Director of Public Prosecutions v Williams

[2018] VCC 1893

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

AT BALLARAT
CRIMINAL JURISDICTION

CR 18-01446

DIRECTOR OF PUBLIC PROSECUTIONS

v

DARREN WILLIAMS

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Ballarat
DATE OF HEARING:
DATE OF SENTENCE:	17 October 2018
CASE MAY BE CITED AS:	DPP v Williams
MEDIUM NEUTRAL CITATION:	[2018] VCC 1893

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

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr B. Nibbs
For the Accused	Ms A. Burrnard

HER HONOUR:

1Darren Brendan Williams, you have pleaded guilty before me to one charge of armed robbery and one charge of carrying an unregistered handgun.  The facts underlying your offending are as follows.  A few days before 21 April 2018, the victim, David John McKenzie, was introduced to a red haired man at a friend, Samantha Sermaik's house in Edwards Street, Sebastopol.  Police allege this man is your co-accused, Michael Voight.

2On 20 April 2018 Mr Menzies travelled to Ballarat to stay with Ms Sermiak.  He met you on that occasion as you were at Ms Sermiak's house, you living just a few doors up the road.  Mr Menzies went to a pokies venue with you and then returned to Mr Sermiak's house where Mr Menzies stayed overnight.

3On the morning of 21 April 2018 the man allegedly said to be Michael Voight came to Ms Sermiak's house by prior arrangement to sell Mr Menzies stolen chainsaws, at which time he was driving a gold coloured Commodore with four chainsaws in the boot, two of them battery powered and two petrol powered.

4Mr Menzies arranged to buy the three chainsaws for $500 each, paying
Mr Voight $1000 as this was all he had been able to withdraw from his bank that morning.  He got two chainsaws as a result.  There was then an arrangement to meet in a carpark at McDonald's to purchase one more chainsaw after Mr Menzies’ bank branch opened and he could withdraw more funds.

5Mr Menzies arrived at the McDonald's carpark about ten and after a period of time Mr Voight arrived at McDonald's in his Commodore telling Mr Menzies he had to drop off a bumper bar and that Mr Menzies should follow him. 
Mr Menzies followed him to an address and then to Edwards Street where you, Mr Williams, got into the car.

6The two of you then drove to the Coles supermarket where some alcohol was purchased, then Mr Menzies followed the gold Commodore to the Sebastopol Bowls Club carpark.  There he got out of the car and you and
Mr Voight got out of the gold Commodore.

7I was informed by counsel that some sort of argument took place, but in any event Mr Voight then hit Mr Menzies with knuckle dusters to the right side of his head.  Mr Menzies got back in the driver's seat of his car and you drew a homemade silver handgun out and said, "Give us your shit".

8You then tried to pull out a gun and cock it while Mr Voight grabbed Mr Menzies' two gold chains and the two of you then took items from Mr Menzies' car boot.  Overall the two of you stole two gold chains, $1500 in cash and a trolley jack and handle.  Mr Menzies estimated the value of the gold chains at $15,000 and the total of the items stolen as $18,000.

9Ultimately Mr Menzies was able to drive away.  These actions underlie both Charges 1 and 2 on the indictment.  The incident was captured on CCTV footage at the Sebastopol Bowls Club.  Mr Menzies went to a nearby business where he asked the police to be called.  Police attended and he made a statement.

10Police identified your address in Edwards Street, Sebastopol and at about
2 o'clock that afternoon when police drove by they saw a gold coloured Holden Commodore with the same registration plate as that noted on the CCTV footage parked out the front.  Mr Voight was arrested at a hotel on Monday 23 April 2018.  He tried to run but was taken into police custody.

11One of Mr Menzies' gold chains was found on Mr Voight's person.  A phone also taken from Mr Voight containing text messages identified by Mr Menzies as those sent by him to you on 21 April while waiting for you both in the McDonald's car park.

