Director of Public Prosecutions v Richards
[2024] VCC 917
•19 June 2024
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT BALLARAT
CRIMINAL JURISDICTION
CR 23-01295
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| IKE RICHARDS |
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JUDGE: | HIS HONOUR JUDGE MURPHY |
WHERE HELD: | Ballarat |
DATE OF HEARING: | 19 June 2024 |
DATE OF SENTENCE: | 19 June 2024 |
CASE MAY BE CITED AS: | DPP v Richards |
MEDIUM NEUTRAL CITATION: | [2024] VCC 917 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Theft – Possession of a drug of dependence – Unauthorised possession of a trafficable quantity of firearms – possessing firearms contrary to a firearm prohibition – Handling stolen goods – Unlicenced driving – Possess prohibited weapon without exemption/approval
Legislation Cited: Crimes Act 1958 (Vic); Control of Weapons Act 1990 (Vic); Drugs, Poisons and Controlled Substances Act 1981 (Vic); Sentencing Act 1991 (Vic);
Cases Cited: Bugmy v R [2013] HCA 37
Sentence:Total effective sentence 2 years 9 months imprisonment with a non-parole period of 20 months
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr Z. Petric | Office of Public Prosecutions |
For the Accused | Ms E. Byrt | Emma Turnbull Lawyers |
HIS HONOUR:
1Ike Richards, you have pleaded guilty to one charge of theft; one charge of possession of a drug of dependence, namely methylamphetamine; one charge of unauthorised possession of a trafficable of firearms; one charge of possessing firearms contrary to a firearms Prohibition Notice; one charge of handling stolen goods; and summary charges of unlicensed driving and possession of a prohibited weapon without exemption. The relevant maximum penalties are set out in the plea opening. You have also admitted an extensive criminal record.
2I am able to deal with this matter in a relatively expeditious way due to the comprehensive submissions by both parties.
3The circumstances of the offending are set out in the prosecution opening which was read in open court this morning. The offending occurred over an expanded period of about a week commencing on 19 November 2022, when you attended at a property in Armstrong, where the complainant in relation to Charge 1 was living. He had been known to you.
4You attended at that property driving a Mazda vehicle with a female passenger. After you left the vehicle, you observed that the complainant's wallet was on the ground nearby. You picked it up and then you climbed onto a motorbike that was there and drove away. That constitutes the first count of theft of a wallet which contained $1,500 in cash, a number of bank cards and other personal items owned by the complainant.
5Shortly after that time, you were seen driving the motorcycle through the town of Ararat, and this constitutes the summary charge of driving whilst unlicensed.
6The matter was reported to the police and the police then commenced surveillance of the Mazda vehicle.
7A few days later on 24 November the police executed a search warrant at a property in Ballarat East where the mother of a child of yours was living, and at that time they located the motorcycle which was then bearing false number plates. The property was kept under surveillance and the following day the police saw the Mazda in the vicinity of another property in Alfredton, another suburb of Ballarat, with false number plates affixed to it. One of them was a stolen number plate, and that is Charge 5, handling stolen goods.
8Police requested that you exit the premises. You ran away and you were followed by the Police Dog Squad. During the pursuit and arrest you received an injury to your arm where the police dog latched onto you.
9A bumbag was found at the back of the house. and Following the execution of the search warrant at that property in Alfredton, the driver's license and wallet previously stolen by you a few days earlier was found, along with $650. Also recovered was a black bumbag that you had been seen wearing by the police within the prior 24 hours. A total of 14.2 grams of methylamphetamine of high purity was recovered from the bag and the front bedroom of the house, and this gives rise to Charge 2, possession of a drug of dependence. It is not asserted that this was for trafficking purposes so the maximum penalty is one year imprisonment.
10The Mazda was located on the nature strip of that property in Alfredton. It was a vehicle that had been sold a few months earlier by an acquaintance of the complainant to your ex-partner. In any event it was unregistered.
