Director of Public Prosecutions v Richardson

[2021] VCC 1263

stab

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-20-01730
Case No. CR-20-01731

DIRECTOR OF PUBLIC PROSECUTIONS

v

JARROD RICHARDSON

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JUDGE:	HIS HONOUR JUDGE WRAIGHT
WHERE HELD:	Melbourne
DATE OF HEARING:	27 August 2021
DATE OF SENTENCE:	2 September 2021
CASE MAY BE CITED AS:	DPP v Richardson
MEDIUM NEUTRAL CITATION:	[2021] VCC 1263

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentencing.

Catchwords:              Plea of guilty – Common assault – Theft – Robbery – Blackmail – Burglary – Serious example of attempt to pervert the course of justice – Extensive criminal history – Prospects of rehabilitation assessed positively – Verdins – Parity – COVID-19 pandemic.

Legislation Cited:      Crimes Act 1958 ss 74, 75, 76, 87(1); Sentencing Act 1991 ss 6AAA, 18, 44.

Cases Cited:Worboyes v The Queen [2021] VSCA 169.

Sentence:                  Imprisonment for a period of 2 years. Upon release, a Community Correction Order for a period of 2 years.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr P Teo	Office of Public Prosecutions
For the Accused	Mr C Nikakis	Haines and Polites Legal Practitioners

HIS HONOUR:

Introduction

1Jarrod Richardson, you have pleaded guilty to:

·        one charge of common assault contrary to the common law, which carries a maximum penalty of 5 years imprisonment (Charge 1);

· one rolled up charge of theft contrary to s 74 of the Crimes Act 1958, which carries a maximum penalty of 10 years imprisonment (Charge 2);

· one charge of robbery contrary to s 75 of the Crimes Act 1958, which carries a maximum penalty of 15 years imprisonment (Charge 3);

· one charge of blackmail contrary to s 87(1) of the Crimes Act 1958, which carries a maximum penalty of 15 years imprisonment (Charge 4);

· one charge of burglary contrary to s 76 of the Crimes Act 1958, which carries a maximum penalty of 10 years imprisonment (Charge 5); and

·        one charge of attempting to pervert the course of justice contrary to the common law which carries a maximum penalty of 25 years imprisonment (Charge 6).

2You have also admitted your Criminal Record.

Circumstances of the offending

3A prosecution opening was tendered on the plea and may be summarised as follows:

Charges 1 to 5

4The victim in relation to Charges 1 to 5 is Myles Kummrow, who was 32 years of age at the time of the offending and known to you since mid 2017. You had previously lived with the victim for one to two months.

5On a date between 1 and 22 March 2019, you attended at the victim’s house at 1A Rupert Street, Mitcham. You told the victim that some of your belongings, including a laptop, were missing from the house. The victim explained to you that other people had stayed in the house and the room that you had previously stayed in had been cleared out.

6The victim found a laptop and gave it to you. You stated it was not your laptop. You knocked everything off the coffee table and hit the victim over the head with the laptop, before throwing it at him. You then punched the victim to the left side of his head. It is these facts that relate to Charge 1, common assault.

7You then demanded the victim’s wallet which he was unable to find. You walked out of the house. The victim later found his wallet, with $1,100 in cash missing. It is these facts that form part of Charge 2, theft.

8On 23 March 2019, you attended at the victim’s home around lunch time. You told the victim that you were going to collect your belongings. The victim let you in.

9Once inside, you became aggressive. You told the victim to hand over his phone and turn off the CCTV. The victim complied. It is these facts that relate to Charge 3, robbery. You then called a friend, and made the victim give you the pin code to his phone.

10The victim noticed that the front door was still open and ran outside. The victim hid between a couple of townhouses, where he was discovered by a neighbour, Daniel Masci.

11Police attended at the address, but you had left. Senior Constable Philip Gibby observed a broken laptop and asked the victim if it had been broken in the incident. The victim told Senior Constable Gibby that it had been damaged in the prior incident where he was assaulted by you.

12Later that night, the victim noticed that his wallet had been stolen from the couch, containing $200 in cash and various cards. It is these facts that form part of Charge 2, theft.

