containing keys to a Ducati motorbike in the garage, an MG car key and his fake Louis Vuitton wallet with his bank and personal cards and $1,000 in cash inside.
10You and your co-accused asked Mr Hablas, 'Where is the safe, where's the money?'. Your victim responded that he did not have anything.
11One of you pointed a firearm at Mr Hablas, which he recalls looking like a 'dirty harry … a long, big revolver' while continuing to demand the location of the safe and money. That offender then pointed the firearm in the air and a single shot was discharged into the ceiling. The gunshot can be heard on CCTV footage. Mr Hablas was struck on the forehead with the butt of the firearm, causing a laceration that began to bleed. Another offender then picked up an axe and swung it at Mr Hablas, who lifted his arm to defend himself. I make clear Mr Bullard that you are not charged with assaulting Mr Hablas.
12Your victim's mother, Mrs Hablas, was awoken by the noise and opened the rear door of the main residence to see what was happening. Mr Hablas ran towards the house, followed by you and your co-accused. Your victim shut and locked the door, and you and your co-accused started kicking the door before eventually giving up.
13You and your co-accused then left the property via the garage. You were shown on CCTV footage carrying a backpack over your shoulder and wheeling a scooter. You then all got into the Amarok, still parked outside with Mr Dolasan in the driver's seat. Over the time of your offending, you and your co-accused all had your phones turned off. You were on the property for a total of seven minutes.
14Police arrived at the residence a short time later and observed the ransacked bungalow and a large bullet hole in the ceiling. Mr Hablas had a bleeding laceration and swelling to the left side of his face. Your victim stated he did not know any of you, nor did he know why he had been targeted.
15On 19 January 2022, police located the Amarok vehicle in Docklands within which your DNA was located.
16On 20 January, police forced entry into your apartment. You were sitting in the lounge room. Mr Dolasan was also present. A subsequent search found various items linked to the aggravated burglary including shoes matching those worn by you, Mr Movondo and Mr Dolasan during the offending; Mr Hablas' Louis Vuitton satchel bag (fake); and inside a bag belonging to Mr Dolasan, keys to the stolen Volkswagen Amarok.
17Police also found a total of 4.7 grams of methylamphetamine on the coffee table in the loungeroom near to where you were sitting (Charge 5).
18You were arrested and interviewed. You provided a no comment interview, as was of course your right. You were then charged and remanded where you have remained ever since.
19Your victim failed to attend the first listed committal in August 2022 and after the second non‑appearance of the victim in September 2022, the matter resolved and proceeded by way of straight hand-up brief. On 17 October, the matter was adjourned into this court for a Determination Hearing which concluded on 17 February 2023. Yours was, I regard, an early plea – although certainly not a plea entered at the earliest opportunity. I find it was a plea that was clearly influenced by the fact that your victim for whatever reason did not turn up to court.
Reports
20Exhibit 7 on the Determination Hearing was a Case Management Assessment Report by Xenia Clark, dated 22 November 2022. Exhibit 8 was a Clinical Advisor Report authored by Mr Harry Howe, also dated 22 November 2022. I also received a report of Ian McKinnon, psychologist, dated 12 January 2020 (Exhibit 15RB) and prepared for an earlier court appearance, and a copy of your criminal record. Together these reports and records set out your personal narrative, your substance abuse and forensic history and identified the challenges that you face and have faced and, where appropriate, set out treatment plans.
21I now turn to your personal circumstances.
22You were born in April 1997, and you are currently 25 years old. You were aged 24 at the time of this offending. You were born in Heidelberg, Victoria before your family relocated to Kinglake where you completed primary school. You are the youngest of four children, with one brother and two sisters. You describe your parents as being 'good people' and you report your childhood prior to 2009 was ‘unremarkable, albeit your parents were strict’. You shared and (now) still share, a loving and supportive relationship with your parents. You are not close to your brother, Dallas, due to his experiencing his own dependency and mental health issues.
