Director of Public Prosecutions v Richardson (a pseudonym)

[2024] VCC 943

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

DIRECTOR OF PUBLIC PROSECUTIONS

v

DONALD RICHARDSON (A PSEUDONYM)

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JUDGE:	HIS HONOUR JUDGE CAHILL
WHERE HELD:	MELBOURNE
DATE OF HEARING:	2 May 2024 and 17 June 2024
DATE OF SENTENCE:	21 June 2024
CASE MAY BE CITED AS:	DPP v Richardson (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2024] VCC 943

REASONS FOR SENTENCE
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Subject:Reckless conduct endangering serious injury, criminal damage

Catchwords:            Guilty plea – family violence offending

Legislation Cited:    

Cases Cited:Zac Skeates (a pseudonym) v the King [2023] VSCA; Avan v the Queen [2019] VSCA 257; Brodie Cooper v the Queen [2020] VSCA 288; Laa v the Queen [2020] VSCA 136; Carter (a pseudonym) v R (2018) 272 A Crim R 170; Zogheib v the Queen (2015) 257 A Crim R 454; Brodie Cooper v the Queen [2020] VSCA 288; Navatheepan Navaratnam v the Queen [2021 VSCA 26; The Queen v Vicki Lee Roach [2005] VSCA 162; Dylan Borg v the Queen [2017] VSCA 71; Didier Lam Kee Shau v the Queen [2020] VSCA 252

Sentence:                Total effective sentence of four years and six months imprisonment –

minimum non-parole period of two years and nine months

S 6AAA total effective sentence of six years and six months with a non-parole period of four years.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr D. O’Doherty Mr E. Ritli	Office of Public Prosecutions
For the Accused	Mr G. Davis	Martin Middleton Oates Lawyers

HIS HONOUR:

1Donald Richardson,[1] you have pleaded guilty to the Federal offence of using a carriage service to harass and the following State offences:

(a)   four charges of damaging property;

(b)   seven charges of reckless conduct endangering serious injury;

(c)   one charge of cause injury recklessly; and

(d)   four related summary offences, each a charge of contravention of a family violence intervention order.

[1] A pseudonym.

Circumstances of offending

2Your offending occurred on Christmas Day 2022 at Red Cliffs. [2]

[2] The circumstances are set out in the summary of prosecution opening (Exhibit A).

3The victims of your crimes are your wife, your four children and two of their partners.

4Until November 2022, you had been with your wife for nearly 30 years. Your children Russell[3], Darren[4], Stacey[5] and Sienna[6] were then aged 24, 18, 16 and 12.

[3] A pseudonym.

[4] A pseudonym.

[5] A pseudonym.

[6] A pseudonym.

5On 25 November 2022, and in the days following, you sent your wife a number of text messages. When she failed to respond you messaged her that you would burn her life as she had done to yours. When she informed you she did not want any communication with you, you responded 'my life is ruined I’m taking you with me'.

6On 13 December 2022, you were served with a copy of an interim family violence intervention order, prohibiting you from contacting your wife and two daughters, going to their home, or damaging their property.

7On 24 December 2022, your wife and daughters baked a pie for you and took it to your home.

8When they arrived, you came out, you hugged Sienna and thanked them all before they left.

9On Christmas Day, around 6:15 pm, in breach of the intervention order, you walked to your wife’s home with your dog.

10You returned earphones to your wife before sitting on the front porch where you spoke with your daughters, again in contravention of the intervention order.

11While you were on the front porch, your son Darren arrived with his partner, Leyla[7]. You challenged her to call her father, who is a police officer, to get him to come to the house to shoot you.

[7] A pseudonym.

12Shortly after you fled, leaving your dog behind.

13Your behaviour distressed your daughters, and your wife contacted police.

14

You walked home. On your way you stopped at your wife’s parent’s home. You told them you were giving your dog to one of your daughters. You gave your

father-in-law a hug before you left. He was concerned about your behaviour.

15When you got home, you got into your car and you drove to your wife’s home, in breach of the family violence intervention order.

16You parked in the crossover in front of the driveway where the cars of Russell’s partner, Kristal[8], and your wife were parked.

[8] A pseudonym.

