Director of Public Prosecutions v Darroch
[2019] VCC 591
•1 May 2019
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR 18-02282
CR-18-02283
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| CAMERON DARROCH |
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| JUDGE: | HER HONOUR JUDGE GWYNN |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 29 April 2019 |
| DATE OF SENTENCE: | 1 May 2019 |
| CASE MAY BE CITED AS: | DPP v Darroch |
| MEDIUM NEUTRAL CITATION: | [2019] VCC 591 |
REASONS FOR SENTENCE
---Subject: Aggravated Burglary, Burglary, Theft
Catchwords: Koori Court, Aggregate sentence
Legislation Cited: Sentencing Act 1991
Cases Cited: Honeysett v The Queen [2018] VSCA 214
Sentence:Aggregate sentence of 20 months imprisonment in combination with a 2 year Community Corrections Order.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms. J. Malobabic | Office of Public Prosecutions |
| For the Accused | Ms. I. Skaburskis | Doogue & George Pty Ltd |
1HER HONOUR: Cameron Darroch, you have pleaded guilty on indictment to two charges of burglary, three of theft, and one charge of aggravated burglary. You have also pleaded guilty to two summary offences of committing an indictable offence whilst on bail.
2The charges of burglary and theft each carry a maximum of 10 years' imprisonment. The bail offences carry three months' imprisonment as their maximum, and a charge of aggravated burglary carries the maximum of 25 years' imprisonment. These maximums reflect the seriousness with which Parliament regards these offences.
3The circumstances of your offending are set out in the document entitled, “Summary of Prosecution Opening” dated 27 March 2019, and it is an agreed document.
4In terms of those circumstances, in short compass, on Friday 17 November 2017 at approximately 7 am Mr Craig White left his home at Unit 4 of 43 Hickford Street in Reservoir. When he returned home at 5.45 pm, he discovered that his home had been broken into and extensively ransacked.
5Mr White reported the incident to police and provided them with a copy of his internal CCTV footage in which you were identified in Mr White's home at
11.47 am and then seen to leave at 11.59 am.6Stolen by you, from Mr White, was a Compaq laptop computer valued at approximately $1000, an Asus laptop computer valued at approximately $300, and three CCTV cameras valued at approximately $200.
7When arrested on 11 May 2018 you provided a no-comment record of interview as is your right. You were charged and released on bail to appear at the Heidelberg Magistrates' Court on 10 September 2018.
8In breach of that bail, and subject of one of the summary offences of committing an indictable offence whilst on bail, you committed a burglary.
9On 28 June 2018, Ms Melanie Gilbert returned home from work at 5.30 pm to find that a burglary had been committed at her home in Felicia Rise, Diamond Creek.
10CCTV footage of the incident shows that you accessed the house through a flyscreen to the lounge room window and rummaged through every room within the house. You stole alcohol, clothing, money, a safe, electronic equipment, jewellery valued at $1887 and a wheelie bin.
11You were approached by police at the local school, some 750 metres from the address. Police located the wheelie bin filled with items. You denied that the wheelie bin belonged to you and so were not arrested at that stage. In fact, the items in the wheelie bin were those stolen during the burglary of Ms Gilbert's premises.
12Also in breach of the grant of bail you received on 11 May 2018 and the subject of a second summary charge, committing an indictable offence whilst on bail, you committed an aggravated burglary which is the subject of Charge 5.
13On Saturday 30 June 2018, at approximately 2.48 am, Ms Lynette Evans was asleep at home. She was 65 years of age, used a walking-frame and had oxygen tubes attached to her nose and connected to an oxygen tank. You forced entry to a bedroom window which you then climbed through before opening the front door to allow your co-offender, Karen Irwin, to enter the property.
14The victim heard loud banging and crashing of the window which woke her up. She called ‘000’ to report the incident. Whilst the victim was on the phone to the ‘000’ operator, Ms Irwin entered the bedroom and placed her hand over the victim's mouth. She covered her own face and told the victim, 'Keep still, don't fight me.' Ms Irwin told the victim to hand over her money and keys to the vehicle that was parked in the driveway.
