Director of Public Prosecutions v Searby

[2024] VCC 752

IN THE COUNTY COURT OF VICTORIA

AT WODONGA

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-24-00311
Indictment: P11271384

DIRECTOR OF PUBLIC PROSECUTIONS

v

JARRAD SEARBY

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JUDGE:	HIS HONOUR JUDGE MOGLIA
WHERE HELD:	Wodonga
DATE OF HEARING:	20 May 2024
DATE OF SENTENCE:	27 May 2024
CASE MAY BE CITED AS:	DPP v Searby
MEDIUM NEUTRAL CITATION:	[2024] VCC 752

REASONS FOR SENTENCE

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Subject:Criminal Law – Sentence – guilty plea –

Catchwords:              Sentencing – Blackmail – Burglary – Traffick methylamphetamine – Possess cannabis – Motorcycle club – Menaced victims over number of days – Multiple threats – Acted in company – Planned and co-ordinated – Leader of club – Directing others – Burgling victims’ home – Conducted over more than hour – Middle of the night – Brazenness – Just punishment – Denunciation – Deterrence – Criminal history – Prospects for rehabilitation are guarded – Imprisonment – Non-parole period.

Sentence:Total effective sentence 3 years and 6 months imprisonment with a minimum non-parole period of 2 years and 2 months.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	D. O’Doherty	Office of Public Prosecutions
For the Offender	P. Randles	Randles Cooper

HIS HONOUR:

1Jarrad Searby, you have pleaded guilty to blackmail between 19 and 31 May 2023, burglary on 1 June 2023 and trafficking methylamphetamine and possessing cannabis on 9 June 2023.

Summary of Offending

2The agreed basis for your guilty plea is set out in the prosecution opening dated 1 May 2024.

3In summary, in May 2023 you and a couple of other members of the Finks motorcycle club had become unhappy with the victims, Michael Brown and William Pollard.  The apparent source of that unhappiness was that you had heard that a member of the club had spoken out of turn telling Brown the name of another member, Josh, and that they knew Brown and Pollard were selling drugs from their home nearby yours.

4On 19 May 2023, Brown walked into your street in the hope of meeting this Josh to clear up any misunderstanding.  Josh, with another man, approached Mr Brown, threatened him, demanded $5,000 from him if he did not within 24 hours name the person who had been talking about them.

5You were not said to be present when this confrontation happened and you will not be sentenced for it, but you soon became aware of it and joined in with the threats and demands.

6A week later, on 27 May 2023, you sent a text message to another club member, Jimmy, raising the subject of the blackmail. 

7A couple of days later, on 30 May, you again exchanged messages with Jimmy about him paying the victims a visit. 

8The next day, 31 May, you exchanged further messages with him about him joining Josh going to their house to extract the money or gear from Brown and Pollard.  You arranged to drive him to their address that afternoon.

9At about 3:00pm that afternoon, Jimmy and Josh confronted Brown at his front door and demanded the name or the $5,000, under threat of having their heads caved-in with bats and their stuff taken.  Brown refused and said he was going to call police, in response to which Jimmy threatened that doing so would make it worse.

10Pollard intervened and tried to de-escalate the situation at the front door.  He offered to get money from an ATM to give your associates.  You followed them in your car to the Birallee shops where Pollard withdrew $700 from his own bank account and gave it to one of your group along with his phone number when that was demanded from him.  You then drove your associates away.

11Later that day, you sent Pollard multiple threatening messages about answering your calls and messages.  In those you threatened Pollard that if he did not pay the balance of the money that night, you would have a team of blokes burgle his house, steal his property and shoot Pollard’s dogs (Charge 1, blackmail).

12That night, soon after midnight on 1 June 2023, you sent messages to Jimmy that the victims had been ignoring you and that it was time to break into their home.  You indicated you knew they had a security system that would alert them of your attendance and at about 12:30am you drove your vehicle from your home to the victims’ address.  You were unlicensed and your vehicle was unregistered (Summary Charges 8 and 9).

13At about 1:11am, you sent a further message saying, ‘I’m coming in’, and soon after, the victims’ security system registered your entry.  The burglary was still ongoing at about 2:30am, when Brown drove past and saw your group inside carrying goods out to a vehicle.  You arrived back at Barnawartha, around 3:11am (Charge 2, burglary).

