Director of Public Prosecutions v Urquhart

[2017] VCC 1163

IN THE COUNTY COURT OF VICTORIA  Revised
(Not) Restricted
 Suitable for Publication

AT MILDURA
CRIMINAL JURISDICTION

CR 17-01188

DIRECTOR OF PUBLIC PROSECUTIONS

v

DARCY LEE URQUHART

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JUDGE:	HIS HONOUR JUDGE M. P. BOURKE
WHERE HELD:	Mildura
DATE OF HEARING:
DATE OF SENTENCE:	22 August 2017
CASE MAY BE CITED AS:	DPP v URQUHART
MEDIUM NEUTRAL CITATION:	[2017] VCC 1163

REASONS FOR SENTENCE
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Cases Cited:
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APPEARANCES:	Counsel	Solicitors
For the Office of Public Prosecutions	Mr D. O'Doherty
For the Accused	Ms C. McRath

HIS HONOUR:

1Darcy Lee Urquhart, you are to be sentenced for one charge of aggravated burglary and one charge of theft.  The respective maximum sentences are 25 and 10 years' imprisonment. 

2You pleaded guilty before me earlier today. 

3The offences were committed in January 2013.  Since then, you have mainly been interstate, some if not much of the time, been in a New South Wales prison.  You did not abscond after being charged with these matters.  You were extradited to Victoria in December 2016.  Soon after, you were interviewed in custody by police about these offences and made full admissions.  You pleaded guilty at committal and the matter was quickly listed for hearing in this court.

4You receive the benefit of your early plea of guilty and that cooperation.  You have thereby facilitated the interests of justice and your plea expresses remorse. 

5At the plea hearing, also today, Mr O'Doherty tendered a written Crown opening which,  amongst other things, referred me to victim impact statements tendered in the plea hearing of your co-offender,  Bevan Yates.

6Ms McRath for you tendered the psychological report of Warren Simmons dated 13 July 2017 and the letter of the New South Wales State Parole Authority dated 6 December 2016.  She provided to me an outline of plea submissions.  Part of that was a chronology of sentences, parole orders and proceedings since September 2012. 

7Mr O'Doherty also provided the reasons for sentence of your co-offenders Yates and Jonathan Mitchell.  In July 2014, Yates received three years imprisonment  for two charges of armed robbery.  In May 2016, Mitchell received a three month suspended sentence for aggravated burglary and an adjourned undertaking for theft.  At the time of offending, Yates was 26 and Mitchell 21.  You were 27.  All three of you have prior offending.

8The circumstances of this offending are set out in the tendered Crown opening which is Exhibit A.  In September 2012, you were released on parole for a sentence of nineteen months with a non-parole period of eleven months imposed in June 2012.  There had been a period of pre-sentence detention declared.  You complied with parole for a time, but faltered in December to January.  On 5 January, you had been using methylamphetamine for some time.  On that day, you were in the company of a number of people including your co-offenders.  Some, or at least one, knew the victims Santosh Ghimire, Sukdeep Singh and Kuldeep Kaur, who lived on Staley Road, Wynnum near Robinvale.  Kaur is Ghmire's wife.  Your group had gone to their home earlier in the day. 

9At about 7 pm, you returned needing water for your overheated car.  Back at the car, the three of you decided to steal from them.  You went back inside for that purpose (aggravated burglary).  Inside, Yates took as a weapon a fire extinguisher, hence his sentence for armed robbery.  You are not to be sentenced for that.  You took items including a television, mobile phones, a GPS unit, laptop computer, camera and $100 in cash.

10Having breached your parole by non-compliance, you left the state with your family and took up residence in New South Wales soon after.  That had been your plan before this offending, which can be seen as relatively spontaneous and opportunistic.  You have lived in Newcastle with your partner and four children since, when not in custody.  Ms McRath's chronology, and submissions before me, indicate that on 21 January 2013 your Victorian parole was cancelled.  In New South Wales on 19 October 2015  you received a sentence of three years and three months with a non-parole period of two years.  You were given the opportunity of serving that on a drug treatment order and complied for about 18 months in the community.  However, you breached and were returned to custody.  You were granted parole for that New South Wales October 2015 sentence on December 2016.  However, you were extradited to Victoria soon after and,  on 22 December, began to serve 240 days owed on the Victorian June 2012 sentence.  The expiry date of that is
24 August 2017, two days away from now.