23When you were aged 11, you and your family only narrowly survived the 2009 bushfires in Kinglake. Following the bushfires, you and your family moved to Whittlesea and your time was then divided between Heidelberg and Whittlesea. That catastrophic event has left you with lasting trauma – as has been well detailed in the material in front of me (Exhibit 15RB). You had to flee the burning town, witnessing horror as you left. When you returned to school, 12 of your classmates had passed away. It seems you did not receive any appropriate counselling following these events and, in consequence, your life began to unravel. You began to use illicit substances and they have remained a constant companion - indeed arguably your only constant companion - and have exercised an even greater control over your young life.
24You left school at the age of 14 and you worked alongside your father in Epping. You commenced an apprenticeship in metal fabrication and engineering and building caravans. You completed three years of the apprenticeship but your drug use, ever increasing, led you to end your employment. You report no other employment history.
25You have had no significant intimate partners. I am told in 2018 one of your best friends died in your arms from a motor vehicle accident in which you were driving in a following vehicle.
26As to your substance use, you commenced drinking alcohol and smoking cannabis at the age of 13 with friends and quickly you became a daily user. At the age of 15, you started using ecstasy and smoking methamphetamine (ice). You started using GHB when you were 17 and you have experienced several 'blow outs' on this substance, including a reported deliberate overdose. You report ice and GHB as being your primary drugs of concern. You have used heroin twice only a couple of years ago.
27At the time of this offending, you report smoking one to two grams of ice and ingesting up to 100 millilitres of GHB per day. You were also ingesting two Xanax tablets three to four days a week and smoking five cigarettes a day.
28Whilst on remand you sought treatment at the Cottage but were, perhaps not surprisingly, denied bail. You have undertaken several AOD courses and, unfortunately, began to use illicit buprenorphine. You have also re-established contact with your mother and wider family. Your mother remains a support for you. She gave evidence in front of me, being prepared to drive you into court every day from Wallan despite her other commitments.
29She is willing to have you live at the family home provided you remain drug free. She has made clear that she parents her 9-year-old grandson, who is your brother's child. And I understand she and your father fought long and hard to get custody of the child due to his parents' substance issues. She has made clear to me - and I have no doubt, to you - that she must place his interests first. If she does not, Child Protection will. She will not have drugs or persons affected by drugs in the house.
30You have a highly relevant and most concerning criminal record. Since your first appearance in the Children's Courts in 2009, when you were 12 years old, you have been dealt with by means of fines, community orders, often breached, and terms of imprisonment. In April 2018 you were sentenced to a nine-month prison term with a two-year CCO (community corrections order) for offending including armed robbery, firearms, and dishonesty offences. That CCO was cancelled, and you were resentenced.
31In May 2018, you received a further CCO which was also cancelled, and, on both orders, you were resentenced. In January 2020, you were sentenced to 26 months for offending including recklessly exposing emergency worker to risk by driving, burglary, theft, and firearms possession. In February 2020, you received a further 15 months, with a new non-parole period set, for more dishonesty and driving offences. In September 2021, you were sentenced to seven months' imprisonment with an 18-month community corrections order for more driving and dishonesty offences.
32By this time, your offending modus - that means your preferred criminal offending - was well‑established. You would be out on a criminal spree with your mates. You would steal a car, or you would be driving a stolen car, and when challenged, seek to escape apprehension by reckless driving in such a manner as to place other users – and police officers - at grave risk of injury or even death. You were released in November 2021 and immediately, I am told, fell back into drug use as soon as you were back in the community. This index offending was committed but two months into that last community corrections order. And Mr Bullard, let there be no doubt about this, this offending represents a spectacular escalation in the gravity of your offending.
33Whilst of course you do not fall to be sentenced again for matters already dealt with by the courts, your prior criminal history impacts my assessment of the need to deter you from any reoffending, your prospects for rehabilitation, which are bleak indeed if you cannot stop using drugs, your moral culpability - that is the extent to which you can be held responsible for your actions and for their consequences, and the need to protect the community from you.
