Director of Public Prosecutions v Walker; Director of Public Prosecutions v Dargan
[2018] VCC 686
•3 May 2018
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
Case No. CR-17-01881
CR-17-01641
Indictment No. C171341
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MICAH DAVID WALKER |
| and |
| MATTHEW PETER DARGAN |
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| JUDGE: | HIS HONOUR JUDGE MCINERNEY |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 16 February 2018 (at Ballarat) and 23 March 2018 (at Melbourne) |
| DATE OF SENTENCE: | 3 May 2018 |
| CASE MAY BE CITED AS: | DPP v Walker; DPP v Dargan |
| MEDIUM NEUTRAL CITATION: | [2018] VCC 686 |
REASONS FOR SENTENCE
---Subject: CRIMINAL LAW
Catchwords: Sentence – armed robbery – pleas of guilty
Legislation Cited: Crimes Act 1958, s75A; Sentencing Act 1991
Cases Cited:Ibbs v R (1987) 163 CLR 447; Lord v R [2018] VSCA 52; Director of Public Prosecutions v Dalgliesh (a pseudonym) (2017) 349 ALR 37; Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] VSCA 360; R v Verdins & Ors (2007) 16 VR 269; Director of Public Prosecutions v O’Neill (2015) 47 VR 395; Bugmy v R (2013) 349 ALR 37; R v Lacey (2007) 176 A Crim R 331
Sentence:Twelve years’ imprisonment with a non-parole period of six years and six months. Section 6AAA declaration: Sixteen years’ imprisonment with a non-parole period of ten years and six months.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr P Bourke (16 February) Mr J Livitsanos (23 March) Mr R Casey (3 May) | Solicitor for the Office of Public Prosecutions |
| For the Accused Dargan | Ms J Clark | Victorian Aboriginal Legal Service |
| For the Accused Walker | Ms C Woodward | Victoria Legal Aid |
HIS HONOUR:
1Gentlemen, as you know, you have been present in Court and you have heard your counsel make submissions to me. It is necessary for me to go through in some detail my response to those submissions and, most particularly, to place on public record the reasons why I am imposing the sentence I am. I will do that and that is going to take some time. At the end I will ask you both to stand when I pronounce sentence, all right?
2In Ballarat, on 16 February 2018, Mr Walker and Mr Dargan, the prisoners, each pleaded guilty to one charge on Indictment No. C171341, of armed robbery, pursuant to s75A of the Crimes Act 1958. Mr Bourke appeared in Ballarat on behalf of the Director. When the matter was adjourned for further plea to Melbourne on 23 March 2018, Mr Livitsanos appeared and today, Mr Casey. Ms Woodward has appeared at all times on behalf of Mr Walker, and Ms Clark has appeared at all times on behalf of Mr Dargan.
3Mr Walker is aged 29, having been born on 4 September 1988, and is a fitter and turner. Mr Dargan is also 29, born on 6 September 1988. They both had tendered as exhibit “A” the prosecution summary insofar as this crime is concerned. Prisoners’ counsel accepted such as being facts upon which I am to sentence their clients.
4That summary shows that on 2 May 2017, which was a Tuesday, at 6.30pm in the Main Street of Daylesford, this crime was perpetrated upon the community of Daylesford, in particular those victims who happened to come within its purview at the Celebration bottle shop. The manager attacked was Mr Dinami. Also attacked during the armed robbery were the store assistant, Mr Watmore, Mr Pearce and his child, who happened to be unfortunately customers in the store, and Mr John Collins, who was attacked by way of threat when he entered the store as the prisoners were exiting.
5Exhibit “B” was also tendered by the prosecutor, being the photographic stills of this robbery, and then exhibit “C”, the CCTV footage. That footage was played in Court in Ballarat, and I have subsequently replayed it most recently yesterday. I referred to it in Ballarat, having seen the video, as a dramatic video. I would add the terms, given the circumstances displayed, of disturbing and alarming.
6Such an attack committed on the society of Daylesford is totally unacceptable. The seriousness of the crime is demonstrated by the maximum penalty of 25 years imposed by Parliament, that being a reflection by the Parliament of the community’s concern as to such crimes.
