Director of Public Prosecutions v Richards

[2024] VCC 1145

IN THE COUNTY COURT OF VICTORIA

  Revised

Not Restricted

  Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR -23-00644

DIRECTOR OF PUBLIC PROSECUTIONS

v

SAMUEL RICHARDS

---

JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Melbourne
DATE OF HEARING:	30 July 2024
DATE OF SENTENCE:	30 July 2024
CASE MAY BE CITED AS:	DPP v Richards
MEDIUM NEUTRAL CITATION:	[2024] VCC 1145

REASONS FOR SENTENCE

---

Subject:  CRIMINAL LAW- Sentence

Catchwords:             Home Invasion; Recklessly Causing Serious Injury

Legislation Cited: Sentencing Act

Cases Cited: The Queen v Verdins [2007] VSCA 102; Joe Karam v The King [2024]

VSCA 127

Sentence:                 Seven years and two months and a non-parole period of four years and

nine months.

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Dr J. Harkess	Office of Public Prosecutions
For the Offender	Mr L. Hartnett Mr T. Sawyer	SLKQ Lawyers

HIS HONOUR: 

1Samuel Richards, on 13 May 2024, I indicated what sentence would be imposed if you pleaded guilty to a charge of home invasion and a charge of recklessly causing serious injury. 

2The total effective sentence indicated was seven years, two months, with a
non-parole period of four years, nine months.

3You accepted that indication and pleaded guilty on arraignment on 17 May 2024, just days before your trial was due to commence.

4I gave reasons for the sentence I indicated.  I will here refer to, and repeat, much of what I said in those reasons.  I specifically considered the seriousness of your crimes, your role in committing them, your personal circumstances, your progress towards rehabilitation, and generally what the future holds for you. 

5I considered other relevant factors such as parity with a co-accused who was sentenced by another judge, and I factored in what was still unknown, but I factored in the value of a plea of guilty if it eventuated, which of course it did.  One factor I inferred, or presumed - there was some material, but it was mostly inference and presumption – was the adverse impact of your attack on the victim. 

6That has been borne out at the plea.  I received from the victim a victim impact statement and another from his grandmother.  They were, as your counsel acknowledged, powerful and heartfelt.  I can do no better than use their words to convey how dreadful and life-changing this mindless attack was. 

7I will ultimately refer first to the victim impact statement of the primary victim's grandmother as it provides some broader context in which to appreciate what the primary victim said. 

8As to the seriousness of the crimes and your role in it, I was assisted in my task of assessing the gravity and the moral culpability.  I was assisted by a lengthy, highly detailed summary of the facts prepared by the prosecution.

9As to the key aspects of the background and the offending, it seems to me it can be put in briefer compass for the purposes of this plea.

10You were in a relationship with a Sarah Inglis from about February 2022.  By May 2022 the relationship was over as far as Ms Inglis was concerned.  She commenced to see another man who became the primary victim.  He had been a long-term friend of Ms Inglis and thus you, Mr Richards, came to know him as well, or knew of him as well. 

11You made threats to 'get the' victim around about 1 May 2022.  The victim's ex-partner was also upset when she discovered the victim and Ms Inglis were together.  She contacted you, making her feelings known.  You spoke to her in terms that made it clear you wanted the victim and Ms Inglis' relationship to end. 

12In the early hours of 2 May 2022, the victim and Ms Inglis went out to a hotel in Doveton to socialise.  A man who was a friend of yours and a friend of your co-accused, co-accused being Stephen Scordo.  That man, the friend, was at the hotel and communicated with Scordo and he, Scordo, communicated with you, advising you of the fact that the victim and Ms Inglis were out at the hotel.

13You were motivated to exact revenge and end their relationship and thus hatched a plan.  It involved you and Scordo breaking into Ms Inglis' premises and waiting to ambush them when they came home from their night out.

14The prosecution case is your plan or intent was to surprise then assault the victim.  You were with your co-accused, Mr Scordo.  He was described by the prosecution as 'the muscle.'