34Mr Howe in Exhibit 8 was of the opinion that at the time of the offending you satisfied the diagnostic criteria for various substance use disorders. He was also satisfied that the treatment and supervision component of drug and alcohol treatment order (DATO), would be an appropriate intervention to address your substance use disorder, and that there were no significant concerns regarding your capacity to participate in such an order. He also notes your problematic gambling behaviour of which you said, 'Well, it's all drug money so I haven't really lost anything.' That to my mind is a rather chilling observation on your part if I may say so, Mr Bullard.
35Ms Clark in Exhibit 7 remarked that you minimised the gravity of this offending to a concerning degree. She also noted, on the plus side, the ongoing support of a loving family which you enjoy and the offer of safe accommodation with that family. You showed some insight, acknowledging that you have significant difficulty regulating your emotions and that you 'have never really spoken about' what you saw or felt during the awful events of 2009. She noted multiple protective factors and a reported motivation from you to change and also the development of insight supporting her conclusion that she eventually made clearly after some consideration that on balance, you would benefit from being on a drug and alcohol treatment order and submitting yourself to the full support provided, especially counselling.
36Now, the particular purposes of a drug and alcohol treatment order are[1]:
(i)to facilitate your rehabilitation by providing a judicially supervised - that means supervised by the judge, therapeutically oriented and integrated drug and alcohol treatment and supervision regime;
(ii)to take account of your drug or alcohol dependency;
(iii)to reduce the level of criminal activity associated with drug or alcohol dependency; and
(iv)to reduce the participant's health risks associated with drug or alcohol dependency.
[1]Sentencing Act 1991 (Vic) S18X(1)
Submissions of Counsel
37Your counsel, Mr Mortley submitted that notwithstanding the serious offending and your evident challenges such a disposition was an appropriate disposition in light of your circumstances and the circumstances of your offending.
38Ms Dearman, on behalf of the Director did not as I understand the matter urge a different course.
Objective gravity
39I am mindful of the basis upon which this matter was settled. Only two of the three offenders (Mr Movondo, Tago and Bullard) who entered the property subsequently entered Mr Hablas' dwelling, and those two offenders cannot be identified. Further, there is no basis to distinguish between you three as to your role in the aggravated burglary. You assert that you remained in the shed throughout. No evidence was called to support that assertion made from the Bar table. The prosecution accepted that they could not call any evidence to rebut that assertion, so there it sits.
40Aggravated burglary, Mr Bullard, is a serious offence as is clear by the maximum penalty of 25 years' imprisonment that Parliament has sought fit to impose. It represents a violation of the very domestic space where people should feel safe and secure – their home. The aggravated burglary to which you have pleaded guilty is, I find, a serious example of the offence. The simple facts of the offending speak its objective gravity and the intent of all of you at the point of entry. This was a targeted, premeditated, and persistent confrontational aggravated burglary. The CCTV clearly shows the purposive nature of the offending. It was committed in company. Your victim awoke in the middle of the night to find intruders in his bedroom, one of whom was carrying a gun - a fact of which you clearly were aware by virtue of the matter to which you have pleaded guilty - and demanding to know where the safe was. Despite his protestations that he did not know what you were talking about, the demands continued - demands for the location of his safe and the money. A live round was discharged although I cannot determine by whom. Your victim was struck on the forehead with the firearm. Another of you struck him with an axe on the left arm.
41His living space was ransacked in the search for whatever it was that you sought. He managed to escape, got into the main house, forcing the back door shut and pressing himself against it as you offenders tried to kick in the door. His mother looking after two small grandchildren at the time. Although there is no victim impact statement, it was clearly a traumatic and terrifying event both for Mr Hablas and for his mother, let alone those two young children who must have been terrorised.
42Now, these facts directly inform in my view the aggravated burglary to which you have pleaded guilty. And your offending was aggravated by the fact it was committed but two months after being placed upon yet another community corrections order.
