Director of Public Prosecutions v Urquhart

[2021] VCC 173

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 20-00887

DIRECTOR OF PUBLIC PROSECUTIONS

v

DARCY LEE URQUHART

---

JUDGE:	HIS HONOUR JUDGE JOHNS
WHERE HELD:	Melbourne
DATE OF HEARING:	1 March 2021
DATE OF SENTENCE:	23 February 2021
CASE MAY BE CITED AS:	DPP v Urquhart
MEDIUM NEUTRAL CITATION:	[2021] VCC 173

REASONS FOR SENTENCE

---

Subject: Criminal Law Sentence

Catchwords: Koori Court jurisdiction - Aboriginal offender – Burglary – Theft – Possession

Cases Cited: Bugmy v The Queen (2013) 249 CLR 571

Sentence: Aggregate four-month sentence of imprisonment and a two-year Community Corrections Order

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms A. Harrold	Office of Public Prosecutions
For the Accused	Ms J. Turfrey	Martin, Middleton and Oates Lawyers

HIS HONOUR:

1Darcy Lee Urquhart, you have pleaded guilty to one charge of burglary, one charge of theft, one charge of theft of firearm and a charge of being a prohibited person possessing a firearm.  The maximum penalty for burglary is 10 years imprisonment.  The maximum penalty for theft is 10 years imprisonment.  The maximum penalty for theft of a firearm is 15 years imprisonment.  The maximum penalty for being a prohibited person possessing a firearm is 10 years imprisonment.

2You have admitted a criminal record that discloses a number of relevant prior matters including convictions for burglary, theft and possessing a firearm whilst prohibited.  You also have a number of prior convictions for dishonesty offences and some for offences of violence.  Your criminal record also discloses poor performance in relation to community-based dispositions which you have received in the past.

3Dealing with the facts of the matter, between 21 and 22 April 2018, you attended a house at Olivewood Drive Mildura and entered the rear yard of the property.  You forced open a small laundry window and reached in to open the laundry door.  That is Charge 1, burglary. 

4Once inside, you rummaged through the house.  You found a safe concealed on a shelf inside a built-in wardrobe.  You removed the entire shelf from the wardrobe and took it from the house.  You later opened the safe using a hammer and found assorted jewellery inside.  That is the Charge 2, theft. 

5You then entered a shed at the rear of the property and found a firearm safe and you stole the firearms located in the safe.  That is Charge 3, theft of firearms.  At the time, you were a prohibited person within the meaning of the Firearms Act 1996 (Vic).

6Despite the location of your fingerprints at the scene, you were not arrested by police at that time as you had returned to New South Wales.  Two of the firearms were located by police in the following months, during unrelated searches in relation to offenders not connected to you. 

7On 20 April last year, investigators learnt that you had returned to Mildura and you were located and transported to Mildura police station and interviewed.  You made full admissions, which is to your credit.  You stated that at the time of the offending, you had been trying to get back to New South Wales, so that you did not breach your parole.  You said you had no money to get back to New South Wales and that was your reason for committing the offence.

8You said that after stealing the firearms, you sold them to ‘the Rebels’ for $1,200 which is understood to be the Rebels outlaw motorcycle gang.  You asked police if you could write a letter of apology to the victims and have police give it to them. 

9At your plea, I was told that you were told at a later stage by your cousin that the purchasers of the weapons were connected to an outlaw motorcycle gang.  You did not know that at the time.  I accept that your reason for committing the offences was that stated to the police and that that was genuine. 

10I was told that you had returned to Victoria in July 2019.  These offences are without a doubt serious forms of burglary and theft, as they involve firearms.  Those firearms found their way into the outlaw community.  You, yourself, are a person prohibited from possessing firearms.  The theft of jewellery from a person's home, which was held secure in a safe, is also a very serious matter.

11Given your history, the offending of this type, the degree of leniency able to be afforded to you is limited.  Your history also raises issues as to your prospects of rehabilitation.  You participated in the Koori Court hearing and engaged fully in that process.  At the conclusion of the initial hearing, I adjourned the matter to have you assessed for a community corrections order. 

12I contemplated a community corrections order for your serious offending, notwithstanding your history, due to my acceptance, based upon your participation in the sentencing conversation, of what I took to be your genuine remorse and genuine willingness to change the pattern of your life during the sentencing conversation. 

13I also accepted that the pattern of your life, up to that stage, had been irrevocably shaped by early childhood exposure to violence, neglect and deprivation.  You had also been the victim of sexual abuse as a child, in circumstances where you were taken from one unsatisfactory home environment and subjected to another.

14The progress of this matter before me was interrupted when your further offending intervened in December last year, around the time the matter was to return to court for my consideration of your community corrections order assessment.  I will return to what has transpired since December, but first I want to deal with issues relating to your personal history and your engagement in the Koori Court process. 

15I will indicate at this point also that a report from Dr Mirabel McConachie dated
2 December 2020 was tendered on your behalf and I accept the contents of the matters contained therein. 

