Director of Public Prosecutions v Roberts, Bradley
[2013] VCC 378
•27 March 2013
| IN THE COUNTY COURT OF VICTORIA AT BENDIGO CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-13-00231
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BRADLEY ROBERTS |
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JUDGE: | HER HONOUR JUDGE PULLEN | |
WHERE HELD: | Bendigo (Sitting in Melbourne) | |
DATE OF HEARING: | 21 March 2013 | |
DATE OF SENTENCE: | 27 March 2013 | |
CASE MAY BE CITED AS: | DPP v Roberts, Bradley | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 378 | |
SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence
Legislation Cited:
Cases Cited:
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr P. D’Arcy | Office Public Prosecutions |
| For the Accused | Mr P. Smallwood | Victoria Legal Aid |
HER HONOUR:
1 Bradley Roberts, you have pleaded guilty to one charge of armed robbery; one charge of kidnapping, one of aggravated burglary, one of common law assault and one of possession of a drug of dependence. The maximum penalty in relation to armed robbery, kidnapping and aggravated burglary is 25 years' imprisonment, common law assault is five years' imprisonment and possession of a drug of dependence is five years' imprisonment and/or 400 penalty units.
2 These crimes arise out of events which took place on 20 September 2012, and involve the victims of your offending, Danny Black and Hayley Dieckmann.
3 It is not necessary to recount in great detail the facts of this matter as they are on transcript, the matter having been opened in some detail by the learned prosecutor. I proceed to sentence you on the basis of the facts as summarised by the prosecutor and discussed during the course of your plea hearing. It is sufficient for present purposes to simply say the facts in this case, in my opinion, are most serious and disturbing.
4 I also note your offending involved a co-offender, Michael John Darmody. His trial is listed to commence on 1 July 2013 at Bendigo County Court. You will not be giving evidence in that trial for the prosecution.
5 Briefly, by way of summary of your offending, at the time of this offending and sentence you were 24 years of age. Your co-accused, Michael Darmody, was 49 years of age.
6 Danny Black was 24 years of age at the time and was a small time drug, or ice dealer, in particular. Mr Black’s girlfriend, Hayley Dieckmann, was 29 years of age at the time of your offending involving her.
7 Turning to the background to your offending. On Wednesday, 19 September 2012, you and Mr Darmody were drinking at a hotel in Long Gully. At the hotel you had an altercation with a male patron and at approximately 8.00 to 8.30 pm you both left the hotel.
8 At approximately 10.15 pm on that same day, you and Mr Darmody attended at a house in Energetic Street, Long Gully, which belonged to James Allen. When Mr Allen opened the door you demanded to see Danny Black, however, Mr Allen did not know Mr Black. You said you knew Mr Black was inside the premises, as you mistakenly believed Mr Black’s car was parked outside. You became aggressive towards Mr Allen when he told you that Mr Black was not inside the premises. When you finally established Mr Black was not inside the house, you and Mr Darmody left. Mr Allen heard you say to Mr Darmody as you were leaving, “We are going home to get the shotty”.
9 At approximately midnight on 20 September 2012, you sent Mr Black a text message from your mobile phone, “Can you get me half a gram. I have the paper?” Mr Black took this to mean you wanted to purchase half a gram of methamphetamine which is also known as “ice”. You and Mr Black made arrangements via text to meet in Long Gully to complete the transaction.
10 Prior to meeting Mr Black, you armed yourself with a knife and Mr Darmody armed himself with a shortened 12 gauge shotgun. The prosecution allege both of you armed yourselves with the intention of robbing Mr Black of any cash and drugs he had in his possession.
11
Mr Black arrived at the pre-arranged location at approximately 12.15 am.
Mr Darmody initially remained out of sight. As Mr Black pulled up in his vehicle, you entered the front passenger seat of the vehicle and Mr Darmody entered the rear passenger seat, sitting behind Mr Black. You asked Mr Black to drive to a different location because the “cops” had been hanging round. Mr Black then started to drive towards Sparrowhawk Road, Long Gully.
