Director of Public Prosecutions v Derrick
[2017] VCC 285
•5 April 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised (Not) Restricted Suitable for Publication |
Case No. CR-17-00303
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| HARLEY DERRICK |
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JUDGE: | HER HONOUR JUDGE LAWSON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21 and 28 March 2017 | |
DATE OF SENTENCE: | 5 April 2017 | |
CASE MAY BE CITED AS: | DPP v Derrick | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 285 | |
REASONS FOR SENTENCE
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Subject:Criminal Law – sentencing – aggravated burglary – intentionally cause injury – possess drug of dependence – possess cartridge ammunition without a licence – immediate term of imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr F. Fisher | John Cain, Solicitor for the Director of Public Prosecutions |
| For the Accused | Mr R Lawrence (Plea) Ms M Tittensor (Sentence) | PICA Lawyers |
HER HONOUR:
1
Harley Derrick, you have pleaded guilty before me to one charge of aggravated burglary, one charge of intentionally causing injury and two charges of possess drug of dependence. In addition, you have consented to the transfer of
a summary charge, pursuant to s.145 of the Criminal Procedure Act 2009, and you pleaded guilty to Summary Charge 10, possession of cartridge ammunition without licence.
2 Those charges are serious and in particular, the aggravated burglary charge is very serious and that is evidenced by the maximum penalties that apply-: For aggravated burglary, the maximum penalty is 25 years’ imprisonment. Intentionally causing injury, the maximum penalty is ten years’ imprisonment. With respect to Charge 3, the possess drug of dependence, you had in your possession some Cannabis L, it has been accepted by the prosecution that it was small quantity and not in your possession for the purposes of trafficking, so the penalty therefore is five penalty units. With respect to Charge 4, possession of the drug of dependence, namely testosterone, the prosecution accepted that too was in your possession for personal use and not for the purposes of trafficking, so the maximum penalty there is 30 penalty units, or one year imprisonment. Finally, with respect to summary charge, possess cartridge ammunition without licence, the maximum penalty is 40 penalty units.
3 You have admitted your criminal record. It is an extensive one and you have convictions spanning the period from 11 November 2008, through to 17 June 2016.
4 In the past you have been dealt with by the courts and you have convictions for dishonesty offences; possession of a knife in a public place; recklessly cause injury, theft (2010); aggravated burglary and theft (2010); unlawful assault; assault with a weapon; possess controlled weapon without excuse (2011); theft and armed robbery (2013); traffic drug of dependence; prohibited person possess firearm; and possess cartridge ammunition without licence or permit (2016).
5 I shall now proceed to sentence you today on the basis of the prosecution opening that was read during the plea hearing and it is marked as an exhibit.
6 I note that you were 28 at the time of the offending. You were a member of the Finks Outlaw Motor Cycle Gang, known as “The Finks”. The victim in this matter is Caleb Hardwick. He was a former member of the Finks.
7 In respect to context and background, between July 2015 and December 2015, investigators attached to the Echo task force conducted an investigation into the Ringwood chapter of the Finks. That investigation is known as “Operation Irrevocable”.
8 As part of the investigations, listening devices were installed at the Finks clubhouse in Ringwood. Those devices captured a number of conversations, which included conspiracies to assault former members of the Finks because they had left the gang and owed $10,000, or a motorcycle, as an “exit fee”.
9 Apparently, Caleb Hardwick had cut his ties with the Finks and had made statements against some of the members in relation to the police investigation.
10 I will now turn to the circumstances of your offending. On 17 June 2016, you were released from prison, after serving a sentence of six months and upon your release, you commenced an 18 month Community Correction Order.
11 This offending therefore constitutes a breach of that order and is to be the subject of separate breach proceedings.
12 It is an aggravating factor, however, that you committed this offending in breach of one of the mandatory conditions that applies to every Community Correction Order that is imposed, that is, that you will not commit another offence punishable by imprisonment during the operational period of the order.
