Director of Public Prosecutions v Darke

[2016] VCC 1645

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

AT WODONGA
CRIMINAL JURISDICTION

CR 16-01246

DIRECTOR OF PUBLIC PROSECUTIONS

v

ROBERT DARKE

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JUDGE:	HER HONOUR JUDGE HARBISON
WHERE HELD:	Wodonga
DATE OF HEARING:
DATE OF SENTENCE:	4 November 2016
CASE MAY BE CITED AS:	DPP v Darke
MEDIUM NEUTRAL CITATION:	[2016] VCC 1645

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. O'Doherty
For the Accused	Ms D. Price

Pages 1 - 9

 

 

HER HONOUR: 

1Robert Darke, you have pleaded guilty before me to one charge of armed robbery.  The offence occurred at No.1 McCrohan Court in Wodonga on 10 January of this year.  Your co-offender was Ivan Edwards, who I will be sentencing early next year.

2The circumstances of this armed robbery are unusual.  Briefly, both you and Edwards had found out that a ring and bracelet had been stolen from a friend of yours.  The background to the theft was the involvement of a group of your acquaintances in drugs and the accumulation of drug debts.  You were not involved in any of this background, but you took it upon yourself to retrieve the ring and bracelet for your friend.  You apparently felt some obligation as the supposed thief was living in your household.

3You were both successful in retrieving the bracelet but not the ring.  You both attended the house at 1 McCrohan Court believing that the owner of the house, who you both knew well, had the ring.  You were disguised with a mask, although it was a very imperfect disguise because your identity would have been apparently to anyone who knew you as you have a distinctive tattoo visible on your neck.  You had a knife with you at the time.

4When you arrived, the owner was not at home.  Mr Edwards knocked at the door and there was a man at home by the name of Robert Blundy.  Neither of you had ever met Mr Blundy before.  Mr Edwards had a conversation with Mr Blundy at the front door and eventually persuaded him to let both of you inside the house.  Once inside you both accused Mr Blundy of having the ring.  He denied it, clearly not knowing anything about this transaction.

5You made him empty his pockets.  He did so and, in emptying his pockets, he put his wallet on the table and he took the cash that was in his wallet, which was $110, out of the wallet and on the table.  At one stage you, Mr Darke, produced the knife which you had on your person and you threatened Mr Blundy with it.  Mr Blundy was understandably terrified at that point; you were eventually, however, convinced by Mr Blundy that he knew nothing of the stolen ring that you had come for and you decided to leave without having caused any physical harm at all to Mr Blundy.

6In leaving and on the spur of the moment it was you who picked up Mr Blundy's money from where he had put it on the table.  You and Edwards then left the house and were later seen on CCTV drinking at a local nightclub, presumably spending Mr Blundy's money, which has not been recovered.  As a result of your actions both you and Edwards have therefore been charged with armed robbery.

7Mr Darke, armed robbery is a very serious offence carrying a maximum penalty of 25 years' imprisonment.  In sentencing anyone for the offence of armed robbery one of the principal matters which I must bear in mind is the issue of general deterrence.  Armed robberies are very, very frightening things and in this case you committed the armed robbery with a knife.  There is no victim impact statement before me, but it is clear and I do not think can be gainsaid that Mr Blundy was terrified during the time that you waved the knife at him.

8The need for general deterrence and the protection of the community is usually paramount in offences of this kind.  Those people who may be tempted to commit offences such as this should know that if they commit those offences then they will go to prison.

9There is, as I will refer to later, some mitigating aspects about the way in which you committed this offence, but I want to make it quite clear that the court denounces any sort of armed robbery in whatever circumstances, even in circumstances where a person, as you did, goes to a house in the misguided view that you were there recovering something which had been unlawfully taken from someone else.

10Mr Darke, you have many criminal convictions both here and interstate.  Your convictions in Victoria span the years from 2006 to 2015.  They are primarily driving offences, but there are quite a few offences of dishonesty and you have several convictions for receiving stolen goods, for theft and two convictions for burglary.

11In Southport you have also a significant range of prior convictions and you have served some periods of imprisonment.  That history of offending, Mr Darke, is a clear indication of your past disrespect for the law, your inclination towards offences of dishonesty, and must be a pointer as to the risk of you re-offending into the future.

12As I have said, Mr Darke, your offending is serious.  You went to the house wearing a mask and carrying a knife.  On the other hand, I accept that the production of the knife and the theft of the money happened in a very short space of time and does not appear to have been at all premeditated.  I accept that you did not go to the house intending to rob Mr Blundy and I accept that the incident turned out far differently than either of you had anticipated.