12 As the car approached Sparrowhawk Road, Mr Darmody grabbed Mr Black in a headlock from behind and told him to keep driving. As Mr Black turned the vehicle into Sparrowhawk Road, you punched him to the side of the face and accused Mr Black of being a police informant and you ordered him to pull over onto a dirt track.
13 At this time, Mr Darmody produced the shotgun and held the gun to the back of Mr Black’s head and told him he was going to kill him. Both of you ordered Mr Black to turn on the interior light so he could see Mr Darmody had the gun. At that time, you produced a kitchen knife. Mr Black heard Mr Darmody say, “I'm going to shoot you”, and you say, “Don’t shoot him, I'm going to stick him.” Mr Black told you he would give you whatever you wanted. You and Mr Darmody then demanded Mr Black hand over all money and drugs that he had in his possession. He handed over his wallet which contained a $5 note and also handed you five small zip lock backs which each contained one point of ice, which totalled half a gram with a street value of $400. Each bag had a “Batman” symbol printed on the outside of it.
14 While not being satisfied with what Mr Black handed over, Mr Darmody said, “Well, we may as well shoot him.” You then removed a head rest from one of the seats in the vehicle to hold it to Mr Black’s head to give the impression he was going to be shot through the head rest. Mr Black feared for his life and begged both you and Mr Darmody not to kill him. He said he had a baby at home.
15 You and Mr Darmody forced Mr Black to call his partner, Hayley Deickmann, and told Mr Black to tell her to put all money, drugs and valuables into the letterbox at the front of their premises in Symes Street, Kangaroo Flat.
16 Yourself and Mr Darmody then forced Mr Black to drive his vehicle to an address approximately 100 metres from that address. Mr Darmody held the firearm at Mr Black for the entire journey.
17 You got out of the vehicle at that address while Mr Darmody stayed in the vehicle with Mr Black. You walked to the house with the intention of getting cash and property from the letterbox. Prior to you leaving the motor vehicle, you told Mr Darmody if you were not back in a minute, he was to shoot Mr Black and Mr Darmody agreed that he would.
18 You walked to the premises, checked the letterbox and saw it was empty. You returned to the vehicle and told Mr Darmody there was nothing in the letterbox.
19 You and Mr Darmody then removed Mr Black from the car and walked him to the premises while Mr Darmody was still holding the firearm. You instructed Mr Black to go inside, and get all cash and property. Mr Black went inside, grabbed his 2 year old son and ran to the back room of the premises. Ms Deickmann and another friend, Benjamin Lynch, were also at the premises at the time.
20 Turning to Charges 3 and 4, when Mr Black did not come back outside, you and Mr Darmody approached the front door. Ms Deickmann at the front door screamed at both of you to, “Fuck off”. Mr Darmody then forced his way into the premises with you following.
21 Mr Darmody grabbed Ms Deickmann around the throat and forced her to the ground inside the front entrance of the house. He held a gun to her head demanding to know where Mr Black was. Ms Deickmann saw her 2 year old child was watching and was screaming.
22 After approximately one minute, Mr Darmody removed the gun from Ms Deickmann’s head and said, “Tell Danny to have sweet dreams, we’ll be back for him.” You and Mr Darmody fled the premises without any property.
23 You were both located by police and arrested approximately an hour later, hiding in bushes in High Street, Kangaroo Flat. During the arrest, police saw Mr Black’s wallet on the ground where Mr Darmody had been laying. A search revealed you were in possession of one of the deal bags containing ice stolen from Mr Black. Mr Darmody was also found to be in possession of a plastic bag containing cannabis L. The charge in relation to you having the bag of ice is Charge 5.
24 The firearm was not located at that time. The knife used by you was found on the front passenger seat of Mr Black’s vehicle.
25
At approximately 4.55 pm on 20 September 2012, the firearm was located a short distance from Mr Black’s premises behind a bush in a neighbour’s front yard. Mr Black’s mobile phone and deal bag containing ice were found with that firearm, as was one of the bags stolen from Mr Black by you and your
co-accused.
26 On 22 September 2012, a staff member at the BP Service Station in High Street found three plastic zip lock bags with Batman symbols on them containing ice. They were bags also taken from Mr Black.