17From your car, you called out, asking for your dog back. When you heard no reply, you got out of your car and asked again. You walked to the front door where Russell returned your dog.

18You wife asked you to leave and told you police were on their way.

19You went back to your car with your dog. When you got into the car, you reversed a short distance before you accelerated forward and rammed into the rear of Kristal’s car, which pushed it into the rear of your wife’s car.

20You reversed back onto the road at speed and hit Darren’s car which was parked on the street.

21Your wife, Stacey, Darren and Leyla were inside the house. They walked out of the front door onto the porch. Russell and Kristal were also inside the house; Sienna was too.

22Your wife walked from the porch into the front yard. You accelerated towards her. As you crashed through the front picket fence, she ran to avoid you.  You rammed your car into the front room where Sienna was watching from inside. Your car dislodged the couch, which knocked Sienna to the ground.  It also struck your wife, knocking her over.

23Darren and Leyla were on the front porch with your wife; Stacey also. Debris from the lounge room walls, which collapsed around them, struck them and Russell and Kristal who were inside.

24You then reversed and drove your car towards your wife who was standing on the porch with Darren. When the car hit the porch, it got stuck in debris and you stopped.

25A neighbour, who had heard the crash, came to help. He got you out of your car and held you until police arrived.

26The whole terrifying episode was captured on your car's dashcam.[9] It was 30 seconds of horror.

[9] Dash camera footage from Mr Ricardson’s vehicle (Exhibit B).

27Screams are heard when you drove at your wife and rammed your car into the lounge room, and more screams are heard when you reversed and drove towards Darren and her on the front porch.

28The desperation can be heard in your son’s voice when he told you to get out.

29Your feeble response was 'Christmas is ruined mate'.

30When police arrived, they arrested you.

Police interview

31When they questioned you, you said:

'I just went silly… I drove the car into the house… I just can’t believe I did it…

'I’ll regret it for the rest of my life.'

'I didn’t mean to hurt anyone. I love all of them.  I am broken.'

32Police questioned you again the next day. When they showed you your car’ s dash cam footage you said you felt 'horrible' and 'bad'.

Chronology of proceedings

33You were remanded in custody.

34On 28 December 2022, another family violence intervention order was made prohibiting you from having any communication with Russell and Darren. You were present in court when the orders were made.

35Your mother sent Russell a letter which he received on 31 January 2023. With her note, there were letters you had written to each of your four children, variously praising them and affirming your love for them, in contravention of the family violence intervention orders.

36On 16 August 2023, you were admitted to bail.

37On 28 September 2023, your bail was revoked when you breached one of the intervention orders.

38You accepted your committal to this court without cross examination of any witness.

39On 23 February 2024, you pleaded guilty to the charges now before the court.

Victim impact statements

40As a result of your crimes:

(a)   Leyla suffered a dislocated shoulder, bruising to her shoulder and left foot and concussion. She had a small abrasion on her right hand.

(b)   Russell had pain in his right arm and swelling to his right knee joint.

(c)   Stacey suffered abrasions and bruises to her lower limbs.

(d)   Your wife suffered abrasions and bruising to her legs, left arm and shoulder, and pieces of glass were removed from the sole of her right foot.

(e)   Kristal had mild bruising to her ankle and mild swelling and a skin tear on her right shin.

41More significantly, the psychological harm you caused to your wife, your daughters, your sons, and their partners, while they were celebrating Christmas Day, was profound.

42Each of them made victim impact statements[10] which tell chillingly of the enduring impact of the trauma of your terrifying crimes.

[10] Various Victim Impact Statements (Exhibit C; Exhibit D, Exhibit E, Exhibit F, Exhibit G, Exhibit H, Exhibit J).  

Criminal record

43You have admitted a limited but relevant criminal record.

44On 17 June 2008, at Singleton Local Court in New South Wales, you were convicted of two counts of damaging property and fined $750.

45Disturbingly, you committed these offences in the context of family violence and they involved your use of a car to cause damage. Specifically, you drove your car into the rear of the trailer of a parked car belonging to a friend of your then partner, who had ended your brief relationship, damaging both the trailer and the car.[11]

[11] Exhibit K: New South Wales police facts sheet.

Personal circumstances

46You were born in February 1980.  You are now 44 years old.