16You reported to Dr McConachie, and submissions were also made on your behalf at the Koori Court plea to this effect, that your childhood history can be described as one characterised by parental substance abuse, constant violence and neglect.  You were born the youngest of three in Robinvale, with two older sisters.  The family moved to the ACT when you were around two and your parents separated shortly afterwards.  There is some conflict in the reports.  It may be that you went to the ACT due to your mother fleeing the family violence and your father followed for a brief period of time.  These matters were canvassed at length during the sentencing conversation also.

17Your mother was an alcoholic and substance abuser, who would frequently, in your words, flog you, including assaulting you with a cricket bat.  These beatings were intense, violent and usually without cause. 

18At times your sisters would also join in, you reported to Dr McConachie.  Your mother rarely provided satisfactory food and the normal supports associated with a home.  From a very young age, you began to go and steal to obtain food and money to survive, from around the age of perhaps as young as six or seven.  Community services in New South Wales were from time to time involved and would occasionally place you with a family friend. 

19Your mother threw a kitchen knife at you when you were around 14 and from that point, you say you left home. 

20School was an escape for you. You attended primary school at Queanbeyan public school in the ACT which provided some respite from what you were exposed to at home.  You had friends and you were very good at sport and that was a gateway to friendship and feelings of satisfaction. 

21Unfortunately, a lot of that was robbed from you when, despite your obvious talent at rugby league, and being initially selected for the Canberra Raiders Junior Squad in early secondary school, you were ineligible to participate in that squad due to showing a positive urine screen for cannabis.  This was a direct result of your background and exposure to childhood neglect and alcohol and drug abuse.  You felt devastated by this and dropped out of school at the end of Year 9. 

22You completed a boilermaker apprenticeship which is to your credit and worked in that field, before then working in irrigation work, due to the better pay.  It is around that time, however, you got involved in amphetamine use.  This is around the age of 21 and you lost your job and you have been unemployed since your early 20s and your criminal history indicates that from 22 years of age or thereabouts, you have been in and out of gaol regularly.

23Going back to your childhood years. After your parents separated, your father moved to Shepparton.  You would see him from time to time, particularly on holidays.  It was during these visits when aged around seven or eight years that you were sexually assaulted by an uncle, who you understand also sexually assaulted your sisters and others in the community.  When your father learned of this, he exacted violence on your uncle who then fled and never returned.

24The impact of sexual abuse, particularly on childhood victims is now well understood and the trauma that can follow through your life and result in behaviours, some of which include drug and alcohol abuse. You have been no different.  You were tearful and angry when you discussed the matter which is understandable.  Dr McConachie reports that you feel completely distraught, devastated, angry and ashamed about what had occurred to you and your sisters.  You stated to her that the sexual abuse still haunts you and you will avoid speaking about it at all costs.  You have therefore never had counselling or had that trauma addressed in any way.   In addition, you have a lot of feelings of  resentment, due to the parental neglect you experienced throughout your life.

25There are  positives that have emerged in your life, being your partner, Nancy, of whom you have been in a relationship for some 15 years and your daughters, the oldest of which is Shontay, about whom you spoke in particular, during the Koori Court conversation, in what I will just describe as warm and loving terms.  You also have Lisa, 12, and Darcy who was four at the time of the writing of the report.  You appear to be very protective of the girls and it is the main motivating force in your life, which emphasises the sadness and disappointment at you being currently in custody for an incident of family related violence from December.

26During the Koori Court hearing, you spoke of your deep connection to Aboriginal culture and country.  You are a proud Wurundjeri man.  It emerged during the conversation that you have a deep cultural connection - in particular, you had been involved in a lot of dancing, of cultural dancing, teaching dancing and performing professionally in relation to the dancing at various times in your life, and that emerged as a real positive in your history. 

27You were motivated to teach your daughters about culture and teach others about dancing in your community, but you acknowledge that of course you have been away from your community and your family for long periods of time, due to incarceration and that at the root of all of that is drug and alcohol abuse, in particular ice and amphetamine and these are things that you need to address. 

28Though you also seem to realise now that there are a number of underlying problems and issues directly related to that substance abuse, some of which I have touched on in the form of childhood trauma and past trauma.

29You spoke during the conversation in convincing terms and strong terms of your willingness to re-engage with family, not just your immediate family, but wider family in the Robinvale and surrounds community and to pass on knowledge that you have, particularly in relation to dancing.  You were aware of some of the supports in the community and have had involvement in the past in the Murray Valley Aboriginal Cooperative and other organisations.

30You expressed your desire to assume the role of responsible and caring father, who would ensure the children did homework, engage in board games with them, but also beyond your immediate family, be a positive force for other relatives.  You have the ability to do just that.  It was very clear, during the conversation, that if you can address your substance abuse and the drivers of it, you will go a long way towards rehabilitating.  Of note, you described a six-year period as being the longest period you had stayed clean.  There is reference to that elsewhere in the materials and the Suboxone treatment you were having at that time.