14After Brown had reported the matter to police, they arrived at the victims’ home at about 6:40am to find you in your vehicle outside that address.  You said something to police about the occupant owing you money.  To be clear, I do not find that there was any legitimate basis for any such debt.

15On 5 June 2023 two associates of yours are seen taking goods stolen during the burglary from your premises to their vehicle and driving away.

16On 9 June 2023 police executed a search warrant at your home.  You were home where police found you alone in a bathroom attempting to flush a bag containing 50 grams of methylamphetamine down the toilet (Charge 3, trafficking).

17Police seized your mobile phone and formally requested you to provide the PIN to unlock it, but you refused (Summary Charge 7, failing to provide information on request).

18Among other possessions police seized a quantity of cannabis (Charge 4, possessing cannabis).

19At the time of the offending, you were on bail (Summary Charge 5).

Victim Impact Statements

20There are no victim impact statements.  I am satisfied, however, from the circumstances you have admitted by your plea, that Mr Brown and Mr Pollard sustained significant harm by way of your threats and your intrusion into their home, a place where they were entitled to feel safe.  I accept that the consequences of this offending will affect them into the medium to long term.

Procedural History

21You were arrested on 9 June 2023 and interviewed.  You remained mute during that interview.  You have remained in custody since that time.

22You contested the charges and only settled the case on the day of a contested committal, on 28 February 2024.

23Your guilty plea was therefore indicated at an early stage of the proceeding, but not the earliest.

24I accept that the plea indicates an acceptance of responsibility and a willingness to facilitate the course of justice. It has resulted in a benefit to the community by avoiding the cost and inconvenience of a trial.

25I am not satisfied that your plea indicates remorse for the wrong you have done to Mr Brown or Mr Pollard. I accept, however, that you regret what you did and the trouble you have caused your family, amongst others.

Personal circumstances

26You are a man of 38 years, married now for 12 years with five children.

27Prior to meeting your wife, Kate, you were not living well. Your home life during your formative years, you say, was disrupted by your mother’s addictions and mental ill health. There was violence at home.

28Your stepfather killed himself and you discovered his body when you were only 15, and for the next 10 years or so you report having had an impoverished family life. The only highlight was living with your uncle who taught you the painting business, but you were also using drugs during that time and getting into trouble with police. So much is confirmed by your criminal history.

29Since meeting Kate, however, you report focusing on family life and working to support your family. You succeeded. Your painting business went well, and you opened a gym. This, too, seems to be confirmed by your history in court.

30Like so many, however, the pandemic restrictions in 2020-21 caused your businesses to suffer heavily. You admit to feeling unfairly done-by. You were not alone in this, no doubt, and you expressed your anger publicly. In this context, you recommenced using drugs.

31Your friends and family have written letters attesting to your good traits. They include Kate Searby, Phillip Carter, Anthony Papaioannou, John Green and Josie Taylor (Exhibit 1).

32They speak with one voice of your dedication to your family and to helping those within your circle. Your wife reports that you are no longer affiliated with the Finks, and this seems to be consistent with you making no claim for the return of your patch, which police had seized.

33Others speak of the pain you have suffered over recent years with the passing of your grandparents and younger brother. This, on top of the hardships caused by lockdowns.  Those witnesses speak of your gentle side, your hard work, and your consideration of others.

34Since your remand, you have shown your ability to work hard and have provided a number of certificates to demonstrate this (Exhibit 2). They include not only work-related courses, but also a course called ‘Changing Gears’, focusing on examining your own self, and further, you presented two church-related courses having been done.

Sentencing issues

35The maximum penalty for Charge 1, blackmail, is 15 years’ imprisonment. For Charge 2, burglary, it is 10 years. For Charge 3, trafficking, it is 15 years. For Charge 4, possessing cannabis in these circumstances, it is five years.

36For the summary offences, the maximum for Charge 5, offending on bail, is three months. For refusing to provide the PIN to your phone, it is two years. For using an unregistered vehicle, it is 25 penalty units, and for driving unlicensed, it is two years.

37I find the blackmail in this case to be a moderately serious example of that offence.

38You menaced the victims over a number of days, involving multiple contacts by you, including threats by you to injure them personally, to invade their home, to shoot their pets and to steal their property. The demands you made of the victims for money in lieu of giving you someone’s name, were utterly unjustified. The debt you claimed to be owed, even when you spoke to police saying so, was one that you and your associates unilaterally had imposed and was entirely without any lawful basis.

