DPP v Whittaker
[2023] VCC 880
•1 June 2023
| IN THE COUNTY COURT OF VICTORIA CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR-22-02135, CR-22-02136
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DARREN WHITTAKER |
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JUDGE: | HIS HONOUR JUDGE JOHNS |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 20 April 2023, 19 May 2023 |
DATE OF SENTENCE: | 1 June 2023 |
CASE MAY BE CITED AS: | DPP v Whittaker |
MEDIUM NEUTRAL CITATION: | [2022] VCC 880 |
REASONS FOR SENTENCE
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Subject: Criminal Law Sentence
Catchwords: Three charges of false imprisonment – Three charges of extortion with threat to inflict injury – Common Law Assault – Assault with weapon – Plea of guilty - Offences committed in company – Anti Social Personality disorder – Lack of remorse
Cases Cited: R v Verdins [2007] VSCA 62
Sentence: 5 years’ and 1 month imprisonment with a non-parole period of 4 years.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms M. McMaster | Office of Public Prosecutions |
For the Accused | Mr J. Connolly | Chris McLennan & Co |
HIS HONOUR:
1Darren Whittaker, you have pleaded guilty before me on Indictment C114738. A to two charges of false imprisonment , and two charges of extortion with a threat to inflict serious injury. You have also pleaded guilty to a relevant summary offence of assault with a weapon.
2On Indictment M11659401 you have pleaded guilty to False Imprisonment, common assault and extortion with threat to inflict serious injury.
3I will refer to the indictments respectively as the McNamara[1] indictment and the Thomas[2] indictment.
[1] A pseudonym.
[2] A pseudonym.
4The maximum penalty for false imprisonment is 10 years. The maximum penalty for extortion with threat to inflict injury is 15 years. Common assault – 5 year maximum. Relevant summary offence- assault with a weapon has a maximum penalty of 1 year imprisonment
5You have admitted a relevant criminal record.
Circumstances of Offending
6The circumstances of your offending are set out in two documents, Amended Summary of Prosecution Opening for Plea dated 19 April 2023 (Exhibit A) and Summary of Prosecution Plea Opening dated 28 March 2023 (Ex B) both of which form part of these Reasons for Sentence. I don’t propose to summarise the circumstances of your offending in the same detail as it is set out in those documents.
7Your offending arises out of your apparent relationship with Mr Smith, a co-offender who spans both events the subject of the indictments. The evidence reveals that Smith was higher in the hierarchy of a criminal milieu than you, and that you engaged in threatening standover and violent behaviours at his behest, for some benefit to you, on the occasions before me.
McNamara Indictment
8Starting with the McNamara indictment first. The background to the matter starts in mid-May 2021. Ryan McNamara[3] was staying at the home address of your partner.
[3] A pseudonym.
9You hit Mr McNamara in the face with a baseball bat (that is the summary assault with a weapon) and told him to ‘get the fuck out of the house.’
10Mr McNamara left the house leaving a bag behind which had some personal belongings including an amount of jewellery of significant value. Mr Smith agreed to retrieve the bag for Mr McNamara in exchange for $4000. Mr McNamara delivered $4000 on 22 June 2021 in line with Mr Smith’s instructions but the bag was not returned.
11On or around 7 July Mr McNamara was staying at a friend’s house in Cranbourne West. You arrived at this address, armed with a firearm, and demanding that Mr McNamara accompany you to see Mr Smith. Your victim felt as though he had no choice and left the house with you.
12You instructed your victim to get in the toolbox on the back of your utility and he did so. You drove him to a factory in Oakleigh occupied by Mr Smith and let him out of the toolbox. Mr Smith demanded $14000 from Mr McNamara and assaulted him. Mr McNamara was given two weeks to pay.
13On 7 August you arranged for Mr McNamara to attend your address. You informed Mr Smith once your victim arrived.
14You punched your victim in the face and made him sit in the corner and did not allow him to speak. You sat across from him and engaged in a text message with Mr Smith that is set out in Exhibit A. This exchange reveals the plan to terrorise Mr McNamara.
15Mr Smith arrived and you told Mr McNamara to get into Smith’s vehicle, which he did. Smith drove your victim to an address in Dingley Village. Mr McNamara was cable-tied to a chair. A blindfold was placed over his eyes and a gag over his mouth. Mr Smith assaulted him every time he moved.
