Director of Public Prosecutions v Walker

[2014] VCC 671

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

AT BALLARAT
CRIMINAL JURISDICTION

CR-13-00725

DIRECTOR OF PUBLIC PROSECUTIONS

v

DARRELL WALKER

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Ballarat
DATE OF HEARING:
DATE OF SENTENCE:	14 May 2014
CASE MAY BE CITED AS:	DPP v Walker
MEDIUM NEUTRAL CITATION:	[2014] VCC 671

REASONS FOR SENTENCE
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Subject:
Catchwords:
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Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms E. O'Neill
For the Offender	Ms E. Ruddle

HER HONOUR: 

1Darrell Richard Walker, you have pleaded guilty to 15 charges of burglary, 15 charges of theft, three charges of handling stolen goods, one charge of dangerous driving and one charge of possessing property suspected of being the proceeds of crime.  You have admitted prior convictions.

2The very detailed prosecution summary is exhibited with these sentencing remarks, but in short compass, between August 26 and December 1, 2011 you entered 15 houses in the Bendigo area, stealing in most cases large amounts of property including televisions, jewellery, computer, electrical and sporting equipment from each.  The total value of the property stolen by you was valued in excess of $200,000. 

3An enterprising police officer realised there was a modus operandi common to the rash of burglaries occurring at the time, which usually involved new houses on estates in outlying Bendigo suburbs, opposite a vacant block, with entry via a forced window or door and then exit via an attached garage, the automatic door having been overridden.  You came under suspicion, telephone records indicating that although you lived in the Charlton, you were in the Bendigo area most days a burglary occurred, and you were placed under surveillance.

4Ultimately, on December 1, police watched you commit a burglary in Kangaroo Flat, a car chase ensuing and you being apprehended with the burglary proceeds in your car.  During the pursuit, you forced an oncoming car to take evasive action and overtook a truck over double lines, giving rise to the summary charge of dangerous driving, which was uplifted for hearing during this plea.

5A police search of your home in Charlton revealed a wide array of goods which had been stolen in the various burglaries.  Further property not identified as belonging to any particular person underlies the second summary charge, possessing property suspected of being the proceeds of crime, also uplifted and heard in this plea.

6The charges of handling stolen goods relate to other property found at your home and identified as having been stolen in other burglaries.  You gave "no comment" answers to police record of interview questions later that day.  You have remained in custody ever since.

7I now turn to your personal circumstances.  You are 36 and were 34 at the time of this offending.  You are the only member of your family to have been in trouble with the law.  You and your sister grew up with your parents in the western suburbs of Melbourne, but the family relocated to Charlton when you were in Year 9 at school because you were in a criminal peer group, were abusing drugs, mainly cannabis, and engaged in offending.  The move was successful and you completed Year 11 without further incident and went onto play sport, captaining the Charlton football team.  

8You then completed a spray painting apprenticeship in Melbourne and bought a panel beating business which you ran successfully for several years, employing four staff.  However, you had resumed your drug use, and in 1999 were placed on a community-based order for possession and use of cannabis and, then in 2002, placed on an adjournment to be of good behaviour, with conditions, for cultivation of cannabis and possession of ecstasy.  The business closed in 2002 because of the financial difficulties relating to your drug use and the stress of the court cases.

9From about 2002 to about 2006 you worked casually, being dealt with for driving offences in 2002 and 2003, and in 2005 were fined $3000 for loitering to commit an indictable offence and going equipped to steal, again related to your continuing drug use.

10In 2006 you met your then partner, Stacey, and she quickly became pregnant with your daughter, now aged seven.  You became committed to supporting them, stopped using drugs and worked two jobs as a spray painter until 2010, although I note in 2009 you were placed on a conviction adjournment for shop theft.

11Your son was born in 2010 and your relationship then ran into difficulties; Stacey, who is nine years younger than you, going out nightclubbing and dabbling in drug use, that is, ice.  You joined her in using it and quickly became addicted.  Further offending then occurred.

12You moved your family back to Charlton to improve matters, but the drug habits of each of you continued on unabated.  I accept that you primarily committed these offences to fund the drug addictions of yourself and your former partner.

13After your arrest you were subsequently sentenced for the offending you engaged in in Melbourne before committing the offences before this court.

14On October 23, 2012 the Melbourne Magistrates' Court sentenced you to a two year sentence with a minimum 16 month term for retention of stolen goods, possessing housebreaking equipment, possession of ecstasy, possession of drug manufacturing equipment to traffic, cultivating and possessing cannabis, possessing amphetamine, driving whilst suspended and theft, which sentence was backdated to November 28, 2011.

15On November 23, 2011 the Heidelberg Magistrates' Court sentenced you to a 16 month term for cultivating cannabis, being a prohibited person possessing a firearm, resisting police and failing to answer bail, four months of which was to be served cumulative on the October sentence, resulting in a total effective sentence of two years and four months from November 28, 2011.

16You were granted bail in September 2013 once you had completed your minimum term, which was revoked because you were refused bail on the current charges before this court.  That sentence expired on March 28 this year.

17Your relationship lasted only six months into your sentence, ending in May 2012, and you have seen your daughter only once since and your son not at all.  Stacey has reportedly continued her use of ice, has a new and abusive partner to whom she has given birth to twins, and your family have unsuccessfully sought the assistance of the Department of Human Services.