13On 28 March 2019 the victim was standing on the roof of his house flying a drone with his friend, Charlotte Miller. He observed you jog up to the house and approach the front door. The victim called 000 and lay flat on the roof. He heard you enter the house and call out his name.

14CCTV footage depicts you arriving and searching inside the house, picking up items whilst the victim’s friend Belinda Horgan was asleep in the lounge room at the time. After several minutes, the victim saw you jump over the fence into Clive Street.

15The victim later discovered that a number of items were missing from his house, including a Sony Xperia ZX2 mobile phone, a portable jump starter kit, a black backpack containing two torches, and $15 in cash. These facts also form part of Charge 2, theft.

16On 30 March 2019 at 6.04 am, the victim received a text message from a Telstra payphone, which stated ‘IF U DONTanswe THE private number this morning i will email all data to rachel and your family for a start. all this and me can go awaYi’.

17Soon after this message was received, the victim answered a call from a private number. It was you, telling him to meet you at the McDonalds on Maroondah Highway in Croydon at 8 am.

18The victim drove to the McDonalds and parked in the rear carpark. You arrived on a motorcycle. You told the victim that he needed to pay you $5,000 and a litre of ‘juice’, which the victim took to mean GHB. You said that you would leave the victim alone and give him all his stolen items back. You told the victim that he had to pay you $1,000 by the end of the day, and that the victim had to provide a date when he would have the remainder of the money. You told him that it was not an option to not pay and that you were not asking. The victim was intimidated and scared. It is these facts that relate to Charge 4, blackmail.

19You and the victim arranged to meet again at 6 pm that night. CCTV footage from the McDonalds depicts the meeting between you and the victim in the carpark.

20The victim then went home and called police, speaking to Detective Senior Constable Paul Woods. Constable Woods told the victim to pack a bag and get out of the house. Detective Senior Constable Woods asked the victim to come to the police station, but the victim did not do so.

21At approximately 8 pm you attended at the victim’s home. The victim went to his room and locked the door, pretending that no one was home. The victim watched the CCTV cameras on his mobile phone, and saw you take his dog and walk him out of the front gate.

22After you left, the victim packed some bags and left the house. He returned the next day at about 10 am or 11 am. The front door had been kicked in and the victim’s dog had been returned. The house was ransacked which gives rise to Charge 5, burglary. The DVR from the CCTV system had been ripped out and removed, which forms part of Charge 2, theft.

23Approximately one week later, you attended at the victim’s house. The victim told you to leave him alone. You told the victim that the price was now $2,000, not $5,000 as you had previously indicated, and that if the victim paid the money there and then you would return everything you had stolen and leave the victim alone.

Charge 6

24The victim in relation to Charge 6 is Dannielle Payne. At the time of this offending, she was 31 years old. Your family and Ms Payne’s family were known to each other.

25The coaccused in relation to Charge 6 is your brother Corey Price. At the time of this offending, he was 26 years old.

26On 6 May 2019, Ms Payne was living at 4 Crowley Road, Healesville, with her partner Colin Postlethwaite and their children. Mr Price was staying in a bedroom at that address as a boarder for two weeks.

27An argument occurred between Ms Payne and Mr Price after she believed that he was using drugs whilst in her home around her children. Ms Payne told Mr Price that he could not live in the house as of that day.

28Mr Price punched three holes in the wall of the hallway. He then grabbed Ms Payne by the throat, punched her to the head, and threw her to the ground. Mr Price told Ms Payne, ‘Don't call the cops, you fucking dog’ before leaving the address. Ms Payne sustained a cut to her lip and abrasions to her upper back as a result of the assault.

29After leaving the address, Mr Price attended at the Healesville Inter-Church Community Centre on the Maroondah Highway in Healesville. Whilst using the phone at the premises, a member of staff overheard Mr Price shouting that he had just bashed someone. The staff member called 000. Shortly after, whilst he was still on the phone, Mr Price was arrested by police.

30At approximately 10.34 am on 7 May 2019 Mr Price telephoned his mother, Susan Richardson, from the Melbourne Assessment Prison, where he had been remanded in custody.

