Director of Public Prosecutions v Richards

[2023] VCC 2457

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 23-00287

DIRECTOR OF PUBLIC PROSECUTIONS

v

ADAM RICHARDS

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JUDGE:	HIS HONOUR JUDGE LAURITSEN
WHERE HELD:	Melbourne
DATE OF HEARING:	11 November 2023
DATE OF SENTENCE:	22 December 2023
CASE MAY BE CITED AS:	DPP v Richards
MEDIUM NEUTRAL CITATION:	[2023] VCC 2457

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords:              Charges of aggravated burglary, obtain property by deception and possess cartridge ammunition – relevant prior criminal history – borderline intellectual functioning – mid-range of objective seriousness – application of Bugmy in the general way – moral culpability reduced – early plea of guilty – remorse – uncertain prospects of rehabilitation

Legislation Cited:      Sentencing Act 1991 (Vic)

Cases Cited:R v Verdins (2007) 16 VR 269; DPP v Meyers [2014] VSCA 314; Bugmy v The Queen (2013) 249 CLR 571; DPP v Herrmann [2021] VSCA 160; Sabbatucci v The Queen [2021] VSCA 340; Newton v The Queen [2023] VSCA 22; Worboyes v The Queen [2021] VSCA 169

Sentence:                  Total effective sentence of four years and one months imprisonment. Non-parole period set at two years and eight months imprisonment.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Dr J. Harkness	Office of Public Prosecutions
For the Accused	Mr N. Sood	Emma Turnbull Lawyers

HIS HONOUR: 

1Adam Richards, I will sentence you to a total sentence of four years and one months' imprisonment.  I will set a non-parole period of two years and eight months' imprisonment.  I will declare 249 days of your pre-sentence detention as time served under my sentences today.

2You pleaded guilty to a charge of aggravated burglary, two charges of obtaining property by deception, and a summary charge of possessing cartridge ammunition.

3The circumstances of your offending are set out in the document entitled 'Summary of prosecution opening for plea' which is Exhibit A.

Circumstances

4At about 2am on 10 October 2022, persons broke into the home of
Mr Colacito and stole his property, including a CBA debit card.  About 51 minutes later, you used the card to pay for $102.50 worth of cigarettes and drinks.  After about another 15 minutes, you used the card to pay for $96.28 worth of cigarettes and a drink.  These purchases with the card constitute Charges 1 and 2, charges of obtaining property by deception.

5At about 5 am on the same day, you and three others entered a boarding house by smashing a glass door. You were armed with a knife.  Two of your co-offenders knocked on the door of Room 9. One of its occupants opened the door, spoke to them and then closed the door and barricaded the door with a scooter.

6You and another co-offender left the building and walked to the external window to Room 9 and discharged a fire extinguisher and garden hose into the room.  The male occupant tried to barricade the window with a bicycle.  The occupants of Room 9 fled to Room 2 and the female occupant called the police.  You and the others fled before the police arrived.  You left before the others.

7Three days later, you were arrested.  In your possession was three rounds of rifle ammunition.  Although interviewed by the police you made no admissions.

Criminal history

8Between 23 July 2010 and 9 June 2022, you have appeared in a criminal court on 19 occasions, and have been found guilty or convicted of 175 charges.  You have been sentenced to terms of imprisonment on 11 occasions.  Your longest sentence was four and a half years' imprisonment with a non-parole period of two and a half years' imprisonment imposed on 9 February 2017 in this court.  These sentences were imposed following the cancellation of two community correction orders involving charges of armed robbery, aggravated burglary, and obtaining property by deception.

9Your criminal history contains 40 charges of obtaining property by deception and three attempts to do so, two charges of obtaining a financial advantage by deception and three charges of aggravated burglary and three charges of burglary.

Victim impact statements

10There are no victim impact statements, nevertheless they, that is the victims, must have found the circumstances frightening. 

Personal

11You are now 31.  You were born in Geelong and are the eldest of seven half-siblings.  You were the only child of your parents.  You are a First Nations person through your father. 

12During your childhood you changed residences many times.  Your childhood and early life were marred by trauma and instability.

13Your parents separated when you were 18 months old.  You were raised by your mother with your half-siblings.  When you were four, you witnessed your mother being sexually assaulted by one of her partners. 

14When eight you were placed into foster care due to your mother's substance abuse and chronic mental health issues.  It became difficult for her to care for you and your half‑siblings.  You endured substantial neglect while in foster care and were subject to emotional and physical abuse.  You gave an example to a psychologist of being locked in a chicken pen for several days by a foster parent.