15You told Ms Irwin to hurry up. Ms Irwin stole $200 in cash and the car keys from the victim's handbag that was beside her bed. You both then exited the property through the front door and stole the victim's Holden Astra.
16Whilst reversing the car you collided with the fence. The vehicle was later written off by the insurance company. When asked about the car in your interview with police you said, 'Poor bugger, poor Lyn, that's all she owns really.'
17You were again captured on CCTV footage outside Ms Evans's home and were identified by the victim who had known you for some 12 years.
18When police arrived at the address, the victim was observed by police to be visibly shaken and frightened. She told police that during the offence she was unable to breathe due to her medical issues, as she was awaiting a lung transplant procedure.
19Ms Evans has provided a victim impact statement. The purpose of a victim impact statement is to give those affected by your crime, the opportunity to participate in the criminal justice system, by informing the court about the effects of the crime upon them.
20In her victim impact statement, Ms Evans describes how difficult it has now become for her to live, given what happened was in her own home. She states she has now been diagnosed with Post Traumatic Stress Disorder and that she sleeps with a weapon to give her a sense of security. She has become socially isolated and cries easily.
21The admissible portions of her victim impact statement were read to the court so the profound effect of your offending upon Ms Evans cannot be lost upon you.
22You were arrested on 30 June, 2018 at your address, hiding from police behind a front door, and you again chose to make a no-comment record of interview when asked about the burglary and theft on 28 June, 2018. You denied being involved in the offending at Ms Evans's premises on 30 June, 2018.
23It is perhaps trite to say that this is serious offending. The first in time of these burglaries involved your next-door neighbour and ransacking his property. The second, you rummaged through the entire property. You victims have all suffered property loss, plus the sense of an invasion of their home space, an environment in which they are entitled to feel both safe and secure.
24In terms of the aggravated burglary, you entered premises in company, in the early hours of the morning, of a person known to you and whom you were also aware had serious health problems according to what you told police in your record of interview.
25Ms Evans was a easy target for you and must have been chosen as such. Her condition, the time of the morning and the fact that a car was in the driveway means you must have turned your mind to her presence.
26You seem to excuse your entry into her premises on the basis that she was known to you as a drug dealer. If anything, that provides additional motivation; drugs and money and the hope that no complaint would be made.
27Indeed, you seek to explain or excuse all of this offending to your addiction to drugs which you instruct at that time you obtained via endless prescription, seemingly blaming the doctors for your drug use and abuse. It is an aggravating feature that Charges 3 to 6 were committed whilst you were on bail.
28You have a long term addiction to drugs, primarily opiates. You had a brief respite in 2015 to which I will later refer, however you returned to drug use when your mother died in August of 2017. Your offending is in this context, and in the past, has always been for you to obtain money to use drugs. At 46 years of age, it is time for a new approach to life.
29In terms of your personal circumstances, I am told you are the third of four children, born to Joyce and John Darroch. You had a close relationship with each of your parents and relate well to your siblings, Adam aged 48 years, Vanessa aged 47 and Jade, aged 42 years. You, yourself, are the father of four children after a 20 year relationship with Melissa Moore who you met in your early 20s.
30Those children are Tayla aged 23 years, Lauren aged 21 years, Caleb aged 13 years. Sorry, there is another child aged 12 years. I am sorry Mr Darroch. I have got the names of the children wrong perhaps but I know you have got four children and hopefully the ages are about right.
31OFFENDER: Caleb's 14, and Alan is 12.
32HER HONOUR: I do apologise for that error. The two younger children are in their mother's care and Lauren resides with your father.
33Your oldest daughter, Tayla, was present for your plea hearing and is a mother herself. She certainly indicated she would have liked to have been here today if she was able to do so, and I certainly accept you have her continuing support.
