Director of Public Prosecutions v Williams

[2021] VCC 1266

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 19-01102

DIRECTOR OF PUBLIC PROSECUTIONS

v

PIERCE WILLIAMS

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JUDGE:	HIS HONOUR JUDGE LYON
WHERE HELD:	Melbourne
DATE OF HEARING:	26 August 2021
DATE OF SENTENCE:	1 September 2021
CASE MAY BE CITED AS:	DPP v Williams
MEDIUM NEUTRAL CITATION:	[2021] VCC 1266

REASONS FOR SENTENCE

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Subject:  Criminal Law

Catchwords:

Legislation Cited: Sections 18, 76(1), 77(1), 321(1) Crimes Act 1958; ss

6A(1) and 124(1) Firearms Act 1996; s5AA Controlled

Weapons Act 1990.

Cases Cited:  Hogarth v R [2012] VSCA 302; DPP v O’Brien [2019]

VSCA 254.

Sentence:  5 years’ imprisonment, NPP of 3 years; fine of $1700;

S6AAA – 9 years’ imprisonment, NPP of 7 years

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr M. Fisher with Ms B. Goding	Office of Public Prosecutions
For the Accused	Mr L. Richter	Stary Norton Halphen

HIS HONOUR:

1Pierce Williams, you have pleaded guilty to the following offences which carry the following maximum penalties

Charge no.	Charge	Max Penalty
1	Conspiracy to commit burglary – ss 321(1) and 76(1) of Crimes Act 1958	10 years
2	Aggravated burglary – s 77(1) of Crimes Act 1958	25 years
3	Causing injury intentionally – s 18 of Crimes Act 1958	10 years
4	Possession of an unregistered category A longarm - s 6A(1) of Firearms Act 1996	First offence – 120 pu /       2 years

2On 26 August 2021, you pleaded guilty to the following summary offences which each carry the following maximum penalties:

Summ.  Charge no.	Summary Charge	Max Penalty
10	Possess cartridge ammunition whilst not a holder of a licence or permit – s 124(1) of Firearms Act 1996	40 pu
11	Possess a prohibited weapon without exemption or approval – s 5AA of Control of Weapons Act 1990	240 pu / 2 years

3Mr Williams, you have admitted your prior criminal history.  I shall return to that later in these sentencing remarks.

Circumstances of Offending

4The Crown tendered the Summary of Prosecution Opening as Exhibit A.  A summary of your offending is as follows:

5At the time of your offending, you were a fully patched member of the Finks and were part of the Cranbourne Chapter.  Brent Reker, who is now deceased, was also part of the Cranbourne Chapter.

6On 5 September 2018, you and other members of the Finks agreed with Brent Reker to break into a shed in Hampton Park to steal motorbikes and other property belonging to Nicholas Gold.  This was intended as payback for stealing a car belonging to the boyfriend of Tara Egglestone, who is a co-offender.  When you arrived at the address with other Finks members, police were waiting nearby in a marked police car and the plan was aborted (Charge 1 – conspiracy to commit burglary).

7On 7 September 2018, Ms Egglestone discovered a Facebook page in her name.  The account had posted semi-naked photographs of Ms Egglestone, which were visible to anyone who accessed the page.  Ms Egglestone believed that Mr Gold and a former boyfriend were responsible for posting the photographs.  Telephone intercept material shows that Mr Reker was intent on exacting revenge against Mr Gold on Ms Egglestone’s behalf.

8On 9 September 2018, you, Mr Reker and two other male Finks members travelled to Nicholas Gold’s house.  You all entered the house wearing Finks motorcycle club clothing and entered without the consent of the residents (Charge 2 – aggravated burglary).  The male in the group of offenders referred to as ‘the Kiwi’ was carrying a metal bar; described as either a tyre iron or a crowbar.  You were unaware of this at the time of entry.

9Once inside the house:

i.You told Paul Gold, Nicholas Gold’s father, to get out of the bedroom, and you remained in the vicinity of the bedroom door.

ii.The other offenders approached the bed where Nicholas Gold and Emily Phillips, Nicholas Gold’s girlfriend, were.  Nicholas Gold was punched and struck with the metal bar in the face multiple times by the other offenders, while they asked him questions relating to the Facebook page.  One of the offenders told Emily Phillips that she would be killed if she screamed.

iii.One of the offenders said, ‘Let’s just blow his kneecaps out and kill the girl’.  After a brief discussion, one of the other offenders jumped onto the bed and kicked Nicholas Gold with force to the face.

iv.Mr Reker told Nicholas Gold that he would be back for the bikes and said, ‘If you go to the police we will kill your missus and your kids too’.  You and the other offenders left the premises.

10The Crown case is that you and the other offenders were complicit with each other in the assault (Charge 3 – intentionally causing injury).

