Director of Public Prosecutions v Van Dergulik
[2023] VCC 610
•14 April 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 22-00723
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| RICKY VAN DERGULIK |
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JUDGE: | HIS HONOUR JUDGE KELLY |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 21 March 2023 |
DATE OF SENTENCE: | 14 April 2023 |
CASE MAY BE CITED AS: | DPP v Van Dergulik |
MEDIUM NEUTRAL CITATION: | [2023] VCC 610 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Intentionally Cause Injury – Trespass – Lending Support – Presence during Offending – Prospects of Rehabilitation.
Legislation Cited: Crimes Act 1958; Summary Offences Act 1966; Sentencing Act 1991
Cases Cited:Cameron v The Queen (2002) 209 CLR 339; Director of Public Prosecutions v Merrett & Ors [2007] VSCA 1; Hogan v Hinch (2011) 243 CLR 506; Anderson v The Queen [2013] VSCA 138; Worboyes v The Queen (2021) 96 MVR 344.
Sentence: 2 Year Community Correction Order
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr E.S. Dober | Solicitor for the Office of Public Prosecutions |
For the Accused | Mr A. Dickenson | Giorgianni & Liang Lawyers |
HIS HONOUR:
1Ricky Van Dergulik, you have pleaded guilty to one charge of intentionally causing injury,[1] and one related summary offence of trespass.[2]
[1] Contrary to s 18 Crimes Act 1958.
[2] Contrary to s 9(1)(e) Summary Offences Act 1966.
2The maximum penalty for intentionally causing injury is 10 years' imprisonment and for the summary charge of trespass the maximum penalty is a fine of 25 penalty units or six months' imprisonment.
Summary of Offending
3The circumstances of your offending were read aloud at your plea. The written prosecution summary was tendered on your plea.
4On 24 September 2021 you were socialising with Mr Jordan Higgins and a number of others.
5At about 8.45 pm you and Higgins attended the home of the victim in this matter,
Alex Galiardi. Also in the house was Mr Galiardi's partner, Sammy-Jo Buvak. You had had no prior dealings with Galiardi. However, Higgins knew Galiardi as they had previously worked together. Neither you nor Higgins had been invited to attend or enter the property.6Buvak heard a brick being thrown through a window in the property and heard Higgins yelling out Galiardi's name. Higgins then kicked in the glass front door. Galiardi ran to the front door of the property and observed Higgins and three other males, including you, standing within the boundary of the property.
7Following a verbal altercation between Mr Galiardi and Mr Higgins, Higgins and Galiardi began to fight each other. Eventually a third male stepped in and hit Mr Galiardi in the head.
8Mr Galiardi fled inside his property to get away from the four of you whilst the assault continued, Higgins and others having entered the property. Mr Galiardi was struck in the back of his head, falling forward onto the ground. Once on the ground Mr Galiardi was kicked by three males. The charge of intentionally causing injury against you is put on the basis that you assisted the assault of Mr Galiardi by lending support to your co-offenders by being physically proximate.
9At 8.34 pm Buvak called the police, at which point you entered the property and said to the others, 'Let's go, let's go'. The charge of trespass is constituted by your entry onto the boundary of the property and your later entry into the building for the purposes of ending the assault.
10You, Higgins and the other two unidentified males then exited the property whilst Galiardi was still on the ground and Buvak was on the phone to police.
11The four of you entered a nearby car and drove towards central Shepparton. You were captured on CCTV footage at the Shepparton railway station at 8.38 pm.
12Mr Galiardi was then taken to hospital where a number of injuries to his body were identified by Dr Narez Al Azawi, including scratch marks on the right side of his chest, bruising on his left eye, approximately 5 centimetres with no visual disturbance, blood in both nostrils, swelling of the nasal bridge bone and a bruise behind his right ear. The medical assessment indicated the injuries were sustained by way of blunt force trauma to the face, causing a displaced nasal bone fracture.