31The following exchange between Mr Price and his mother was recorded on the Arunta phone recording system:

CP: So yesterday things got out of hand didn't they and I know you don't agree with it and whatever but ah you know I did the wrong thing and you know the town where I grew up where I remember everything, that was the last town I was allowed to be a kid in, soon as we moved into Rosebud my childhood was over 'cause I was taken away by you remember? My childhood ended when we left Healesville, Healesville was all I had left and now she's going to go running around town telling everyone about this, I need you to speak to Jarrod for me, to have her not come to court 'cause I'm going to beat this, I'm going to beat it in court, OK. Jarrod needs to go and speak to her.

SR: Alright, well I don't know how you're going to beat it mate.

CP: Well if she doesn't rock up to Court, do you know what I mean, that's how I beat it. There's no bloody he said she said, it's just I say that's it, end of story, she don't turn up. You get what I'm trying to say?

SR: Yes I do mate.

CP: I need her to retract her statement OK.

SR: Um I don't think that will happen.

CP: Why?

SR: Mate there's police involvement.

CP: Yeah no shit!

SR: Alright calm down.

CP: Nah let's get some ahhh fucking what do you call him involvement, let's get some JR involvement.

SR: He can't afford to mate.

CP: If you could just speak to him about it mum for fucks sake.

SR: Right yeah just watch how you're talking will ya.

32Call charge records revealed that Ms Richardson attempted to call Ms Payne at 10.38 am shortly after this conversation with Mr Price. The records also reveal that Ms Richardson attempted to contact you by telephone on 8 May 2019 at approximately 1.39 pm, and on 9 May 2019 at approximately 2.04 pm.

33At approximately 5.18 pm on 9 May 2019, Mr Price again telephoned Ms Richardson.

34The following exchange between Mr Price and his mother was recorded on the Arunta phone recording system:

SR: It’s a serious assault, it might end up in the...

CP: What, a serious assault?

SR: You kicked a woman in the face, mate. She had to get medical attention, it’s classed as a serious assault.

CP: Fuck.

SR: They’ve taken photos and everything.

CP: Well, you gotta bloody – you gotta tell Jarrod about this. Yeah? Just ring –

SR: I can’t even get – yeah.

CP: Yeah. Well, you’ve gotta get a hold of him, mum, you have to.

35At approximately 5.38 pm that day, call records show that Ms Richardson twice telephoned you, unsuccessfully, with you returning the call at 5.57 pm, where a 19-minute phone conversation occurred. A short phone call of less than two minutes duration occurred at approximately 8.33 pm.

36At approximately 5.15 pm on 15 May 2019, you spoke with Mr Price from Port Phillip Prison.

37The following exchange between you and Mr Price was recorded on the Arunta phone recording system:

JR:  Yeah.  Well, you know, like, I - I had a chat to her and she - she told me the truth about what happened, you know, she - you know.  And I - and I said to her, "Why did you make" - I said, "Did you - is that what you told them?"  And - and she said that she told them different stuff.  And I said, "Why?"  And she said, "Oh, just" - you know, "I just didn't wanna be - be the aggressor and, you know, I didn't wanna get in trouble."  And I was like, "How you gunna get in trouble?  You were just having a scuffle with someone."  Do you know what I mean?

CP:  Yeah.

…

JR:  I've - I .......... her and she - she - she - yeah.  She told me that she - what - what happened and what she said was totally different.  And I said, "Well, you - you better go and straighten it up because - you know, because otherwise .......... buried in there, it's not right."

CP:  Yeah.

JR:  So - so she said she's gunna sort it out.  All right?

…

JR:  Doesn't matter, doesn't matter, we'll - we'll get the - it doesn't matter, you know, it - it doesn't matter, it'll get sorted out.  O.K.?

CP:  Yeah.

JR:  It'll get sorted out.  Just don't say - just don't talk - don't talk about the incident on - on the phone, don't talk about the incident - - - you know, to – to a lawyer. You – you know what I mean?

CP: Okay.

JR: Don’t say anything more about it, like… it can end up worse for yourself.