7As I say, the CCTV was illuminating. The armed robbery lasted two and a half minutes. It, to some degree, reminds me of the recordings of bank robberies in the late ’70s and ’80s. I think one can describe the robbery as ruthless, in its disregard of the rights of the victims. Both men were extremely aggressive. Both wore hooded clothing. Walker had a gun, which he says was an imitation, which was taken from Mr Walker’s sister’s place apparently. There is no evidence to contradict that matter beyond reasonable doubt, so in the circumstances, I accept that.
8Mr Walker threatened Mr Dinami with that gun on two occasions, the last occasion placing it into his face, and demanded cash. He pointed the gun at the assistant, initially pointed it at Mr Pearce and child and, finally, as the prisoners were exiting, he placed it in the face of Mr Collins, saying to Mr Collins, “Get out of the way or you’ll get a bullet”.
9Dargan was carrying a large kitchen knife in his pants. I must say, I was unable to see that on TV; however, it is accepted that you can see it, but it is important to say that it was not produced. Mr Watmore store assistant, it seemed to me, acted very bravely, to place Mr Pearce and his child in a position of safety, and then went back to try to assist, as best he could in the circumstances, the manager. Given the seriousness of the crime, he stood there with his hands raised and his eyes averted to the floor.
10The reward of Mr Walker and Mr Dargan was, I might say, somewhat higher than we are used to in this Court for armed robberies. Usually it is something in the region of $100 or $200. The reward totalled in this case: $11,384. However, such is still paltry, one would think, to take such a risk with one’s liberty, and the degree to which one’s liberty is likely to be interfered. It probably demonstrates, if nothing else, how the ingestion of drugs, by the both of them, had made them reckless as to what they did, the safety of other people and indeed their own liberty.
11That figure was broken up essentially by way of money ($1,890), alcohol ($1,006) and cigarettes ($8,488). A perusal of the CCTV demonstrates the organised way in which they went about trashing the tills, and filling up various bags with cigarettes and alcohol. For some reason – I do not know why, maybe it is simply the reality that it will never be paid – the insurance company for the business has not sought a compensation order.
12There is only one victim impact statement lodged. It is a damning statement. The CCTV demonstrates clearly the terror that Mr Dinami talks about in his victim impact statement. At the end of the armed robbery, he is comforted by – I am not too certain whether it is Mr Watmore or whoever – but another person. He seems to be totally emotionally exhausted and in need of comfort. There was no suggestion by either counsel that his reactions and emotional state spoken of by Mr Dinami were improper, or not to be expected in these circumstances.
13I assess the culpability, on the range of heinousness referred to by the High Court in Ibbs v R (1987) 163 CLR 447, as high. This was stressed by Mr Bourke in his response to the initial plea made on behalf of Mr Walker, by Ms Woodward. Mr Bourke stressed that here we have a very serious example of an armed robbery with the following features: the use of a handgun, the threats and degree of such, the fact that it was carried out in the presence of public utilising the business and the threats to such public, the soft target sought, the fact that there was not insignificant planning, the covering up made by the parties not only by the hoods that the clothing provided but the gloves that Mr Walker used. Obviously Mr Dargan, given his tattoos, should also have had a glove but he did not. The roles themselves seemed to be pre-planned: the intent to remove alcohol, money and cigarettes. The escape route appeared to be planned and the threats were accentuated by the use of the gun, the pointing of the gun at the victims and into, as I have said, Mr Dinami’s face. In those circumstances, I accept the classification of Mr Bourke in regard to this armed robbery as being one of utmost seriousness.
14It is appropriate to mention the most recent pronouncement of the Court of Appeal insofar as armed robberies are concerned. This was made in Lord v R [2018] VSCA 52 determined on 7 March of this year, when the Court of Appeal said:
“Armed robbery is a very serious offence. It causes great harm to those directly affected and great disquiet in the wider community. The very high maximum is the clearest indication of how seriously the offence is to be viewed. As this Court has said repeatedly in recent years, the adequacy of current sentencing for serious offences is a matter of the first importance to public confidence in the criminal justice system. … .”