15As you were no longer in a relationship, you were a trespasser in Ms Inglis' premises once you got inside those premises. 

16I note that this was all done in the dead of night, and you waited there in the dark until they got home so as to wreak revenge on the victim for having formed a relationship with your ex-girlfriend.  Your whole misogynist premise was
Ms Inglis was in some way your property and she could not form a new relationship with another male.

17Once the victim and Ms Inglis came into the premises, you and the co-accused attacked and ultimately the victim was knocked unconscious.  Ms Inglis was locked in her bedroom from where she heard what was being said and done to the victim.  What she heard at one point was you saying, 'That's what you get for taking another man's girl.'  And further, 'You shouldn't take another man's girl.'  You expressed earlier to Ms Inglis that 'I told you I weren't gonna let you break up with me, it's not gonna happen.  I told you I'm not gonna give up.'

18The prosecution case is that the victim was bashed severely over a prolonged period by you or the co-accused, or most likely by both of you.  There was a third man who was also summonsed to the house, and it is put that he may too have been involved.

19The injuries inflicted in this criminal enterprise were extremely serious and
life-threatening.  Ultimately, you were concerned about the risk to you if the victim was found at the house.  As mentioned a third man was summonsed.  He came to the house with his female partner, they saw the severity of the injuries and the state of the victim, who was then handcuffed notwithstanding the level of injuries.  They saw the blood-spattered rooms in the premises.

20Further evidence of you being central in this criminality, you directed these two to clean up the premises.  These were purposeful decisions to avoid what you quickly perceived were likely dire consequences if you were caught.  You did not display like or any concern for the dreadful state of health of the victim.

21Another man was later requested to come to the premises and take the victim from the house.  He was promised $2,000.  He then got the victim into the rear seat of the victim's car and drove towards Cranbourne where he was told the victim lived with his family.  This man became concerned at the state of the victim and stopped the car in a street in Doveton.  Ultimately, he left the victim in the back of the car with the key nearby.  He left the scene with a friend who had followed in a separate car.

22Sometime later the victim staggered from the car into a nearby park.  Again, after some time, he moved out of the park with his shirt off in the middle of the night and he sought help from residents in the nearby houses.

23In the circumstances of his head injuries this period of time was perilous, but fortunately emergency services were called, and the victim was taken ultimately to the Alfred Hospital.

24The full scope of the injuries was set out in the prosecution opening.  In briefer terms, the victim suffered multiple fractures of his skull, including heavily comminuted fractures or sites where the skull bone was shattered into small pieces.  Also, there were penetrating injuries to his head where the brain was visible with sharp bone fragments poking into the skull.

25There is no issue that these injuries were dreadful and life changing.  It all resulted from this mindless attack.  There were multiple fractures to the bones of his face.  There were difficulties he had with his spine, tendons and the like.  There were ongoing issues with his hips that he outlined in his victim impact statement.

26I will refer, as I said, to those victim impact statements, commencing first with the victim impact statement of his grandmother.

27She points out:

'Quite often what is never considered is the effect that a crime has on a family and how dynamics change.  People do not realise the family become a victim of the crime too.' 

28She says:

'My grandson now has an acquired brain injury because of what happened and he is a different person – not the person we knew.  We all have no choice but we must get used to the new aspects of the victim.  The impact on him is considerable.'

29She says he spends a lot of time with her: 

'We do not know day-to-day how he's going to react, it's like walking on eggshells.  What does not upset him today may set him off tomorrow.  We are always careful of how we speak to him and how we react to what he says.  He takes medication all the time due to seizures but making sure he takes the medication at the right time is a challenge.  He often forgets and this happened recently when he was up the street.  We now keep some of the medications available' at her house.

'There is day-to-day worries just keeping tabs on him and ensuring that he's taking his medication when required.  He reacts by feeling he's being monitored all the time but we don't want him to miss his medication.  If he misses his medications he can have seizures.  There is no real pattern, it's hard to define.'

