Director of Public Prosecutions v Darmody

[2015] VCC 815

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR -15-00625

DIRECTOR OF PUBLIC PROSECUTIONS

v

RICKY JOHN DARMODY

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JUDGE:	HIS HONOUR JUDGE MAIDMENT
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	16 June 2015
CASE MAY BE CITED AS:	DPP v Darmody
MEDIUM NEUTRAL CITATION:	[2015] VCC 815

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Accused	Ms K. Blair
For the Director of Public Prosecutions	Mr D. Cordy

HIS HONOUR: 

1

Ricky John Darmody, you have pleaded guilty to an indictment charging you with reckless conduct endangering life, two charges, and being a prohibited person using an unregistered firearm.  All of the offences occurred on

10 January 2015 as did the related summary offence to which you have also pleaded guilty that you dealt with an unauthorised explosive, namely an improvised explosive device containing or consisting of firecrackers and .22 calibre ammunition. 

2You have admitted prior convictions going back a number of years, including offences of violence.  The most recent of which involving violence was 10 December 2010 for which you received a sentence of 24 months' imprisonment and there were other violent offences in your background history.  Your counsel pointed out a considerable gap in your offending between February of 1997 and your court appearance in April of 2006 and perhaps more importantly the court appearance at the Broadmeadows Magistrates Court on 29 July 2008 for intentionally causing injury. 

3The prosecution tendered and relied upon a summary of Crown opening for plea which is Exhibit A.  I am not going to read it again, it was read this morning.  I incorporate it into these reasons for sentence in its entirety.  It sets out the events of the afternoon of 10 January this year of which you no doubt are thoroughly ashamed, and you should be.  It may be that you had to some extent felt provoked.  It may be that to some extent there was a perception on your part that at least one of your victims may have been associated with some rumours that had been put about you and it may well be that at the time you were at a low ebb in your life after the death of your brother in December of 2014.  However, it does not on any basis excuse conduct as dangerous as your conduct on this day.  I accept entirely that you were not aiming at Tyson Murphy when you discharged the firearm in the vicinity of him.  However, you had no control over ricochet.  It was thoroughly dangerous conduct on your part and was capable of endangering life.

4Similarly, your conduct once you were holed up in your home and firing at the home of a neighbour in the proximity of an occupant of the house, namely your second victim, Margaret Lawner Kirby, was a thoroughly dangerous act on your part.  You had no control over where all those bullets went and you were lucky that you did not cause death or serious injury. 

5The explanation you gave for the possession of the sawn off rifle I find difficult to believe.  It is a serious offence.  The use of the explosive device and the nature of the explosive device might say something about your mental state at the time of the incident.  As Mr Cordy rightly pointed out, those sorts of siege situations are situations which cause a good deal of community disquiet.  They require very significant police manpower to deal with and whether or not you attempted to take your own life in the process, you undoubtedly were behaving in a way that was extremely frightening and aggravated the whole situation which you had created and embarked on at about 1.30 on that afternoon.

6Ordinarily, offences of that kind would require a very substantial term of imprisonment.  There is a strong need for the court to denounce conduct of this kind, a strong need to protect the public, a high degree of need to deter others from committing offences of this kind and a need also I think to impose a term of imprisonment which involves a degree of deterrence from you committing further offences.

7Your counsel provided me with an outline of submissions and a report of
Mr Joblin which is dated 5 June this year and provides a very helpful background to your offending and context to your offending.  I incorporate that and indeed the submissions of counsel into my reasons for sentence.  Your counsel has dealt with you over a number of years and she provided me with a number of details of your history also from the Bar table.  I accept the statements that she made about your past and your work histories and your aspirations and the effect that the death of your brother and indeed subsequently the death of your sister had upon you.  I accept that the death of your brother would have played a part in you getting back into taking drugs, heroin and there is little doubt that the use or misuse of drugs played its part in your creating the state of mind in which you were operating on 10 January of this year. 

8However, it does seem to me that you have at various times sought to rehabilitate yourself.  You have had periods where you have been largely successful.  You have shown a willingness to address your issues.  You have not always been successful but the fact that this offence occurred some four years or more after the last offence involving violence is of some note.  As Mr Cordy pointed out, you are getting to an age now where doing your time is getting harder and the notion of spending more and substantial periods of time in custody would be a lot less attractive than it was many years ago when you embarked on your criminal career.