15They went on to say, a matter which does not obviously apply to this case given the decision of the High Court in Director of Public Prosecutions v Dalgliesh (a pseudonym) (2017) 349 ALR 37, at paragraph [11] :
“It is to be assumed that the Director will take an early opportunity to bring an appeal to this Court which will enable proper sentencing standards to be set for this offence.”
16In the plea for Mr Walker, Ms Woodward suggested, in all the circumstances, that I may, or could, consider the passing of a community correction order in conjunction with the time that has been served on remand. Such was described by the learned Prosecutor in Ballarat, as being totally outside the range, not only given the limited periods of imprisonment that can be imposed in a combined order under s44, but given the culpability and seriousness of this matter. In Ballarat, I indicated to Ms Woodward, that I agreed with the Prosecutor.
17Ms Clark was somewhat more realistic in her submission, accepting that immediate imprisonment was inevitable, that is, when she made her submission when we adjourned to Melbourne on 23 March 2018. Both counsel asked the Court to moderate the sentence, and components of a sentence that are usually appropriate for this crime, in particular general deterrence, punishment and denunciation, on the basis of R v Verdins & Ors (2007) 16 VR 269.
18As the High Court said in Dalgliesh, the most important thing for a sentencing judge is to deliver individualised justice to each of the prisoners, based upon the particular circumstances of the case. If I might say so, that has generally been the manner in which, certainly this Court, has gone about its task. That of course is a very important consideration insofar as sentencing is concerned, and was indeed adopted by the Court of Appeal in Victoria in Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] VSCA 360, [39](a).
19As to the pleas, I am not going to rehearse them individually, although there are certain individual aspects that I will talk about, but there is such a correlation in the pleas, that I can deal with the prisoners jointly.
20Both counsel stressed the early plea of guilty. Insofar as Mr Walker, it was made within four months of the offending. Insofar as Mr Dargan, it was in a period of three months of the offending.
21Both counsel relied upon the limited priors of their clients. Certainly insofar as Mr Dargan is concerned, he had no convictions whatsoever at the time of this offence. Subsequently, he has served periods of two days and 125 days, and has also been given a community correction order insofar as a series of charges involving possession of weapons and cartridge, theft charges and driving charges. There was also a breach of bail, for which he was gaoled and subsequently released. Insofar as Mr Walker is concerned, at the time of the offending, he had no actual convictions, but has subsequently had convictions for driving offences and breaches of family violence orders and the like.
22Thirdly, both have had, what can be labelled as, difficult social upbringings. Insofar as Mr Dargan, marked particularly by his father’s violence in the home, and unfortunately insofar as Mr Walker is concerned, by the early death of his father.
23Mr Walker has made his way, considering the difficulties he had earlier, quite well. He completed a fitter and turning apprenticeship, which one would have thought is a path to success and good earnings for the rest of your life. He ran, for a stage, a successful tiling business. It is noted that he had unfortunately been subject to sexual abuse as a child. This may still be a matter that has to be dealt with. Clearly, it is very difficult for the courts, as experience shows, to fully appreciate the impact on an individual of that particular crime.
24As I said, Mr Dargan was subject to a violent upbringing, subject to beatings to the extent that he was required, for his own safety, to leave home at 14. He was essentially homeless from that time, and had to make his way in the world.
25If that was not enough for both of them, unfortunately, people with difficult backgrounds often turn to drugs for some reason or another. However, the facts are that both of them, each from a young age, somewhere about 14, have been polysubstance drug abusers. Both were actively using drugs at the time of the offending. Both had previously suffered from psychotic symptomology and its impact upon their lives. It was submitted by both counsel, that as a result, given the psychiatric condition of their clients, that upon the principles of Verdins there should be a reduction or a moderation in sentence upon the principles 1 to 4 set out in Verdins [32].
26As particularised in Director of Public Prosecutions v O’Neill (2015) 47 VR 395 [68] by the Court of Appeal, to which I was referred by Mr Livitsanos, each submission insofar as Verdins is concerned, in relation to both Mr Walker and Mr Dargan, must be rigorously evaluated.