30She says:

'No-one has any idea of the turmoil' that confronted her in visiting her grandson 'every day in the ICU where he was for a lengthy period of time.  Not knowing what would happen at the early stages, travelling to the hospital with anxieties.'

31She is experienced as an ICU nurse and knew what would be happening behind the scenes but she kept up a brave face for the sake of her family.

32She was anxious because it was her car that he was put into and driven to this park and left.  She was expecting it back.  When it did not come back she was worried that she would get a phone call which ultimately the scenarios that were running through her head actually were what occurred – perhaps worse.

33She says that getting him to go to appointments which are necessary is extremely difficult.  He does not understand the importance of those and has a 'what's the point' attitude.  He knows he cannot be fixed.  He has phobias of hospitals.  He does not process things that he would have prior to the assault.  He has lost consideration of others and empathy and it is extremely frustrating. 

34He had a seizure, she describes, about a month before she wrote this victim impact statement. 

'He refused to go in the ambulance when it arrived and sure enough ten minutes later he had another seizure.  The ambulance came back and thankfully he was returned to hospital but there were ventilators and days in hospital.  This is not uncommon now.'

35It has had an impact on her and her relationships within the family, but perhaps more importantly, socially, as people do not understand what has happened to her grandson and have distanced themselves from her.  All of this continues to have an impact upon her.

36The victim said in his victim impact statement that:

'The assault has completely changed my life.  I feel like I am stuck in a vicious cycle that I do not know how to break.  The assault has had a profound impact on my physical and mental health, as well as my general functioning.  It is making it overwhelming to fully engage in the recovery process, as I don't know where to start.'

37He says how can he enjoy life when his body and brain are stuck in a state of hypervigilance.  He is anxious about everything and he finds it difficult to get things done and engage with supports.  He is more reactive and responds, he says, with anger.  'I have been told this is because of my brain injury.  This is impacting my life and it has also a direct impact on the lives of my three children.'

38He said he used to be social and have a lot of friends.  He now spends most of his time in his room, he is depressed and he has a bleak outlook on his future.  He says, 'Will I ever be able to get back to work as a concreter?'  I think the answer to that is he will not and there is a sense he knows that.

39He has significant injuries and pain to his hips and other parts of his body, his shoulder.  It is difficult for him to sleep and get comfortable, to put his hands above his head so that makes dressing a struggle.  He says, 'I've been getting seizures following the assault, which means I am no longer able to drive which impacts on so many aspects of my life, including my ability to engage in employment.'  He still has a need to undergo significant surgery as he has parts missing on his skull.  He has been unable to work, as indicated.  He valued that.

40He says, 'The assault has completely changed me, my life and the lives of my children.'  He says that his mental and physical health are 'in tatters' and he does not have the strength to begin to pull his life back together again.  He says, 'At one level I want to address the trauma and the impacts and on another I find it difficult to follow through and engage with supports.'

41He says the thought of having to address trauma and his fears just fill him with dread.  It feels like he would just like to push the feelings and the trauma back down into what he describes 'the darkness' and try to forget what happened.  'I know I can't keep running' and he says he wants to get back a sense of happiness and enjoyment of life, 'To start facing the demons and to once again be the father I want to be for my children.'

42The impact, plainly, is very significant.  It is necessary, by reason of the Sentencing Act, that I take into account the impact upon the victim of the crimes that were committed.

43Mr Richards, after you had organised the clean-up, as it were, and the taking the victim from the house, you went with Ms Inglis and your co-accused to Echuca where you had your business. 

44On your arrest sometime later, you denied being present or assaulting the victim, or organising the clean up or the removal of the victim from the house.

45You ran a committal in April 2023 and as I indicated your trial was listed in the week in which you accepted the sentence indication and pleaded guilty.

46Your co-accused pleaded guilty shortly after he was committed to this court.  He was sentenced on 29 November 2023 to a term of imprisonment of five years and six months with a non-parole period of three years and six months.  I will return to the issues of parity shortly.

