Director of Public Prosecutions v Williams

[2020] VCC 1006

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 19-01129

DIRECTOR OF PUBLIC PROSECUTIONS

v

DARREN WILLIAMS

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Melbourne
DATE OF HEARING:	9 July 2020
DATE OF SENTENCE:	9 July 2020
CASE MAY BE CITED AS:	DPP v WILLIAMS
MEDIUM NEUTRAL CITATION:	[2020] VCC 1006

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Moore	Office of Public Prosecutions
For the Accused	Ms. M. Casey	Geelong Criminal Lawyers

HIS HONOUR:

1Mr Williams, on 2 April 2018 you were talking to an associate outside an address near to where you were living in Ballarat.  That associate was with a friend of his, who unfortunately became the victim of the crimes that followed.

2You invited both men to your house.  The victim rode his motorcycle, which was then parked out the back of your house.  Living at the house with you at the time was a Robert Azzopardi, another man, Jordan Anderson, and his girlfriend, Kirsty Stevenson, arrived shortly after.  There was another young female there who was introduced as Azzopardi's sister, though in truth she was not his sister.

3Shortly after arriving a trip to the shops was arranged.  The victim went with you and Azzopardi.  The victim made a comment about the young female which, for some reason, infuriated Azzopardi.  I am just going to pause there, Mr Williams.  Just again, would you mind saying that you can hear me so you come up on screen?

4OFFENDER:  Yep, much better.

5HIS HONOUR:  Yes, thank you.  All right.

6Now, back at the house you told the victim to come out to the shed, as you wanted to show him something.  Once outside Azzopardi became very aggressive towards the victim for what he had said about the young female.  You then got a sawn-off shotgun from under a tarpaulin and pointed it at the victim, saying to him he had done the wrong thing and should not even be standing there.  Azzopardi then said that the victim was going to sign over his motorbike as punishment.  Azzopardi had Anderson get notepaper and then had the victim sign a false receipt.  The victim misspelt his name, hoping this would prevent or delay any transfer of ownership.  You then invited and then insisted that the victim come into the house to smoke cannabis with you.  You then tried to appease or reverse the tense situation by saying that you were thinking about giving the bike back, however Azzopardi and Anderson insisted on keeping it.

7Shortly after Azzopardi discovered the deliberate spelling mistake on the receipt and became more threatening.  The victim was taken to a car by Azzopardi.  You remained at the house and had nothing further to do with Azzopardi in his frightening and violent kidnapping and threatening of the victim.  Also of note is that you had nothing to do with the sale of the motorbike which was, as I understand it, undertaken by Anderson.  In other words, you gained nothing from the crime.

8What the victim said at the committal as to your involvement is relevant.  He said that prior to the kidnapping you spoke up, saying, 'Just let him go', but Azzopardi insisted on taking the victim away.  It seems that it is not in dispute that generally you were trying to calm things down and you were the least frightening of all the three co-accused.  The prosecution – as I said, there was general agreement – did not dispute your counsel's description of your lesser role in the criminality.

9It is clear that the armed robbery was spontaneous and unplanned, though it is of concern that there was a firearm in your house.  Your counsel submitted you had not seen the firearm before that day.

10The crime of armed robbery is always serious.  The maximum term of 25 years' imprisonment makes this clear.  This was a frightening example of the crime of armed robbery.  A firearm was brandished.  The victim was, in practical terms, encircled by men acting in company in a shed.  He was forced to hand over a much loved valuable motorbike.  The victim's impact statement makes clear how fearful he was, though what happened after the robbery left the deepest psychological scars upon him.

11As I said of the impact on the victim when I was sentencing Azzopardi, with particular focus on the armed robbery, was the following:

'The victim pointed out that his brand new motorbike was worth a lot of money and he had made a huge effort to get that money for that bike.  Losing the bike was very significant to him.  He also points out that the helmet that was taken from him was a very special limited edition helmet that cost a significant amount of money'.

12He said in his victim impact statement:

'I loved my bike and helmet so much.  It's all I had'.

13He says in his victim impact statement at the time he wrote it that all that he could do was go out to counselling or perhaps to the supermarket, but all that is done with great fear as he looks over his shoulder and he is hypervigilant.  He is unable to work or study due to his paranoia and anxiety, which is overwhelming.  He concludes with these grim words:

'Basically I feel worthless.  Waste of space.  A paranoid depressive who doesn't trust the world'.

14I repeat though that a good deal of the impact upon him was from what occurred at the hands of Azzopardi during the kidnapping and threats issues by Azzopardi.  Nonetheless, for your crime of armed robbery your moral culpability remains relatively high, and I say this mindful that reasonably quickly you did try to deescalate things and give the bike back.