12Police also discovered a Husqvarna chainsaw in the car boot of the gold Commodore.  Later that day police executed a search warrant at your house at 74 Edwards Street, Sebastopol where you were arrested and during the search you told police there was a silver coloured homemade handgun on the floor of the main bedroom.

13This was located where you told police it was and it had a .22 calibre bullet in the breach and there were two further .22 calibre bullets located on a nearby bedside table.  In a record of interview with police you admitted having the handgun for a couple of weeks and to keeping ammunition in the bedside table.

14You said you knew Samantha Sermiak but you denied knowing David Menzies and did not recall going to Coles, you denied any knowledge of chainsaws in Mr Voight's car boot and denied having the handgun in your possession over the weekend.  You also denied any knowledge of the armed robbery or of robbing Mr Menzies of cash and gold chains.

15In a search of Mr Voight's car police located Mr Menzies' trolley jack and a black moulded case, the interior of which had a shape cut out that matched the size and shape of the gun that you had at your house.

16This matter was resolved at an early stage at committal mention.  You have remained in custody since your arrest.  The maximum penalty for armed robbery is 25 years' imprisonment.  The maximum penalty for carrying an unregistered general category handgun is 600 penalty units or seven years' imprisonment.

17I now turn to your personal circumstances.  You are now 36 years of age.  You are the only child of your parents who separated when you were three and you were raised by your mother in Ballarat.  She worked for 14 years on nightshift at a factory and during the day you were cared for by your maternal grandmother.

18You told psychologist, Warren Simmons, whose report dated 17 September 2018 was tendered on the plea, wrote that your mother did her best for you and ensured that you never went without; that overall you were well cared for.  You played a variety of sports, and excelled at rollerblading, working from age 12 to 14 at a rollerblading rink.

19You did well at school, in particular you loved English.  You described yourself as always sitting up the front of the class but you did have some behavioural difficulty and eventually halfway through Year 9 you were asked to leave Wendouree High School.

20Your mother had gone on to re-partner a man named Robert who was a good role model for you but he had mental health difficulties; your mother and he separated when you were 16.  You have a half-brother from that relationship and two half-siblings born to your father after your parents separated.

21You saw your father sporadically over the years as he lived in Queensland but he was a consistent heroin user as was a maternal uncle to whom you were close and both of them spent years in gaol.  Indeed when your father was in gaol your counsel informed me that your father's then partner did take you to visit him.

22Ultimately when you were 13 your father died of a heroin overdose.  This was a critical point in your life.  You had always associated with an older peer group and they introduced you to cannabis when you were about ten.  You began using regularly and indeed this has been a lifelong habit for you.

23More importantly when you were 13 you were offered heroin by a friend which you then used; as Mr Simmons put it, "Out of curiosity wondering why his father was so enamoured of the drug".  You quickly became dependent and began injecting and developed a habit between one and three and a half grams per day, which habit persisted until you were 17.

24In the interim because of your behaviour you were asked by your mother to move out of home and you then moved in with your uncle who was also a heroin user.  You lived with him for 12 months and obviously that habit continued.

25Despite your early descent into serious drug use you began when you left school what was to become a pretty good work history.  Over the next few years you worked in a fruit and vegetable supermarket, you worked on weekends wood chopping, you restored antique furniture and for nine months you underwent a traineeship at Ararat in a meatworks business, which unfortunately after nine months ended when it appears the firm went bust.

26You also worked for the Central Highland Water Board.  At the age of 18 you decided to move to South Australia to live with your grandmother in an attempt to overcome your heroin problem.  To your credit you then remained clean for seven years.  You lived in the Riverland area fruit picking and working up to 80 hours a week and then began and completed three years of a four-year plastering apprenticeship, including all the academic requirements.

27Thereafter you worked on a sub-contractor basis as a plasterer.  During this time you formed a relationship with a woman, Belinda Smith, to whom you became engaged and by whom you had a daughter, Kirra, now aged 14.  The relationship ended when in a fight outside a pub you inadvertently punched your father-in-law.