34You grew up in the Hurstbridge area, attending school within that region. You were a good student with no social or behavioural problems. You left school at the end of Year 9 in pursuit of work and commenced working with your father, older brother, and grandfather in the mechanics trade.
35You are fortunate to describe your upbringing as one within a loving family with no issues of violence or substance use and abuse. Within your father's business you were able to obtain the necessary skills as a mechanic and to build engines.
36It seems your catalyst for crisis was a serious motor vehicle accident when aged approximately 21 years, at which time you suffered a serious spinal injury. You instruct that you were released from hospital addicted to morphine and have literally been using opiates since that time.
37Indeed, your relationship with the mother of your children, Melissa Moore, also was initiated in the context of your mutual use of drugs. Your relationship with her ceased in 2014.
38You have been unable to relieve yourself of your addiction in any meaningful way, despite having had family supports and having work-related skills.
39Tendered in your behalf was a psychological report authored by Carla Lechner, clinical psychologist, and dated 11 March 2019. I have had recourse to the contents of that report.
40Not surprisingly, she diagnoses you with opiate use disorder. She describes this as being in early remission in a controlled environment which is largely due to the fact that you are currently on remand and not using drugs.
41She describes you as being caught in a vicious cycle using drugs to alleviate your mood state. She also describes you as being keen to break this cycle. She indicates that you are showing some insight into the reasons for your offending, and are remorseful for it.
42Ms Lechner was also of the view that you suffer from depression, but it has not been sought to use this finding in terms of any sentence to be imposed.
43Your criminal history is admitted and encompasses offending which commenced in 1990, pre-dating the back injury. Your history now spans a period of 29 years. You have 26 court appearances during that time, which primarily relate to drugs, dishonesty offences - primarily burglaries - and breaches of court orders including failing to answer bail, contravening community corrections orders, failure to comply with an intensive correction order, and failure to comply with a community based order.
44On 11 February of 2011, you were dealt with at Heidelberg Magistrates' Court for multiple offences which included an offence of aggravated burglary. On that occasion you received an aggregate sentence of 15 months' imprisonment with a non-parole period of nine months imprisonment.
45Whilst you are not to be punished for this history again, it does provide some guidance as to the need for specific deterrence - that is putting you off further offending; denunciation, and the need to protect the community from you.
46Looking at this history and your struggle to comply with court orders in combination with a long-term drug addiction, the prosecutor was right to describe your prospects of rehabilitation as guarded.
47The glimmer of hope which remains, is with the assistance, such that it was, that you got from your time on supported corrections order in 2015, albeit that was not without its hiccups; the continuing support of your daughter, Tayla, despite her own difficulties; your new relationship with Rebecca Lambert, which may well be tested when it resumes once you return to the community; courses undertaken in custody and your willingness to participate in the Koori Court plea system.
48On 18 December 2015, you were dealt with at Heidelberg Magistrates' Court for a breach of a community corrections order that had been imposed upon you on 10 December 2014, for dishonesty offences. You were also dealt with for dishonesty offences and acting to the prejudice or good order and management of a gaol and failing to answer bail.
49On that date in December of 2015, you were convicted and placed on a community corrections order for a period of six months. That order was made cumulative on a variation of the community corrections order that had been imposed on you on 10 December 2014.
50The variation was to place you on a corrections order for a period of 15 months, which required you to attend at Wulgunggo Ngalu Learning Place if directed, or a culturally appropriate rehabilitation offender program.
51You attended Wulgunggo Ngalu Learning Place which provides Koori men on corrections orders with an opportunity to learn new skills, reconnect with their culture and participate in programs and activities to help them address offending behaviour. Participation in that program is voluntary and normally encompasses a stay of some three to six months.
52After a short stay of about a month, you were able to obtain housing after being on a waiting list for some 12 years, and also obtained your licence. I am told during that corrections order, you attended some 20 sessions with a counsellor and psychologist. You managed to maintain a period without drug use and abuse, but ultimately did breach those orders by non-compliance and re-offending when you relapsed into drug use when your mother became ill.