47You were bailed on 7 July 2022 after 52 days on remand.  Your counsel placed great emphasis on your rehabilitative steps since you were granted bail.  In this regard, written evidence was put forward from the drug rehabilitation facility based in the Shepparton area called The Cottage.  They wrote of your successful period as an inpatient for three months and separately a clinician, Dr Ogden, also wrote of his involvement with you at The Cottage, and importantly of his recent diagnosis of ADHD.

48You were then placed on medication for that condition as well as for depression and anxiety.  That medication seems to have caused some adverse side effects and you stopped taking it, as I understand.

49Also put before the court were clean urine results.  You did frankly admit to one relapse where you accepted that you had fallen into drug use on one occasion, but I accept that you are committed to putting drugs behind you.  As I said with respect to your ADHD, you stopped taking that medication because of negative side effects.  It is hoped that you will be able to resume levels of treatment into the future.

50Letters from your current partner and her parents attest to your changed ways and especially your dealing with life's stressors without turning to methylamphetamines.  The recent, that is in recent months, but sudden death of your grandfather who was important to you was a test for you, and apparently you were able to cope without returning to self-medicating on illicit drugs.

51Your partner's parents have made clear they are concerned about your behaviour, in particular as you were in a serious relationship with their daughter, but you have impressed them and reassured them that you are reliable and are doing all you can to end the impact of drugs.  These are positive matters put forward in mitigation.  You have significant support.  You are attending Narcotics Anonymous and that helped when you relapsed. 

52You are currently employed and your employer wrote a very supportive letter indicating that you are an important contributor to the business.  I note your own business folded upon your arrest and remand, that is the business in Echuca, in the motor mechanic profession.  But your work history overall is to your credit and indicative that reform is well possible.

53Your own father's letter also speaks of the changes in your behaviour and prospects.

54As the appellate courts have said for decades, efforts to rehabilitate, especially from long-standing drug addiction, which describes you, but efforts to rehabilitate need to be acknowledged and rewarded if the evidence of that reform is solid and likely your reform is to remain the direction that an offender takes.  An aspect of that sentencing principle is to allow wide sentencing discretion, so as if possible a reformed drug user is not sent back to prison, putting at risk the progress they have made. 

55Unfortunately, in your case, the gravity of the crimes and the matters at parity, mean there is no other sentencing option but further gaol via the setting of a head sentence and a non-parole period.  Your counsel does not argue to the contrary.

56The submissions were to try and establish hope within you and possibilities for you via a merciful sentence, in particular with a low non-parole period.  This would acknowledge and in a way reward the steps that you have already undertaken to rehabilitate.

57I add that your plea is a valuable one in that the prosecution case did rely to a degree on unreliable witnesses.  The circumstances of how the crimes were initiated and the motivation are such that I would see your culpability as greater than your co-accused.  He has some prior criminal history though the sentencing judge in her reasons did not see that fact as particularly problematic given the confined periods of his offending in the past and the penalties that were imposed upon him.  But it does distinguish you from him to a degree, as your criminal history is of no real relevance at all and in essence, you come before the court with good characteristics. 

58But in the end, the sheer seriousness of the crimes, your role in initiating and ordering others to become involved, at the time and after, for the removal of evidence including the highly risky decision to remove the victim, making the medical help he needed less likely, at least in a timely manner.  All these are important factors in the sentencing synthesis. 

59In the end, a greater sentence is required for you but one tempered by all that you have achieved of late, all this is said in the context that the sentence imposed on the co-accused was, in my view, a merciful one. 

60I would construct the sentence differently from the sentencing judge of your co-accused, as in my view the home invasion was an enabling offence and different to many others that come before the courts.  The recklessly causing serious injury, given how ferocious and protracted it was and the level of the injuries caused and their impact long term, is far and away the most serious crime of the two.