11The police then searched the Mazda vehicle and found two wrapped firearms in the front footwell. They were both 0.22 calibre sawn-off rifles. There was no ammunition with them but they were sawn-off effectively into the form of a pistol.
12Police also located in that Mazda a black handled three-edged knife in a black scabbard, which gives rise to the second summary offence of possession of a controlled weapon.
13Police then undertook various forensic analyses of the vehicle and the firearms. Your fingerprints were found to be on the firearms and also on the motorcycle, as well as on the Mazda. On that basis that police had a strong case against you; you were charged, you were arrested and you have been in custody since that time.
14There were various negotiations between the legal practitioners involved. The matter was resolved to the matters on the plea indictment, and the two summary matters, and the matter then adjourned for a plea in this circuit. You have now been in custody for a period of 569 days.
Seriousness of the offending
15The most serious offending here is the possession of two sawn-off firearms, one of which had its serial number partially erased. Such weapons could therefore be easily concealed and used in all sorts of nefarious activities.
16The prosecution do not allege that the possession of the firearms was for the purpose of criminal activity and that puts them at a lesser level of seriousness for sentencing purposes, but in any event illegal firearms within the community are a blight on and a danger to the community, and you were found in possession of two of them.
17You also have prior convictions for the possession of illegal firearms and you were a prohibited person. Therefore your possession of those two firearms is even more serious because you had been told by way of a Firearms Prohibition Notice that you were not to be in possession of firearms. That gives rise to Charge 4 of the presentment.
18The other offending that I am dealing with here, the theft of the wallet, is relatively at the lower level, although you do have extensive prior convictions for theft.
19Possession of a stolen number plate is a prolific offence. The number of cars that one comes across with stolen or cloned number plates is very troubling. Here you were in possession of this stolen number plate; that gives rise to Charge 5.
20The unlicensed driving: you have a number of prior convictions for driving whilst disqualified and unlicensed driving. That is a serious offence with a maximum penalty of three months' imprisonment.
21As to the seriousness of the possession of the prohibited weapon, the triple-bladed knife, again you have prior convictions for possession of illegal weapons.
22Your prior convictions were canvased in the course of the plea. You are now aged 29 and a half. You were born in 1994. Your prior convictions commence in 2013, which would make you 19 when you first came before the Magistrates Court in Ararat on 20 May 2013, where you were dealt with by way of a community corrections order for recklessly causing injury.
23In February 2015 you were before the Ballarat Magistrate's Court on driving offences, exceeding speed limit, and you were sentenced to a 20 day term of imprisonment.
24Your drug convictions commence in March 2015: You were dealt with by the Magistrates Court for dangerous driving while being pursued by police; contravening a conduct condition of bail; theft of a trailer; prohibited person possessing a firearm; theft of a motor vehicle; driving in a manner dangerous; handling stolen goods; driving whilst authorisation suspended; using amphetamine, using methylamphetamine. You were sentenced to 150 days' imprisonment; and with time served declared. You were also placed on a community corrections order at that time for a period of 12 months.
25You were before the courts again on 25 February 2016 for breaching that community corrections order. You were dealt with by way of an aggregate sentence of three months' imprisonment; and the CCO was cancelled.
26You were also dealt with for possessing methylamphetamine, possess a firearm whilst being a progibited person, threats to inflict serious injury and damage property trafficking a drug of dependence and dealing with proceeds of crime on that day. The overall total effective sentence on that appearance was one year with a non-parole period of eight months.
27You were then before the courts again on 12 December 2016 on a breaching parole and committing an imprisonable offence and you were given 30 days' imprisonment there.
28You were before the courts again two years later on 20 November 2018 on a series of charges of contravening a family violence intervention order, conduct condition of bail; committing indictable offence on bail; handling stolen goods; being a prohibited person in possession of a firearm for which you were sentenced to a 15 months aggregate sentence; theft of a motor vehicle, again an aggregate sentence of 15 months (2 counts), and possessing cartridge ammunition. The overall aggregate sentence was 15 months, with time served 181 days with a non-parole period of nine months.