15You have a long and concerning criminal history.  One aspect of your criminal activity is a matter that is not a prior conviction but is very relevant to my sentencing task, and that is that on 17 October 2018 you were sentenced by Her Honour Judge Gaynor for a charge of armed robbery and a charge of carrying an unregistered handgun.  Those crimes were committed on 21 April 2018, some three weeks after the armed robbery that I am dealing with here.

16The later armed robbery was committed with a co-offender on a man who was buying stolen goods from the co-offender.  It occurred in a carpark at the Sebastopol Bowling Club.  You were arrested shortly thereafter and have been in custody since.  Her Honour imposed a sentence of five years' imprisonment with a minimum non-parole period of three years and three months.  The days that you spent on remand, being 177 days at that point, were declared as part of that sentence.

17You were arrested for these crimes – the ones before me - and all the proceedings relating to them have been while you were undergoing that sentence, thus I must give appropriate regard to the important sentencing principle of totality.  In practical terms, any sentence that I fix must be either concurrent or cumulative, or both, and I must impose a new non-parole period.  There was no dispute between the parties that the appropriate approach was to impose a sentence that is partly cumulative on your present head sentence and then fix a new non-parole period.

18While this issue of totality is central, there are other important matters relevant to my sentencing task that I need to mention.  I turn to your personal circumstances.  You are now 37 years old.  You were raised by your mother and grandmother in Ballarat.  Your parents separated when you were very young.  Your father was in and out of gaol all his life.  Sadly, he died of a heroin overdose at the young age of 31 in 1996.

19You finished school when you got to Year 9.  That is far too early.  Around that time, that is, in your early teens, you commenced using drugs.  Very unfortunately, you took to the heavily addictive drug of heroin, out of curiosity, it seems, because your father was using that drug.  You were presenting as a real problem to your mother and she had to ask you to leave home and you moved in, living with an uncle, who was also a heroin user.  In that environment, your drug use escalated.

20I have no doubt your upbringing was disadvantaged, indeed, dysfunctional.  The High Court in Bugmy v The Queen made clear that disadvantages in formative years is always relevant to a sentencing task as, as the High Court made clear, this remains the case even if the offender is a recidivist constantly committing crimes.  In my view, the Bugmy principles apply here and serve to mitigate punishment to a degree.

21Despite your upbringing and early drug use, you have been able to regularly secure and hold jobs.  At 18, you moved to South Australia to try and overcome drug use.  You secured an apprenticeship and qualified as a plasterer.  Thereafter, you worked as a subcontractor.  You were in South Australia, it seems, for seven years and you formed a steady relationship and have a daughter from that relationship who you still see.  You were drug free for seven years.  After that relationship ended, you established another relationship and followed that partner back to Ballarat.  You remained there after she left the relationship.  This saw you reacquaint yourself with drug associates and you were quickly back involved in heavy drug use.  You moved from opiate based drugs to methylamphetamines.

22You formed a relationship with your current partner Ms Moran.  You and she had a son and you were the stepfather to her daughter.  Those children are important to you.  The Department of Health and Human Services had intervened, due to your ongoing drug use.  You attempted some drug rehabilitation in order to be able to see your children, but that rehabilitation did not last.

23As I said, you have tried to remain drug free and engage with drug counselling, but when there are stressors, especially regarding your children and the Department of Health and Human Services, you fall back into drug use.  You spiral speedily downhill, leading up to your offending in April 2019.

24While in prison, you have done well, despite the difficulty of having this matter unresolved.  That is, although you were a sentenced prisoner, you still had another matter overhanging.  You have worked in responsible jobs in the kitchen, including the kitchen that served staff in the prisons that you have been in.  You have a responsible job now rearing birds for sale in pet shops.

25Up until the COVID-19 restrictions, you were doing important vocational courses and drug programs.  Those are now suspended, or much more difficult.  The pandemic has had significant adverse impact on prison life.  Prisons are much harder places now.  I do note that before the restrictions, you had done a significant array of rehabilitative courses, with more planned.  All that is to your credit.

26You no longer have important family visits.  You are worried about your oldest child, who has health problems and your step-daughter, who is becoming wayward in her teenage years.  I am authorised to consider that the COVID-19 pandemic, the worry it causes and the restrictions on prison life mean that prison is more onerous and these matters have a mitigatory effect on what punishment is just and appropriate in these difficult times.

