Director of Public Prosecutions v Harris, Richardson

[2014] VCC 363

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 12-00577
CR 12-00578
CR 13-02179

DIRECTOR OF PUBLIC PROSECUTIONS

v

JIMMY HARRIS
STACEY RICHARDSON
JARROD RICHARDSON

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	18 March 2014
CASE MAY BE CITED AS:	DPP v Harris, Richardson & Anor
MEDIUM NEUTRAL CITATION:	[2014] VCC 363

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr J. McWilliams
For the Director of Public Prosecutions	Ms S. Jankovic
For Accused Harris	Mr P. Gordon
For Accused Richardson, Stacey	Ms E. Turnbull
For Accused Richardson, Jarrod	Mr J. McQuillan

HER HONOUR: 

1Jimmy Harris, Jarrod Richardson and Stacey Richardson.  You, Jimmy Harris, have pleaded guilty to the three charges of intentionally causing injury.  You, Jarrod Richardson, have pleaded guilty to four charges of intentionally causing injury, and you, Stacey Richardson, have pleaded guilty to three charges of intentionally cause injury.

2The facts underlying your offending are as follows.  You, Stacey, and Jarrod Richardson are brothers, and you, Jimmy Harris, were a close friend of Stacey Richardson.  You, Jarrod and Stacey Richardson, have a younger half-brother, Corey Price.

3On the evening of Wednesday 17 August 2011 the first victim in this matter, Mitchell Kincaid, was shopping at the local supermarket across the road from his house.  After he had finished shopping and come out of the grocery store he ran into Corey Price who, after a short argument, assaulted him, placing him in a headlock and punching him to the left eye.  Corey Price left swearing at Kincaid saying he was "fucked and stuffed."

4On the evening of Thursday 18 August 2011 the victims, Kincaid and Booth, were together at their unit with two friends, the two other victims, Martin Perry and David Vainoras, as well as Kincaid's then girlfriend, Jessica Carmody.  The five were sitting in a lounge room in the upstairs of the unit, rented by Mr Kincaid, which was above a shop on Maroondah Highway in Healesville, where Victor Booth was also living at the time.

5At about 7.20 there was loud knocking at the door of the unit and Booth walked downstairs to answer the door, expecting it was a hitherto expected guest.  He began answering the door where the three of you were in fact standing.  You pushed the door fully open and barged through the door and into the unit, making your way upstairs to the lounge room.

6Kincaid saw you, Stacey Richardson, walking towards him and said "G'day," as he knew you.  You, Stacey Richardson, walked up to Kincaid and kicked him in the face, causing his lip to split and his mouth to bleed, then dragged him from the chair in which he was sitting and pushed him to the floor and repeatedly punched him with both fists to the head and face.  Kincaid tried to block the punches and asked you what you were doing and you said to him "Stay away from my little brother."  Kincaid said "You're a dickhead, your little brother hit me," at this time pointing to his left eye, which had been bruised from Corey Price's assault the previous evening.  As he pointed to his left eye you, Stacey Richardson, punched Kincaid to that eye causing him pain and bruising.  These actions underlie Charge 1 on the indictment, intentionally causing injury to Mitchell Kincaid.

7Whilst Stacey Richardson was assaulting Kincaid, Vainoras stood up to try and help him and you, Jimmy Harris, pushed him back onto the chair and punched him to the head several times.  Vainoras asked you why you were hitting him and you replied "If you don't know sit down and stay out of it."  Vainoras initially complied with that demand but as Stacey Richardson continued to assault Kincaid he got up and went towards Stacey Richardson, pulling him away.  You, Jimmy Harris, then assaulted Vainoras again, punching and head-butting him, causing him to fall back on his chair.  On two occasions you picked up an old computer monitor and threw it at Vainoras, hitting him on the head and leg.  As a result of these assaults Vainoras suffered soreness to his head, including his jaw, his left arm and fingers.  These actions by you underlie Charge 2, causing injury intentionally to David Vainoras.