13 On the evening of 3 August 2016, you attended an address with the assistance of a man called Mark Cox, who was living with the victim, Hardwick and you identified Hardwick. The following day, on 4 August 2016, Hardwick was driving with another person when that person received a phone call. She was told that Hardwick should not return to the house as there was a “hit” out on him and there were people waiting there for him.
14 A little later, Mark Cox sent Hardwick some abusive text messages, stating he had “lagged" on the president of the Finks and that he was “a dog”. He told Hardwick that they were at the house taking his belongings.
15 Upon his return to the house, Hardwick and Cox had an altercation and then when Hardwick went to his room, where he discovered it had been broken into and some personal belongings stolen.
16 Following that incident, Hardwick then moved to another unit in Bayswater North where he lived with Nathan Morgan.
17 On the evening of 16 August 2016 at around 9 o’clock, you went to that unit in company of two unknown males. Nathan Morgan answered the front door and you asked if Hardwick was home. He told you he was not. You told Morgan that Hardwick owed you money and you were not leaving until you had spoken with him.
18 You were then let into the house and you were shown to where Hardwick’s room was. You went to the door of that room with the two other unknown males and you said, “Caleb”, to which Hardwick replied “No”. You and one of the males then pushed the door open into the room. At the time you did that, you were armed with a knuckle duster in one hand and a lighter in the other. Both your fists were clenched. That constitutes Charge 1, aggravated burglary.
19 You then punched Hardwick to the head a number of times whilst holding the knuckle duster. He covered his head with his arms to try and protect himself. You and one of the unknown males continued to punch him to his head and body. He could not see very well, as he was covering his face. Whilst that was happening, the other unknown male entered the room and struck Hardwick across his back with a crutch. The crutch belonged to Nathan Morgan and it broke as a result.
20 By this time, Hardwick was hunched over on the ground and in pain and fearful. The same unknown male then picked up a piece of wood from the hallway outside Hardwick’s room and used that to strike him again to his back, as well as to the back of his legs. A short time later that person left the room.
21 You and the other unknown male stayed in the room. The other male then said to Hardwick, “They want the $10,000. Don’t go to the police or we will kill you. We have weapons here. We know where your family is.” Shortly afterwards you and the two unknown males left the unit.
22 Hardwick then used his mobile phone to photograph his injuries and drove himself to Maroondah Hospital where he was treated in the Emergency Department.
23 As a result of the assaults, he sustained:
(1)A fracture to his nose;
(2)A two centimetre laceration to the nasal bridge;
(3)A two centimetre laceration to the right eyebrow;
(4)Swelling to the right maxilla;
(5)Two lacerations to the inside of his bottom lip; and
(6)Pain and swelling to his left wrist.
24 He was treated in Emergency but not admitted and left without any follow-up care.
25 Photographs taken at the time depict the injuries and the photographs taken sometime thereafter show the small scars to the victim's nasal bridge and the right eyebrow. Those are the facts constituting Charge 2, intentionally causing injury.
26 On 27 September 2016, a search warrant was executed at the house where you were then living in Ferntree Gully. You were not home. You were spoken to on your mobile phone by police and indicated you would attend the house. After 20 minutes you did not arrive, so the police then executed the search warrant. They then located a number of items, including a box of assorted ammunition that was found in the garage, a zip-lock bag in the garage that contained cannabis and a vial of steroids in the kitchen.
27 Subsequent analysis of those drugs revealed that there was 10.4 grams of Cannabis L in the bag, which constitutes Charge 3, possess drug of dependence.
28 The vial contained Sustanon, which is also known as testosterone. That constitutes Charge 4, possess drug of dependence.
29 The box of assorted ammunition found in the garage is the subject of Summary Charge 10.
30 On 27 November 2016, you were arrested by police in Ferntree Gully Road, Scoresby. That arose out of another incident that is the subject of separate charges that are not presently before this court.