27In support of the proposition for Mr Walker, Ms Woodward tendered the psychiatric report of Associate Professor Carroll, dated 27 May 2017, exhibit “W2”, also exhibit “W3”, which is the psychiatric report of Dr Pandurangi dated 16 October 2017. Having perused both reports assiduously, I conclude:
(1) that Walker was in a drug-induced condition at the time of this robbery and had been so for a considerable time;
(2) that he had also for some time suffered from the mental disorder of paranoid schizophrenia.
28Associate Professor Carroll, [78] of his report, did not exclude the possibility that the episodes, insofar as the schizophrenia is concerned, in his life of acute mental disorder, had in fact been brought about by recurrent drug-induced episodes, rather than a primary schizophrenic illness. The stability that has been demonstrated since Mr Walker has been on remand, while being on proper medication, seems to support the earlier proposition.
29In Dr Pandurangi’s report, his diagnosis was of an underlying schizophrenic illness, with intermittent relapses of a florid variety. He thought that at the time of the armed robbery, Mr Walker’s ability to make clear, reasoned decisions was impacted by the use of drugs, especially ice. However, there was no – to use his words – clear indication that the offences were causally linked to the underlying mental illness, or that such illness affected his ability to understand the wrongfulness of his actions (paragraph [47]).
30I have no doubt that such evidence, and the circumstances of the case, establish that paragraph 5 of the principles set out in Verdins should operate. That is, that as against the normal healthy prisoner, Mr Walker will, because of his underlying mental condition, whatever its cause, have difficulties in gaol. As to paragraph 6, it would appear on the facts that abstinence from drugs and the taking of appropriate medication, have in fact stabilised his condition and one would hope that is maintained.
31As to Mr Dargan, exhibit “D2” was filed, which is the report of the consultant psychologist, Ms Cidoni, dated 15 March 2018. Mr Dargan was diagnosed with an underlying Bipolar Disorder, which he had for an uncertain duration. At the time of the offence, he was heavily consuming amphetamines and cannabis. It was the opinion of Ms Cidoni that such use would have led to a recklessness about, and loss of control of, his behaviour and to disinhibition. Ms Cidoni suggests that such impediment would be such that he would not consider the wrongfulness of his behaviour at the time.
32After rigorously assessing the medical evidence, and the circumstances of this crime, I am not satisfied in regard to either Mr Walker or Mr Dargan, that the evidentiary material established the circumstances as set out in the principles one to four of Verdins.
33Insofar as Mr Dargan is concerned, I accept that paragraph 5 applies, that he will find it more difficult than the normal healthy prisoner to serve a prison term. However, in regard to 6, it seems that his current stability indicates that his condition is not likely to exacerbate while in prison.
34I therefore, on the evidence, reject the submissions that either of the principles set out in Verdins, paragraphs [1] to [4], should operate to moderate the principles of sentencing that apply to an armed robbery, in particular denunciation, general deterrence and punishment.
35The circumstances of the crimes themselves are confirmatory of my determination in these matters. I accept there are obvious limitations in this regard, I primarily rely on the professional opinions given. However, accepting they committed this offence, and the explanation for it that they were so addled by drugs; then such was committed in circumstances which were planned, which involved a detailed approach to the crime, which involved taking action to protect themselves from detection – unfortunately not sufficient in the circumstances – and which involved ruthless execution of the plan. As I stress again, albeit that the reward received was much higher than is often before this Court, such pales into insignificance when one considers the dire consequences for such crime.
36Both counsel stressed the genuine remorse shown by their client, and I accept that. I accept the letter that I have read from Mr Walker, which I have reread this morning. It is a genuine apology to the victims and acknowledgement by him of the seriousness of his crime. He expresses bewilderment as to how he could have been involved in a crime of such magnitude.
37As to Mr Dargan, I accept the propositions put to me, insofar as the instructions he gave to his counsel, as to his genuine remorse. I have also reread his sister’s letter (exhibit “D5”). I note, in regard to both prisoners, the references by the medical practitioners to their expressed remorse, and I accept that expressed remorse as genuine. I note in particular Mr Dargan’s sister makes the comment that she was shocked when she heard that he had been involved in such a serious crime, that he had been trying to improve himself and in particular, I note the confirmation in that letter of the steps he has taken while being in remand to seek to improve his life.