53A subsequent breach of those community corrections order was dealt with at Heidelberg Magistrates' Court in August of 2017, at which time the orders were simply confirmed.
54No material has been filed in relation to this order, but your counsel contends that you were substantially compliant and that you drew some comfort from connection to the Aboriginal community. You, yourself, come from a Yorta Yorta family history.
55You have developed a keen interest in art and presently paint most days during your current remand. It is clear you have a particular skill from the work that I was able to see.
56Also, during your current remand, you have worked with Peter Wrobelski from Alcoholics Anonymous. You have been attending AA meetings at Marngoneet Prison since February of this year. A letter provided by Mr Wrobelski indicated that you intend to remain drug free once released from prison and that you are respected by fellow inmates and other participants in that program.
57You have also completed courses in controlling traffic and traffic management, completed an ADAPT program, and ice effects program, a loss and drug and alcohol program, a stress management program, and coping enhancement and well-being program. Clean urine screens have been provided to confirm your abstinence from drug use whilst in custody.
58It would appear you are using your time wisely and putting yourself in a better position to transition into the community in terms of both your skills and drug abstinence. You hope to work as a ‘stop-and-go’ man upon your release, having obtained the relevant certificates.
59These skills are obviously yet to be tested in the community, as will the ability of your new relationship to survive. Your current partner does not have a drug problem and is gainfully employed.
60You still have accommodation available to you in Reservoir. Mr Childers from the Prison Initial Assessment and Planning role at Marngoneet Correctional Centre states that if you remain in custody after the expiry of your tenancy on 29 April 2019, he is confident that, with his liaison, you should be able to retain your tenancy.
61On 29 April 2019, your plea before me was entered to the charges to which I have referred. I do accept your plea of guilty as an early one that has utilitarian value, has saved the court the time and expense of contested proceedings, has saved witnesses the trauma of having to relive the offences against them, and whilst, in my view, a work in progress, represents you taking responsibility for your offending. There would appear to be a degree of remorse, though this is somewhat blended with the concern for your own predicament.
62Importantly, your plea took place in the Koori Court. The Koori Court can only hear a proceeding involving an Aboriginal or Torres Strait Islander offender who pleads guilty and consents to the matter being dealt with by the Koori Court, and where a judge considers the matter is appropriate to come before the Koori Court.
63The Koori Court was established in the County Court in 2008 having been established for a longer time in the Magistrates' Court jurisdiction. The objective of the Koori Court is to ensure greater participation of the Aboriginal community in the sentencing process of the County Court, through the role played in that process by aboriginal elders and respected persons.
64Others, such as family members and supports, are also able to contribute in what is referred to as a “sentencing conversation”. The “sentencing conversation” is designed to assist the reform of an aboriginal offender through a blend of customary law and English common law.
65Participation in the process can be more burdensome than appearing in a traditional plea hearing, because of its confronting nature and the inability of an offender in that court to hide behind counsel.
66In the decision of Honeysett v The Queen [2018] VSCA 214, the Court of Appeal looked at the Koori Court plea process and determined:
'In our view, in determining the weight to be attached to an offender's participation in a Koori Court sentencing conversation as a mitigating factor, a sentencing court should consider a range of factors, including:
(1) The fact that participation in the process is a voluntary one, may be confronting to the offender, and will likely involve him or her being ‘shamed’. As noted in Morgan, participation in the process may of itself be rehabilitative.
(2) The fact that the offender is, rather than ‘hiding behind counsel’, taking the opportunity to personally:
(a) demonstrate his or her remorse for the offending;
(b) demonstrate insight into the reasons for, and the seriousness and effect of, the offending; and
(c) express any intention to reform and how that will be done, including by participating in available rehabilitation programs.