11Nicholas Gold was treated for his injuries at the Dandenong Hospital at about 9 pm on 9 September 2018 and reported the matter to police on 11 September 2018, when he was examined by a Forensic Medical Officer.  The Forensic Medical Officer observed multiple bruises and abrasions to Nicholas Gold’s face, a haemorrhage to his eye, swelling and pain.

12On the execution of a search warrant at your address on 11 October 2018, police found a number of prohibited items, including the unregistered Category A longarm (Charge 4 – possession of a Category A longarm), shotgun ammunition (Summary Charge 10), knuckle dusters, a slingshot and two daggers (Summary Charge 11), and a Finks hooded jumper and shirt.

13On 15 October 2018, you presented to the City West Police Complex where you were arrested.

Objective Gravity and Moral Culpability 

14I turn now to consider the objective gravity of, and your moral culpability for your offending.

15As the Crown submits, and I conclude, Charge 1 was a ‘planned run through’ of the victim’s [and I interpose, shed, not house] to steal property as payback for a perceived wrong committed by Mr Gold against Ms Egglestone.  I conclude you were not the principal organiser, but you played a key role in communicating the message that the police were at the house you were to attend. I interpose there; I say house, that is where the police were, but you were to go to the shed.

16The seriousness of the crime of aggravated burglary, Charge 2, can be marked by the fact that it carries a maximum penalty of 25 years' imprisonment.

17The other factors which bear on the seriousness of your offending are as follows:

i.Your group intention for entering the house was to assault and intimidate Nicholas Gold.  It was Mr Reker’s intention to exact revenge for the perceived wrong caused to Ms Egglestone.  It is not entirely clear whether you knew this, but you had of course, been part of the agreement to steal motorbikes from the same address only a couple of days earlier.  Your plea indicates your intention and willingness to enter the house to assault Mr Gold;

ii.This was planned in advance and was not simply spontaneous;

iii.The entry may be classified as a confrontational aggravated burglary;

iv.There were four of you, wearing your Finks OCMG colours or clothing when you entered the house;

v.Although the door was unlocked, you entered a home, where the occupants were entitled to feel safe;

vi.Although one of your number was armed with a tyre iron or crow bar, the Crown accepts that you did not know about this until after you had entered the house; and

vii.Unlike many cases that come before this court, you entered the house during the daytime.  In saying that, I do not say that the fear the occupants held was any the less.

18The courts have repeatedly emphasised that the sentencing principle of general deterrence is of great importance in this type of offending[1].

[1]Hogarth v R [2012] VSCA 302; DPP v O’Brien [2019] VSCA 254.

19Although you did not strike Nicholas Gold yourself, you pleaded guilty to being complicit in the assault perpetrated on him.  During the prolonged assault, several threats were made by members of your group.  In all, it is a serious example of this offence.

20At this stage (and I will say more about it later), I note the relationship between Charges 2 and 3.  Your counsel, Mr Richter, submits that there should be substantial concurrency between the two charges as the gravamen of the offending lies in Charge 2.

21The possession of an unregistered longarm firearm is also a serious offence.  I accept this must be kept in perspective – it is not suggested that it was used in any of the offending.  Nevertheless, there was no explanation offered for your possession of such a weapon when police entered your house to search it.

22Your moral culpability for this offending is high; although I take into account the fact that your culpability is shared with the three others.  I would nominate Mr Reker as the instigator.  Your culpability lies as a participant in the aggravated burglary and being complicit in the intentionally causing injury charge.

23Your actions must be met by principles of deterrence, denunciation and just punishment.

Personal circumstances

24I turn now to a consideration of your personal circumstances.

25You were born on 21 October 1986 and you are now 34 years old.

26You left school in Year 10.  Since then, you have principally worked as a painter, and also in gardening and landscaping.

27You do not suffer from any mental illnesses or psychological problems.  However, you did suffer a number of adverse events during a certain period in your life that took a toll on you, including the suicide of a number of friends.

28You separated from your former partner at the start of 2018.  You have one son, Harvey, aged four, with your former partner.  You have been in a relationship with Deborah Edwards for about three years but have known each other much longer.  Ms Edwards has four children, two of whom live with her.

29You have a supporting and loving family, and good supports in the community.  I have read the character references filed on your behalf.

30You told your counsel that you no longer have any affiliation with the Finks OMCG and no longer own a motorbike.  The prosecutors brought to my attention the fact that you gave sworn evidence in February 2020 that you had left the OMCG.  Your father also gave sworn evidence to the same effect.  I accept that evidence.

31You have a prior matter for recklessly causing injury in 2007.  On that occasion, you were placed on a community-based work order for six months without conviction.  In 2011, you were convicted and fined $350 on a charge of unlawful assault.  In 2014, you were convicted and fined $1,750 for possession of a drug of dependence.