8The third victim, Booth, saw the assault of Vainoras by you, Jimmy Harris, and intervened by jumping onto you in an attempt to defend him.  You, Jarrod Richardson, saw this and came over, grabbing Booth from behind and pulling him away from Harris, then began to throw punches at Booth which he was able to deflect.  You, Harris, then turned your attention from Vainoras and both you and Jarrod Richardson punched and tried to kick Booth.  Booth then surrendered by putting up his hands and saying "Enough," and you stopped assaulting him.  As a result of the assault Booth received a graze to his left forearm and a bruise on his right elbow.  These actions underlie Charge 3 on the indictment, intentionally causing injury to Victor Booth.

9During the incident Jessica Carmody was screaming for the fighting to stop and you, Stacey Richardson, told her to "Shut up" or you would hit her, and you then pushed her out of the lounge room.  The whole incident lasted only a few minutes and ended when the three of you left the unit. 

10Booth then called 000.  Police attended and took Kincaid and Vainoras to the Maroondah Hospital.  Photographs of their injuries were taken the next morning.  You, Jimmy Harris, were interviewed on Monday 22 August 2011 at the Lilydale Police Station, during which you claimed that you had gone to a friend's house where you drank alcohol and that the last thing you remembered was buying alcohol at the bottle shop and could not recall going to Healesville that night.  You admitted knowing Stacey Richardson, whom you described as your best friend, but said you did not remember meeting him on that night.

11On the afternoon of 22 August 2011 Vainoras was walking through a park in Healesville where he met you, Jarrod Richardson, and he recognised you from the incident three nights earlier.  You approached Vainoras and asked him his name and once he gave it you took him by the collar, and then after a short struggle calmed down and said you wanted to talk with Vainoras who agreed to speak with you.  You asked him questions about what had happened between Kincaid and your brother Corey.  Vainoras said he did not know anything about that which led you to become aggressive again.  You began yelling and then threw punches, punching Vainoras several times to the head, face and upper body.  These actions underlie Charge 4 on the indictment, intentionally causing injury to Vainoras.

12During the struggle, you both ended up on the ground and you told Vainoras you knew he had made a statement to police regarding the earlier incident, saying to him he should not tell the "cops" anything, saying "Don't go to the cops or there will be so many people that come after you.  If I go away there will be people that come after you."

13The maximum penalty for causing injury intentionally is ten years' imprisonment.

14I now turn to the personal circumstances of each of you, beginning with you, Jimmy Harris.  You are now 26 years of age and were 23 at the time of this offending.  You are the eldest of five children, your parents separating when you were six.  You were raised by your mother and because of a protracted Family Law dispute between your parents, thereafter had little contact with your father.  You moved to 16 houses during your childhood when you lived with your mother and attended ten primary schools.  You also went to two high schools, being asked to leave Healesville High School during Year 8 when you were demonstrating disruptive behaviour.  You then worked with your mother's partner on a casual basis in concreting.  You lived with your mother on and off but were described by your counsel as a wild teenager who essentially couch surfed and began drinking around this time.  You have apparently used other drugs, but it is quite clear on the plea material that alcohol has been problematic for you from your late teens.

15Along the way you have built up quite an extensive prior criminal history, beginning in 2006, largely comprising a large number of driving offences, some dishonesty, and have been twice dealt with for driving whilst your blood alcohol exceeded the legal limit.  In 2011 you were sentenced to an effective term of nine months with a four month minimum, which was your first time in gaol.  You were released in June 2011.  You had been essentially employed by the same employer for quite some time, living on site and drinking very heavily.  There was no drug or alcohol requirements in relation to your parole and you simply went back to your old lifestyle of drinking and working.

16You had been friends with the Richardsons, in particular Stacey Richardson, for some years.  On the night of this offending you were apparently drunk and have a very cloudy memory of events.  You do recall some discussion between Stacey and Jarrod Richardson about what had happened to their brother, Corey, and essentially attended in order to assist them.  Your assault, I accept, largely comprised jumping in on Vainoras to stop him in his response to the assault being conducted upon him by Stacey Richardson.  You also involved yourself in the assault upon Victor Booth.

17As I said, your life once you were released from gaol had pretty much continued on the same path, that is working and drinking, until 2012 when you met your partner, Kellie, who at that time was two months pregnant with a child by another man, but who has remained with you since, this child having been born and been raised by you as your own child.  She is due to give birth to your second child in May of this year.  You have largely stopped drinking as a result of the life that you have taken up with her. 