31
You were then interviewed by police in relation to this offending. You admitted that you attended the house in Montrose in early-August 2016 and recognised Hardwick. You said you returned a week later and he had left. You then admitted that you went to where Hardwick was staying presently and got into
a fight with him. You said to police, you broke his nose and it went from there. You had some knuckle dusters. You got in behind the door and gave him a few more, a couple of kicks and ended up in the hallway. You said that you were wearing a set of knuckle dusters on your left and you had a lighter in your right hand, which was like having a knuckle duster.
32 You admitted possessing the items that were located in the garage and at your home and said that you had purchased cannabis for a girl and used steroids to get more muscle. You admitted there was a mixture of .22, .38, .44 and 308 calibre ammunition in a plastic container located in the garage.
33
Mr Derrick, these crimes are serious. In particular, this is a serious example of
a confrontational aggravated burglary committed in company. You attended on Mr Hardwick with two unknown males with the sole purpose of confronting him and demanding repayment of the alleged debt.
34 In the course of the plea hearing, Mr Lawrence, your counsel, submitted it was a personal debt that he owed you and that it had been incurred over the past 12 months or so.
35 I do not accept that as being a plausible explanation for the offending and find that you were seeking to enforce the debt owed to the motorcycle club. You behaved in a vigilante manner prior to entry. You armed yourself with the knuckle dusters and the lighter, which you used then to assault the victim. The other two other unknown males who were present with you, were also active in assaulting the victim and used the crutch and piece of wood at the house to effect the assaults.
36 It is fortunate for you that the victim’s injuries were not more serious. It is the case that you were not entitled to enter the victim’s room at all and you invaded his room, violating his security with the sole purpose of assaulting him.
37 No Victim Impact Statement has been provided, however, I accept that it would have been a very frightening experience for the victim, to be the subject of such an assault in these circumstances.
38 You do have prior convictions for aggravated burglary and in addition, you have prior convictions for crimes of violence against the person. In sentencing you, there is a real need for this court to denounce your behaviour and emphasise both general and specific deterrence.
39
Mr Lawrence highlighted a number of mitigating circumstances in a plea on your behalf. I accept that when arrested and interviewed by police you were
co-operative and made frank admissions concerning this offending and you detailed what occurred.
40 Mr Lawrence did not dispute that the offending was serious and accepted that it warranted an immediate custodial sentence. He emphasised and I accept, that insofar as the drugs were concerned, that they were for personal use and that is accepted by the prosecution. He also indicated there were only eight cartridges that were found at your premises and there was no means of you being able to use those cartridges and that reflects on the seriousness of that particular offence. It is low level offending for that sort of offence. I agree with that submission.
41 He provided to the court a lot of background material and it is apparent that you come from a childhood that characterised by parental neglect and abandonment. You have had a very unstable upbringing. Your parents were both known drug users and alcoholics and in particular, your father is a violent man.
42 You are one of a family of four. You have two older sisters and an older brother, but you do not have any relationships with them. You lived primarily in your mother’s care as a small child, but she had a history of abusive relationships and frequently moved. You were exposed in utero to both alcohol and drugs and born prematurely. You have had very little contact with your mother since your pre-teen years and she now lives in North Queensland. Your father has connections with bikie gangs and did not have much to do with you whilst you were young. It has only been latter years that you have made contact with him.
43 You were removed from your mother’s care at around age nine or ten and had multiple placements in foster care. Your schooling was troubled and problematic and you were expelled from many schools. You were the victim of sexual abuse on one occasion that you were in foster care. You began using drugs, starting with cannabis, then alcohol, speed and chroming from about age 12 or 13.
44 I am satisfied that you come from circumstances of great disadvantage and deprivation and there must be some moderation in your moral culpability, in acknowledgement of the difficulties that you have had in your formative years. But on the other hand, that hardship has left you with a propensity to behave violently towards other and it has been a feature of your past court appearances. This case is an escalation in your violent behaving offending. These facts require me to give appropriate weight in sentencing to the principle of community protection.
45 I have had regard to the reference provided by Mr Rae, who in the past did provide you with foster care, and he has been a man who has had some presence in your life since you were aged 13. He is somebody who remains supportive of you and has been present at each of the plea hearings.