28Nevertheless you continued to have good contact with Kirra's mother and that contact continues to this day.  Whilst you no longer had a relationship with
Ms Smith you continued to have regular access with your daughter, took her to swimming class and the like and paid maintenance for her.

29However, it appears you were quite a big drinker at the time and I will shortly refer to your prior convictions in the ten years that you lived in South Australia.  You, if I can put it this way, clocked up a reasonable, although fairly minor in terms of its quality, criminal history.

30You then began a relationship with a woman called Roxanne who had moved to Adelaide.  Around that time you were prescribed OxyContin for dental pain and you quickly came, it would seem, dependent upon this, over-using this prescription drug.  During this time you were placed in custody for a three month period on charges which were ultimately discontinued but then bailed on a home detention basis.

31You were required to travel from Riverland where you were living to Adelaide to report on bail.  You had developed a taste for opiates again and on your trips to Adelaide were able to source heroin and descended back into heroin use in the last three or so years in which you were in South Australia.

32You were with Roxanne for about three months when she became pregnant and returned to Ballarat; you followed her in 2010.  Ultimately a child, Eva, was born to that relationship.  However, Roxanne was unfaithful to you and the relationship ended.  Whilst you kept in contact with Eva for about three years, ultimately Roxanne repartnered and moved interstate and you have lost contact with her.

33Once you were back in Ballarat you were introduced to methylamphetamine, a drug to which you quickly became addicted, moving with a younger crowd.  However, you managed to keep working and even more, undertook at Certificate III in Civil Construction with a view to working on the railways.

34Your drug use continued on unabated, although you tried to remain abstinent for periods of time.  Ultimately you became involved in a relationship with your current partner, Angela Moran, who has an older daughter and by whom you had a son, Elias, now aged three.

35Eventually the Department of Health and Human Services became involved two years ago and both children were placed with Ms Moran's mother.  You have since then had supervised contact with Elias.  You moved from methadone suboxone at the assistance of the Department of Health and Human Services and underwent drug screening.  However, as I have said, your drug use continued.

36In relation to the offending, your counsel informed me that Mr Menzies, the complainant in this matter, when you first met him mentioned bikie gang contacts.  You had purchased the gun about two months before for protection which says something about the circles that you were moving in, and on the day of the armed robbery took it with you because of concerns you had about Mr Menzies.

37It appeared that it seemed to you some argument had broken out between
Mr Voight and Mr Menzies as chainsaws were being moved from one car boot to another.  You had taken suboxone and methylamphetamine and I think had been drinking, and on this cocktail of substances reacted instantly by pulling out the gun and behaving as you did in order to obtain what you thought were items which were to make up the monies which Mr Menzies was to pay for the chainsaws.

38I note that in his report Mr Simmons writes of longstanding mental health disorders, in particular anxiety and panic attacks and at times depression of which you have been prescribed anti-depressants but the use of which you have discontinued because of its affects upon you.

39You attend today still with some outstanding matters.  They appear to be Magistrates' Court matters of no great consequences in terms of the sentencing exercise before me, a breach of a Community Corrections Order which you were on at the time of this offending and a driving matter.  More seriously you are facing kidnapping charges, which however I am informed you are vigorously defending.

40You have done well in gaol in the five months that you have been there.  You have worked, you work 13 out of 14 days in the kitchen and you have risen to a level of trust such that you are at the second possible tier in the gaol, the only higher tier of trust being as an essential services prisoner and it is anticipated that you will ultimately reach this position.

41Given what has been a very creditable work history over time I am not surprised that you have done as well in gaol as you have and I note that this is the longest time you have ever spent in custody.

42Turning to your prior convictions, as I said in the ten years you were in South Australia you have been dealt with primarily by way of fines for offending such as disorderly behaviour, drink driving, assault, criminal damage, unlawful possession, possession of a firearm without a licence which I understand was a sawn off shotgun which was found in your house which causes me some concern, but it occurred in 2010 when it appears you had fallen back into drug use and there were also a couple of dishonesty charges of a minor nature.