47Your personal circumstances are set out in the psychiatric report of Dr Fiona Best.[12]

[12] Exhibit 7: Report of Fiona Best.

48You grew up in the Hunter Valley. Your mother was very young when you were born. You have never known your father. Your mother, with her parents, raised you on the family farm.

49When you were five years old, your mother re-partnered. A year later your stepfather adopted you. Your mother had two sons with him.

50You reported a 'normal upbringing'.

51You left school in Year 11 and completed a diesel mechanic apprenticeship.

52You met your wife when you were 14 years old. She is a year younger than you. When you were 18, the two of you married.

53You said your marriage was happy until your employer, laid off its contractors. You separated from your wife for three months and had a brief affair. When you reconciled, you moved your family to Mildura, where you worked for a trucking company. In 2011, you suffered a workplace back injury which has permanently incapacitated you for work.

54You struggled with being unable to work and living with chronic back pain.

55In 2016, a WorkCover doctor diagnosed you with chronic adjustment disorder with depressed mood.

56Around 2020, you became suspicious your wife was having an affair. Your suspicion developed into a fixation.

57In May 2022, you took a near fatal overdose of prescription medication because of your morbid jealousy.

58In November 2022, after an argument with your wife at home, police took you to hospital where you were admitted to the inpatient psychiatric care for two days. Hospital records note you were suicidal and preoccupied with your wife having an affair.

59From hospital, went to Cessnock to live with your parents. There, you were missing your children, and you found a rental home at Red Cliffs to be nearer them.

60You said, when you offended, you were feeling 'lonely, left out, like a failed dad'.

61You said you had very little memory of your crimes.

62You said the dash cam footage shocked you.

63Tearfully, to Dr Best, you said you were very sorry for your actions.  You told her you accepted your marriage is over and you also accepted your children do not want to have anything to do with you.

64When you were remanded in custody, you were prescribed antidepressant medication.

65After your bail was revoked, and you returned to prison, you attempted suicide. Since, you have been held at Ravenhall where you have worked in the industries section. You are aiming to get a position as a representative in industries.

66Your hospital and Justice Health records show, since early 2022, you had been struggling with worsening mental health in the context of your marriage breakdown.

67In Dr Best’s opinion, you had a mental illness, with symptoms of depression and distress, around the time of your offending.  In her opinion, it is unlikely it affected your ability to understand the wrongfulness of your actions. However, it did impair your ability to think clearly and make rational choices.  Additionally, she believes prison is likely to be harder for you because of your psychological difficulties.

68When she assessed you, on 8 February 2024, your depressive symptoms had resolved.

69She recommends assertive psychological support to reduce the risk of you reoffending.

70The court received your letter of apology. You said you are sorry, and you took responsibility for your actions. While you understand you must be imprisoned for your crimes, you said the greater punishment is the loss of your relationship with your wife and children.

71Your mother and her husband supported you at court. They, and a family friend,[13] provided written references[14]. As they describe you, you were a hard-working family man. You also made contributions to your local community through school and sports associations, the CFA and the Army reserve band.[15]

[13]  Exhibit 4: Letter of Reference from family friend.

[14] Exhibit 8: Letter of reference from your mother; Exhibit 3: Letter of reference from your mother’s husband. 

[15] Exhibit 9: Certificate of enlistment; Exhibit 10: Trumpet Certificate dated November 1994

Defence submissions

72Your counsel, Mr Davis, acknowledged the seriousness of your offending.

73In mitigation of penalty, he relied on:

(a)   your guilty plea;

(b)   your remorse; and

(c)   your poor mental health which, in his submission, moderates your moral culpability and will make prison harder for you.

74He told me you have cooperated in family law proceedings with your wife. The family home has been sold and your wife, at least, should be financially secure.

75He told me you accept your marriage is over and your children want no relationship with you, and to put a safe distance between them and you, you will go to live with your mother and stepfather in New South Wales when you are released from prison. In his submission, these are protective factors for your rehabilitation.

Prosecution submissions

76Mr Ritli, who appeared for the prosecution, characterised your crimes as serious and shocking family violence offending.

77He submitted, because they were committed in a domestic violence context, general deterrence must be given prominence in your sentence.[16]

[16] Zac Skeates (a pseudonym) v the King [2023] VSCA, [55].