(3) The Court’s assessment of the genuineness of the offender’s statements during the sentencing conversation. That assessment should take account of all the information before the Court.
Based on the sentencing Court’s assessment of the quality and genuineness of the statements made by the offender, it is a matter for the individual judge to assess weight in the circumstances of the particular case. In fixing the sentence, it is the duty of the Court to impose just punishment adapted to all the circumstances of the case by reference to the permissible sentencing purposes of general and specific deterrence, any means by which rehabilitation of the offender be facilitated, denunciation of the offending, and the need to protect the community.’
67Auntie Pam Peterson and Uncle Rod Jackson were the respective elders who took place in the sentencing conversation that included you and your daughter Tayla.
68Each of the elders challenged you and you were respectful towards them. They reminded you of the importance of your community and what it offers you by way of assistance and connection.
69Each of them emphasised that you need to have a plan for a positive future and quite simply, to stop using drugs.
70I find your participation in the sentencing conversation to be a genuine one and I take into account your participation in it.
71Whilst you are only beginning to fully understand the impact of your offending on others besides yourself, you spoke of the "penny finally dropping" and a desire to get a job, live a normal life and to stop using drugs.
72Given the supports available to you, and providing you can maintain abstinence from drugs, this would appear to be an achievable aim. This of course, must be balanced with the fact that your efforts at rehabilitation are relatively new, and are so contingent on maintaining abstinence from drugs and utilising the supports on offer.
73It does remain necessary in my role, to reflect other relevant sentencing considerations, which in your case, do include deterrence, denunciation and punishment.
74In fact, the basis purposes for which a court may impose a sentence are punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community.
75In sentencing you, I must have regard to a range of matters, such as the seriousness of the offending, your culpability for it, your personal circumstances and those of your victims.
76I am also required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure, as far as possible, that offenders are rehabilitated and are reintegrated into society.
77I have taken into account the relevant sentencing guidelines referred to in s.5 of the Sentencing Act where relevant to your case.
78The Crown position on sentence is that the only way to properly reflect the relevant sentencing considerations, is by fixing a head sentence and a
non-parole period.79Submissions on your behalf are that time served would be sufficient, combined with a corrections order. I expressed my preliminary view that ‘time served’ was insufficient and that remains my view, but I did have you assessed as to your suitability for a community corrections order.
80You were assessed as suitable for a corrections order. That report also outlined your history on previous corrections orders and parole orders in which it can be said, at best, that there has been mixed success.
81Whilst the path to rehabilitation may be a difficult one for you, it seems your ability to access appropriate services now has a role to play.
82A corrections order can be punitive, can achieve deterrence and may be suitable even in cases of relatively serious offences, such as these, which might previously have attracted a medium term of imprisonment.
83I do propose to impose an aggregate sentence as I am satisfied that, even including the summary offences, that the offences before me are founded on the same facts or form or a part of a series of offences of the same or similar character.
84In so doing, I also bear in mind the principles of both totality and proportionality. I do now turn to sentence, Mr Darroch, so I will ask you to stand, subject to your back. Are you okay to stand?
85OFFENDER: Yes.
86HER HONOUR: You are convicted and sentenced to 20 months' imprisonment, 305 days are reckoned as time already served. On completion of that sentence you are placed on a corrections order. That will be for a period of two years, so the ball will back in your court.
87During that time, you are to perform 250 hours of community work and to submit to treatment and rehabilitation for drug use. That is your primary problem, that is what needs to be solved.
88Seventy five hours of the treatment conditions will be offset from the community work, so the more treatment you do, that comes off your community work. All right?
89OFFENDER: Yep.
90HER HONOUR: You are to be supervised by the Office of Corrections and are required to attend before me on judicial monitoring. That will be on 1 May 2020. So I will see you in a year's time.
91I would encourage you to take up what is on offer to you in terms of connecting to your community, as was raised by the elders in the sentencing conversation and Mr Rowe, and as would be available to you under a Corrections order.