18I was informed by your counsel that your partner has a large supportive family in New South Wales where you eventually hope to move, find employment and raise your children.  In the interim you have also become re-involved with your father, who has written a long and extremely helpful reference, he having been involved in the treatment of persons with drug and alcohol problems.  Certainly I accept that you have largely transformed your lifestyle since meeting Kellie, that you have some purpose and that you drink rarely, and I accept that alcohol has been a particular problem which has related to most of your offending over the years. 

19You have no further matters outstanding.

20It was submitted, and this course was not opposed by the prosecution, that I can best deal with you by way of a suspended sentence and this I propose to do. 

21On Charge 1, you are sentenced to two months' imprisonment.

22On Charge 2, you are sentenced to two months' imprisonment.

23On Charge 3, you are sentenced to two months' imprisonment.

24I direct that two weeks of the sentences imposed on Charges 2 and 3 be served cumulatively to the sentence imposed on Charge 1, giving a total effective sentence of three months.

25I order that this sentence be wholly suspended for a period of 12 months.

26Pursuant to s.6AAA I declare that had you not pleaded guilty I would have sentenced you to a term of imprisonment of three months.

27In sentencing you I note there was considerable delay in this matter, largely caused by the fact that Jarrod Richardson, who was wanted on other matters, was unable to be apprehended by police for a period of about 12 months, which generally delayed the proper processing and procedure of the charges against you.  Whilst this matter largely proceeded on a trial basis to the County Court and was ultimately settled, I note that an earlier offer had been made and that essentially the charges you faced were in line with the offer that had been previously made.  Because of the matters of delay and other mitigatory factors I have been willing to accept the course that I have taken in not sentencing you to an immediate term of imprisonment.  Thank you Mr Harris.

28I now turn to you, Stacey Richardson.  You are now aged 29 and are the fifth of nine children born to your mother.  Your parents separated when you were a baby and you have had very little contact with your father since the age of about 12, until recently when you contacted him in order to introduce your children to him.

29Your mother re-partnered and your stepfather was apparently an alcoholic and a verbally and physically abusive man who was gaoled on one occasion for cultivating cannabis.  In Year 7 you were moved by the Department of Human Services to live with your grandparents for a year.  Ultimately you left school in Year 11.

30You developed drug and alcohol problems from about the age of 15 when your best friend was killed in a car accident, however you have managed to compile a good work history, beginning work in excavation at the age of 16, and are fully qualified in a number of certificates required for the specialist trade in laying and maintenance of high pressure gas pipes.  You had been continuously employed to December 2013, when you had further trouble finding work, particularly because of your attention then being more focused upon this court case.

31I received a reference from Greg Darrington-Smith, dated 27 February 2014, he being the Director of G & G Twin Excavations Pty Ltd, which states that he has known you on a professional and personal basis for the past 15 years and he finds you to be an honest, caring, respectful and hardworking person who has expressed remorse for the offending that this court is dealing with, and that he would like to employ you on a full time basis due to your qualifications, which he states are "hard to come by" in his business, which he is expanding.

32You have a limited prior criminal history, having been before the courts on two occasions only, essentially for driving offences.  You apparently lost your license due to an accumulation of points and were placed on a suspended sentence for driving whilst disqualified.  This offending breached that suspended sentence, but this is not a matter that I am asked to deal with.

33You have been in the same relationship since you were 16 years of age.  Your partner is a hardworking young woman who works as motel cleaner and is the manager of a nursery café.  The two of you have two children aged eight and seven.

34You have no further criminal matters pending.

35I was informed by your counsel that you and your brother, Jarrod, had particular protective concerns about your brother, Corey, who is the second youngest of your mother's children.  He has apparently demonstrated behavioral problems due to intellectual difficulties and Attention Deficit Hyperactivity Disorder since a young age.  In his later years he has developed drug problems, in particular a problem with heroin, and you were acquainted with Mr Kincaid's older brother.  It was your belief that the victims were in some way responsible for providing drugs to your brother.

36You also have suffered an amount of delay in this matter due to the disappearance of your brother, or the failure by your brother, Jarrod, to appear, and this is a matter that I also take into account in sentencing you. 

