Director of Public Prosecutions v Long

[2018] VCC 84

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

AT MILDURA
CRIMINAL JURISDICTION

CR 17-02083

DIRECTOR OF PUBLIC PROSECUTIONS

v

RICKY LONG

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JUDGE:	HIS HONOUR JUDGE M.P. BOURKE
WHERE HELD:	Mildura
DATE OF HEARING:
DATE OF SENTENCE:	12 February 2018
CASE MAY BE CITED AS:	DPP v Long
MEDIUM NEUTRAL CITATION:	[2018] VCC 84

REASONS FOR SENTENCE
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Subject:
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Cases Cited:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. O'Doherty
For the Accused	Mr P. Delorenzo

HIS HONOUR:

1Ricky Jeffrey Long, you are to be sentenced for one charge of aggravated burglary, one charge of intentionally causing injury and one charge of threatening to kill.  The maximum sentences are 25 years' imprisonment for aggravated burglary, ten years' imprisonment for intentionally causing injury and threatening to kill.

2You pleaded guilty before me on 7 February. You were interviewed by police on 9 March 2017. You admitted the offence. At committal you entered pleas of guilty to intentionally causing injury and making a threat to kill, but not guilty to aggravated burglary. The matter came before me for trial on 7 February. On that day Mr Lindner, for you, sought a sentencing indication hearing under s.207 of the Criminal Procedure Act. The Crown consented to this. After or, during that proceeding I indicated that I would likely impose a sentence combining imprisonment and a community corrections order; but, as to the imprisonment component, not beyond the approximate seven months you have served. The Crown submitted that a combined sentence of imprisonment and a community corrections order was within the proper range.

3You receive the benefit of your plea of guilty and the cooperation that short history of the proceeding shows.  As to the timing of your plea I bear in mind that at police interview you admitted circumstances which make out aggravated burglary.  Your proposed defence at trial is not absolutely clear;  but may have been informed by legal advice.  Mr Lindner was not counsel until 7 February.  Your plea has facilitated the interests of justice and I find that you are remorseful.

4At your plea hearing, which also ran on 7 February Mr O'Doherty for the Crown tendered a written Crown opening.  Mr Lindner tendered the letter of drug and alcohol counsellor, Kayla Morris, dated 6 February 2018, and provided a written outline of plea submissions.  He also called you to give evidence.  In the course of that there was tendered a letter you asked to be sent to your victim.  It has been provided to the prosecution.

5The circumstances of your offending are comprehensively set out in the tendered Crown opening, which is Exhibit A.  My own summary may therefore be shorter.  I also make findings having heard submissions and having  been referred to relevant parts of the depositional material. 

6At time of offending you had been a friend of your victim, Kiefer Aaron Rodriguez, for some years.  You were 35 and he was 25.   You both lived separately in Mildura.  You lived with co-offender, Tyrone Simpson, who was also in a relationship with your half-sister, Ashley Savage.

7You had heard rumours, which present to me as baseless, including that Kiefer Rodriguez had been sexually involved with an under-age girl.  On 7 March 2017 you and Simpson were together and had been drinking.  I find that over the day you became intoxicated.  There was some talk about Rodriguez.  At some point in the evening you, Simpson, and another man named Zagami, went to Rodriguez's flat in Etiwande Avenue.  Zagami was not involved in the offending.

8I find that you went there to confront Rodriguez but short of physical assault.  You were intoxicated  and  affected, without real basis I would find, by what you had heard.  You had spoken to Rodriguez about the allegations some weeks before.  He had denied them.  At his door on this night you raised them afresh. You said to police that you became enraged because Rodriguez seemed to be responding in the Russian language.  I find that affected by drink and irrational feelings about the claims against your friend, you lost control.  He saw you to be very angry and attempted to keep you out by closing the screen door.  You forced your way in and, assisted by Simpson who was with you and held the door open, you assaulted Rodriguez.  You punched him numerous times to the face and head.  He went to the floor so frightened that he urinated.