38On or about the evening of 15 May 2019, you attended at 4 Crowley Street Healesville looking for Ms Payne. Ms Payne was not home, but you obtained her phone number from her partner Colin Postlethwaite. You called Ms Payne, and then met her at the Crown Hotel in Main Street, Lilydale. Ms Payne was present in the gaming area with her cousin, Faith Jansen. You told Ms Payne that you wanted to talk to her, but not in the hotel.

39Ms Payne met you shortly after in a dark area near Swansea Road, Lilydale. Ms Payne was in the driver’s seat of her car with her cousin in the front passenger seat. You were seated on a motorcycle alongside the driver’s door.

40You told Ms Payne to retract her statement against Mr Price because he had Asperger’s. As you were telling her to retract her statement, you were banging your hand down hard on the windowsill of her door. You then handed her $50 cash and two points of ice and told her you would be in touch.

41You subsequently made several phone calls to Ms Payne on 16 May and 1 June 2019. On 8 June 2019 you sent Ms Payne a text message: ‘Hey mate can you please call me.’

42In late May or early June 2019, Ms Payne was at home with her partner Mr Postlethwaite when you attended at her house. You asked, ‘Why haven’t you retracted your statement?’ and said, ‘We’ll go and get a Stat Dec. I’ll fill it out and then we can go to the pharmacist, and you can sign it in front of him.’

43You then said to Ms Payne, ‘Look, if you don’t listen to me, I’m going to make your life fucking hell, and yours (whilst pointing to Postlethwaite)’.

44You then left the premises, saying, ‘You’ll hear from me.’

45At approximately 9.30 am on 14 June 2019, Ms Payne attended at the Healesville Police Station and made a request to retract her statement against Mr Price. Sergeant Tim Stewart asked Ms Payne for her reason for wanting to withdraw her statement. She explained that she had been receiving pressure from a relative of Mr Price by the name of Jarrod Richardson and showed Sergeant Stewart the calls she had received on her phone.

46Later that day at 2.40 pm, Senior Constable Denise Charter called Ms Payne, who told Senior Constable Charter that you had visited her. Senior Constable Charter asked if you or anyone on behalf of Mr Price had contacted her about the matters. Ms Payne said, ‘Yeah but can I make no comment please. He was here a couple of hours ago, but I would prefer to say no comment because I’m quite scared.’ An appointment was made for a statement to be taken, but this did not occur.

47On 9 July 2019, at approximately 2.52 pm, Mr Price again telephoned Ms Richardson. The following exchange, inter alia, between Mr Price and his mother was recorded on the Arunta phone recording system:

SR: I could be charged with interfering with the crown witness, it’s a serious offence.

…

SR: That’s right. You hacked on me to tell Jarrod to go and see Dannielle to get her to retract her statement. I said, “Yeah, all right,” and, “Stop talking like that.” That’s what I’ve said, all in one sentence. And the fact that I contacted Jarrod or he contacted me, either way, depending on what I’ve said to him, that is interfering with the crown witness.

48It is these facts that relate to Charge 6, attempt to pervert the course of justice.

49On 27 June 2019, you were at the Maroondah Hospital as a result of being assaulted. Police formed the view that you were not fit for interview following discussions with medical staff and you were remanded in custody.

Nature and gravity of the offending

50Mr Nikakis who appeared on your behalf, provided some further background detail in relation to the offending where Myles Kummrow is the victim. You and Mr Kummrow had been friends and he had agreed to store some of your personal items while you were serving a prison sentence. Having discovered that some of your items had been lost while in the care of the victim, you became angry and engaged in conduct that ultimately resulted in Charges 1 to 5 on the indictment.

51Charge 5, blackmail is the most serious of the charges relating to Mr Kummrow. Your conduct and threats in relation to this charge caused the victim to be intimidated and scared. While it may be said that your conduct in relation to this charge did not involve an actual threat of physical harm, it followed an assault and a number of other threatening acts by you such as robbing the victim of his mobile phone and the theft of a number of items belonging to the victim. Thus, in my view while not a high end example of the offence, it is nonetheless serious conduct.