46 At the time of your arrest, you were working with a man called Mr McKinnon, as a truck jockey. Mr McKinnon runs his own transport business and he provided the court with a letter, dated 22 March 2017, which confirms that he is supportive of you and is prepared to continue to offer assistance and employment to you in the future. He provided you with some residential accommodation upon your release from prison in 2016 and he paints you in a very different light. He considers you to be an exceptionally hard-working person, who is extremely reliable and dependable and when you are occupied, he says that you do well.
47 I note in the past you formed a relationship with Kirra Main, with whom you have a child, Liliana, who is aged three. That relationship has now ceased, following one of your terms of imprisonment, however whilst you were in the community, you had regular access to your daughter and you are committed to maintaining a relationship with her and having an ongoing relationship.
48 In the past, you have been successful weaning yourself off drugs and you have dramatically reduced your drinking.
49 You have served many terms of imprisonment, in 2010, 2011, 2013 and 2016.
50 You became involved with the Finks motorcycle gang in 2015 and that offered you some brotherhood, security and friendship. Your motivation for this involvement is said to be to replace your family that has long abandoned you.
51 Mr Lawrence made submissions in relation to your current circumstances in prison and I accept by reason of your classification, that you do experience some restrictions whilst in prison and I have taken that into account.
52
I have read the letter provided to your lawyers from Brendan Money, Assistant Commissioner, Sentence Management Division, of 27 March 2017. He confirms that when you were initially receipted into prison custody on
3 December 2016, you were assessed as maximum security and therefore you were placed in a unit where you only received eight hours out of the cell. Then on 9 December 2016, you were transferred to Melbourne Remand Centre, initially at Bellbridge Unit, where you received a total out of cell time of eight and a half hours. Then on 28 February 2017, you were moved to Billingham mainstream unit, where you receive eight and a half hours out of the cell.
53
You have not worked in any prison industries or the kitchen, but as a remand prisoner, you are not required to work. You have completed a one day
stop-slow education course.
54 Because of your involvement with the Finks motorcycle gang, you are housed in a unit with other members of that group. You are described as having a "pink card", which is a flag for prison officers to be aware of the risks, before allowing you free access to areas of the prison where different yards or units are mixed together, including visits, industries and education. There are no formal restrictions on you, but there are requirements for prison officers to check before you are allowed to go into areas of the prison at a specific time, where prisoners from outside your unit will also be present. The pink card mainly applies to members of outlawed motorcycle gangs who may have placement clashes with prisoners in other yards or units.
55 Mr Money says the pink card has no bearing on yard access, recreational or out of cell times. Whilst there are still restrictions on these movements, they apply to all mainstream prisoners at the MRC.
56 I note in his final comment that you are described as being quiet in the unit and your general behaviour is acceptable and compliant.
57 This morning I was provided with an update from Ms Tittensor about that aspect of your matter. I confirm that I accept that, by reason of your classification, there are some restrictions in prison. I have taken that into account.
58 I have taken into account in your favour the fact that you entered a plea of guilty at the earliest opportunity. There is real utility in your plea. You spared the witnesses, particularly Mr Hardwick, the trauma of coming to court to give evidence and you have facilitated justice and your sentence will be discounted accordingly.
59 Mr Lawrence submitted that you have reasonable prospects for rehabilitation. He referred to your work history whilst you were not in custody. He also noted the fact that you are a person who has weaned themselves off drugs and you have no mental health issues.
60
Ultimately, I consider that you do have prospects for rehabilitation, although
I still remain somewhat guarded, given your relationship with the Finks motorcycle gang. However, there is some cause for hope, given what
Mr McKinnon has written to me in his reference, namely that you are intelligent, you are not afraid of hard work and that he is prepared and willing to assist you in that regard in the future.
61 Mr Derrick, provided you can remain drug-free and cut your associations from the Finks gang, your prospects in the future are fair.