9You are a man of small stature.  In evidence you describe Rodriguez as of similar build.  Before you left both you and Simpson threatened to kill him.  You shouted at him about a person named Candice.  After you left Kiefer Rodriguez sought help from neighbours and he walked to the nearby general store, fearing your return.

10Paragraph 19 of the Crown opening describes his injuries:

"As a result of the assault, Aaron, (meaning Rodriguez), sustained swelling and bruising to his face, a wobbly tooth to the left side and lacerations to the interior and exterior of his mouth".  A preliminary CT scan was conducted revealing no obvious fractures".

11No victim impact statement has been tendered.  However, it is clear that Kiefer Rodriguez was badly affected.  He was visibly distressed when speaking to police on the night.

12You are 36 years old.  You did not know your father and were raised by your mother.  You have a twin brother and a half-brother and sister.  The family lived mainly in the Mildura area.  However, there were significant periods in Perth where the father of your half-siblings lived.  You went to school in Mildura, Perth and South Australia for a time when your mother remarried and you lived there.  You were then about 14.

13You left school at 15.  That was in Mildura.  Since then you have been employed often and consistently, moving often between Perth and Mildura.  There have been many jobs.  These have included as a sales assistant, labourer and factory hand, various jobs in the construction industry, seasonal farm work as a delivery driver and traffic controller.  You seem to have a number of heavy machinery skills and qualifications.  Your ambition is to become a chef and you have at various times studied commercial cooking.  You have returned to that after being released on bail in October of last year.

14You met a woman in Perth several years ago and had a relationship.  There are two children born in 2010 and 2011.  Your partner, who is part American, went to the United States with the children in mid-2012.  She has not returned.  You have not seen your children since.  This had a large impact and you began using methylamphetamine.  You had used synthetic cannabis since a teenager.

15Also since bail release you have addressed your drug use.  You are going to continue with this.  As stated, a letter by drug counsellor, Kayla Morris, of SalvoCare has been tendered.  It is not put that drug use had anything to do with this offending.

16At 36 you have two prior adult court appearances but have not been convicted.  In 2003 you were fined without conviction for offences including unlawful assault and assault with a weapon.  Mr Lindner put some of the circumstances to me.  There was a disagreement and then fight at a Kentucky Fried Chicken Restaurant.  Your twin brother was also involved.  The weapon was a chair.  Whilst relevant offending, it occurred about 15 years ago.  The only appearance since is in 2016 for possessing methylamphetamine.  Again, you were not convicted.

17This is a serious matter.  Kiefer Rodriguez was attacked, hurt and badly frightened at his home.  I again make clear that there was no justification nor any legitimate basis to your grievance.

18Relevant and important sentencing considerations are deterrence, particularly general deterrence, moral culpability, denunciation and the need for proportionate punishment.  A sentence of imprisonment is necessary.

19Your co-accused, Tyrone Simpson, received a sentence or approximately nine months with a 12 month community corrections order.  That approximate period was time he had served.

20Objective factors, for example, his lesser role, suggest a longer sentence for you.  He also had the benefit of an undertaking to give evidence against you.  What would have been the ultimate value of that prosecution was a question raised at your plea hearing.  Despite comparison with Simpson's sentence, I have decided that there are a number of factors individual to your case which justify a sentence of what you have served but combined with a community corrections order, one which must be more onerous than that imposed upon Simpson.  Those factors include the following.

(1)  Your plea of guilty.  I would add to what I have earlier said, that the interests of justice might be seen as particularly assisted here given difficulty for the Crown in calling Kiefer Rodriguez to give evidence at trial, at least in this circuit.  Your plea overcomes that problem.

(2)   I also see you as genuinely remorseful.  I was impressed by the sincerity of your evidence before me supporting, in an important way, what you have also stated in your letter to Kiefer Rodriguez.  I referred to that earlier.  I find that you had a good friendship with him, that you deeply regret what you did to him, that you are both genuine in that regret and in the desire to personally make amends.  You also accept that he may not wish that.