General principles
43Mr Bullard, in sentencing you I must have regard to a range of different factors. I must give effect to the principal of general deterrence that is, deterring any other young man or woman for that matter from behaving as you did; and to specific deterrence, that is the need to deter you from ever repeating such offending. I must consider the need to protect the community. I must express the community's denunciation of your conduct. I must take into account the effect of your crimes upon your victims. I must have regard to current sentencing practices and the statutory maximum penalties for the offences to which you have pleaded guilty. In short, I must try to balance your personal circumstances with the circumstances of your offending. And I must also pass no greater sentence than is necessary in all the circumstances of the case as I find them to be.
44Now, these sentencing purposes as identified in s5(1) of the Sentencing Act are all still enlivened - that means they all have application - in your case. Specific deterrence - that is the need to deter you - and protecting the community from your continued offending loom very large indeed. However, if the court is considering placing you on a drug and alcohol treatment order, then your rehabilitation and the protection of the community (to be achieved through your rehabilitation) have greater importance than those other sentencing purposes[2].
Findings
[2]Sentencing Act 1991 (Vic) S 18X(2)
45On all the material in front of me, I am satisfied on the balance of probabilities:
(i)that you have a polysubstance dependency. That means a dependence of more than one drug (methylamphetamine, GHB and buprenorphine, suboxone);
(ii)that your dependency contributed to the commission of the offending in front of me;
(iii)that otherwise it would be appropriate to impose an immediate sentence of imprisonment of no more than four years;
(iv)that you are not charged with offending nor subject to any order that would make you ineligible for a drug and alcohol treatment order;
(v)finally, that it is appropriate in all the circumstances to make such an order.
Reasons
46Now, these are my reasons for coming to the decision that I have. Firstly, your early guilty plea brings with it the practical benefits of saving the community the time and expense of a trial and the victims the trauma of having to give evidence. It does also indicate on your part a willingness to facilitate the course of justice.
47Your plea also demands particular recognition in the time of the COVID pandemic.
48Secondly, your relative youth: at 25 you are still a young man. But your youth is of diminishing weight in light of the gravity of this offending and your ever increasing and serious criminal record.
49You stated that you have been given a shock by the prospect of a longer gaol term, and potentially being in custody until the age of 30. You saw a DATO as your last chance to change your behaviour. If I may say so, that was a very realistic appraisal of the situation in which you find yourself.
50You told Mr Howe of your desire to demonstrate to your family that you can change your behaviour. You are aware of your good fortune in having maintained the support of your family, particularly your long-suffering mother who I am sure hopes every day for her son to make a turnaround.
51However, it is quite clear to me that your life has been scarred – perhaps irreparably – by your childhood trauma. But you have also turned, in my view, into an experienced and proficient criminal. Your offending is out of control: You have demonstrated a sustained inability or refusal to comply with court orders and supervision within the community. As soon as you are back in the community you use again and are quickly compelled to offend to support your habit. You present a risk to the community, I find, and I have thought long and hard about whether such a risk could be managed on an order.
52You have in the past relied upon your trauma as mitigating both the gravity of the offending and the appropriate punishment. But as you must be aware, Mr Bullard, that mitigation loses its persuasive quality as your offending continues and escalates. And on this matter, I have read the sentencing remarks of His Honour Judge Dean and His Honour Judge Wraight who dealt with you before and the matters of concern.
53Your mother has indicated her preparedness to not only have you live with her but also to drive you to your appointments from Wallan as and whenever is needed. It is a most onerous task and the sort of support perhaps that only a mother would volunteer. You should be indebted to her.
54And I make clear, Mr Bullard, it is only on the basis of that practical support that is being offered and the stability that such a residence would offer that I have determined after much consideration to provide you with the opportunity you seek to put those words into action.
Sentence
55Now, on Charge 5, you are sentenced to a term of imprisonment of 60 days imprisonment and that is time served and you owe the State nothing.
56On Charge 1, you are convicted and sentenced to a drug and alcohol treatment order (DATO).