29You appealed that sentence to the County Court on 17 December 2018. The appeal was allowed and you were sentenced to an aggregate sentence of 209 days and a two year community corrections order upon release from custody.
30Then you were next before the Melbourne Magistrates Court about six months later in July 2019, on charges of theft of a motor vehicle; failing to stop police; driving whilst disqualified; and possessing methylamphetamine. You were sentenced to four months' imprisonment.
31Six months later on 30 October you were dealt with by the County Court for contravening the earlier community corrections order. It was cancelled and you were sentenced to nine months' imprisonment and declared to have already served 209 days' imprisonment.
32Your next appearance was at the Ballarat Magistrates Court in 2 June 2020 on a number of offences including prohibited person possessing a firearm; possessing a controlled weapon; possessing methylamphetamine and ecstasy; dealing with property proceeds of crime; dishonestly undertaking stolen goods; and driving whilst disqualified. You were sentenced to a total effective sentence of 18 months' imprisonment. 133 days was declared served with a non-parole period of 12 months.
33You were then before the Wodonga Magistrates Court on 10 August 2021 for possession of an item in prison; possessing a drug of dependence; possessing a category 2 item in prison and you were sentenced to a community corrections order.
34You were then before the Stawell Magistrate's Court on 9 August 2022 for contravening that earlier community corrections order. It was varied and you were placed on another 12 month community corrections order with 120 hours community work and various treatment programs.
35On that same day you were also sentenced to a 12 months' imprisonment for reckless conduct endangering life; failing to stop; endangering serious injury; failing to stop the vehicle on a police direction; driving whilst disqualified
(2 counts); failing to stop on request; failing to comply with a direction; handling stolen goods; possession of a prohibited weapon without exemption; possession of methylamphetamine; and possession of oxycodone. You were sentenced to 12 months' imprisonment with 295 days declared served, and a community corrections order to commence upon your release.36A short time after your release this offending occurred, on 22 November 2022, just under four months after you were dealt with in the Stawell Magistrate's Court.
37It is clear from your prior convictions that you have had multiple sentences of imprisonment, you have been in and out of gaol literally for the last decade, and you are still to be dealt with for breaching that community corrections order. The question arises whether you have finally learnt the error of your ways.
Personal circumstances
38I turn now to your personal circumstances which are set out in the plea submission made on your behalf by your counsel.
39You were 28 when this offending occurred and you are 29 and a half now. You have multiple similar convictions.
40You were brought up in the Ararat area with your parents. Your father had bipolar from your early age. Your parents are still married but because of your father's bipolar diagnosis there was difficulty within the household. He was non‑compliant with his medication which caused severe domestic violence to you and to your mother, as well as him being the subject of alcohol addiction.
41That diagnosis is supported by a document from a paediatrician when you were aged 13, which indicated that the presence of your father within the home was causing you to engage in difficult behaviour. You are described as having aggression, anger and violence and possibly yourself having an anti-social personality disorder and bipolar disorder. You were then not getting on at your secondary school, involving alcohol, outbursts against other children and having difficulties with your learning..
42Your counsel relied on the information as to your father's condition, which was stabilised after he in fact went into custody and then stabilised his medication, as giving rise to a dysfunctional upbringing which would led to the invocation of Bugmy[1] considerations.
[1]Bugmy v R [2013] HCA 37
43I accept that Bugmy does apply to some extent here, being profound childhood deprivation if you were brought up in a household with a male figure involved in unstabilised bipolar disorder, causing all sorts of problems on his behalf.. So that is a factor I do take into account and I accept the submission by your counsel that it should be taken into account and it does reduce your moral culpability and also means that general deterrence considerations should be less salient; but they still remain significant.
44Needless to say, disrupted family background leads to early introduction to drugs and alcohol and it can be seen from your prior convictions that you have been addicted to methylamphetamine for many years, as well as other drugs.