13On 27 September 2021 you attended the Shepparton police station by appointment where you were arrested, cautioned and participated in an interview. You made a number of admissions.
Personal Circumstances
14As to your personal circumstances you were born in January 1995 and are 28 years of age. You are one of seven siblings with ages between 30 and seven years.
15You were raised in Numurkah and you currently live with your mother and a number of your siblings. In terms of your own family, you were in a relationship with a woman for a period of eight years, during which time you fathered a son. Your relationship with your former partner ended three years ago and you currently have no contact with your son, who lives with your former partner.
16You attended St Joseph's Primary School in Numurkah and St Mary's College during Years 7 to 9, and completed Year 10 at Wanganui Secondary College before being expelled in Year 11.
17You report that you had a good relationship with all your family members except for your father, who you reported had substance abuse issues and was constantly in and out of prison.
18Your childhood was marred by witnessing a number of instances of family violence, which caused your mother to flee to refuges on occasion. This continued until your parents separated when you were 12 years old. You regarded your childhood as unenjoyable and you never wanted to be home. This led to you spending a significant amount of time running away from home to avoid your father's violence.
19You started drinking alcohol at the age of 12, and reported to Community Corrections during your community correction order suitability assessment, that you quickly progressed to binge drinking
Thursday to Sunday each week, consuming more than a slab during these periods.20You commenced smoking marijuana at age 14, using between 1 to 2 grams per day. You then progressed to methylamphetamine use by the age of 17 and you have a history of MDMA and cocaine consumption. You reported to your legal counsel and to CCS that you have ceased all substances other than occasional cannabis consumption.
Gravity of offending and moral culpability
21As to the gravity of the offence and your moral culpability, intentionally cause injury is a serious charge and this is a nasty example of it, involving the assault of a defenceless and vulnerable man by three men who kicked him when he was on the ground. You did not participate in the assault except to encourage your co-offenders by being present alongside them when they carried out their attack. That makes you a party to their attack and your moral culpability is therefore high.
22Your role in the trespass is modest. The prosecution accepts that you entered the house to persuade your co-offenders to stop their attack. As such your moral culpability for this offence is low.
Defence Submissions
23Mr Dickenson, on your behalf, raised a number of factors which it was submitted justify mitigating your sentence. Your counsel submitted that your comments, 'Let's go, let's go', resulted in stopping the attack against Mr Galiadi. It was submitted that I take this fact into account in determining the objective gravity of your offending, which Mr Dickenson submitted was at the lower end of the range.
24It was submitted that your prospects of rehabilitation are good. You are making tangible progress in your abstention from alcohol and drugs. You have also been living with family members, who have provided support and assistance during your period on bail. I was taken to a number of letters written by family and colleagues which note that you have made positive changes to your life.
25Regarding your work history it was originally indicated to me that you had obtained full time work as a concreter but this work had subsequently dried up. You then commenced intermittent work, taking odd jobs when they were available to you.
26Mr Dickenson relies on your work ethic, the protective support of your family and the strides you have made towards sobriety as auguring well for your rehabilitation.
27Mr Dickenson submitted that both general and specific deterrence were relevant considerations in sentencing you. However, he suggested that both general and specific deterrence were not of overwhelming significance due to the role you played in the offending which brought about the end of the attack. He submitted that these principles could be sensibly moderated in your case given your role.
Prosecution Submissions
28The prosecution raised several factors relevant to the objective gravity of the offending. Four men drove to Mr Galiardi's property. The offending involved a degree of planning and was not spontaneous. The offending was also protracted by getting outside the residence then continuing inside. The fact you eventually stopped the assault from continuing also highlights the fact that you had the capacity to stop it much earlier than you did.
29Although no victim impact statement was provided, the prosecution submitted that I could infer the impact on Galiardi of this offending in that it would have been quite frightening.