15After you left home at 15, you were homeless with very little support except for regular contact with your mother and sporadic contact with one of your half-sisters. At present, your mother is unwell with cancer and uses methamphetamines.  You have no contact with your father even though he has attempted to contact you in recent years.  You are reluctant to reside with your mother as you are concerned it will trigger a relapse into substance abuse, given her drug use and antisocial habits.

16You report a close relationship with your maternal grandmother until she died in 2015, this took a significant emotional toll on you.

17From your mid-teens you engaged in criminal behaviours which resulted in detention or imprisonment.  You spent at least two years in juvenile detention centres and over eight years in adult prisons.

Relationships

18You met your former partner when you were 22.  The relationship ended in 2007.  There are two children now eight and six.  Both are in foster care.  You are not in contact with your former partner anymore, but you have regular contact with your children. You want to be a good father to them.

Education and employment.

19You completed school until halfway through Year 9. Before that, your education was disrupted owing to frequent changes of residence and poor attendance.  You never spent a year in any one school except when you lived in Queensland.  You were given special education services including speech therapy from the age of five and struggled with learning and behavioural issues.  You received intellectual disability support while living in Queensland.

20After you left school, you engaged in limited employment.  You worked as a paper delivery person for a short period at 16, followed by casual labouring for a friend.  You worked with your grandfather changing air filters.  You have never had any long-term employment.

21You completed a woodwork course with Berry Street Services and obtained various certificates while in custody.  You have taken on different jobs while in prison including cleaning, gardening and painting.  Currently, you are employed in the prison as a metal sprayer.

Substance use

22At 14 you started drinking alcohol, binge drinking on cask wine most days for about four years.  Also at 14, you reported smoking cannabis daily which continued into your early twenties. When you were 17 you started using methamphetamines and other ‘party drugs’ occasionally on the weekends.  Your drug use escalated when you commenced using methamphetamines from the age of 17.  This use increased from weekly to daily, and from smoking to regular intravenous use.  Before your present remand you injected between one and three and a half grams of methamphetamine daily.  You would use other substances such as heroin and GHB along with non-prescribed benzodiazepines and antipsychotics like Quetiapine and antidepressants.  Your use of GHB is more recent.  At the time of these offences, you were using 30 millilitres of GHB daily.

23Between 2008 and 2021 you were admitted to hospital many times due to drug overdoses.  After receiving Narcan treatment, you would then been discharged. 

24The longest period you have undergone without using drugs was between 2016 and 2019, when you were in prison serving a sentence.  During your time in custody, you have previously and currently engaged with the Buprenorphine program to assist with your withdrawal. 

25You have previously engaged in detoxification and rehabilitation programs, as well as alcohol and other drug counselling.

Medical and psychiatric history

26At one stage you were diagnosed with an intellectual disability however this diagnosis was disputed by various clinicians, most recently in 2020.  They consider your symptoms are better explained by an attention deficit hyperactivity disorder and a verbal language disorder.

27You have harmed yourself in the past.  Before going into custody, you received regular counselling as part of your NDIS package.  You have been seen by a psychiatrist and psychologist while in prison. 

28You have been treated for Hepatitis C.  You experience chronic pain in your right wrist and right knee after a football injury.  You are prescribed an anti-inflammatory medicine, Celebrex, to help ease the pain. 

29You currently take antidepressants and comply with your treatment in custody.  In the community you take your medicines intermittently.  You now receive long-acting Buprenorphine injections.

Psychologists

Simmons

30Warren Simmonds is a consultant psychologist.  At the request of your solicitors, he interviewed you on 4 November 2023[1]. 

[1]Report dated 4 November 2023.

31Apart from diagnosing you as suffering from three substance use disorders (GHB, opiate and stimulants), he did not diagnose any other recognised psychological disorder. On the basis of Dr Fratti's findings, she is a neuropsychologist who saw you, he noted your borderline intellectual functioning.  Mr Simmonds attributed your offending to your substance use, your limited intellectual cognitive ability, and the influence of others. 

32For treatment, he recommended drug and alcohol counselling undertaken by a dual disability worker.  The counselling should focus on increasing ‘self-efficacy’, harm minimisation and relapse prevention strategies. 

33As to the future, Mr Simmonds is pessimistic[2]:

‘Mr Richard will almost certainly be before the Court in the future as a result of limited cognitive ability, ongoing substance use and chaotic lifestyle.  Attempts to provide structure for Mr Richards will be limited and mechanisms for support financially are likely to fail as he will simply fend for himself if he does not have funds.  Mr Richard's offending appears to have arisen out of a childhood that was chaotic, where he was exposed to emotional and physical abuse, poor education outcomes, and a history of substance use.  While antisocial personality traits may contribute to his behaviour, his major difficulties seem to arise from a developmental history that was less than ideal.’