45In terms of your personal circumstances, you have three siblings, a younger sister, an older brother and a younger brother. Your mother worked. After you concluded Year 9 at the local community college, you were expelled and then you fell into the use of cannabis and alcohol, binge drinking and then it escalated to the use of methylamphetamines at age 16.
46Since you left school you have been in the workforce. You were working, notwithstanding your drug addiction, with an event hire company, in the local abattoirs, your grandfather's sheep farm at one stage, and then also in the Ararat abattoirs. So you have had a work history, notwithstanding your problems with drug addiction and the disruption of your work life due to serving a number of terms of imprisonment that I have set out.
47You have been involved in two serious relationships. One was between the ages of 16 to 20 with a woman named Janet. From this relationship you have a 10-year-old son with whom you have not had any contact for many years. You subsequently were involved in a relationship with another woman, a Ms Gray, for eight years on and off. You share a daughter, who is now aged six. She has resided in the care of your parents since 2019 and attends the local school. She has been speaking to you since you have been in custody. Her mother, your ex‑partner, had had her own problems with substance use and thus the custody of the child is with your parents.
48It was put on the plea that you have struggled with methylamphetamine use and upon release from prison in the past you have fallen quickly back into the use of methylamphetamine. It is put on your behalf that your current period on remand, which is some 19 months, is your longest period in custody. You have been on methadone whilst in prison. You have been in three different prisons and you were unable to work for the first period due to injuries sustained when you were arrested, but you then moved to Fulham where you worked as a head billet. You have been in Ravenhall for the last three or four months, and aree working in ground maintenance there.
49The period in custody on remand is a significant matter because it does mean there is disruption in any programs and in your movements around the system, which makes it more burdensome than someone who is a sentenced prisoner, who knows their end date and can take action to access programs and plan their future post custody. You have been unable to do that. It does make it more burdensome and I take that into account.
50On the plea your counsel submitted that you pleaded guilty early. The plea is some evidence of remorse. You have accepted responsibility for your conduct and it has significant utilitarian benefit and you have facilitated the course of justice.
51Further, you have written a letter to the court expressing remorse and expressing insight into your past conduct and wishing to turn over a new leaf upon your release from prison. In particular, in your letter you have reflected on the role of firearms within the community and your own stupidity in being involved in being in possession of those two firearms. So the letter does speak of insight into your offending and you get credit for that.
52Your insight into your behaviour is confirmed by a number of references that have been provided including one from your sister who is a disability support worker. She is prepared to give you accommodation upon your release, and she has a close bond with you, and has a zero tolerance for drug use. She indicates also that you are suffering from a lot of remorse and guilt for your actions that has led you now to a position of 19 months in remand, that it followed in fact about 12 months on an earlier sentence.
53There are also letters from childhood friends, one of whom was a former drug addict like you, and he is prepared to give you support and support you. Another who has known you for some 10 years is also prepared to support you upon your release from gaol, and she supports the proposition that you have learnt the error of your ways and that is confirmed in your letter to the court.
54In addition, a gentleman who has known you for some years is prepared to offer you employment upon your release from custody and supports your work ethic and your character, which supports the proposition that if you can overcome your addiction, then you have a successful future ahead of you.
55So your prospects of rehabilitation are an important consideration. Having regard to you having been on methadone for this period whilst in custody, the experience of the law is that getting back off drugs if often a difficult road but a long period of abstinence is a significant matter. You have family support, you have an offer of employment and you also have the incentive of your child, that your parents are currently caring for; so that is an incentive to your prospects of rehabilitation.
56As discussed with both counsel, the issue really is whether or not you are at a fork in the road in the life. At 29 and a half, there is an element of truth in what you have put in your letter to the court, that you really have seen that your past has been a waste and you are expressing sorrow for your action and suddenly realise that you have hurt people in the past, but now you have really got to grow up and move on with your life and you have been working on getting into programs to get skills so that you can engage in a meaningful life when you are released.