13Mr Darke, you are now 43 years of age.  I understand that you have had a great deal of rejection in your early family life, being raised by your grandmother and encouraged to believe that your biological mother was your sister.  I was told that when you learnt at the age of 13 your true biological history, your world fell apart.  In particular your biological mother had eight other children and was not interested in you.  This sparked a great deal of time when you were homeless and aimless and you still have a significant sense of alienation and betrayal resulting from those events in your childhood. 

14You attended multiple schools and were finally sent to a school for children with behavioural problems.  You left that school completely in Year 9.  Your first job was working in a service station and, despite those early problems which I have outlined, it is a credit to you that you maintained that job working in a service station even though you were homeless and, I am told, living in a paddock across from the service station at that time.

15Since that early employment you have maintained, against the odds, a very good work record.  You estimate that you have been employed for 75 per cent of your adult life so far. That is a very important issue in sentencing you today, for many offenders have had virtually no experience of a working life.  You have a good experience of work and that is a matter that I need to take into account in sentencing you, because I do not want to impose a sentence which will mean that your working life comes to an abrupt end;

16Unfortunately you turned to drugs to ease the  matters that I have previously referred to and you have particularly done that when your romantic relationships failed.  You have had children by two separate mothers and it is fair to say that the breakup of those relationships, if not caused by drugs, was accompanied by the use of drugs. 

17You have turned to ice relatively recently and you used that substance after the breakup of your last relationship.  I understand your usage of drugs to have been a precipitating factor in very many of your past criminal activities, which are set out on your criminal record both in Victoria and interstate.  As a result of those matters you have been suicidal from time to time and I accept that you have attempted suicide twice. 

18For this plea I have received a report from Carla Lechner, who is a psychologist.  In that report she describes your personal history in detail . One of the most significant matters in that report is that she describes your drug use as now being in remission.  Of course this is due to the fact that you have been in remand since your offending, and thus compulsorily separated from drugs.  You have been in remand for the last 283 days, which appears to me to be very much the longest period that you have ever spent in custody.

19Because of that separation from drugs and because of your presentation when you spoke to Ms Lechner, she is now optimistic about your prospects of rehabilitation.  She says you have now come to understand the need to manage your feelings and behaviour in a more mature manner than you have in the past, not turning to drugs but turning to your own capacity to manage those matters.  She describes you as well motivated to engage in counselling and she describes you significantly as now having some insight into your previous offending.

20Mr Darke, at the age of 43 it may well be that for you the penny has now dropped.  If you continue upon your path of offending then you will spend your life in and out of various prisons.  As well as the history of offending that I have detailed in these sentencing remarks, you will now have a conviction for armed robbery.  That will be a marker to any other magistrate or judge who sentences you in the future that you are a man with a gross disrespect for the law and that you are a man who cannot be trusted to remain in the community.

21It is very hard for me to assess from the material that I have in front of me whether you do have insight into your past offending and whether you now are able to marshal the strength of character to get your life in order.  I am sure that the numerous magistrates who have sentenced you in the past have pointed out to you the stupidity of your offending and the way in which you are ruining your own life and those of the people around you by doing so.

22I am prepared to accept, Mr Darke, your counsel's submission that this time things have changed.  That change is reflected in the fact that during your time in prison you have been an enthusiastic student.  You have completed many courses and you have gained many skills which will now very much enhance your job prospects on release. 

23You are now free of drugs.  You have completed drug and alcohol courses to assist you to manage your addiction once you are released.  I might say you seem also to be very much motivated by the fact that your co-offender Mr Edwards, who I have not yet sentenced, appears also to be on the road to recovery through a significant involvement with Odyssey House.

24Your counsel describes you as now being future focused.  I am told you have a long-term five-year plan to obtain a heavy vehicle licence and work in that industry and you wish to be a good role model for your son.  You aim, Mr Darke, to return to settle in Wodonga on your release.  I am sure that the community of Wodonga will be pleased to see you back if you have rehabilitated yourself; if you have not, then, as I said, you will know the inside of this courtroom and the inside of the prisons for years to come in the future.

25I note that you have pleaded guilty to the charge and I agreed with your counsel's submission that this should be taken in your favour because it indicates remorse.  It also saves the community the cost of a trial which may in this case have been lengthy. 

26You are very proud, Mr Darke, of the fact that all your drug tests in prison have been negative for illegal drugs.  That is certainly a matter to be proud of . My conclusion of about your chances of rehabilitation are that if you are able to stay of drugs then your chances of rehabilitation are good indeed.