62 I note that at the time you were arrested, you were on bail for other offences, in respect to Charges 3 and 4, the possess drug of dependence and the Summary Charge 10. Therefore, s.16(3C) of the Sentencing Act 1991 applies and any sentence imposed with respect to those charges will be cumulative, unless the court otherwise orders. In the circumstances of this case, I will be ordering otherwise.
63
Finally, in sentencing you, I have had regard to current sentencing practices.
I am guided by the decisions of the Court of Appeal in Hogarth v The Queen,[1] DPP v Meyers,[2] DPP v Bowden[3] and Kerapa v The Queen.[4]
[1]Hogarth v The Queen (2012) 37 VR 658.
[2]DPP v Meyers (2014) 44 VR 486.
[3]DPP v Bowden [2016] VSCA 283.
[4]Kerapa v The Queen [2017] VSCA 56.
64 As the court said in Meyers:
"Hogarth established that current sentencing practices for serious forms of aggravated burglary needed to change, as they did not reflect the objective seriousness of such offending and aggravated burglaries which involve confrontation and violence, or threats of violence, should be viewed very seriously, whether the target of the attack is a former domestic partner or a person against whom some other grievance is held" (emphasis added).
65 I have had regard to the gravity of your offending on this occasion. I consider that this offending is a mid-range of seriousness, in terms of confrontational aggravated burglary. There was an absence of other features that would have made it more serious, for instance, you were not disguised, you did not use a knife or a gun, the injuries inflicted were not serious, the victim was awake and aware of your presence in the house, and it was not committed in the early hours of the morning.
66 Nonetheless, it is a serious example of this serious offence. You entered the victim's room at night to enforce the debt owed by the Finks. You were in company with two other unknown males and you were armed with the knuckle duster and lighter. You entered with the purpose in mind of assaulting him. It was an unlawful invasion of Mr Hardwick's room and you had a weapon, which you used and you inflicted injuries.
67 In sentencing you, I must impose just punishment and I have had regard to the principles of totality and proportionality. On behalf of the community, I must denounce your behaviour and the sentence must reflect the objectives of deterrence and community protection, as well as take into account the matters put in mitigation.
68 There will be some degree of cumulation in respect to Charges 1 and 2, to reflect the separate criminality involved in the offending.
69 I would ask you to stand now please.
70 Mr Derrick, in respect to each of the charges, you are convicted and I sentence you as follows:
71 Charge 1, aggravated burglary, convicted and sentenced to four years' and six months' imprisonment;
72 Charge 2, intentionally cause injury, convicted and sentenced to two years’ and six months' imprisonment;
73 Charge 3, possess drug of dependence, convicted and discharged.
74 Charge 4, possess drug of dependence, convicted and fined $500.
75 Summary Charge 10, convicted and fined $500.
76 I make the following orders for cumulation.
77 Charge 1 is the base sentence, that is four years' and six months'.
78 I direct that one year of the sentence imposed on Charge 2 be cumulative upon the sentence that I have imposed on Charge 1, making a total effective sentence of five years’ and six months' imprisonment.
79 I fix a non-parole period of three years and six months.
80 Finally I make the disposal order sought and the forfeiture order sought.
81 I make the following declaration of pre‑sentence detention. You have served 129 days pre‑sentence detention and I direct that that be entered into the records of the court.
82 I make the following s.6AAA declaration. But for your plea of guilty, I would have imposed a term of imprisonment of seven years and six months, to serve five years and six months.
83 So that completes the sentence.
84 COUNSEL: As Your Honour pleases.
85 HER HONOUR: All right, so Mr Derrick can be taken downstairs. Thank you.
86 MS TITTENSOR: Might I just quickly approach him, just to clarify that he understands the sentence, Your Honour?
87 HER HONOUR: He has gone, sorry.
88 MS TITTENSOR: That is all right.
89 HER HONOUR: Yes. Sorry about that.
90 MS TITTENSOR: That is all right.
91
HER HONOUR: All right. I have got another matter that is proceeding, so
I really cannot delay, Ms Tittensor.
92 MS TITTENSOR: I understand completely, Your Honour.
93 HER HONOUR: All right. Stand down.
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