(3)  These things are also significant to assessing your prospects for rehabilitation.  I find that they are high.  I accept that remand custody has impacted positively upon you and your evidence and letter suggest that you have reflected with insight on what you did.  Your criminal record, which I find to be sparse, is also relevant.

21Ultimately I have decided that the right sentence is a term of imprisonment, not beyond what you have served, and a community corrections order of appropriate duration, punishment and assistance to your further rehabilitation.  It is an unusual sentence given the objective seriousness of your offending.  However, I think it is justified in the circumstances of this case.  I also think that it better serves the interest of the community than your return to prison.

22Stand up, please.  I sentence you as follows.  On all charges still before me, that is charges 1, 2 and 4 on the presentment, you are sentenced to an aggregate term of imprisonment of seven months.  In addition, I impose a community corrections order of three years duration.  The usual terms apply.  The additional terms are:

that you perform 400 hours of unpaid community work;

that there be a treatment and rehabilitation condition related to drug use;

that there be a treatment and rehabilitation condition related to participation in programs directed at the specific offending;

that there be supervision;

I also direct that 100 hours of participation in those rehabilitation programs may be set off against the 400 hours or unpaid work.

23Yes, so that will be - you can come out of the dock, please, and sit near
Mr Delorenzo.

24MR O'DOHERTY:  Your Honour, there's a 6AAA declaration.

25HIS HONOUR:  Yes, I am sorry, yes.

26MR O'DOHERTY:  And there's a forensic sample order that was consented to.

27HIS HONOUR:  Yes.  Had you not pleaded guilty I would have sentenced you to imprisonment for three years with a minimum term of two years.

28MR O'DOHERTY:  I am not sure if we declared pre-sentence detention.

29HIS HONOUR: Yes, I am sorry. I declare 217 days of pre-sentence detention already served under s.18 of the Sentencing Act.  So to repeat, the s.6AAA indication is a sentence of three years with a minimum term of two years.  So the arithmetic will be pretty evident to you.  What else is there?

30MR O'DOHERTY:  There is that 464 forensic sample order that was consented to.

31HIS HONOUR:  Yes, I think I should.  In the circumstances I will make that order.  What you have got to do is attend or go to the Mildura Police Station at a time after four weeks but before eight weeks.  So follow that?  Effectively before eight weeks passes but not until, well, the period commences four weeks from today, and then you will supply a sample of your saliva by putting a cotton swab inside your mouth, I have not seen it but it does not sound intrusive or unduly so.  If you cooperate in that, that is the end of it.  If you do not, a sample of blood may be taken by injection and reasonable force used.  The reasons why I am making the order are these:  the seriousness of the circumstances of offending; the order is imposed bearing in mind the potential use of such material and its inclusion on a data bank; the granting of the order is in the public interest, in my view.  I will now sign that order.

32All right.  Stand up.  I need to tell you what this community corrections order means.  It runs for three years.  The usual terms are:

that you do not come another offence for which you could be imprisoned;

you must comply with a regulation, which as I best understand means that you do not attend any appointment, worksite or program affected by alcohol or illegal drugs or in possession of illegal drugs;

you must report to and receive visits from Community Corrections;

you must report to the relevant Community Corrections Centre, Mildura here, within two days of this sentence;

you must let Community Corrections know within two days of a change of address or job;

you must not leave Victoria without first getting permission to do so.  I should imagine that has been discussed with you during the assessment because you are placed so close to the border here I think sensible arrangements are usually made;

you must obey all lawful directions of Community Corrections;

the additional conditions are that you perform 400 hours of unpaid work over the three years;

I order that 100 hours of treatment and rehabilitation programs participation to set off against it;

that you be under supervision;

that you undergo assessment and treatment for drug abuse or dependency;

that you participate in programs that address the particular factors related to this offending as you are directed.

33Do you understand all of that?  And do you agree to it?  All right.  If you sign it then I will sign it and then you may go.  All right, good, thank you.  Good. Thank you.  Thank you, Delorenzo.

34MR DELORENZO:  Thank you.

35HIS HONOUR:    If you would wait outside a copy - wait outside I think is the best.  My associate will bring a copy of the order out.

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