38As to rehabilitation, I accept the materials tendered as exhibits “W5” and “W9” insofar as Mr Walker is concerned, and exhibits “D3” to “D5” insofar as Mr Dargan is concerned. These materials show genuine steps taken by both prisoners to try to put this crime behind them, and change their lives. However, as each of them knows, upon their release, the ultimate test is that they do not resort to the life beset by drugs, which has afflicted them for so long.
39Fortunately, each of them has ongoing strong family support. It should be said despite their backgrounds, their priors are limited, as I have already indicated, certainly nothing of this degree. As to their individual deprivations as I have explained, and social backgrounds, I take into account the principles set out in Bugmy v R (2013) 349 ALR 37 and I give full weight to same. The point of course needs to be made in regard to both of them that despite that experience, they have got on with their lives. It is, I find, the fact that they have been beset by drugs, that has interfered with their lives to a dramatic extent.
40As I said, Mr Walker had excellent qualifications. He was in business and unfortunately, owing to some emotional happenings in his life and relationship problems, allowed himself to be dominated by drugs.
41Mr Dargan has proved in his life, despite what one could classify a cruel upbringing, that he has essentially, lead a crime-free life. Again, on this particular day, the impact of drugs had been such that, as said by the psychologist, he indulged in inappropriate and dangerous behaviour.
42As to their history of drug addiction and the background of such in both committing this crime, I accept such as the explanation for them committing this serious crime. Mitigation cannot be given, as the circumstances here are not as were established in R v Lacey (2007) 176 A Crim R 331, paragraph [12]. However, I accept the background of drug addiction as the explanation for this crime.
43I of course take into account, in regard to both prisoners, the submissions tendered and made orally by each counsel, which are detailed as exhibit “W1” and “D1” respectively, the provisions set out in s5 of the Sentencing Act and all of the principles that I have earlier referred to.
44I specifically state that I apply a significant discount of sentence for the pleas of guilty, which will be demonstrated by the s6AAA declaration. In making that discount, I of course take into account such as an indication of remorse – that is, separate from the genuine remorse expressed by each of them in this matter – the utilitarian benefit of such pleas and the assistance to justice that such pleas demonstrate.
45It is for those reasons that I sentence you both, and I ask you both to stand up.
46Mr Walker and Mr Dargan, for this crime of armed robbery, you will each be sentenced to a period of imprisonment of twelve (12) years, with a minimum period to serve before being eligible for parole, of (8½) eight-and-a-half years.
47I order that the period that you, Mr Walker, have served to date, being 352 days, be deemed as service of this sentence, and that a declaration to such effect be made in the records of this Court.
48You, Mr Dargan, I order that the 162 days that you have served to date be deemed as service of this sentence, and that such declaration be recorded in the records of this Court.
49Despite the numerous factors that I have had to refer to, Parliament, under s6AAA, asks me to concentrate on one only, and that is the question of you each pleading guilty. Doing as best I can, I am asked to demonstrate to you in numeral terms, the benefit to your pleading guilty. Can I indicate to each of you that had you not pleaded guilty, the appropriate sentence for you in the circumstances of this case would have been a period of sixteen years with a minimum ten-and-a-half years.
50Mr Walker, I also insofar as the summary matter that I have been asked to take into account, of committing an indictable offence while on bail, impose a sentence of three months upon you, which pursuant of the provisions of the Sentencing Act will be served concurrently with your sentence. I order that there be appropriate orders made under s464ZF. I think I have already signed the disposal orders.
51You can take a seat. In regard to both counsel, are there any matters that I need to amend?
52HIS HONOUR: Thank you. Can the prisoners otherwise go, Mr Prosecutor? Good luck, gentlemen.
53I thank counsel for their assistance in the matter. A lot of aspects about this are a bit amazing.
54The Court is not sitting tomorrow so we will adjourn until 10.30 on Monday.
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