78He also submitted that you committed these crimes in front of your children and in breach of a family violence intervention order are aggravating features.[17]

[17] Ibid, [60].

79He accepted your guilty plea has significant utilitarian value.

80He submitted, while you have had a history of mental health issues, they are not such as to moderate your moral culpability. He did accept, because of them, prison will be harder for you.

Consideration

81Your crimes are very serious.

82In considering the gravity of the endangerment offences, the key factors are the nature and degree of the risk created and whether a weapon was used.[18]

[18] Avan v the Queen [2019] VSCA 257.

83You used your car as a weapon to ram through the fence of your family’s home into the lounge room. Your younger daughter, who was in the lounge, was knocked over. You struck your wife with the car. The corner of the house collapsed. Your wife, other daughter, your sons and their partners were struck by falling debris. Then, you reversed back and accelerated towards the porch where your wife was standing with your younger son.

84You knew your conduct would probably create a real risk of serious injury to your family. Your driving was inherently dangerous. You accelerated twice towards the house in close proximity to your wife, children and their partners. You showed a complete disregard for their right to feel safe in their own home.[19]

[19] See Brodie Cooper v the Queen [2020] VSCA 288, [69]; Zac Skeates (a pseudonym) v the King [2023] VSCA, [59].

85The risk of serious injury to them, while short lived, was high and while their physical injuries were relatively minor, they could have been more serious.

86Your crimes were motivated by hostility toward you wife. They were acts of violence in a domestic setting.

87Fourteen years earlier, in another episode of hostility with a domestic partner, you used your car to ram and damage the car and trailer owned by someone who was helping her. While the low penalty suggests the gravity of the offending was relatively modest, it is nonetheless a concerning example of you using your car to cause damage to vent your anger in a domestic context.

88As the Court of Appeal has said 'family violence is contemptible. It warrants both condemnation and appropriate punishment'.[20]

[20] Laa v the Queen [2020] VSCA 136, [52].

89That you offended, in breach of a family violence intervention order, and in front of your children, are two aggravating features.[21]   You have caused your family deep trauma with profound and enduring psychological consequences.

[21] ibid, [60].

90Your moral culpability is high.

91

I assess the objective seriousness of your endangerment crimes to be above

mid-range.

92You also wantonly damaged three cars, as well as the fence and the house, and you caused injury, which required medical treatment, to Leyla.

93There are mitigating factors which I take into account to moderate your sentence.

94You are entitled to a sentencing benefit for your guilty plea, which has high utilitarian value, especially because you have spared your family involvement in any preliminary hearing or trial.[22]

[22] Carter (a pseudonym) v R (2018) 272 A Crim R 170.

95By your expressions of contrition, your guilty plea and the way you have conducted your case, at the preliminary stages and on the plea hearing, I accept you have accepted responsibility for your actions and are genuinely remorseful.

96I also accept your workplace back injury, which has permanently incapacitated you from work, was life changing. Your mental health deteriorated in consequence. It was made worse by the breakdown of your marriage.

97I accept you were mentally ill when you offended. It did not deprive you of the ability to understand the nature and likely consequences of your actions. It did nevertheless compromise your ability to make calm and rational choices. Accordingly, your moral culpability is reduced to a modest degree.

98I also accept prison will be harder for you than for a person without your psychological conditions.

99Your mother and her husband remain supportive. You will live with them when you are released from prison. Their support is a protective factor for your rehabilitation.

100If you genuinely accept your marriage is over and you have ruined your relationship with your children, and understand you cannot contact them, I assess your prospects of rehabilitation to be reasonably favourable.

101The respective maximum penalty for each of the offences is:

(a)   for the offence of use carriage service to harass, five years' imprisonment;

(b)   for the offence of damaging property, 10 years' imprisonment;

(c)   for the offence of reckless conduct endangering serious injury, five years' imprisonment; and

(d)   for the offence of cause injury recklessly, five years' imprisonment.

102I have used the maximum penalties as a yardstick by which to measure your sentence.