57I do see this matter as very much you being at a fork in the road in your life, particularly given your prior convictions, in and out of gaol, possession of firearms in the past, and past offences of violence. The current offence are not offences of violence, but that is what your criminal record shows. So it may well be that you are growing out of criminality and the long period in custody will allow a break from all criminogenic company, and with the support of your family you ought be able to put your past behind you and move on.
58Your counsel has submitted that there should be a longer than usual parole eligibility period. I have considered that but clearly the non-parole period should be the minimum term that is required to vindicate all sentencing considerations. The most serious offence here is the unauthorized possession of a trafficable quantity of firearms, particularly the type of firearm here which are two concealable firearms, modified, with a defaced serial number. That is a serious offence, particularly given your prior convictions for the same offending.
59At the same time the prosecution conceded that some concurrency ought be applicable with that offence and the offence of possessing firearms contrary to the Firearm Prohibition Notice. This is a string of offending over a narrow period and therefore substantial concurrency is appropriate.
60Coulf you please stand.
61On the charge of theft of the wallet, you are sentenced to one month's imprisonment.
62On the charge of possession of a drug of dependence, you are sentenced to seven days' imprisonment.
63On the charge of unauthorised possession of a trafficable quantity of firearms, you are sentenced to two and a half years' imprisonment.
64On the charge of possessing firearms contrary to a Firearm Prohibition Order, you are sentenced to one year imprisonment.
65On the charge of handling stolen goods, being the number plates, you are sentenced to one month's imprisonment.
66On the summary charge of driving whilst unlicensed, you are sentenced to one month imprisonment.
67On the summary charge of possession of a prohibited weapon without exemption, you are sentenced to three months' imprisonment.
68I order that the unauthorised possession of a trafficable quantity of firearmss be the base sentence. I order that three months of the sentence on Charge 4 be served cumulatively on the sentence on Charge 3. All other sentences are concurrent, making a total effective sentence of two years and nine months.
69I order that you serve a minimum term of 20 months before being eligible for parole.
70I declare that you have served 569 days pre‑sentence detention.
71I declare that had you not pleaded guilty, I would have imposed a total effective sentence of four years' imprisonment, with a non-parole period of two years and eight months.
72The prosecution are seeking forfeiture orders?
73ME PETRIC: Forfeiture on the two firearms and disposal on the drugs, weapons and number plates.
74HIS HONOUR: Yes, I will make the forfeiture and the disposal orders that have been sought.
75MS BYRT: By consent, Your Honour.
76HIS HONOUR: In sentencing you, Mr Richards, I have got to take into account considerations of general deterrence, specific deterrence, protection of the community, denunciation and your prospects of rehabilitation. In sentencing both for drug related offending and firearms offending, considerations of general deterrence and denunciation are absolutely to the forefront. Your conduct in being in possession of these two shortened firearms is to be absolutely condemned, particularly in circumstances where you had been the subject of a Firearms Prohibition Notice and you have prior convictions for firearms type offences.
77You have an unenviable criminal record and as discussed with your counsel, you have effectively blown some of the best years of your life, and now at age 29 and a half, I see you as very much at a fork in the road in your life. You have the family support that I have referred to and that is referred to in the references, so this is your last opportunity because should you fall back into the use of drugs and criminality, you know what a long period of imprisonment does for you, and you further know that you will be getting longer and longer periods of imprisonment to protect the community and to deter you from further offending.
78You further know that you are not to be involved in driving when you are disqualified or unlicensed and you further know that you are not to be in possession of prohibited weapons or in possession of drugs of dependence. So after this period of abstinence, it is to be hoped that you will be able to put it all behind you with the support of your family, the support of some of your childhood friends, including one that is prepared to give you employment, so that you become a productive member of society and get involved in fathering this daughter of yours. She needs a father in her life and you should be in a position to provide that to her.
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