30The prosecutor acknowledged the objective value of an early plea of guilty justifies a mitigation in your sentence, and that a plea during a period when the courts continue to deal with the after effects of the COVID-19 pandemic carries greater utilitarian value.
31Mr Dober argued that you have not demonstrated genuine remorse apart from your pleas of guilty. He submitted that you have several relevant criminal prior convictions including prior convictions for causing injury recklessly, affray, unlawful assault, assault in company and assault of an on-duty emergency worker. On this basis specific deterrence is an important sentencing factor in your case.
32The prosecution also raised the fact that you have in the past exhibited poor compliance with court orders. The offending before me occurred when you were subject to a community correction order. You have contravened such orders previously. You have also prior breaches of bail conditions and adjourned undertakings. The prosecutor also raised the fact that you have demonstrated positive compliance with some conditions of your latest community correction order. Balancing your past compliance and
non-compliance, it was submitted that you have some prospects of rehabilitation and that your ability to become rehabilitated from drug addiction will be a significant factor in your prospects of rehabilitation and the future risk you pose to the community.
Plea of guilty
33In sentencing you I am required to consider the fact that you have pleaded guilty and the stage of the proceedings in which you pleaded guilty.[3]
[3] s 5(2)(e) Sentencing Act 1991.
34You have pleaded guilty following a contested committal hearing and a sentence indication. Whilst not a plea at the earliest possible stage, your plea has saved the expense of time and resources having to conduct a trial,[4] and has also avoided the calling of evidence from the victim and witnesses.[5] These benefits mitigate your sentence. You have also entered pleas of guilty during a time where the court is dealing with the backlog created by the COVID-19 pandemic and your plea therefore has greater utilitarian benefit.[6] I have discounted your sentence accordingly.
[4]E.g., Cameron v The Queen (2002) 209 CLR 339, 360-361 [66].
[5]E.g., Anderson v The Queen [2013] VSCA 138 at [14].
[6]Worboyes v The Queen (2021) 96 MVR 344, 356-357 at [39].
Prospects of Rehabilitation
35You have demonstrated both considerable compliance and non-compliance with prior court orders and therapeutic treatments. In an email provided by
Mr Mansour Ali from Community Corrections it is clear that you have contravened two prior community correction orders but that you have also completed the punitive and therapeutic conditions of your most recent order. I take this as evidence which positively points to your potential to reform.36A number of references were provided to me, including a character reference from Mr Anthony Beck, your friend of 15 plus years.
37Mr Beck acknowledged your prior troubles with substance abuse issues but indicated in his letter that you have recently been doing the best you can to stay off drugs and you are currently the best he has seen you in years.
38Mr Shane Schultz provided a reference as an individual who has known you for around 20 years. He highlighted that since your offending, you have obtained both professional help and the support of your friends and family to assist in your rehabilitation from drug consumption. Your journey to, 'sobriety', has over the last 10 months resulted in you demonstrating a number of admirable qualities including strength, intelligence and, 'heart of a young man'.
39Your mother, Ms Mandy Burston, also provided a reference. She noted that you turned to drugs as a way to escape your traumatic upbringing but that in the six months prior to her writing her reference you had made positive changes to your life by halting the consumption of drugs and alcohol.
40Consistent with the letters provided to me is an acknowledgment by the authors that you have made unsuccessful attempts to rehabilitate yourself in the past but that they have each recognised a positive change in your behaviour and they each believe that you are on track to a functional life.
41I note that having been assessed by Community Corrections as suitable to be placed on an order they also assessed you as having a high risk of general reoffending.
42Your prospects of rehabilitation accordingly are fair.
Delay
43During the time this matter has been before the court you have been unable to finalise your current community correction order despite completing all of the requirements of the order and you have been unable to pursue contact with your daughter. On the other hand, the evidence before me suggests that you have used this delay to make considerable progress in your rehabilitation from drug use.