[2]At p 6.

Fratti

34Sara Fratti is a clinical psychologist.  On 7 October 2023, she interviewed you at the request of your solicitors[3].  They asked her to evaluate the potential impact of any cognitive impairment on your offending behaviours with a specific focus on the principles of R v Verdins[4] in relation to any neuropsychological diagnosis. 

[3]Report dated 22 October 2023.

[4](2007) 16 VR 269.

35She noted your experience of exposure to violence and substance abuse at an early age and witnessing your mother being sexually assaulted by one of her partners resulting in it making it difficult for you to form secure emotional attachments. 

36Dr Fratti assessed your intelligence quotient at 74, which placed you in the borderline range and moderately below persons of your age.  However, she noted there was significant differences in your intellectual skills. For example, your verbal comprehension skills were much lower than your perception skills. 

37Dr Fratti did not diagnose an intellectual disability or an acquired brain injury.  What she did diagnose was an attention deficit hyperactivity disorder and a verbal learning disorder.  These conditions arose in your childhood.

38Dr Fratti noted your symptoms of depression, anxiety and stress appear to be a part of your life since your childhood.  Largely, these symptoms have been untreated. 

39Her recommendations focused on how practitioners convey information to you.

Discussion

Purposes

40Section 5(1) of the Sentencing Act 1991 sets out the purposes for which sentences may be imposed:

(a)   to punish the offender to the extent and in a manner which is just in all of the circumstances;

(b)   to deter the offender or other persons from committing offences of the same or a similar character;

(c)   to establish conditions within which it is considered that the offender's rehabilitation may be facilitated;

(d)   to manifest the denunciation of the type of conduct the offender engaged in; and

(e)   to protect the community from the offender.

41Each of those sentencing purposes if relevant to your sentencing. 

42Section 5(2) of the Sentencing Act requires the consideration of various factors in sentencing where they are relevant to a particular case. 

Maximum penalites

43The maximum penalties for the offences are:

(a)   aggravated burglary, 25 years' imprisonment,

(b)   obtaining property by deception, 10 years' imprisonment;

(c)   possessing cartridge ammunition, a fine not exceeding 40 penalty units.

Nature and gravity of your offending

44In dealing with the nature and gravity of your offences I will concentrate on the charge of aggravated burglary.  This is easily the most serious charge you face. 

45In the DPP v Meyers,[5] the Court set out a number of considerations usually relevant to determining the sentence to be imposed for aggravated burglary. 

[5] [2014] VSCA 314 at [48].

46When you entered the building, you intended to assault the person your believed had sexually abused children.  You believed that person would be present in the building.  You and your three co-offenders entered the building by smashing a glass panel on the door.  You were armed with the knife.  Owing to the level of anger expressed by one or other of your co-offenders and recorded on the CCTV footage you intended to use the knife to threaten the victim at the very least.  One cannot find what you intended to do with the tyre. You entered the building at about 5am when most people are asleep.  I do not know whether the intended victim knew you beforehand.

47The absence of victim impact statements do not detract from the frightening nature of your actions and those of your co-accused. 

48As the court in Meyers observed[6]:

‘The particular purpose which the offender has in mind at the point of entry is a significant feature going to the gravity of the offence.’

[6] At [49].

49The offence of aggravated burglary is completed upon entry.  Nevertheless, I was shown CCTV footage of your approach to and departure from the building.  Your presence inside the building was brief.  You left the area after the window to Room 9 was broken.  Although the offence was committed, your actions deserve mitigation of the sentence.  Obviously, courts must encourage offenders to act in the way you did, by avoiding the commission of further serious offences

50Notwithstanding your subsequent actions, this offence of aggravated burglary is not at the lower end of such offences, it is in the mid-range of objective seriousness.

51Turning to the charges of obtaining property by deception, they are relatively minor instances of the offence, routinely dealt with in the Magistrate's Court.

Bugmy

52You rely upon the principles stated by the court in Bugmy v The Queen[7]:

‘…The experience of growing up in an environment surrounded by alcohol abuse and violence may leave its mark on a person throughout life.  Among other things, a background of that kind may compromise the person's capacity to mature and to learn from experience.  It is a feature of the person's make-up and remains relevant to the determination of the appropriate sentence, notwithstanding that the person has a long history of offending.’

[7] (2013) 249 CLR 571 at [43].

53These observations were influenced by the particular facts of Mr Bugmy's case.  The underlying reason for assessing the consequences of a person's upbringing was made clear by our Court of Appeal in DPP v Herrmann[8]:

‘It is the mark of a humane society that the moral judgment expressed through sentencing should take account of the lifelong damage that may result from exposure to violence or abuse or parental neglect in an offender's formative years.’