9I am inclined to give you full credit for your plea of guilty, full credit for the early plea and credit for efforts that you have made at various time to rehabilitate yourself.  As I have said, ordinarily offences of this kind would require a substantial term of imprisonment and one that would be outside the range that would be available for a combined sentence of imprisonment and Community Corrections Order.  However, the case of Boulton which has often been quoted since the beginning of this year, does change the landscape even for offences as serious as yours.  It seems to me that the option of combining with a term of imprisonment a Community Corrections Order is open to me.  The prosecution has submitted otherwise but it seems to me that a sentence that would require you to serve a period of about two years and four months imprisonment including the period that you have already served coupled with a suitably drawn Community Corrections Order is capable of meeting all the sentencing considerations, including and not least promoting your continued rehabilitation. 

10The order that I have in mind would require you to be the subject of a Community Corrections Order after serving the period of imprisonment that I have just outlined for a period of three years.  You would be under supervision throughout that period.  You would be required to do a total of 200 hours of unpaid community work.  You would be the subject of treatment and rehabilitation conditions for drugs, mental health and also for programs to reduce your risk of re-offending at the direction of the local Director of the Community Corrections Office; they would probably include anger management and violence-related offending. 

11You are well aware, I have no doubt, of the general conditions of a Community Corrections Order.  You will be aware of the consequences of breaching a Community Corrections Order.  If you fail to comply with any of the terms of the order then you could be up for a breach which would put you in jeopardy of up to three months' imprisonment for the breach.  If the breach involved committing another offence punishable by imprisonment during the three years of the order that the order would be in force then you would be up for whatever punishment was meted out to you for the offence that puts you in breach, plus you will be up for re-sentencing on these offences.  It is like a suspended sentence continuing to hang over your head and you cannot afford to slip up, much less commit any offence punishable by imprisonment during that period of three years.  That would commence at the conclusion of your term of incarceration which, as I say, would be in the order of two years and four months.  I cannot make that order unless you consent to it.  Do you consent to an order in those terms?

12OFFENDER:  Yes, Your Honour.

13HIS HONOUR:  Yes, very well. 

14Ricky John Darmody, on Charge 1 of reckless conduct endangering life, I convict you and sentence you to imprisonment for a period of one year and 11 months.

15On Charge 2 of reckless conduct endangering life, I convict you and sentence you to imprisonment for a period of one year and 11 months.

16On Charge 3 of using an unregistered firearm whilst being prohibited person, I convict you and sentence you to imprisonment for a period of one year and 11 months.

17On the summary charge of dealing with an unauthorised explosive, I convict you and sentence you to imprisonment for a period of two months.  All of those sentences will run concurrently, making a total effective sentence of one year and 11 months.  In addition, on all of those offences I impose a Community Corrections Order for a period of three years which will require you to be subject of supervision of the Department of Community Corrections during that period will require you to complete 200 hours of unpaid community work.  I note that you have health problems which may, to some extent, make it difficult for you to complete that 200 hours and for that reason I have reduced what I would otherwise have regarded as an appropriate measure of unpaid community work to 200 hours and I expect you to complete that 200 hours.  In addition, the order will rewire you to submit to treatment and rehabilitation in relation to misuse of drugs, for mental health and such programs to reduce your risk of re-offending as directed by the Regional Manager.  That order I think has been drawn up and I will be asking you to sign it in a moment.  In addition I make the orders for the forfeiture and disposal of property in accordance with the drafts with which I have been provided.  But for your pleas of guilty to these offences I would have sentenced you to a total of six years' imprisonment with a non-parole period of four years.  Obviously if you are in breach of this Community Corrections Order, although the six years and four months were calculated on the basis of a conviction, the end of a trial rather than a guilty plea, you could expect a substantial term of imprisonment. 

18I am going to ask your counsel to accompany my associate when she has got the order to ensure that you understand the terms of the order with which you are going to be asked to sign. 

19Ms Blair, if you would not mind ensuring that your client understands what he is signing.

20I also order that the pre-sentence detention which I am told amounts to 157 days not be deducted from the time that you have to serve which means that the time you will actually have to serve will be in the order of two years and four months plus a few days.  Do you follow that?

21OFFENDER:  Yes.

22HIS HONOUR:  Very well.  Any other orders I need to make?

23COUNSEL:  No, Your Honour.

24HIS HONOUR:  Very well, thank you. 

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