44Sentencing courts are entitled to take into account by way of mitigation the effect delay has had on the rehabilitation of the offender. As the Court of Appeal indicated in Merrett, Piggott and Ferrari:
'The relevance of delay lies rather in the effect which the lapse of time, however caused, has had on the accused. Delay constitutes a powerful mitigatory factor. In particular, it focuses on issues of rehabilitation and fairness'.[7]
[7]Director of Public Prosecutions v Merrett & Ors [2007] VSCA 1 at [35].
45From the same case President Maxwell, as he then was, later observed:
'There is very great benefit to the community as well as to the individuals themselves and their immediate families if future criminal activity can be avoided. It is important that this court by its own sentencing decisions recognises and rewards efforts at rehabilitation. Just as we should support trial judges who do so, it is important to reinforce in the public mind the very considerable public interest in the rehabilitation of offenders. The preoccupation with retribution which characterises much of the public comment on sentencing, is understandable but it focuses on only one part of what the sentencing court does'.[8]
[8] Ibid at [49].
46In your case I intend to moderate your sentence in light of the steps you have taken to rehabilitate yourself during this delay.
Sentencing Principles
47Turning now to the purposes for which I am to sentence you, s 5 of the Sentencing Act provides the only purposes for which I am permitted to sentence you are:
(a) to punish you in a manner and to an extent that is just in all the circumstances;
(b) to deter you and others from committing similar offences;
(c) to establish conditions through which you may be rehabilitated;
(d) to manifest the denunciation by the court of your offending behaviour; and
(e) to protect the community from you.
48As I have previously mentioned, this kind of offending is serious. I find it important that both you specifically and other members of the public more generally be deterred from assisting in the commission of like offending.
49The Prosecution raised your lack of prior compliance with court orders to argue that community protection has a role to play in sentencing you. I accept that the protection of the community is an important consideration in this context. However, in light of my prior discussion in relation to the importance of rehabilitation in your case, the words of Chief Justice French in Hogan v Hinch remain pertinent:
'Rehabilitation, if it can be achieved, is likely to be the most durable guarantor of community protection and is clearly in the public interest'.[9]
[9]Hogan v Hinch (2011) 243 CLR 506, 537 at [32].
50Mr Van Dergulik, are you able to turn your video on?
51OFFENDER: Ah, yeah. Sorry, mate, it was - it was turned off. I didn't turn it off, mate - Your Honour.
52HIS HONOUR: All right. I will ask you stand now while I sentence you. Actually, before that, just remain seated. I have got to go through some stuff at the moment.
Sentence
53What I am proposing to do, Mr Van Dergulik, on Charge 1 and the summary charge of trespass, is to record convictions and place you on a community correction order for a period of 24 months from today's date.
54Before I ask if you consent to such an order being made, I have to tell you a little bit about the order so that you know what it means. Do you understand?
55OFFENDER: Yes, Your Honour.
56HIS HONOUR: The following core conditions apply to all community correction orders: (a) you must not commit, whether in or outside Victoria during the period of the order, an offence punishable by imprisonment. You understand?
57OFFENDER: Yes, Your Honour.
58HIS HONOUR: And (b) you must report to and receive visits from the secretary to the Department of Justice or his or her nominee during the period of the order. You understand that?
59OFFENDER: Yes, Your Honour.
60HIS HONOUR: (c) you must report to the Community Corrections Centre at Shepparton within two clear days of this sentence, all right?
61OFFENDER: Yes, Your Honour.
62HIS HONOUR: You must notify the secretary or his or her nominee of any change of address or employment within two clear working days after that change; understand?
63OFFENDER: Yes, Your Honour.
64HIS HONOUR: You must not leave Victoria except with the permission of the secretary to the Department of Justice or his or her nominee. So you have to check with Corrections if you want to travel interstate; you understand?
65OFFENDER: Yes. Yes, Your Honour.
66HIS HONOUR: You must comply with any direction given by the secretary that is necessary for the secretary to give or to ensure you comply with the order. So that means a Community Correction officer basically. Do you understand?