52Charge 6, attempt to pervert the course of justice, is an inherently serious offence which is reflected in the maximum penalty of 25 years imprisonment. It is an act that is designed to interfere with the administration of justice, in this case an attempt by you to stop a prosecution against your brother. Mr Nikakis submitted that the offending was a result of ‘misguided loyalties’ to your brother. While that may have been the motivation, your conduct consisted of a number of acts that were designed to pressure a witness to withdrawing her complaint against your brother. The most serious of those was when you met the witness, made threatening physical gestures while she was sitting in her car and providing her with cash and drugs in order for her to comply with your demand. Not unlike your conduct in relation to Mr Kummrow, you behaved as a bully intending to scare and intimidate the victim and as such, in my view your offending is a relatively serious example of this offence.

Victim impact statement

53A victim impact statement was prepared by Mr Kummrow and tendered on the plea. Mr Kummrow writes of the profound and ongoing emotional impact of your offending including anxiety and panic attacks. As a result of the fear and feelings of paranoia he experiences, Mr Kummrow has decided to sell his home and move, a decision he states is a direct result of your offending. He does not believe that he will entirely recover from the impact of your conduct.

54A victim impact statement was prepared by Ms Payne and tendered on the plea. Ms Payne speaks of the constant fear she feels for her safety and the safety of her family as a result of your offending. She is hyperaware of security and feels the need to lock and check doors and windows, worried that you will return one day. She struggles being home alone.

55I take the contents of both victim impact statements into account.

Personal circumstances

56You are 41 years of age and were 39 at the time of the offending. You grew up in a large family of eight children. Your father left the family home when you were seven years of age and your mother had a number of subsequent relationships.

57You are the father of four children: one daughter aged 23 and three sons aged 21, 16 and three. As a result of being on remand for some two years, you have had little time to bond with your young son.

58As to your employment history, you have worked in construction, as a labourer and a stonemason. You are also a self taught arborist and have worked in that industry.

59Leading up to your arrest for this offending you were the victim of a physical assault and were hospitalised as a result. The injuries you sustained included a broken nose, fractures to your eye socket and a stab wound to your lung. It was submitted that this incident has been a pivotal event in your life motivating you to actively rehabilitate yourself and choose a different path going forward.

60You have taken active steps towards your rehabilitation whilst on remand, building on your education, life skills and employability. You have completed 15 different courses in custody up until February 2021 confirmed by certificates of completion that were tendered. Most notably, you have been engaged in RMIT’s Inside Out Prison Exchange Program which is a collaboration between criminal justice university students and prisoners on the subject of comparative criminal justice systems. A reference letter was tendered on the plea from Senior Lecturer Dr Marietta Martinovic who facilitates this program. Dr Martinovic writes of your outstanding dedication and achievement in the program. It is clear you are valued by program facilitators and participants and that you have demonstrated real potential for undertaking higher education.

61Dr Martinovic gave sworn evidence on the plea confirming your involvement in the RMIT program. Dr Martinovic provided further details as to the content of the course and your contribution, referring to some of the papers you had written as part of the assessment. Since the writing of the letter she was able to confirm that you excelled in the program, receiving a high distinction. Further, evidence was provided confirming that you would further benefit from continuing with the ‘Think Tank’ program upon your release where you are also able to act as an advocate for men in prison.

62You have the ongoing support of your grandparents. A letter from your grandmother, Elaine Dartmann was tendered on the plea. Ms Dartmann writes that you have expressed remorse for your past conduct and that you are committed to a fresh start to be able to support yourself and your family. She also indicated her willingness for you to live with her in Benalla upon your release.

63A letter from your previous employer Christopher Vellios was tendered on the plea. Mr Vellios hired you in 2019 to perform manual jobs on a property in Warrandyte. He describes you as a reliable and trustworthy worker and is willing to employ you again once you are settled in the community.

64A number of urine screens were also tendered on the plea which confirm that you have remained drug free in custody.

Sentencing considerations

65On 7 December 2020, a committal hearing took place during which witnesses were cross-examined and the matter was committed to this Court for trial. The matter resolved to a plea of guilty at an Initial Directions hearing in June this year, in circumstances where the more serious contested charges were withdrawn. Whilst your plea was not entered at the earliest stage, it still has considerable utilitarian value. It has spared the resources and time of a jury trial and meant that the victims have not had to give evidence again.  Your plea carries additional weight in the context of the pandemic which has created a substantial backlog of cases in the criminal justice system.[1]

[1] Worboyes v The Queen [2021] VSCA 169 at [39].