27 You were interviewed at the Bendigo Police Station on 20 September 2012, at which time you made admissions to most of the allegations, however stated you were not intending to rob Mr Black, just intending to purchase drugs when you arranged to meet him. You could not explain why you did not have any cash in your possession to pay for the drugs when you met Mr Black. You stated you did not realise that Mr Darmody had the firearm until it was produced in Mr Black’s motor vehicle.
28 You have pleaded guilty to the charges before me and you are entitled to have that fact taken into account in your favour, and I do so. The community has, by your pleas of guilty, been spared the time and cost of a trial, although there was a contested committal where witnesses, including the victims, were called and extensively cross-examined. Nevertheless, there has not been a trial and they have not had to come back. Witnesses have therefore been spared the need to give evidence upon your trial and, in particular, I refer to Mr Black and Ms Deickmann.
29 Further, I take into account in your favour you intimated early your intention to plead guilty to these charges. Whilst at the time you were being interviewed by police, some of your answers minimised your involvement, I nevertheless accept that this matter has proceeded quickly through the courts.
30 You have admitted a number of prior court appearances, commencing in 2004 with the most recent on 9 February 2010. You appeared at Bendigo Magistrates’ Court on 9 February 2010 on a number of offences, including theft of a motor vehicle, driving under the influence of alcohol, careless driving, amongst others, and for which you were sentenced to three months' imprisonment, an order made against your licence and also placed on a Community-Based Order for a period of 12 months. I note your offending before me does not breach that Order.
31 Prior to that you appeared at Bendigo Magistrates’ Court on 30 April 2008 and were sentenced for dishonesty offences and damaging property. You were sentenced to detention in a youth training centre. The offences dealt with on that occasion included failing to answer bail, driving whilst disqualified, reckless conduct endangering serious injury, burglary, and a number of other driving offences for which fines were imposed.
32 You also appeared at Bendigo Magistrates’ Court on 27 February 2007 in relation to theft of a motor car, driving offences including exceeding prescribed concentration of alcohol and in addition to the imposition of fines were sentenced to three months' imprisonment, wholly suspended. That suspended sentence was breached and on 30 April 2008, in addition to the other offences to which I have previously referred dealt with on that date, that sentence was restored and you served three months in a Youth Justice Centre.
33 Prior to that on 27 March 2006, you appeared at Bendigo Children’s Court in relation to a driving matter and were fined without conviction. In 2005, at Bendigo Children’s Court, further driving offences resulting in without conviction fines. On 29 March 2004, at Bendigo Children’s Court, for dishonesty offences you were placed on probation without conviction for six months.
34 Mr McLennan noted correctly you had a not insignificant prior history, which included periods of incarceration, although only for a short period of time. You completed a previously imposed community-based order. You attributed your criminal history effectively to youthful delinquency and poor associations, specifically that you did not commit the offences on your prior criminal history whilst under the influence of illegal substances such as ice.
35 As at the date of your plea hearing, you had spent 182 days in custody for these matters alone by way of pre-sentence detention pursuant to s.18(4) Sentencing Act 1991. I will address that again later.
36 Mr McLennan, in his very thorough plea, referred to his written outline of submissions (Exhibit 1). You acknowledged the charges against you were very serious. They are, and I discussed that with your counsel. Mr McLennan conceded the only sentencing option available to this court for your offending was a custodial sentence. That was a sensible and realistic concession.
37 Principally, Mr McLennan relied upon your plea of guilty to these charges and the fact you did make partial admissions to your offending in the record of interview. Despite there being a contested committal, you had prior to that offered to plead guilty to the majority of the charges before me. The contested committal was in relation to one charge, which was in dispute, and following the contested committal, where the victims were required to give evidence, you indicated your intention to plead guilty to the remaining charge. I accept that your plea of guilty to these charges is indicative of remorse. The fact that you have pleaded guilty, as I have said, has meant the victims of your offending have not had to give evidence at your trial.
38 Turning to your background and history, you were 24 years of age at the time of the offending and at sentence. Up until you were taken into custody for these charges, you were living with your maternal grandparents. You began living with them when you were approximately 1 year old as a result of your mother’s inability to care for you. You regard your maternal grandparents as your parents and treated them as such throughout your life.