67OFFENDER: Yes, Your Honour.
68HIS HONOUR: Very well. There are a number of other conditions attached to this order and they apply to you:
(a) you have to perform 200 hours of unpaid community work over a period of 24 months as directed by the regional manager. 100 hours of treatment and rehabilitation satisfactorily undertaken are to be counted as hours of unpaid community work for the purposes of the unpaid community work condition;
(b) you must be under the supervision of a Community Corrections officer for a period of 24 months,
two years;
(c) you are required to be supervised, monitored and managed as directed by the secretary or his or her nominee;
(d) you must undergo assessment and treatment including testing for drug abuse or dependency as directed by the regional manager;
(e) you must undergo assessment and treatment, including testing, for alcohol abuse or dependency as directed by the regional manager;
(f) you must undergo any medical assessment and treatment, that may include general or specialist medical treatment or treatment in a hospital or residential facility, as directed by the regional manager;
(g) you must undergo programs or courses aimed at addressing factors relating to the offending as directed by the regional manager, and I specifically refer to
Men's Behavioural Change Programs. Understand?
69OFFENDER: Yes, Your Honour.
70HIS HONOUR: You must attend for review of your progress and compliance or otherwise with the conditions of the order and you have got to come back before me on Friday, 14 July at 9.30 am, all right?
71OFFENDER: Yes, Your Honour.
72HIS HONOUR: That is what is called judicial monitoring, so on those occasions you need to appear and I need to find out from you how you are going on the order.
73OFFENDER: Yeah, yes, Your Honour.
74HIS HONOUR: I direct that I be advised by your Corrections officer of any non-compliance of these conditions and I will then determine if the matter should be brought back before me.
75I can only impose a community correction order if you agree with such an order being imposed. So I need to tell you a little bit more about it.
76I should advise you that if you contravene or breach or break that order by committing further offences you can be charged and a sentence of imprisonment is one of the options that can be imposed for that breach, all right?
77OFFENDER: Yes, Your Honour.
78HIS HONOUR: You can also be re-sentenced for the offences that are before me, and one of the options available includes a term of imprisonment. For those reasons you need to be extra careful for the next 24 months. No committing any further offences that might incur a term of imprisonment, otherwise you are back before this court and you will be re-sentenced on those two charges that are before me, all right?
79OFFENDER: Yes, Your Honour.
80HIS HONOUR: I also need to advise you that if you fail to comply with any direction of the secretary to the Department of Justice, that is a Community Corrections worker, a substantial fine can be imposed. All right? So you understand that?
81OFFENDER: Yes, Your Honour.
82HIS HONOUR: Do you consent to being placed on a community correction order?
83OFFENDER: Yes, Your Honour.
84HIS HONOUR: Very well. I will ask you to stand now then, Mr Van Dergulik. Ricky Van Dergulik, I sentence you as follows.
85On Charge 1, intentionally cause injury, I convict you and sentence you to a two-year community corrections order.
86On Summary Charge 1, trespass, I convict you and sentence you to an eight-month community corrections order to run concurrently with the sentence in Charge 1.
87Pursuant to s6AAA of the Sentencing Act I declare that had you pleaded not guilty to these offences I would have sentenced you to 18 months' gaol with a non-parole period of 10 months.
88Mr Dober, any further orders?
89MR DOBER: No matters, Your Honour.
90
HIS HONOUR: Very well, so that is the sentence,
Mr Van Dergulik. You will be asked in due course to sign your undertaking. You have made an oral undertaking today and that is sufficient for our purposes. You need to report, as you know, to the Shepparton Community Corrections office within two days.
91OFFENDER: Yes, Your Honour.
92HIS HONOUR: In order to commence that order. All right. Good luck.
93MR DOBER: As Your Honour pleases.
94OFFENDER: Thank you, Your Honour.
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