43In 2001 you were dealt with at the Ballarat Magistrates' Court for shoplifting and then there is a gap until 2011 when you were dealt with for criminal damage and being placed on a Community Corrections Order.  You breached that.  You were dealt with in 2012 for robbery and recklessly cause injury.  That offending occurred when you, with a co-accused, attended upon a drug dealer and a dispute broke out during which time force was used and drugs taken from him.

44You were placed on a partially suspended sentence for that incident.  You breached that suspended sentence and have gone on to commit further offending in 2013 such as possessing a controlled weapon without excuse.  You are unsure of what that amounts to.  You have been dealt with for this three times, on one occasion for a box cutter which attached to a keyring, a baton found in your car and on another occasion for a fishing knife which was found in your possession.

45You have been dealt with for criminal damage which involved you kicking in the door of a house and in 2017 you were placed on a Community Corrections Order for 18 months for charges of obtaining property by deception which was a credit card you found in a purse and which you then used.

46There were also driving offences in February of this year and another charge of possessing a controlled weapon without excuse.  Your offending history is long and I am not seeking to trivialise it but it is mainly minor offending.  As I have said, you have primarily been dealt with for that offending by way of non-custodial dispositions or fines.

47It was Mr Simmons' view that, "There is no doubt that Mr Williams' decision making on this occasion, that is the offending before this court, was impacted by his use of methylamphetamines, although it is admitted that this was self-administered.  Nevertheless the drug impacted on his cognitive processes such as he made a decision to commit the type of offence that is certainly not one that he would usually commit.  Mr Williams expresses remorse for his actions and is aware that he may receive a significant disposition".

48Certainly the offending before this court is an escalation in offending which is quite marked.  It stands out as significantly more serious than any offending you have engaged in previously.

49Whilst in gaol you have had contact with your mother on a telephone basis and she now resides in Adelaide and you still enjoy a good relationship with her.  Your partner, Ms Moran, has visited you and your daughter, Kirra, has been writing to you.

50I accept both in terms of what your counsel put to me and in terms of what
Mr Simmons wrote in his report that you recognise that essentially you are at a crossroads in your life.  For someone who has had such a serious drug habit for so many years your criminal record, although persistent, does not contain the more serious offending often seen in persons who have the sort of addiction that you have had over such a long period of time.

51This speaks to your capacity to fund yourself by way of working and it means that this court can have guarded faith in your prospects of rehabilitation.  I made the comment during the plea, Mr Williams, is that you were clearly brought up by a loving and law abiding mother who did the best she could and you have clearly taken away a great deal of good in that regard as seen in your employment history and the ambitions you have held for yourself and the studies that you have undertaken.

52There is plenty there in you which could lay the foundation for a good productive crime free life.  The problem is whilst you have done very well in the strong structure of gaol, how you will manage in the outside world, if I can put it that way, remains to be seen.  Clearly with the addictions that you have both to heroin and methylamphetamine and once addicted that addiction always remains, you are going to have to do some very serious work in order to free yourself from your dependence on both those illicit substances.

53I note that I also received the results of two random urine screens conducted at the gaol both of which were clear, the dates being 10 May and 22 August this year.  Your counsel also informed me that you despise methylamphetamine and that you are tired of chasing heroin.  If that is so that augurs well for you in the future.

54Mr Simmons made a very interesting comment in my view when he concluded his report.  He stated this:  "Mr Williams does have some prospects for rehabilitation in that he has been able to complete study and has engaged in significant employment.  He has been able to maintain periods of abstinence in the past and impresses as being a relatively bright man who has some insight into his difficulty".

55Mr Simmons has some regard for your intelligence, Mr Williams, and it would appear right from the start that was always there.  I do not very often receive reports about people in the sort of trouble that you are in which they say enjoyed school and loved English.