92You are probably aware, but in terms of the conditions that I have imposed, there are standard conditions. The first and foremost of those is you must not commit any other offence during that 24 month period for which you could be punished by imprisonment.
93You must report within two working days of your release to the nearest Corrections office. You are required to advise your Corrections office of any change of address or where you are living or working, and that must be done within two clear working days.
94It is the term of all Corrections orders that you must submit to visits as directed, and you must obey all of the instructions and directions of a community corrections officer. You cannot leave the State of Victoria without their prior permission.
95You should be under no illusion that this outcome presents you with an opportunity to further change your life in a supported fashion and in a positive fashion should you choose to take up that opportunity.
96The order can be breached, as I have said, if you re-offend during its operation or if you do not comply with its terms or conditions. If you breach it, you know what happens. You will be required to appear for me for a contravention hearing. I will have to re-sentence you for the charges and for the contravention.
97In terms of s.6AAA of the Sentencing Act that requires me to state the sentence that I would have imposed if you had not pleaded guilty. If not for your plea of guilty, I would have sentenced you to two years and nine months, with a minimum of 18 months before being eligible for parole.
98Now, I can only place you on the corrections order in combination with the gaol sentence if you are prepared to sign a document to that effect.
99I can step out for a moment while you speak to Ms Skaburski if you wish to do so, and before I do so, I will make sure that she is given a copy of the order so she can take you through it if you want me to do it that way.
100I am happy to step out for a moment so you can have that conversation with Ms Skaburski if you like, so I will just stand down temporarily and you can let me know when you are ready.
101MS SKABURSKI: Thank Your Honour.
102HER HONOUR: Before I disappear, sorry Mr Marsh, I do this to you every time. Are there any other matters that any of you wish to bring to my attention?
103MS SKABURSKI: There is the matter of the licence cancellation.
104HER HONOUR: Thank you very much. So a minimum six months? Is that right?
105MS MALOBABIC: If Your Honour doesn't specify the period, the period, the period that is the legislation will.
106HER HONOUR: All right, well I will make it for six months. It starts today, so that will not affect your licence upon your release, because it is in your interests that you be able to drive, as long as you do it legally.
107OFFENDER: Yes Your Honour.
108HER HONOUR: All right, I'll step out for a sec, thank you.
109MS SKABURSKI: Thank you for that time, Your Honour.
110HER HONOUR: Have you had a chance to speak with Mr Darroch?
111MS SKABURSKI: Yes I have.
112HER HONOUR: And he was happy to sign the order?
113MS SKABURSKI: He's happy to sign the order and it's been returned to your associate.
114HER HONOUR: All right, thanks very much.
115MS SKABURSKI: Thank you, Your Honour.
116HER HONOUR: Mr Darroch, do not - I mean thank you for your courtesy - no need to stand - if you want to. I remember what you said in the sentencing conversation about the hardest day is the day when you first get out.
117OFFENDER: Yes.
118HER HONOUR: And that is when the inclination has always been, 'I'll just have a taste, I'll be right.' I also remember you saying that that is not how you feel about your release from this sentence.
119OFFENDER: Yep.
120HER HONOUR: Stick to your guns with that, because you will come back in front of me after release and I will have a report from the Office of Corrections about what has been happening.
121OFFENDER: Yep.
122HER HONOUR: That will also tell me about what they have put in place for you, so if they are not doing their job, I can do something about that as well. Now, I want to read good things.
123OFFENDER: Yep.
124HER HONOUR: All right. I heard everything you said, and I want you to follow through on everything you said.
125OFFENDER: Okay.
126HER HONOUR: Deal?
127OFFENDER: Yep, deal.
128HER HONOUR: All right, thank you. Anything further from either of you?
129MS MALOBABIC: No, Your Honour.
130MS SKABURSKI: Nothing further, Your Honour.
131HER HONOUR: Thank you very much for your assistance. Can we close the court sine die.
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