18You have used your time in gaol productively, returning seven negative randomly taken drug screens, undertaking what drug programs you could, completing seven different certificate programs with a view to completing a Certificate II in construction.  You are focused on health, rehabilitation, study and sport in gaol, playing soccer and football and undertaking a half marathon.

19I have heard impressive sworn evidence on the plea and via a written reference from your sister Rachel, an accountant and business owner.  Essentially she said that you have lived a life of crime since your early teens, and whilst a motivated man who had a successful work history in many ways, you always resorted to criminal behaviour, any remorse for which arose over police apprehension rather than towards those affected by your offending, including your family.

20She said that about two years into your current prison term she saw a fundamental shift where she felt for the first time in your life you truly accepted responsibility and expressed shame at your criminality.  She described your devotion to your children, the downward spiral of Stacey's life, your family's concern over your children's welfare and the need for you to be released so that Family Court proceedings can be undertaken to restore contact with them.  She offered accommodation to you on release which she said she would not have hitherto considered.  She believed you were at last truly a changed man.

21I also received written references from your cousin, Jodie Marotta, and uncle, Peter Walker, who also detailed your strengths as a father, their observations of your remorse and their support on your release. 

22Salvation Army prison chaplain, Brett Woods, wrote positively of your weekly discussions with him and outlined the prison activities you involve yourself in, including daily gym and biweekly football sessions.

23Your current partner, Lauren Tyson, a material planner with Hickory Building Systems, who you met in gaol six months ago, also wrote positively of your efforts in prison, your remorse at your offending, and offered her support on your eventual release.

24Finally, Thomas Vanvitelli, proprietor of Moonee Ponds Smash Repairs, wrote of your qualities as a former employee and offered you work on your release. 

25Based on the tendered results of the drug screenings, the course certificates and the references, I am prepared to find that despite your previous history and the current offending, you are now appropriately remorseful and do have good prospects for rehabilitation.

26There has been considerable delay in this matter, including a delay in committal proceedings due to incomplete fingerprint and DNA investigations, which ultimately did not add to the case against you and the matter proceeding with adjournments in several circuits.

27I accept that the delay in this matter was not all of your own making, despite the fact that the charges were contested.  It has meant that you were unable to be released on parole in relation to the other sentences and that any sentence I impose will therefore be served cumulatively.

28I must consider the appropriate totality in all the circumstances had those matters been heard with those before this court, and that you have already spent 29 months in custody.

29You entered a plea of guilty at a relatively late stage after an adverse finding in relation to tendency and coincidence evidence sought to be led by the prosecution, but I do accept, as I have said, that you are remorseful, that your plea of guilty has saved the community the considerable time and expense this trial would have involved, and you are entitled to a more than utilitarian discount in that respect.  These are matters that I have taken into account in sentencing you. 

30

The offending, however, was widespread and serious, it resulted in the theft of a great deal of property.  Victim impact statements made it clear that you have left many people with an enduring sense of insecurity and fear over the safety of their own homes, which you breached.  Statement after statement spoke of apprehension on returning home, of fearful and traumatised children, of heightened vigilance, the need to check the house is empty before going in, of locking doors and windows at night.  Not all stolen property was recovered, and your victims were often left out-of-pocket through insurance policy excesses, non-coverage replacement and taking off time to deal with claims, particularly problematic for

self-employed people, one victim in particular losing the whole of their business records, they being contained in a computer that you stole. 

31Burglary, particularly burglaries on homes, are regarded very seriously by courts for the very reasons expressed by your victims.  Courts are bound to sentence in a way which denounces this behaviour and sends out a message to would-be offenders that this kind of offending will not be tolerated.  Sentencing for handling stolen goods is likewise severely treated, it being a crime which supports the burglary and theft industry.

32Taking into account both the mitigatory and adverse features I have outlined, together with the relevant totality considerations, I therefore sentence you as follows.

33Could you stand up, please, sir.

34On the charges of burglary, theft, handling stolen goods and possession of property suspected of being the proceeds of crime, I sentence you to three years and six months' imprisonment.

35On the charge of dangerous driving, I sentence you to two months' imprisonment to be served concurrently, giving a total of - I beg your pardon.  Excuse me.  Sorry, I have - I beg your pardon.

36On the charges of burglary, theft, handling stolen goods and possession of property suspected of being the proceeds of crime, I sentence you to four years' imprisonment.  I apologise for that.  On the charge of dangerous driving, I sentence you to two months' imprisonment to be served concurrently, giving a total effective sentence of four years.

37I order you serve a minimum term of 18 months before becoming eligible for parole. 

38Pursuant to s.6AAA, I declare that had you not pleaded guilty, I would have sentenced you to a term of five years and ordered a minimum term of 30 months.

39Now what are the pre-sentence detention days, please?

40MS RUDDLE:  Fifty-nine days, Your Honour.

41HER HONOUR:  I direct that 59 days of the sentence have already been served by way of pre-sentence detention.

42Yes, thank you.

43Now I have here forfeiture orders, which I will sign. 

44There is also a s.464ZF application for an intimate sample.  I will order a swab unless there is any - are you opposing that, Ms Ruddle?

45MS RUDDLE:  No, that's not opposed, Your Honour.

46HER HONOUR:  Thank you.

47So, Mr Walker, I have ordered that police take an intimate sample, that is a swab, a saliva swab from your mouth.  I need to advise you that should you resist them in taking that swab, police are entitled to use reasonable force in order to obtain it.  Thank you.

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