27Overall what I have decided to is to give you a sentence which combines a gaol term and a community corrections order.  The community corrections order will give you some structure and assistance on your release into the community and the gaol term will be a signal to the community that those who commit armed robberies will be gaoled.

28As is obvious I think from the comments that I have made so far, I am impressed, Mr Darke, by the way that you have applied yourself in prison.  In my view the community, as well as yourself, will ultimately benefit if you are able to rehabilitated into the community by this method which I propose today.

29Mr Darke, I have already received a report which indicates that you are suitable for a community corrections order and I am only able to impose such an order if you agree to it.  Mr Darke, do you agree to a period of community corrections after your release from prison?

30OFFENDER:  Yes.

31HER HONOUR:  All right.  Mr Darke, can you stand up.  On the charge of armed robbery you are convicted and you are sentenced to be imprisoned for 18 months.  That will be followed by a community corrections order.  The community corrections order will be for three years and these are the terms of the order.

32You must attend at Wodonga Community Correctional Services within two days after you are released from prison.  You must not leave the State of Victoria without first getting permission to do so from the Secretary.  Clearly because we are in a border town there arrangements that are made about that, but you need to speak to your community corrections officer about that.

33You must obey all lawful instructions from your community corrections officer.  You must report to and receive visits from the Secretary.  You must not commit any other offence for which you could be imprisoned during the time the order is in force and you must not change your address or job without giving notice to the community corrections officer.  As well as those conditions I am going to impose an amount of 300 hours of unpaid community work to be done over that period of three years.

34I am going to order that you be under supervision.  I am going to order that you undergo assessment and treatment for drug abuse or dependency and any mental health assessment and treatment that the community corrections authorities decide that you should have.  You must participate in any programs that they decide that you must have.  I will order that 50 hours of treatment and rehabilitation is to be counted as hours of unpaid community work. 

35So, Mr Darke, as I have said, I am going to sentence you to a term of 18 months' imprisonment.  I will declare the time that you have now served, which I understand to be 282 days, as time already served under that sentence.  So you will still have a significant time of imprisonment, but after that imprisonment ends you will be placed on this community corrections order.

36Mr Darke, I will have my associate give to your counsel a copy of this order.  If you agree to what is on the order then you should sign it and then I will be signing it.  So, Ms Price, if you could perhaps approach the dock ‑ ‑ ‑

37MS PRICE:  Yes, I will assist.

38HER HONOUR:  ‑ ‑ ‑ and explain what needs to be explained.

39MS PRICE:  He has signed the order.

40HER HONOUR:  Thank you.  Yes, now, Mr Darke, you have signed this order and so have I, so it will commence, as I said, when you are released from prison.  Mr Darke, the Crown has sought a forensic sample from you and I am going to make an order allowing a forensic sample to be taken.  What I need to say to you is that if you refuse to give that sample then the police are authorised to take the sample and the police may use reasonable force whilst doing so.  Do you understand that?

41I understand that the order is not opposed.

42MS PRICE:  No, it is not.

43HER HONOUR:  I have signed that order.  I also make a disposal order as sought by the Crown.  I think it is a disposal and forfeiture order.  I understand also that that order is not opposed.

44MS PRICE:  Not opposed.

45HER HONOUR:  All right.  Now, Mr Darke, I am required to tell you the sentence that I would have imposed on you if you had not pleaded guilty to this offence.  What I say to you is that if you had not pleaded guilty I would have imposed a sentence of five years' imprisonment with a non-parole period of three years.  I direct that that sentence be noted in the records of that court.

46Mr Darke, as I said before, you are 43 years old.  You have had a significant amount of convictions.  You have had dispositions which have been given to you by the court to try to address your past criminal offending.  You are no longer a young man.  If you come back before a court you should expect that you will be sentenced to a term of imprisonment.  If you do not comply with the community corrections order you will come back before me and the remarks that I have made to you this morning will be on the file.  I will be able to tell you on that occasion of the warnings which I gave you today and you should expect that if you come back before me that I will have no option but to send you to gaol again for a very significant period of time.  Do you understand that?

47Thank you, remove the prisoner.  Yes, I did 6AAA.  Sorry, any matters?

48MR O'DOHERTY:  No, Your Honour.

49MS PRICE:  Just only a brief matter is that in description of the offences it was the bracelet was not returned as opposed to the ring.

50HER HONOUR:  All right.  I am sorry, I made a mistake and I - - -

51MS PRICE:  It is the smallest of things.

52HER HONOUR:  It is the bracelet rather than the ring.

53MS PRICE:  Yes.

54HER HONOUR:  Sorry.  Yes, thank you.  Remove the prisoner.  I will leave the Bench whilst the next matter is being organised.

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