Director of Public Prosecutions v Tuckerman
[2023] VCC 879
•1 June 2023
| IN THE COUNTY COURT OF VICTORIA CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR-22-02138
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| RICHARD TUCKERMAN |
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JUDGE: | HIS HONOUR JUDGE JOHNS |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 20 April 2023, 19 May 2023 |
DATE OF SENTENCE: | 1 June 2023 |
CASE MAY BE CITED AS: | DPP v Tuckerman |
MEDIUM NEUTRAL CITATION: | [2022] VCC 879 |
REASONS FOR SENTENCE
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Subject: Criminal Law Sentence
Catchwords: Intentionally causing serious injury – Multiple co-offenders – Youth – Plea of guilty during COVID-19 pandemic – Delay – Remorse – Reasonable prospects of rehabilitation
Cases Cited: DPP v Brooks [2008] VSCA 253; Bugmy v The Queen (2013) 249 CLR 571; R v McKee [2003] VSCA 16
Sentence: Total effective sentence of 5 years’ and 6 months imprisonment with a non-parole period of 3 years and 3 months.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms G. McMaster | Office of Public Prosecutions |
For the Accused | Mr S. Ranjit | Bowler & Co |
HIS HONOUR:
1Richard Tuckerman, you have pleaded guilty to a charge of causing serious injury intentionally which carries a maximum penalty of 20 years’ imprisonment. You have also pleaded guilty to the relevant summary offences of contravening a condition of bail and committing an indictable offence whilst on bail.
2You have admitted prior convictions. Your criminal history is limited. You are 23 years of age. You were 21 at the time of the offending.
Circumstances of Offending
3The details of your offending are set out in Exhibit A, the Summary of Prosecution Opening, which forms part of these Reasons for Sentence.
4In briefer terms than contained therein, you took part in an extremely violent, degrading and humiliating assault on your victim, in company with others. You were part of an apparently drug related criminal milieu which had your co-offender Shayne Smith at its apex.
5Your victim, Mr Dermott[1] was a part of the group. He was interviewed by police in relation to matters that touched upon Mr Smith’s activities, apparently. You asked to see his record of interview. It is obvious that you were doing so on behalf of Mr Smith. Others were involved in the scheme as well. They are all referred to by name in Exhibit A.
[1] A pseudonym.
6Mr Dermott was driven to your home by another associate. Co-offender Mr Noble began physically assaulting Mr Dermott by punching him several times to his head and body. He was also verbally abused by Mr Noble and two others present.
7You arrived while this was in progress and joined in the assault. He was punched and kicked in your presence. You forced him to remove all of his clothing while the physical assaults continued. He was filmed by others during his ordeal. At one point you used your mobile phone to record your victim sitting on the lounge room floor with his hands tied in front of his body – which was an extremely degrading experience for him and no doubt one that was aimed at humiliating him. The footage shows blood all over him.
8In your presence co-offender Smith made Mr Dermott drink water from a bottle containing somewhere between 10 and 20 ml of GHB. He drank the quantity of liquid fearing further assaults despite his belief that such a quantity could kill him.
9You then bent a wire coat hanger into the shape of a penis and used a blow torch to heat it up. You forced your victim to brand himself on the chest and buttocks with this implement on several occasions whilst he was filmed.
10Mr Smith forced Mr Dermott to cut up a beanbag to use it as clothing Whilst he did this Mr Smith used a ‘Trade Flame’ device to burn his legs. He also used an electric drill and pushed it into the legs, arms and body of your victim.
11You watched on, verbally abusing your victim, calling him a dog.
12Not long after this you beat Mr Dermott with a pole at Smith’s direction.
13Eventually he was allowed to leave. Seriously assaulted. Seriously injured. Humiliated and degraded. He was on the point of collapse and wearing nothing but the bean bag cover.
14He lost consciousness upon arriving at home. Paramedics were called. He required rapid sequence intubation. He was conveyed to the Alfred Hospital where he remained in an induced coma for the next 10 days.
15His injuries included:
(a) fractures of the nasal bones and left frontal upper jaw
(b) mildly displaced fracture of lower neck spine
(c) chest spinal bone fracture
(d) mild lung tissue collapse
(e) soft tissue injuries including left ear and cheek, two head scalp lacerations which required closure with clips, lips, bruising left upper arm, abrasion and broken skin right frontal chest, right thigh lacerations which required closure by sutures, left thigh puncture wound which required suturing in the emergency department, bruise below the right inner ankle
(f) There are scalp blood collections – haematomas right head and left head and in the soft tissues around both eyes (known as bilateral orbital haematomas)
16He suffered from complications of lung inflammation, hyperactive delirium with ongoing agitation and confusion and hypokalaemia due to dieresis in hospital.
Arrest and Interview
17You were arrested in Baringa Queensland on 27 October 2021. You were interviewed about these matters and made significant admissions.
18You admitted that you:
(a) made your victim take his clothes off and kicked him to the face;
(b) you were involved in the branding incident;
(c) you struck him with a pole so hard it snapped;
(d) you saw Smith give your victim ‘so much juice it could have killed him,’ in your words;
(e) following the assault you left home without your belongings and never returned;
(f) you admitted making recordings of Mr Dermott during the assault and sent at least one image to another person.
19You were extradited to Melbourne and have remained in custody ever since – a total of 565 days up to today.
Objective Gravity of Offending
20Dealing with the objective gravity of the offending.
21Intentionally causing serious injury is an inherently serious offence as reflected in the maximum penalty of 20 years imprisonment.
22Serious aspects of your offending include:
(a) The assault had a degree of pre-planning and was occasioned in company.
(b) It was prolonged and tortuous.