39Your conduct was made more serious because you acted in company with others. It involved planning and co-ordination between you. You were, as the admitted leader of your group, in a position to direct the others and you did so. You made this clear to the victims when you had a ‘team of blokes’ who would do your bidding.

40While you did not use weapons against the victims at any stage, you threatened to do so in the most graphic terms.

41Rather than being an incompetent and unsophisticated attempt at offending, as your counsel Mr Randles submitted, I find your offending to have been a brazen-faced endeavour to bully the victims using stand-over tactics.

42At the conclusion of the blackmail, you did as you threatened to do, by burgling the victims’ home. It was a co-ordinated job itself, with more than one other person involved, planned in advance, conducted over more than an hour in the middle of the night. It was also done on the very night you had threatened to do so, underscoring the brazenness of your approach.

43I will take care in sentencing you on the blackmail and burglary so as to avoid double punishment. I will not increase your sentence on the blackmail on the basis that you actually carried out the burglary threat, nor will I increase the sentence on the burglary on the basis that it arose out of the blackmail, each of those two offences attracting their own sentence in their own right.

44That said, there will be a degree of cumulation of sentence to reflect the seriousness of both and the totality of the criminality involved.

45Trafficking in drugs is serious, such as is reflected by the high maximum penalty of 15 years. The sentencing regime is one guided by the quantity of drug, and while 50 grams is well above the trafficable amount for methylamphetamine, it is not close to a commercial quantity.

46Your counsel, Mr Randles, submitted that, in reality, there is not much to distinguish your role in this spate of offending from your co-offenders.  However, I disagree.

47I find your role to have been greater than that of the others. You were seen in messages to be giving directions to them, even if they were seen to be doing more of the legwork. You accepted that you were the leader of the club. You claimed to be able to send the others to do what you threatened would be done. The fact that the burglary actually occurred, tends to support this finding about your role.

48Overall, the nature of your offending is entirely unacceptable in our community. Just punishment of you, proper denunciation, and the deterrence of others from doing likewise in these circumstances requires a stern sentence in my view.

49You have a significant criminal history, although not for anything this serious. You have been sentenced in court on about 10 different occasions, on four of which you received a term of imprisonment, albeit the last occasion as such was in 2009. The significance of this is, however, that you know the consequences of criminal offending so deterring you specifically attracts a little more than nominal weight in this case.

50I will make orders for cumulation between all of the sentences, but only to a degree so as to remain proportionate to the totality of what you did.

51In light of the organised context of your associations with the co-offenders, the planned nature of the offending, the persistence of it against these victims and your criminal history, your prospects for rehabilitation are of concern.

52I accept you have a good family and social support, and that you have demonstrated a capacity to remain out of trouble for extended periods. This is all to your credit, and so I find your prospects for change to be real, although guarded.

53Your counsel submitted that you should be released having served 12 months on remand and placed on a CCO. The prosecutor submitted that a parole type sentence was warranted, however, in light of the seriousness of the conduct.

54Having considered all of the matters put to me, I have come to the view that a combination sentence is not appropriate.

55I sentence you as follows:

(a)   On Charge 1, blackmail, two years six months’ imprisonment;

(b)   On Charge 2, burglary, two years;

(c)   On Charge 3, trafficking, 18 months;

(d)   On Charge 4, possessing, one month;

(e)   On Summary Charge 5, offending while on bail, you are convicted and discharged;

(f)    On Summary Charge 7, failing to provide the PIN, four months;

(g)   On Summary Charge 8, unregistered vehicle, you are convicted and discharged;

(h)   And on Summary Charge 9, unlicensed driving, you are convicted and discharged.

56Seven months of the sentence on Charge 2 and five months of the sentence on Charge 3 are to be served cumulatively upon each other and upon the sentence on Charge 1.

57The total effective sentence is three years and six months.

58I fix a non-parole period of two years and two months.

59I declare that you have served 353 days and direct that this be reckoned as a period already served under this sentence.

60If you did not plead guilty, I would have imposed a sentence of four years and six months and fixed a non-parole period of three years.

Ancillary orders

61I make the unopposed disposal order under s 78 of the Confiscation Act for all of the items seized.

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