[8] [2021] VSCA 160 at [46].

54In Sabbatucci v The Queen[9] the Court explained the elements requiring evaluation:

‘Whether, and to what extent, social disadvantage warrants a reduction in moral culpability in a particular case falls to be assessed by reference to the nature and circumstances of the offence, the nature and severity of the disadvantage suffered and whether the effects of the disadvantage can be seen to be in any way explanatory of the offending.’

[9] [2021] VSCA 340 at [6].

55In Newton v The Queen[10] the Court noted in Bugmy’s case there were two ways in which childhood deprivation may be relevant to the assessment of moral culpability, the general and the specific.  The general is captured in this passage[11]:

‘The circumstance that an offender has been raised in a community surrounded by alcohol abuse and violence may mitigate the sentence because his or her moral culpability is likely to be less than the culpability of an offender whose formative years have not been marred in that way.’

[10] [2023] VSCA 22 at [36].

[11]Bugmy at [40].

56And the specific[12]:

‘An offender's childhood exposure to extreme violence and alcohol abuse may explain the offender's recourse to violence when frustrated, such that the offender's moral culpability for the inability to control that impulse may be substantially reduced.  However, the inability to control the violent response to frustration may increase the importance of protection of the community from the offender.’

[12]Bugmy at [44].

57You rely on the general way, not the specific way.  You point to your exposure to violence and substance abuse and homelessness when young.  Applying Bugmy in the general way, I agree your moral culpability is reduced through your dreadful experiences as a young person.

Guilty pleas

58Although you offended on 10 October 2022 and pleaded guilty on 3 August 2023, there was a committal hearing in the Magistrate's Court but not witnesses were called to give evidence.  The timing of your guilty pleas is early. 

59By pleading guilty you have taken responsibility for your offending.  Your guilty pleas have the practical effect of assisting the criminal justice system.  It creates room for those proceedings which genuinely require a jury trial.  It relieves witnesses of the burden of giving evidence in this court, especially the victims.

60Even though the problems caused by the virus to the criminal justice system have lessened, they have not disappeared.  The sense of crisis expressed by the court in Worboyes v The Queen[13] has also lessened.  Although the backlog of cases created by the pandemic has been overcome in this court, criminal jury trials are still made difficult by the effects of the virus.  Even now, a guilty plea deserves a greater discount on sentence than would be the case in normal times. 

[13][2021] VSCA 169.

61Overall, your guilty pleas deserve a significant discount on the sentence which would have been imposed in their absence.

Prospects of rehabilitation

62Amber Rea has been your NDIS support coordinator since February 2023.[14]  Although there is a significant amount of support coordination hours available to you under the plan, access to them is in abeyance while you are in custody.  Ms Rea noted your plans when you are released from custody. You would like to work as a crossing guard. You wanted to be more involved in your children's lives.  Ms Rea would help you reconnect with your family. She would help you find accommodation.

[14]Letter dated 8 December 2023.

63Your mother is ill, but you do not want to live with her as her drug use might lead to return to drug use, something you do not want.  You are determined not to use drugs.  You have an entrenched addiction so giving up will prove hard.

64Although I accept you are remorseful for your offending, your prospects of rehabilitation are most uncertain.  In part, I am influenced by Mr Simmons’ assessment which is decidedly pessimistic.  You are very much a product of your dreadful upbringing.

Sentence

65Charge 1, a charge of obtaining property by deception, I sentence you to one month's imprisonment.

66Charge 2, a charge of obtaining property by deception, I sentence you to one month's imprisonment.

67Charge 3, a charge of aggravated burglary, I sentence you to four years' imprisonment.

68Summary Charge 7, possessing cartridge ammunition, you are convicted and discharged. Imposing a fine is likely to be an indirect way of imposing imprisonment, as the fine is unlikely to be paid.  Fining you would serve no useful purpose.

69The sentence on the charge of aggravated burglary is the base sentence.  The sentence on the first charge of obtaining property by deception will be served cumulatively upon the base sentence.  The sentence on the other charge of obtaining property by deception will be served concurrently with the other sentences of imprisonment.  The total sentence is four years one months' imprisonment.  I will set a non-parole period of two years and eight months' imprisonment.

70In relation to these charges there are 249 days of pre-sentence detention.  I declare those 249 days as time served under my sentences today.

S 6AAA

71If you had not pleaded guilty to these charges where I have sentenced you to terms of imprisonment but had been found guilty of those charges after a trial, I would have sentenced you to a total sentence of six years' imprisonment and set a non-parole period of four years' imprisonment.

Disposal Order

72I will make the disposal order in the terms of the draft order.

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