37I also accept that the matters to which you have pleaded guilty were part of a plea offer early in the piece which was not accepted at this time.  The sticking point in relation to each of you seems to have been the charge of aggravated burglary, which was withdrawn at a late stage.

38I accept that you have good prospects for rehabilitation, a good work history.  I also take delay into account in accepting your counsel's submission that I should also deal with you by way of a suspended sentence, a course which I also note is not objected to by the prosecution.  I therefore sentence you as follows:

39On Charge 1, you are sentenced to three months' imprisonment.

40On Charge 2, you are sentenced to one months' imprisonment.

41On Charge 3, you are sentenced to one months' imprisonment.

42I order that two weeks of each of the charges on Charges 2 and 3 be served cumulatively to the sentence imposed on Charge 1, giving a total effective sentence of four months, which I order be wholly suspended for a period of 14 months.

43Pursuant to s.6AAA I declare that had you not pleaded guilty I would have sentenced you to a term of imprisonment of four months.  Thank you.

44Finally I turn to you, Jarrod Richardson.  You are now 34, the third eldest of your mother's nine children, and were described to me by your counsel as a particularly important person in the life of your brother Corey, whose behavior has often been uncontrollable.  You were described to me as one of the few people in his life who could have some positive influence over him.

45You finished Year 10 at Caulfield High School and then for three years worked for the Gas & Fuel Corporation laying gas pipes.  You were then gaoled.  You have then worked for a seven year period on and off as a stonemason.  In 2003 you achieved a Certificate 4 as a personal trainer.  You have generally had a fairly good work history, but you have a far more problematic criminal record than the two co-accused in this matter.

46This would appear to arise from a very long drug and alcohol history.  I was informed that you first began using marijuana, remarkably, at the age of nine, a habit that you continued up until 2011.  At that time you were in a relationship and your partner's mother was dying of cancer and you undertook a very proactive caring role.  That lady then died and your counsel informed me that the marijuana use of you and your then partner escalated to an extreme level.  The relationship ended and you were determined to stop using marijuana, however unfortunately you then turned to the use of methylamphetamine, or ice, you smoking, at one stage, up to a gram a day.  You also began the use of the very destructive drug GHB, at times taking 20 mls of that drug.

47You have, as I have said, a long criminal history, beginning in 1998.  You have had convictions over the years for damaging property, burglary, theft, driving offences, criminal damage, motor car theft, reckless conduct endangering life and armed robbery, which offending was dealt with by the County Court in 2002, and apparently arose from a road rage incident where you smashed another car and forced the occupants to hand their clothes over.

48You have also been dealt with for possessing cannabis and in 2007 were gaoled for charges of recklessly causing injury and common law assault, where you were again gaoled by the County Court, and which involved a dispute with a former partner.  You were gaoled in 2000 and in 2002 when you received a term of two years and six months with a minimum term of 18 months. 

49In 2008 you were placed on an intensive corrections order for a number of offences with conditions you constantly sought to change, but were ultimately not able to be varied.  You were breached and then appealed to the County Court but failed to appear.  Apparently at that time you were heavily involved in the care of your putative mother-in-law and were simply unable and unwilling to hand yourself in.  You thereafter remained at large with a warrant out for your arrest, living in the same premises you had always lived in, but not handing yourself in either.  Ultimately you were arrested on 27 March 2013 where you have remained ever since.  You served an outstanding 122 days owing on your intensive corrections order and were sentenced to a further six months' imprisonment for other offences which you then faced.

50To date you have served 50 days by way of pre-sentence detention in relation to these charges.

51Whilst in gaol your life circumstances have very much improved.  You have detoxified and you have taken up a most responsible position in the Marlborough Disability Unit as a mentor, that is a peer supporter role.  I received an extremely positive reference from the Disability Unit co-ordinator at Port Phillip Prison, Michelle Enbombe, where she stated that you had to comply with very strict behavioural criteria in your role as mentor.  She said you had been in what she termed this "respected and responsible position" since October last year.  She stated that in this position you had proved to be "very helpful, knowledgeable and supportive towards inmates with an intellectual disability, as well as unit staff.  Further to this, he is to be commended on the special interests and skills he is demonstrating in dealing with intellectual disabilities in his unit."