56It is to be hoped that you can undertake what you need to do in order to remain drug free.  I accept also what Mr Simmons has had to say about the effect of your father's death upon you.

57He stated, "He appears to have done well academically and had no major issues until the death of his father from a drug overdose.  This certainly appears to have had a significant impact upon Mr Williams in that his schooling deteriorated and he subsequently began experimenting with heroin only to find himself rapidly dependent".

58It is Mr Simmons' recommendation that you should receive drug and alcohol counselling with a focus on increasing what he calls self-efficacy, harm minimisation and relapse prevention strategies.  Furthermore, he said, "Mr Williams would benefit from a referral to a psychologist for issues relating from the death of his father and its impact upon him".

59Most men do not enjoy therapy but it certainly seems to me, and this is something that you can initiate yourself, Mr Williams, it would be helpful for you to look into grief counselling and therapy around your father's death because that is when a relatively happy bright little boy began a life that has ultimately been ruinous to him.

60Notwithstanding what I regard as positive prospects of rehabilitation, albeit guarded, this offending is extremely serious.  Sentencing for an offence such as armed robbery, and I note the victim, Mr Menzies, despite several invitations, did not make a victim impact statement, requires the court to primarily have regard to the principle of general deterrence, that is the imposition of a sentence which sends out a message to others about the way in which they will be treated by the courts if they engage in the same behaviour.

61I understand that you are under no illusions as to the fact that I must sentence you to a term of imprisonment today which will exceed any imprisonment you have experienced previously.  Hopefully the positive way you have gone about using this time in gaol continues and serves as a sort of bedrock for your future once you are released into the community.

62I take into account your early plea of guilty which I regard as an indication of remorse and as a positive feature of your prospects for future rehabilitation.  I take into account the gains you have made over the years, the studies you have undertaken and your good work history.

63Unfortunately this all pales into insignificance when one looks at this terrible addiction that you have suffered from for most of your life now and which has led you to this offending which is such an escalation of anything you have done before.

64It is a serious and violent crime involving the use of a dangerous weapon.  As I said, I can only hope, sir, that what your counsel said to me is true, that you truly do understand the position you are now in, particularly in relation to your future relationship with your children.

65In all the circumstances therefore I sentence you as follows.  Could you stand up please, sir?  On Charge 1 you are sentenced to four years and nine months' imprisonment.  On Charge 2 you are sentenced to six months' imprisonment.  I order that three months of that sentence on Charge 2 be served cumulatively to the sentence imposed on Charge 1.  I order that you serve a minimum term of three years.

66I have given you a lesser minimum term than would otherwise be the case because of the positive aspects that have been raised by your counsel in her helpful and adequate plea and I note this is not a course to which the prosecution has necessarily objected.

67I declare that 177 days of this sentence have already been served by way of pre-sentence detention.  Pursuant to s.6AAA I declare that had you not pleaded guilty I would have sentenced you to a term of imprisonment of six and a half years and ordered that you serve a minimum term of four and a half years.  Thank you, have a seat.

68MR NIBBS:  There was also a forfeiture order sought in terms of the firearm.

69HER HONOUR:  Yes.  I am afraid you are not going to get that gun back,
Mr Williams.

70OFFENDER:  I don't want it back.

71HER HONOUR:  There you go.  Look, you will owe the Parole Board two years when you get out.  Like I said that is going to be like a bag of stones on your back.  Anything that happens will be on top of two years that you will owe them.  Just bear that in mind.

72Good luck to you, sir, you have got better prospects than most men who come in front of me with the drug history that you have got and with this sort of offending.  I also note you have undertaken a number of courses including a managing emotions program, managing loss program and managing sleep program, and a men's behaviour change program, which is very much to your credit given the number of hours you are working, and that you have also been referred for drug and alcohol services and hopefully that will be able to be delivered to you in a more speedy fashion now that you have been sentenced.

73Very well, sir, could you take Mr Williams down?  Thank you.  I will return the certificate to you.  I thank counsel for their assistance today and we will adjourn.

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