(c) The purpose of the assault was to punish and humiliate your victim and to deter him and others of your criminal milieu from speaking to the police about the criminal activities of Mr Smith.
(d) You participated in a vicious assault upon Mr Dermott, weapons were used.
(e) You also engaged in conduct aimed at degrading and humiliating your victim.
(f) Mr Dermott suffered a range of injuries and medical consequences that are significant.
(g) You were on bail at the time.
23You have acknowledged in a letter to the Court the disgusting nature of your crime. You describe it as ‘terrible and inexcusable’. You apologise in that letter to your victim.
24All you can offer in that letter is your self-disgust at your actions, and the explanation that you would not have acted in such a way were it not for the amounts GHB and methylamphetamine you were using at the time, and the drug and criminal milieu you were immersed in.
25I accept that to some degree your position below Smith in the hierarchy, and the oppressive and violent atmosphere within the milieu explains your conduct.
26That being said you played your role in that milieu, at that time, with apparent vigour and enthusiasm no matter what your inner most feelings were about your actions and their consequences for Mr Dermott.
Personal Circumstances
27You are the only child of your parents. Your parents separated when you were four. You had a difficult childhood marred by exposure to alcohol, domestic violence, and a distinct lack of supervision and nurturing as you grew.
28I have relied upon Exhibit 1A, Defence Outline of Submissions and Exhibit 1B, Report of Aaron Cunningham, as to your personal history. I accept the history contained in those exhibits.
29Whilst living with your father as a twelve-year-old you began truanting from school and gravitating towards older teenagers hanging out at the skate park. You were introduced to cannabis use at 13. At 14 you were using methylamphetamine.
30When it became apparent to your father that you were using drugs he kicked you out of the family home. You were then homeless and ‘couch-surfing’ with friends. You then left school, (Year 9) and drug use escalated. During this period you were sexually assaulted. You reported the matter to police and attended court to give evidence. You are still affected by the trauma of this experience.
31At the tender ages of 14 and 15 you were exposed to the violence and degradation associated with a drug lifestyle. You saw overdoses, drug fuelled violence and other consequences of addiction.
32At 17 you were able to obtain your own rental property and after finding some stability you attended TAFE for 8 months and completed your education to year 10 equivalent. You worked as a plasterer for a year when you were 19, and then worked as a wall tiler for a couple of years.
33You lost work during the pandemic in 2020. You were living in Cranbourne in the lead up to your offending and your drug use escalated. I was told that you were using 25ml to 30 ml of GHB a day and smoking approximately 3 grams of methylamphetamine a day at the time of the offending.
34I was told that since your remand you have been abstinent from drugs. You have resided in the Hopkins Unit. You have served your time in a Protection Unit for the most part. You work in metal fabrication in custody and have spent your time engaging in education courses also.
35You have three children. Two from a former relationship who are aged 6 and 4. I am told that you see them on a regular basis.
36You have a partner in the community and you have a 9-month-old child together. Your partner gave birth whilst you have been in custody. This weighs heavily upon you. Your goal upon release is to relocate to Queensland with your partner and child and start afresh.
Matters in Mitigation
37I accept that your disrupted and dysfunctional family life affected your childhood to a significant degree, leading you into a drug lifestyle at a tender age.
38Being homeless and exposed to such negative influences from the age of 14 gives rise to personal mitigation to some degree in the Bugmy v The Queen[2] sense and in the sense described in R v McKee and DPP v Brooks.[3]
[2]Bugmy v The Queen (2013) 249 CLR 571.
[3]R v McKee [2003] VSCA 16; DPP v Brooks [2008] VSCA 253.
39Your youth is also a relevant and powerful mitigation.
40I also find that your prospects of rehabilitation are reasonable. Despite your deprived childhood your criminal history is limited and devoid of crimes of violence till now. You also have a work history which in the context of disadvantage, demonstrates some ability and drive which justifies some optimism as to your prospects.
41I also find that you are remorseful. As I can make out from the record, this is your only experience of custody. You cooperated with police and pleaded guilty at an early opportunity.
42I find that these features taken together also support a finding of your prospects being good. Further, you have the motivation of your partner and infant making a fresh start in Queensland.
43I note Mr Cunningham’s opinion that ‘Abstaining from drug abuse and antisocial peer associations whilst improving stability through accommodation and employment would reduce’ your risk of reoffending. I am satisfied that you are motivated in this direction.
44The utilitarian value of your plea of guilty is also a matter I take into account. It is very significant given the backlog in this State’s trial lists.
45Delay is a factor in mitigation to some degree, in the sense that you have had the matter hanging over your head for 20 months or so whilst the appropriate charges were settled.
46Your experience in custody has for the most part been affected by the pandemic restrictions in custody and this is a matter I take into account.
47These matters in mitigation reduce the sentence I would otherwise impose – nonetheless the important principles of general deterrence, denunciation and just punishment must be reflected in the sentence I impose.
48In your case this requires the imposition of a head sentence and non-parole period.
Sentence
49I sentence you as follows, Mr Tuckerman.
50On the charge of causing serious injury intentionally I sentence you to be imprisoned for a period of 5 ½ years.
51In respect of the relevant summary offence of committing an indictable offence whilst on bail you are sentenced to 1 months imprisonment.
52In relation to the offence of contravening a condition of bail you are sentenced to 7 days imprisonment.
53That makes a total effective sentence of 5 years and 6 months.
54I set a non-parole period of three years and three months before becoming eligible for parole.
55Pursuant to s 18 Sentencing Act I declare that you have served 565 days of pre-sentence detention not including today.
56Had it not been for your plea of guilty I would have sentenced you to 7 years’ imprisonment with a non-parole period of 4 ½ years.
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