39 You have never known your father and have had only very limited contact with your mother, with that last contact approximately ten months ago.
40 You have two siblings, both younger sisters. One lives with your father and the other passed away four years ago, following an epileptic seizure at home.
41 You described the death of your sister as being particularly traumatic for you. Her death occurred two days after your 21st birthday. I have no doubt it had a significant effect upon you and I accept it was a catalyst for an escalation in your substance abuse.
42 You left school at the age of 16, undertook a pre-apprenticeship and then followed that with a three year apprenticeship as a builder. You had a constant work history prior to your arrest for these offences. At the time of these charges, you were working as an insulation layer five days a week, a position you had for approximately four months. In the month prior to this offending behaviour, however, as a result of your contact with Mr Darmody, you seem to have been working less and less.
43 The longest you have been out of work since leaving school was about three months.
44 You also spent time in your life working in Western Australia with your then partner, Jessica, whom you had known since you were 15 years of age.
45 You returned to Victoria when your grandmother became ill. Shortly after that your relationship with Jessica broke down. You have two children, 6 and 4 years of age, and a stepson 8 years of age. You met Jessica two months after she gave birth to her son, Riley, who suffers with autism. I understand one of your other children has medical issues and Jessica has recently been diagnosed with cancer. Mr McLennan was not relying on family hardship in mitigation of your sentence, but rather as material as part of your background.
46 After the breakdown of that relationship, you nevertheless had ongoing contact with the children on school holidays and every second weekend.
47 You conceded that you had a very serious issue in relation to substance abuse. From the age of 16 you regularly drank alcohol to excess and infrequently were using methamphetamine up until about eight months prior to the date of the offending before me. In the months preceding these offences, you were using up to 0.2 of a gram of ice a day. When you became involved with Mr Darmody, approximately one month before this offending, you said he introduced you to the use of intravenous drug use.
48 Since these offences, your relationship with Jessica has soured as she was largely unaware, it seems, of your ice habit.
49 I discussed with your counsel, Mr McLennan, your instructions that you had been the victim of a home invasion in 2011. It is clear from the written submissions provided by Mr McLennan that this had a significant impact upon you then and now. Despite your own personal experience, you nevertheless committed a home invasion in your offending before me. The plea transcript will reveal the discussion I had with your counsel.
50 Turning to your offending behaviour, you instructed you met Mr Darmody about a month before these offences. You had known him prior to that, however was spending more time with him about a month before this offending. You regarded Mr Darmody as a "protector of sorts", following the previous home invasion you experienced in 2011. You instructed you felt safe with him and were aware he had a reputation, or an extensive criminal history, which involved offences of violence, including manslaughter.
51 Mr Darmody’s prior convictions were placed before me (Exhibit C).
52 Mr Black had previously provided you with drugs. You conceded that when this offending occurred, your intention was to obtain drugs from him. As observed by Mr McLennan, your offending escalated to a very serious level as a result of the shotgun. It is clear, from the prosecution opening, that it was you at Mr Allen’s house who made reference to going home and getting the “shotty”.
53 On this day, you instructed you had used ice and also taken prescription medication, being Xanax and Valium, and consumed alcohol.
54 Mr McLennan provided information regarding your recent time on remand. You instructed there had been threats against your life in relation to Mr Darmody, and that you had been assaulted in custody and were now on protection and had been since December of 2012.
55 I referred counsel to the decision of R v Males [2007] VSCA 302.
56 I accept the concession by Mr D’Arcy, on behalf of the prosecution, that you had been in protection up until you plea hearing, and you were likely to remain in protection until at least July of this year when Mr Darmody’s matters were dealt with at the court. Beyond that, Mr D’Arcy submitted it was “very likely” you would remain in protection and thus that your time in custody would be made more difficult for you than for prisoners who are not in the protection stream. I have accepted the prosecution’s concession in that regard and have taken that into account in mitigation of your sentence.
57 For completeness, Mr McLennan indicated he was not relying on any principles in R v Verdins & Ors (2007) 16 VR 269, nor the principles in R v Mills [1998] 4 VR 235.
58 Mr D’Arcy submitted these were very serious offences. There was a need for general and specific deterrence and the need to protect the community from you.