103The charge of reckless conduct endangering serious injury covers a broad range of conduct. Comparable cases are difficult to find. Making allowances for the dissimilarity in the circumstances of the offending and the offender, I have used several Court of Appeal decisions, for the guiding principles.[23]

[23] Zogheib v the Queen (2015) 257 A Crim R 454, [98]; Brodie Cooper v the Queen [2020] VSCA 288, [69]; Navatheepan Navaratnam v the Queen [2021 VSCA 26, [29]; The Queen v Vicki Lee Roach [2005] VSCA 162; Dylan Borg v the Queen [2017] VSCA 71; Didier Lam Kee Shau v the Queen [2020] VSCA 252.

104You sent a couple of text messages to harass your wife over two or three days. I assess it to be a low end example of the crime of use carriage service, I will impose a monetary penalty for this offence.

105Because you are to be sentenced for a number of offences, I will make cumulation orders to ensure your sentence properly reflects your overall criminality.

106Mr Richardson, by the sentence I impose I must denounce your conduct, punish you, and deter you, and others, from committing crimes of the same or similar kind. I must also look to your rehabilitation.

107Considering the circumstances of your offending, your personal circumstances and antecedents, and endeavouring to produce a sentence which reflects and promotes the purposes of sentencing in a manner appropriate to you:

(a)   On Charge 1, use carriage service to harass, you are convicted and fined $1,000.

(b)   On Charge 2, damaging property, that is Kristal Anderson’s car, you are sentenced to 6 months' imprisonment.

(c)   On Charge 3, damaging property, that is Danika Bussey[24] car, you are sentenced to 3 months' imprisonment.

[24] A pseudonym.

(d)   On Charge 4, damaging property, and that is Darren Richardson’s car, you are sentenced to 3 months' imprisonment.

(e)   On Charge 5, damaging property, that is the fence and the house belonging to Danika Bussey, you are sentenced to 6 months' imprisonment.

(f)    On Charge 6, reckless conduct endangering Danika Bussey of serious injury, you are sentenced to 2 years and six months' imprisonment.

(g)   On Charge 7, reckless conduct endangering Russell Richardson of serious injury, you are sentenced to 2 years' imprisonment.

(h)   On Charge 8, reckless conduct endangering Darren Richardson of serious injury, you are sentenced to 2 years and three months' imprisonment.

(i)    On Charge 9, reckless conduct endangering Kristal Anderson of serious injury, you are sentenced to 2 years' imprisonment.

(j)    On Charge 10, reckless conduct endangering Leyla Frith of serious injury, you are sentenced to 2 years and three months' imprisonment.

(k)   On Charge 11, reckless conduct endangering Sienna Richardson of serious injury, you are sentenced to 2 years and three months' imprisonment.

(l)    On Charge 12, reckless conduct endangering Stacey Richardson of serious injury, you are sentenced to 2 years and three months' imprisonment.

(m)     On Charge 13, recklessly causing injury to Leyla Frith, you are sentenced to 6 months' imprisonment.

108In my view, the summary offences add very limited criminality to your overall offending.

109On each of the summary Charges 5, 6, 8 and 42, contravention of a family violence intervention order, you are sentenced to one months’ imprisonment.

110The sentence I have imposed on Charge 6, two years and six months' imprisonment, is your base sentence.  I direct two months of the sentence I have imposed on Charge 2, one month of the sentence I have imposed on Charge 3, one month of the sentence I have imposed on Charge 4, two months of the sentence I have imposed on Charge 5, two months of the sentence I have imposed on Charge 7, three months of the sentence I have imposed on Charge 8, two months of the sentence I have imposed on Charge 9, three months of the sentence I have imposed on Charge 10, three months of the sentence I have imposed on Charge 11, three months of the sentence I have imposed on Charge 12, and two months of the sentence I have imposed on Charge 13 be served cumulatively on your base sentence and each other.

111Your total effective sentence is four years and six months' imprisonment.

112To mitigate punishment in favour of your rehabilitation, I fix a minimum non‑parole period of three years before you are eligible for parole.

113I declare you have served 506 days of your sentence by way of pre‑sentence detention.

114While there is some artificiality in the process, I declare, but for your guilty plea, I would have sentenced you to six years and six months' imprisonment and fixed a minimum non-parole period of four years.

115I make an order for disposal of your car's dash cam and the box cutter found in it.

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