61Subsequent to the sentence indication your lawyers had you assessed by the medio-legal psychologist, Ms Ferrari.  Her report of 1 July 2024 was supplemented by a further report of 23 July 2024.  In brief terms the reports confirmed previous treating psychiatric and medical material, that is that you have a diagnosis of ADHD, and depression and anxiety.  In other words, the reports did not substantially add to what was earlier put as to your psychological profile.  That said, there were aspects of the testing of your personality traits that were not raised, and are troubling, in particular from paragraph 137 to 146 of Ms Ferrari's main report. 

62It is noted that subsequent to seeing the medico-legal psychologist, you had a referral to a consultant treating psychiatrist for the purposes of, as I understand it, of assessment and treatment for ADHD, including potentially recommencing medication.  However, I was told because of your impending gaol sentence the treatment was not initiated beyond seeing the physician once, or at least communicating with him.  As I say, it is hoped that you may be able to receive treatment both psychological, psychiatric and medication while incarcerated, or perhaps more importantly, when you are released.

63But as to the relevance for sentencing purposes of this medico-legal psychological report, much of what was directed at issues of sentencing was, in my view, confusing or overly generalised.  In her addendum reports Ms Ferrari concluded that there was no evidence of a causal connection between your ADHD and your offending.  She went on to assert a contributory role of poor impulse control and impacted executive functioning, not thinking through consequences.  She did that without any reference to the long sequence of the actual events in your offending, such as the patient and planned waiting before the victim's return, the protracted nature of the attack, the various decisions about getting assistance, and applying specific roles to those assistants, such as who would clean up the premises, who would transport the victim away.  Ultimately, these were decisions, purposeful decisions to cover your tracks, as it were. 

64Confusingly, Ms Ferrari then, when discussing your moral culpability, an issue to do with sentencing, and discussing what she called limb 1 of the Court of Appeal decision in Verdins[1], she said that in effect your moral culpability was lowered despite concluding there was no evidence of a causal connection, nor in my view any rigorous analysis of the important facts and circumstances of your case, your offending, its protracted length and your role.

[1] The Queen v Verdins [2007] VSCA 102

65Ms Ferrari expressed a very generalised opinion as to what might arise for a person with ADHD in prison, concluding prison would be more onerous for you with that diagnosis.  There appears to be little if any reference to your actual experience of prison on remand, albeit that was short and some time ago, but there was no reference to any objective evidence within prison files or Justice Health as to whether your ADHD had impacted upon how you experience prison.  In my view, there was no nuanced appreciation of the likely variation in your prison circumstances once you are sentenced and within prison settings of different levels of security.

66Ms Ferrari's reports were not subject to the scrutiny of cross-examination or examination-in-chief as no party called her as a witness.  All that said, it may be in the end a matter of very limited assistance in the whole sentencing task.

67Your counsel asked for a slightly less severe sentence on the basis of this psychological material.

68The prosecution argued there was no basis to reduce the sentence because of some lower moral culpability.

69In the end I agree with that proposition.  The rigour required of psychological evidence in respect of making assessments as to moral culpability was lacking in Ms Ferrari's reports.  But I also add that recently in a Court of Appeal decision Forrest JA, who I respectfully note has decades of experience in the criminal law, spoke of the process of securing medico-legal reports after a sentence indication.  He specifically referred to the need for a sentencing judge to be cautious to avoid a sentence indication being seen as an opening bid, and the plea being a process of reducing the figures already indicated, in what may turn into a forbidden two-stage sentencing process.

70In Karam v The King[2] he said [para 42]:

The sentencing indication given under s207 of the Criminal Procedure Act, the only effect such an indication can have upon the sentence subsequently to be passed by the sentencing judge, is found in s209 of the Act. That is, to constrain the sentencing judge from imposing a more severe sentence than the maximum total sentence indicated. The sentence indication is not an opening bid for future negotiations, nor is it a benchmark for additional deductions at the plea hearing. Not only is this approach tantamount to two-stage sentencing and incompatible with instinctive synthesis approach, but there are also strong public policy reasons why this approach must be eschewed. Canny defence practitioners may hold back one or more mitigating factors for the second hearing. The sentence indication process was never intended to be treated this way. Beyond placing a ceiling on the overall sentence that can be imposed, it has no relevance to the instinctive synthesis of the sentencing judge.