27You have displayed remorse.  Your letter to the victim is a solid expression of that remorse.  You say you will not forget what you did and I take it that you are saying, in effect, that you will ensure that you do not repeat that sort of behaviour.  Whether that is so is entirely up to you, Mr Williams.  Your plea of guilty is also an expression of remorse.  In the current climate of suspended jury trials, your plea of guilty is particularly valuable.  Your sentence will be less because of your plea.

28I must ensure that my sentence does properly denounce your violent, frightening crime.  I must endeavour to deter you, given your prior criminal history, which is, sadly, lengthy.  I must also endeavour to deter others from crimes involving firearms.  So I hope I have made clear your rehabilitation is not ignored and what you have been doing in prison gives some hope for ultimately permanent reform, as you grow older.

29As I referred to earlier, I must ensure that the sentence I impose and how it relates to the sentence you are currently undergoing meets the totality of your offending, no more and no less.  Thus, I have considered the just and appropriate sentence for both the crimes that were committed on 2 April 2018, that is, the armed robbery and being a prohibited person in possession of a firearm.

30I have considered cumulation and concurrency between those two offences.  I must not double punish you for the offence of being a prohibited person in possession of a firearm and the armed robbery where the offensive weapon was the firearm.  I then have to consider, in accordance with the principles of totality, your earlier crime, the sentence imposed and what remains of that sentence.  This consideration is to ensure, again, that the total sentence meets the total criminality and that it all remains proportionate.

31I then have to, after cumulation and fixing a new non-parole period, step back and examine whether, in the end, this sentence is just and appropriate and the application of totality is clear.  As can be seen, there will be some more time to serve, both in the head sentence and the non-parole period, but in my view, it is as parsimony requires, as merciful as it can be.

32Another important matter is that parity, as best that can be achieved, between your fewer and less serious crimes and those of Azzopardi, who was much younger and had far fewer previous convictions.  Also, Azzopardi's rehabilitation before his arrest was very significant.  The differences mean that what goes to make up his sentence is different to what goes to make up your sentence.  The result, as it turns out, is very close, in fact, identical in length, but that is for different reasons.

33Doing the best I can and I may require counsel to assist me, I impose the following sentences.  For the crime of armed robbery, you are sentenced to three years' imprisonment.  For the crime of being a prohibited person in possession of a firearm, you are sentenced to eight months' imprisonment.  I order that three months of that sentence of prohibitive person be cumulative upon the sentence of armed robbery.  That gives a total sentence on this indictment of three years and three months.

34I order that 18 months of the sentence that I have just imposed be cumulative upon the sentence that you are underdoing.  Thus, in total terms, the sentence, or head sentence that was imposed by Her Honour of five years because six years and six months.  I fix a new non-parole period of four years and seven months that operates from 24 April 2018.  That adds, as you can tell, one year and four months to your non-parole period that was fixed by Her Honour.

35That is the sentence.  Had you pleaded not guilty to these offences and been found guilty of them, I would have imposed a total sentence of five years, with a minimum of three years and there would have been obviously adjustments in respect of a new non-parole period.  Is there any further orders required, Mr Moore?

36MR MOORE:  I'm just checking.

37HIS HONOUR:  Yes.

38MR MOORE:  I don't think that there are, Your Honour.

39HIS HONOUR:  Thank you.  Now, in respect of the way that the sentence has been announced and the effect upon the new non-parole period, Ms Casey and Mr Moore, does that comply with the authorities in the Sentencing Act?

40MR MOORE:  In my submission, yes.

41MS CASEY:  I believe so too, Your Honour.

42HIS HONOUR:  Yes.  It's what I did with another sentence, reasonably a quite difficult one with an extremely long sentence, is to declare a new non-parole period from that, to operate from that time.  All right, that being the case, I thank the parties for their very considerable assistance.  Ms Casey, we'll give you more time online to speak to Mr Williams and explain what needs to be explained to him and I thank, as I've said, both counsel for their assistance.  Mr Williams, just remain online and speak to ‑ ‑ ‑

43MR MOORE:  Yes, thank you Your Honour.

44MS CASEY:  Sorry, Your Honour, may I just raise one matter?

45HIS HONOUR:  Yes of course.

46MS CASEY:  I just checked my chronology.  Mr Williams was actually remanded in custody on 22 April.  I think Your Honour said it runs from 24 April.

47HIS HONOUR:  Oh, I thought it was the 24th.  The sentence will run from 22 April 2018.

48MS CASEY:  Thank you Your Honour.

49MR MOORE:  Thank you Your Honour.

50HIS HONOUR:  All right, so talk to Ms Casey, she'll sort things out, if you need to.

51OFFENDER:  Thank you.

52HIS HONOUR:  Thank you Mr Williams.

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