11This was serious offending and you have significant prior and subsequent offending. There was significant victim impact. Sentencing considerations of deterrence, moral culpability, denunciation and proportionate punishment are relevant. I bear in mind that this offending was committed whilst on parole and I am aware of the requirements of s.16(3)B of the Sentencing Act. 

12However, the principles of delay, totality and parity with Mitchell also apply.  I am persuaded that I should impose a similar sentence as that imposed upon Mitchell.  I also take into account the deprivation and damage of your early life.  The Crown does not argue against that sentence.  It will allow you to return to New South Wales upon release on 24 August.  You will return to New South Wales and resume that parole, which runs to March 2018.  You will have seven days in which to return without further breach.  I refer to the tendered letter of the New South Wales State Parole Authority.

13Accordingly, I sentence you as follows.  On both charges, I impose an aggregate sentence of three months' imprisonment.  It is cumulative upon the Victorian sentence you are presently undergoing and which ends in two days' time.  However, I wholly suspend it for the period of twelve months.

14Now I need to explain this to you.  If over the next twelve months you breach this suspended sentence by committing an offence punishable by imprisonment, you will be brought back before me and it would only be in exceptional circumstances, after today, that I would not be obliged to restore the sentence.  You would go to prison for three months.  Had you not pleaded guilty, I would have imposed a sentence of twelve months to be served cumulatively.  What else is there?  There is the section ‑ ‑ ‑

15MR O'DOHERTY:  Section 464 order.  Sorry, you've refused that ‑ ‑ ‑

16HIS HONOUR:  Yes I am not making that order.  Just

17MR O'DOHERTY:  There is nothing else.

18HIS HONOUR:  Just as a matter of interest, have you given a forensic sample before?  Do you remember, in your mouth?

19OFFENDER:  Oh no, no, no.

20HIS HONOUR:  All right, well ‑ ‑ ‑

21OFFENDER:  Sorry.  I just had lunch, I thought - - -

22HIS HONOUR:  No, it is all right.  I wouldn't be able to see that far Mr Urquhart.  All right, that's all I need to do is it?

23MR O'DOHERTY:  Yes, Your Honour, that's all.

24HIS HONOUR:  All right, well we'll - you can be taken back into custody.  Well good luck with it.

25OFFENDER:  Thank you.

26HIS HONOUR:  I mean if you want to be around for your children ‑ ‑ ‑

27OFFENDER:  Yes.

28HIS HONOUR:  ‑ ‑ ‑ you better get to the end of this parole.  I know cases in which people - they get generous non-parole orders, they get out on parole, you are not a bad example thus far.  But of course if they do not make it through parole, it just keeps on adding up and people end up owing years and years and years to the Parole Board.  You would not see them for a long time.

29All right, well good luck with it.

30OFFENDER:  Thank you.

31HIS HONOUR:  You can say goodbye to him, but it has got to be very briefly.

32OFFENDER:  You'd know that - that um the release date is ‑ ‑ ‑

33MS McRATH:  Tomorrow.

34OFFENDER:  ‑ ‑ ‑ tomorrow?  It's not on the 24th?

35MS McRATH:  No, it's tomorrow.  I made a mistake, Your Honour.

36HIS HONOUR:  Well I don't think it's the end of the world.  All right, good luck, you can go into custody now.

37OFFENDER:  Thank you.

38HIS HONOUR:  Thank you.  All right, well thank you.  Thank you Ms McRath.  You're excused now.

39MS McRATH:  Thank you, Your Honour.

40(At this stage the court proceeded with another matter.)

41HIS HONOUR:  Thank you.

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