[2]Joe Karam v The King [2024] VSCA 164

71It should be observed that his Honour was well aware of the danger of two‑stage sentencing in the manner now advanced by the applicant, and astute to avoid it.

72I do not by any means consider that the description given by Forrest JA to defence practitioners or canny defence practitioners applies here.

73In the end, the circumstances of this protracted offending and the steps to cover up what had occurred, mean in my view the generalised view of the psychologist do not enliven, to use her words, a reduction in my assessment of your moral culpability.  As to whether gaol would be harder because of your mental health, your counsel was correct in saying that your ADHD was raised in the sentence indication and formed part of the synthesis that led to the sentence indicated.  The general views expressed by Ms Ferrari do not alter matters.  I have considered them, but I am at the same time reminded of the words of the Court of Appeal as expressed in DPP v Meyers[3], that firstly the Court of Appeal describe the burden of imprisonment as to the accused, Mr Meyers' chronic pain.  It says:

The burden of imprisonment is another matter, however. There is no dispute about Mr Meyers’ chronic pain, or about his high dependency on morphine for pain. Nor would we have any doubt that pain management is more difficult in prison than elsewhere. On the psychological side, the position is less clear. Being depressed in gaol is unfortunately very common — and understandable — and in the ordinary case would not justify a reduction in sentence.

[3]DPP v Meyers [2014] VSCA 314

74While that referred to depression and not specially ADHD, the case in 2014 does provide a guide as to whether such matters, as they are described in the psychological report with respect to you, it would in the ordinary case not justify a reduction in sentence.  The submission was that there should be a slight reduction in the sentences indicated. 

75In the end I am not persuaded, or not such that there ought to be a lesser penalty that is lower than the merciful sentence that I indicated.  It is and remains a sentence that in my view is the just and appropriate one.  The non‑parole period is what justice requires but it does allow for, if you are granted parole at the end of the non-parole period, something I hope happens, it does give you a significant period of support in the community such that you can return to the pathways that you have established in recent times.

76I am mindful of the gravity of sentencing someone like you who has never been to gaol, to years of gaol, but in the end there is no other option.

77The sentence that I impose is for the charge of home invasion, you are sentenced to a term of imprisonment of one year and eight months.

78For the crime of recklessly causing serious injury, you are sentenced to six years and six months. 

79Eight months of the sentence imposed on Charge 1 is cumulative.  That gives a total effective sentence of seven years and two months and I fix a non-parole period of four years and nine months.

80You have already done a period of time in custody.  It has been reckoned as I understand at 52 days.

81I now declare that the 52 days should be counted as part of the sentence I have just imposed and ensure this declaration is entered into the records of the court, so the prison authorities are left in no doubt that you have done every day of the sentence that I have just imposed.

82Had you pleaded not guilty to these offences and been found guilty of them; the calculation is difficult as you would have faced no doubt much more serious offences on a trial.  Doing the best I can to try and give some indication as to the sentence I would have imposed for these offences, had you been found guilty of them, the sentence I would impose would be 10 years within a minimum term of seven years.

83There is a disposal order and I will sign that disposal order in due course.

84Is there any other orders?

85COUNSEL:  No, Your Honour.

86HIS HONOUR:  Are the mathematics correct?

87COUNSEL:  As the court pleases.

88HIS HONOUR:  Is there any other order?

89COUNSEL:  Nothing further.

90HIS HONOUR:  Thank you.  Mr Richards, the court is not set up – no need to stand – the court is not set up for you to spend any time either close or even any time with those that care for you.  Your lawyers will assist you as to what the process is.  You just have to go with the prison authorities that are there now, thank you.

91I thank counsel for their considerable assistance.

- - -