57A DATO has two parts: the treatment and supervision part and the custodial part. The treatment and supervision part itself has two parts, which are as follows.
58The core conditions, which are that:
(a) you must not commit, whether in or outside of Victoria, another offence punishable on conviction by imprisonment during the time the Order is in force;
(b) you must attend Drug Court when required by the Court to do so;
(c) you must report to the Melbourne Drug Court House within two clear working days after the Order is imposed;
(d) you must report to and accept visits from members of the Drug Court;
(e) you must undergo treatment for alcohol and drug dependency as specified in the Order or by the Drug Court;
(f) you must give notice of any change of address, at least two clear working days before the change, to a specified Drug Court officer;
(g) you are not to leave Victoria without the permission of the Drug Court; and
(h) you are to obey all lawful instructions from the Drug Court Team.
59The core conditions will operate for 47 months, or until further order.
60The program conditions, which are that:
(a) you must submit for drug and alcohol testing, as directed;
(b) you must submit to detoxification or other treatments specified in the Order, as directed;
(c) you must attend vocational, educational and employment programs, as directed;
(d) you must submit to medical, psychiatric and psychological treatment, as directed;
(e) you must not associate with Christian Movondo, Alan Tago and Hakan Dolasan;
(f) you must reside at 19 Botanical Avenue, Wallan, for the duration of the Order or until further Order;
(g) you are subject to a curfew that you must remain at 19 Botanical Avenue, Wallan between the hours of 9:00 pm and 6:00 am, which is required until further order;
(h) you are not to use a drug of dependence without lawful authorisation;
(i) you are to abstain from alcohol;
(j) You must attend Nexus Primary Health, Walla or such other healthcare provider as directed within seven days;
(k) You must not attend gaming venues included but not limited to Crown, TAB, RSLs or any other venues with slot machines.
(l) You must not gamble online or via any smart device;
(m) You must not access any online platform that enables or promotes investment or trading in futures, crypto, shares, IPOs or the like.
(n) You must not access any online gaming platforms or discussion boards.
(o) you must only access the internet through one device and that device is to be nominated within seven days and you are to inform the Drug and Alcohol Treatment Court if you change devices and the reasons for the change.
(p) You must allow a designated drug and alcohol treatment court officer at any time to view upon request your internet search history, phone contacts and applications and inspect any search history, phone contact or any application relating to online gambling platforms, gaming platforms and the like and you must not delete any internet search or application from your nominated device.
(q) you are to do or not do anything else that the Drug Courts consider necessary or appropriate concerning:
(i)your drug and alcohol dependency; and
(ii)the personal factors that the Drug Court considers contributed to your criminal behaviour.
61These program conditions will operate for two years, or until further order.
62The custodial part of the DATO is the term of imprisonment that I would have imposed had I not placed you on a DATO, and it is a term of imprisonment of 47 months. That is three years and 11 months, Mr Bullard. And that is not to be served unless further order.
63All right. Now, I am going to ask you a question. Do you consent to being placed upon a drug and alcohol treatment order?
64OFFENDER: Yes.
65Ms Dearman, I'm signing a disposal order and that's in relation to all four, all right? If that's appropriate.
66MS DEARMAN: As Your Honour pleases. Thank you, Your Honour.
67Now, you are also waiving all rights of confidentiality of communications between the Drug Court and those who work for it on the one hand; and on the other hand, all treatment providers and all government agencies, authorities, and departments. All right. So, you have little privacy, and you certainly have no confidentiality in your communication with various service providers. You understand that?
68OFFENDER: Yes.
69Pursuant to s 18(4) of the Sentencing Act 1991, I declare that you have serve 364 days in Pre-Sentence Detention.
70Pursuant to s 6AAA of the Sentencing Act 1991, had you not pleaded guilty to this matter you would have been sentenced to a Total Effective Sentence of six years and four months, with a non-parole period of four years and 6 months.
‑ ‑ ‑
0
0
0