31I accept that with your history, particularly one where as a six, seven, eight year old, you were committing similar sorts of offences to what brings you before me, in order to stop yourself from being hungry.  It provides a real illustration of how you have come to be where you are today.  That background is of real relevance and it was submitted to me that the Bugmy principle applies and I accept that and give it full effect in this matter.[1]

[1] See Bugmy v The Queen (2013) 249 CLR 571

32On the one hand, as I noted earlier in my remarks, your history works against positive findings of prospects of rehabilitation and also limits the degree of leniency I can extend, but as the Bugmy principle makes clear, it does not diminish over time, it is always relevant and in your case, it is significant.  I was impressed during the Koori Court conversation of your willingness and desire to change, and that this was an opportunity to change and hence my adjournment of the matter, to have you assessed for a community corrections order.

33Clearly the intervening matter for which you are now in custody has had some effect on that outlook, however, in my view, it has not anywhere near entirely diminished some of the positives that emerged from the sentencing conversation. 

34You engaged fully in the Koori Court process.  I was satisfied you have a deep connection to your Aboriginal heritage and culture and have demonstrated a desire to strengthen it and for your daughters also.  Those facts can be a powerful rehabilitative tool in themselves.  I have taken your participation, and the manner in which you participated into account in a positive sense in your case.

35You are at a turning point, notwithstanding where you find yourself now, that you can seize the opportunity with the ongoing support, if it remains available, of your partner and family and the supports in the community to bring about change in your life and break the cycle, break the cycle of drug use offending and custody.

36I am told that despite the violence you engaged in in December 2020, there is still the prospect of support from your partner.  Up until your incarceration, you were attending the MVAC, the Murray Valley Aboriginal Cooperative and I received documentation from the dual diagnosis clinician, Nurse Bryce and indeed, the community corrections order assessment report that I received referred to that.  I also received a mental health community correction screening program, which in summary stated:

'Mr Urquhart is a 35-year-old man who has undergone phone assessment today for a community corrections order.  He reports a current diagnosis of PTSD which he receives treatment for in the community.  He would be vulnerable to mental health deterioration and possible further psychotic episodes if he should relapse into methamphetamine use.  At present, he appears stable and with capacity to continue engaging with voluntary mental health support'.

37There are various recommendations that you have  mental health concerns and that the dual diagnosis clinician, Narelle Bryce, is able to treat both the mental health and substance use concerns in combination, and notwithstanding what has intervened, I consider that still a relevant and worthy option in your case, if you are to turn the tide and change your life; break the cycle.

38Taking into account all the relevant sentencing factors I must, including what has transpired in the delay of some two and a half years since the commission of these offences, including those matters I have mentioned, but also the period of custody you went through last year and your current circumstances, I consider you still have an opportunity to do what you said you were going to do, to do what you told the elders you wanted to do, to make good on the promises you have made to your family and for your family and so I am prepared to extend a merciful sentence at this point in your life, due to what I consider to be that opportunity for change and for a man who from the age of 22 has spent far too much time offending and in custody.

39I am going to impose an aggregate sentence, this being a matter where there is before me on the indictment, a series of offences arising out of the one enterprise or incident. 

40On the four charges before me, Mr Urquhart, I sentence you to four months imprisonment, concurrent with the sentence you are now undergoing. 

41In addition to that, a two-year community corrections order that will commence upon your release. 

42The special conditions of that order are that you perform 150 hours of unpaid community work over the duration of the order. 

43I will order that up to 75 hours of treatment and rehabilitation contact can be credited towards those work hours.  Mental health assessment and treatment is another condition.  Drug assessment and treatment, another condition and as I understand it, the dual diagnosis clinician will be available pursuant to the order.

44I also impose supervision and judicial monitoring.  I will monitor you at nine months from today's date or whatever sitting day is nine months from today's date.  But for your plea of guilty, if it was not a plea of guilty, I would have sentenced you a total effective sentence of three and a half years imprisonment, with a two year non-parole period.  They are my reasons for sentence.  Do you consent to that community corrections order upon your release Mr Urquhart?

45OFFENDER:  Yeah a hundred per cent (indistinct words).

46HIS HONOUR:  Good.  All right, well it will be - I accept that verbal consent, but your signature will ultimately be required on the document once they are sent to you.  Are there any other orders that I have overlooked Ms Harrold or Ms Turfrey?

47MS HARROLD:  No, Your Honour.

48MS TURFREY:  No, Your Honour.

49HIS HONOUR:  All right.  So the effect of that sentence, I did not have an exact release date of what his current sentence was.  I recall being told on the last occasion of the length of it, but the effect of today's sentence is that it commences from today and will run concurrently with whatever is remaining on the sentence that he is currently undergoing, so four months from today.

50He will be eligible then to enter the community corrections order.  The judicial monitoring will be 23 November of this year at 9.30 am.  I look forward to seeing you on 23 November Mr Urquhart and ‑ ‑ ‑

51OFFENDER:  Yes.

52HIS HONOUR:  ‑ ‑ ‑ hearing about how successful the treatment has been, how you are getting on with your family and how far you have got through those work hours.

53OFFENDER:  Yep.  So how long is the actual release date, like how ‑ ‑ ‑

54HIS HONOUR:  I do not have an exact date, but it is four - should be four months from today, but Ms Turfrey will talk to you about that.

55OFFENDER:  Thanks.  Thank you, Your Honour.

56HIS HONOUR:  Adjourn the court.

‑ ‑ ‑