52She noted you also led the team in the horticultural work program where you were teaching work related skills with intellectually disabled prisoners, a role she described as very difficult and a trusted one.  She said you had shown good skills in role modelling, teamwork and teaching correct social skills to the disabled cohort you work in.

53I asked some questions during the plea of your counsel about the fact that although you had proved a negative drug test in June of last year, no further drug testing had been carried out, and this was referred to in Ms Enbombe's reference, where it was noted that the strict criteria for you to continue in your role as mentor also required the fact that you not engage in any drug use.  It would appear this has been the case given that you continue in this singular role.  You were described as excelling in your position as a disability mentor and described also as "making a valuable contribution to the prison and to those persons with an intellectual disability in the prison system."  Your life, I accept, has been a difficult one, and largely marred by drug and alcohol use, in particular drug use, and in particular around the time of this offending use of the extremely destructive drugs I have referred to.

54Your counsel informed me that in his conference with you you were mainly concerned on discussing what your future might be.  Most positively I received a reference from Joel McAllister of Allscaf Scaffolding & Labour Hire, of which he is a company director, stating that he has known you for three to four years and has no hesitation in offering you full time employment with his company upon your release.  He stated:  "Jarrod has worked for me previously as a labourer and I have no doubt in his future capabilities."  On being released from gaol you will have accommodation with your mother.

55It became perfectly clear during the plea, and during which time you very honestly and openly answered questions I put directly to you in the dock, that you appear to have reached a crossroads in your life.  You have fathered three children, one of whom you have no contact with at all, and limited contact with the two others .  You appear to be acutely aware of the fact that you have reached a stage in your life where you have to make a decision about how the remainder of your life is going to go.  Certainly you have reached the stage where further use by you of these destructive drugs will inevitably lead to further violent offending, and that in turn will lead to ever more frequent and longer gaol sentences.  You do have a decision about what you need to do when you leave gaol.

56I turn my mind to perhaps dealing with you by way of a three month sentence with an attached Community Corrections Order, but I was informed that in August of this year you face several trials over offending allegedly committed whilst you were at large, and a warrant out and apprehension being enforced, during which time you were also heavily engaged in the use of these extremely destructive drugs, that is ice and GHB.

57It would seem, in my view, a difficult proposition to place you on a Community Corrections Order which would have contained a number of conditions relating to treatment for drug use, and also psychological counselling, whilst at the same time dealing with the considerable demands that being an accused in a trial involves.  I have therefore decided to deal with you via a short and straight sentence. 

58I accept that your part in the offending before this court arose because of your particularly strong protective concerns in relation to your brother Corey, and I accept that the role that you played in this offending was somewhat less than your co-accused.  As against this, however, there is a single assault in relation to Mr Vainoras and the fact that you have a far more serious prior criminal history.  I have therefore decided to sentence you as follows:

59On each of the charges you are sentenced to six weeks' imprisonment, and I order that one week of each of the sentences imposed on Charges 2, 3 and 4 be served cumulatively to the sentence imposed on Charge 1, which gives you a total effective sentence of nine weeks' imprisonment.

60I direct that 50 days of this sentence have already been served by way of pre-sentence detention.

61Pursuant to s.6AAA I declare that had you not pleaded guilty I would have sentenced you to a term of imprisonment of five months.  Thank you, have a seat.

62MR GORDON:  As Your Honour pleases.

63MS JANKOVIC:  As Your Honour pleases.

64HER HONOUR:  All right so you've got about two more weeks to go I think.

65MR GORDON:  Yes thanks.

66HER HONOUR:  Thank you Mr Richardson.  Yes now is there anything else that I need to deal with?

67MR GORDON:  No Your Honour.

68HER HONOUR:  Were there any ‑ ‑ ‑ 

69MS JANKOVIC:  There were no orders.

70HER HONOUR:  No orders served, no I didn't think I saw any on the file but I’m so good at losing them that that's not usually a terribly good sign.  Very well I thank counsel very much indeed for their assistance in this matter and we will stand down to three o'clock, thank you.

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