66As to your prospects of rehabilitation, in my view the evidence strongly supports that following this offending, and the separate assault you suffered, you have made a conscious decision to turn your life around. As such, you have made considerable efforts in the two years you have spent on remand to assist you in making a real change. Most notably is your involvement and successful completion of the RMIT Inside Out Prison Exchange Program in addition to completing a number of other courses whilst on remand. You have also remained drug free. While you will face further challenges upon your release into the community, you have the support of family and a commitment to continue in a positive direction. In all the circumstances in my view your prospects of rehabilitation can be assessed very positively.

67I take into account the fact that your time in custody has been particularly onerous because a vast portion of your time on remand has been served during the COVID-19 pandemic. Prisoners are subjected to lockdowns, quarantine periods and there are restrictions on personal visits, education and rehabilitative programs. You have had no in person visits from your children, other family or friends since the pandemic. Given the current state of the virus in the community, restrictions may remain for some time.

68General and specific deterrence are paramount sentencing considerations in this instance. In relation to Charge 6, others must be made aware that interfering with the administration of justice will attract serious penalties. As to specific deterrence, while you are making genuine efforts to change, you have an extensive criminal history and are only now beginning to gain insight into your criminal behaviour. As such, specific deterrence has a role to play in the sentencing calculus.

69Mr Nikakis submitted that parity is a relevant consideration. Your brother, Corey Price was also charged with attempting to pervert the course of justice and sentenced for his involvement in the offence. I have read and considered the sentencing remarks of His Honour Judge Murphy who sentenced Mr Price on 11 May 2020. It is clear that Mr Price’s involvement in the offending is much more limited and his personal circumstances very considerably to yours, including your respective prior criminal histories. More specifically, your brother suffers from a low level of intellectual functioning and as such Verdins principles were applicable in his case.

70Mr Nikakis submitted that in all the circumstances, a term of imprisonment consisting of the time you have already served, in combination with a community correction order is a disposition that would meet all the relevant sentencing considerations in this case. I had you assessed for such an order and you have been found suitable. In all the circumstances in my view, a combination sentence pursuant to s 44 of the Sentencing Act 1991, is able to meet the applicable sentencing considerations in this instance and will provide you with further opportunity to continue your rehabilitation in the community.

Sentence

71Mr Richardson, please stand.

72Jarrod Richardson on Charge 1, common assault, you are convicted and sentenced to 6 months imprisonment. On Charge 2, the rolled up charge of theft, you are convicted and sentenced to 8 months imprisonment. On Charge 3, robbery, you are convicted and sentenced to 10 months imprisonment. On Charge 4, blackmail, you are convicted and sentenced to 12 months imprisonment. On Charge 5, burglary, you are convicted and sentence to 8 months imprisonment. On Charge 6, attempt to pervert the course of justice, you are convicted and sentenced to 18 months imprisonment, which will be the base sentence. I direct that 6 months of the sentence on Charge 4 be cumulative on the sentence imposed on Charge 6 making for a total effective term of imprisonment of 2 years, which after the deduction of presentence detention, will form the prison component of an order pursuant to s 44 of the Sentencing Act 1991.

73In addition to the prison component of the sentence, upon your release you will be placed on a community correction order, with conviction, for a period of 2 years.  While all community correction orders are punitive, the focus of the order will be therapeutic. You will be required to complete treatment programs to further address your drug use and specific offending. It is hoped that you will be able to engage with the RMIT ‘Think Tank’ program as part of your community correction order. You will also be subject to judicial monitoring and supervision.

74Pursuant to s 18 of the Sentencing Act1991, I declare that 797 days be reckoned as the period of imprisonment already served under the sentence I have imposed. That does not include today. Therefore, after the s 18 declaration, the result is a term of imprisonment which complies with s 44.

75Pursuant to s 6AAA of the Sentencing Act 1991, I indicate that had you not pleaded guilty, I would have sentenced you to a period of 3 years imprisonment with a non-parole period of 2 years.

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