32Your prior criminal history for violence is relevant but it is now dated.  I must have regard to the penalties imposed for those offences as a measure of the seriousness of those crimes.  In other words, they do not appear to have been very serious offences.

33You were remanded on unrelated matters on 18 March 2021 and surrendered your bail on this matter on 16 April 2021.  You have now spent over 640 days, I think 645, on remand since your arrest on this matter in October 2018.  616 days of that remand will be declared as pre-sentence detention in this matter not including today.

34Mr Richter submitted that the following factors should mitigate your sentence.

35First, Mr Richter submitted that although your plea of guilty was made very late, it nevertheless carries utilitarian benefit.  I agree.

36Mr Richter submitted that the plea of guilty may be taken as an indication of remorse and insight.  I do not consider that remorse flows automatically from a plea of guilty.  It may, however, show the beginnings of some insight.

37Some of your references speak of your remorse.  Given the very late and recent change of plea, and the fact that, after a grant of bail, you have returned to prison before the plea of guilty was entered, I am not prepared to find that you have exhibited any particular remorse.

38Mr Richter next submitted the following matters provide you with good prospects for your rehabilitation:

i.You have a consistent work history and should be in a position to readily return to work as a painting contractor upon your release;

ii.You have a supportive and loving family and pro-social community supports;

iii.You are keen to obtain visiting rights/access to your son, who you have not physically seen since your remand in March 2021;

iv.You have no remaining affiliation with any motorcycle club and no longer own a bike;

v.You do not have any mental or social health issues;

vi.The character references speak of your generosity and loyalty, ties to family, respectable work history and family, support available and little in the way of impediments to a law-abiding life;

vii.Your prior criminal history is now dated and limited in its impact and it ought to have little impact on my assessment of this offending;

viii.This represents your first sentence of imprisonment;

ix.You do not have a significant of drug history (although it is implicit you were using drugs through the course of at least 2018);

x.You do not have any psychological or mental health issues which would impede your rehabilitation.

39Mr Richter submitted that due to the effects of the COVID-19 pandemic, you have been deprived of in-person contact with your young son and your ‘medically vulnerable’ parents.  You have not yet been vaccinated, which has led to anxiety towards your own health and that of your family.

40I accept that the ongoing COVID-19 pandemic and lockdowns have placed a considerable strain on those held in Victorian correctional facilities.  The direct effects are that work, as well as many vocational and personal progression courses have been limited or halted altogether.  Usually, movements around the prison are restricted and face-to-face visits have been halted.  A more insidious effect of the pandemic and lockdown is the stress and isolation - that is the fear that the pandemic would penetrate into the prison system, and so isolation has been used as a strategy to limit close contact.  I accept that all of these factors cause hardship in your case.  I will take these matters into account in mitigation of your sentence.

41I consider that you have reasonably good prospects for your rehabilitation.  The real test will be upon your release from prison and at the expiration of any period of parole (if granted) when you determine what course you will take in life.  It is only then that you will be put to the test and the community will determine whether you truly are committed to putting these matters behind you.

42Mr Richter then made the following submissions about your offending:

i.The conspiracy to commit burglary is not a particularly grave as an example, as it consisted of an agreement and an intention to steal motorbikes from a non-residential outbuilding.

ii.The aggravated burglary should be viewed as moderately serious, but not at the higher end of seriousness.

iii.In relation to the intentionally causing injury, there is no allegation that you inflicted any injury upon the victim yourself; rather that you were only complicit in the actions of others.  Your acquiescence and presence do not necessarily indicate an intention to injure the victim in the way that he was injured.  Mr Richter submits your moral culpability and the seriousness of this offence is largely subsumed within your culpability for the aggravated burglary, on which the assault was predicated.

iv.Although he conceded that it is concerning that the items the subject of Charge 4 and Summary Charges 10 and 11 were found at your home, Mr Richter submitted that there is no allegation of them having been used or made available for use in the offending before the Court nor any other offending.

v.The sentence on Charge 1 should be significantly moderated due to the disparity in gravity from Charge 2 and the fact that it is characterised, essentially, as an attempt.  Only moderate cumulation is warranted, he submitted.

vi.The sentence on Charge 3 should to, a significant degree, be subsumed by the sentence on Charge 2 due to the gravamen of the offence lying with Charge 2.  In essence, he submitted, there should be very substantial concurrency.

vii.Mr Richter addressed the question of parity of sentence with Mr Martinow.  Mr Martinow’s criminal history is substantially worse than yours, he submitted, and he took part in the direct physical violence against the victim, although not according to the sentencing remarks of Judge Pullen.  Accordingly, complicity for the injury charge should effect an appreciable difference in the sentence and cumulation.  Mr Richter correctly submitted that whilst parity is a relevant factor, each case turns on its own facts.  In the end, even if I decide that I should impose a different, increased sentence in this case, the principle of parity acts as a ‘gravitational pull’ which ought to confine the difference between the two sentences.

viii.Deterrence remains the dominant sentencing principle.  As such, a term of immediate imprisonment with a head sentence and non-parole period is the only appropriate sentence given the nature of the offences.

ix.Taking into account all the matters to which I have just referred and the significant amount of time you have already spent on remand, an early non-parole period ought to be imposed.