59 For completeness, I note you are not sentenced as a serious violent offender.
60 Regarding your rehabilitation prospects, I have at best guarded optimism. There is little before me, given your past criminal history and your most recent heavy substance abuse, to suggest there is any real likelihood of that. However, I note your young age and that you will be supported in the community upon release on parole. When sentencing you, of course, I must seek to maximise the chances of your rehabilitation as they may be.
61 There is a victim impact statement in this matter. I accept that the victim, Mr Black, has suffered considerably in the manner described in that statement as a direct result of your offending against him. In his statement, he stated that since your offending he has had to move from his home back to his parents, who have now installed a security system. His partner, Hayley, has also returned to her parents and their son lives with her. That has meant a lack of contact with them and has made him stressed. He also has counselling for depression. His young son now has problems sleeping and is wary of strangers. Mr Black feels anxious to go out at night. There have been financial expenses in moving house, and for doctors and counsellors.
62 The effects upon a victim are a relevant sentencing consideration (see s.5 Sentencing Act 1991). I am conscious, however, I must not allow the effects upon a victim to swamp the sentencing process.
63 As well as matters personal to you, to which I have referred, including your prospects of rehabilitation, I must also take into account such matters as deterrence, especially general deterrence, which is of considerable importance in a case such as this. You also have an extensive prior criminal history and specific deterrence is also relevant when sentencing you.
64 I must also consider the question of protection of members of the community from you and bear in mind the likelihood of your re-offending.
65 I am called upon by the Sentencing Act to manifest the community’s denunciation of your conduct and generally to impose a just punishment.
66 I have, when sentencing, also taken into account principles of totality and proportionality.
67 I sentence you as follows.
68 On Charge 1, you are convicted and sentenced to 3 years' imprisonment.
69 On Charge 2, convicted and sentenced to 5 years' imprisonment.
70 On Charge 3, convicted and sentenced to 3 years' imprisonment.
71 On Charge 4, convicted and sentenced to 12 months' imprisonment.
72 On Charge 5, convicted and sentenced to 3 months’ imprisonment.
73 I direct the following in relation to cumulation and concurrency.
74 Charge 2 is the base sentence.
75 I direct that 12 months of Charge 1 be served cumulatively upon Charge 2.
76 That 15 months of Charge 3 be served cumulatively upon Charge 2.
77 That 5 months of Charge 4 be served cumulatively upon Charge 2.
78 That 1 month of Charge 5 be served cumulatively upon Charge 2.
79 For clarity, each order in relation to cumulation is cumulative upon each other and the base sentence.
80 That results in a total effective sentence of 7 years and 9 months' imprisonment and I direct that you serve a period of 5 years before you are eligible for parole.
81 Pursuant to s.6AAA Sentencing Act 1991, had you been found guilty of these offences following pleas of not guilty; ie. following jury verdict, I would have sentenced you to a term of imprisonment of 10 years and set a non-parole period of 8 years.
82 Pursuant to s.18(4) Sentencing Act 1991, I declare you have spent 188 days in custody by way pre-sentence detention, up to and including yesterday 26 March 2013, and I direct that this be entered into the records of the court.
83 The prosecution made an application for an Retention Order pursuant to s.464ZFB Crimes Act. This was not opposed by counsel on your behalf. I make the order for the retention of a forensic sample on the basis of the seriousness of your offending and your prior criminal history.
84 No other orders sought?
85 Now, first thing is first. Do the maths add up in relation to the sentence? Anyone want clarification?
86 MR SMALLWOOD: No, Your Honour, it adds up in my calculation.
87 MR D'ARCY: Yes it does, Your Honour.
88 HER HONOUR: Good. Is the PSD correct?
89 MR SMALLWOOD: Yes, Your Honour.
90 MR D'ARCY: Yes it is, Your Honour.
91 HER HONOUR: No other orders sought?
92 MR D'ARCY: No.
93 HER HONOUR: Anything else before I have Mr Roberts removed? No?
94 MR SMALLWOOD: No, Your Honour.
95 MR D'ARCY: No, Your Honour.
96 HER HONOUR: Thank you. Remove Mr Roberts, thank you very much.
97 (PRISONER REMOVED).
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