43Mr Fisher and Ms Goding for the Crown submitted that:

i.Although late, your plea of guilty does have utilitarian benefit.  As I have stated, I agree.

ii.Your prior convictions are limited and dated and should only have a limited impact on this offending.  Again, I agree.

iii.Charge 1 is objectively serious due to:

i.It was planned offending;

ii.The offending took place late at night and in company; and

iii.The fact that you were clearly an important part of the communication chain amongst the parties to the conspiracy.  Accordingly, they submitted, there must be a degree of cumulation between Charge 1 on the one hand and Charges 2 and 3 on the other.

iv.Charges 2 and 3 are objectively serious for the reasons that I have already set out.

v.General deterrence, specific deterrence and community protection should assume significant importance in the circumstances of this case.

vi.On the question of parity, the Crown submitted that Mr Martinow pleaded guilty to aggravated burglary and intentionally causing injury after a contested committal and was sentenced to a total of 3 years, 8 months with a non-parole period of 2 years.  They noted that Ms Egglestone is yet to be sentenced and faces Koori Court in December.  The Crown emphasise that although parity is a relevant sentencing factor, each accused must be assessed on their own circumstances.  Mr Fisher carefully submitted that if I determine a different, increased sentence ought to be imposed, then I must take care to ensure that I do not impose a sentence that may engender a ‘justifiable sense of grievance’ in you.

vii.Ultimately, the Crown submitted that the only available disposition is a term of imprisonment; that is a total effective sentence with a

non-parole period.

44As I have made plain, I accept the factors personal to you should have some mitigating effect and that you have good prospects for rehabilitation.

45The real issue here remains the objective seriousness of your offending, the question of cumulation between the different incidents of offending and the question of parity.

46I consider that there must be a degree of cumulation between your offending on the charge of burglary and the aggravated burglary.

47I accept that there must be a large degree of concurrency between the offending on Charges 2 and 3 – that is the main offending, Charge 2 aggravated burglary should largely (but not entirely) subsume the offending on Charge 3.

48Finally, whilst I accept that the principle of parity must play a role in my consideration of the appropriate sentence to impose on you, the principle of parity does not require the imposition of the same sentence.

49In my assessment, your willingness to act as a participant, against a background of your earlier involvement in a planned action against Mr Gold, and to carry out Mr Reker’s requests/instructions to participate in targeted unlawful activity must be met by an appropriate sentence of imprisonment.  I consider therefore that the sentence I impose should be different and higher than that imposed on Mr Martinow.

50In the end, however, the principle of parity must constrain the sentence I impose.

Sentence & Orders

51Accordingly, the sentences I impose are as follows:

Charge no.	Charge	Sentence	Cumulation
1	Conspiracy to commit burglary	12 months	5 months
2	Aggravated burglary	4 years   2 months	base
3	Causing injury intentionally	14 months	4 months
4	Possession of an unregistered category A longarm	3 months	1 month

Summ.  Charge no.	Summary Charge	Sentence	Cumulation
10	Possess cartridge ammunition whilst not a holder of a licence or permit	$500
11	Possess a prohibited weapon without exemption or approval	$1200
TES	5 yrs
NPP	3 yrs
PSD	626 days
S6AAA	(with no consideration of parity)	9 years /   7 years

52That makes a total effective sentence of five years' imprisonment.  The
non-parole period is set at three years.  The pre-sentence detention is reckoned as 616 days pre-sentence detention reckoned as already served, excluding today.

53The 6AAA declaration is made without any consideration of the parity question.  I am putting that to one side.  But for your plea of guilty, I would have imposed a sentence of nine years with seven years to serve on this offending.

54I make the Disposal Order and the Forfeiture Order sought by the Crown.

55Mr Fisher, Ms Goding, are there any further matters from your perspective?

56MR FISHER:  Just one, Your Honour.  Your Honour is correct in relation to the possess cartridge ammunition maximum penalty of 40 penalty units.

57HIS HONOUR:  Thank you.  Nothing else?

58MR FISHER:  No.  Thank you.

59MR RICHTER:  Nothing, Your Honour.

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