16Mr Smith sent a photo of Mr McNamara tied to the chair to you. Whilst Smith was torturing Mr McNamara you engaged in a text message exchange which expressed your support and approval of Mr Smith’s actions.
17Smith engaged in a terrifying episode of torture of Mr McNamara during which he thought he was going to die. You are not to be sentenced for those actions of Mr Smith’s. I mention them herein because it sets the context for the false imprisonment. You are not charged with injury offences and you are not to be sentenced on the basis of complicity in assaults causing injury.
18At one point you telephoned Mr Smith to ask how it was going. Mr Smith told you that Mr McNamara had dropped a few names and it sounds like a lot of different people are coming after him. You asked if there was anything on Mr McNamara’s phone. Co-offender Chand then got on the phone and said to you ‘when they make it difficult it is more fun but’ sometimes he would like it to be easy.’
Thomas Indictment
19Turning to the Thomas Indictment. The victim Aaron Thomas[4] was 31 at the time of the offences. He was an associate of you and your co-offenders.
[4] A pseudonym.
20You arranged to drive Mr Thomas to an address in Taylors Lakes where Mr Smith and co-offenders Chand and Tracey were waiting. A series of text messages between you and Smith, and set out in the Opening, reveal the context to the meeting.
21Not long after arriving inside the premises Mr Thomas was struck to the head with a MAPP gas bottle with such force that he was rendered unconscious. When he came to he saw Mr Smith, Mr Tracey and Mr Chand standing over him and you seated on a couch nearby.
22Your victim was further assaulted in a cruel and extremely violent manner, with Smith striking him to the head several times causing severe bleeding. He was on the floor. Smith stabbed him twice in the chest with broken glass. It is alleged that he was kicked by Smith, Chand and Tracey over the course of the evening. Smith also branded Mr Thomas with a red-hot coat hanger.
23A dog choker chain was placed around his neck. He was dragged around the room by your co-offenders by the chain.
24You and Tracey forced him to clean up his own blood, with his own clothing. There was a substantial amount of blood, as described in the opening. Whilst he was attempting to clean up the blood the others were kicking him. This assault was partially videoed on a phone belonging to Smith.
25Before the victim was allowed to leave Smith forced him to drink a dangerous quantity of GHB.
26The blood-stained clothes were placed in a bag then in the boot of the car. You tried to force the victim into the boot but he refused. Your despairing victim spat at you for setting him up, he had observed you receive something from Smith. You hammer punched him to the head rendering him unconscious (that is the charge of common assault).
27Mr Thomas received a number of injuries which are set out in the opening.
28On 29 July you, along with Smith, participated in an extortion of Mr Thomas demanding cash and threatening him that if he didn’t satisfy your demands you’d break his father’s arms and force him to sign over his house (that is Charge 3 on the indictment).
29On 8 August 2021 you were arrested at Cranbourne West by members of the Special Operations Group.
Victim Impact Statements
30Victim Impact statements were filed by Ryan McNamara, and his mother. They make difficult reading. This was a terrible ordeal for Mr McNamara and his family. There are lasting and significant impacts and consequences.
31Not all of the impact upon your victim can be laid at your feet. But you played your role in his suffering. You knew how Smith operated and what could be expected.
32I am satisfied that you have very little, if any, empathy for the impacts of your crimes upon Mr McNamara.
33I am not satisfied of any remorse.
34Mr Thomas has also made a victim impact statement. I received that impact statement and I take that into account.
35I don’t have any difficulty finding that there was significant impact upon Mr Thomas as a result of your actions.
Objective Gravity of Offending
36The scope of your criminality differs from Smith significantly. You are not charged with offences of causing injury or serious injury.
37You are not to be sentenced for protracted vicious assaults that amount to torture. But you played a significant role in the false imprisonments of both Mr McNamara and Mr Thomas. You delivered them into their nightmares and only left when you were no longer needed.
38In respect of the Thomas Indictment, it was put on your behalf that your limited role in the assault upon him, given your presence and given your personality impairments, was a matter in your favour. I find that that the best that can be said for you on this point is that it would have been worse for you if it were otherwise. It is not to your credit that you simply played your role and no more. That you restrained yourself from a descent into gratuitous violence.
39Your conduct throughout all of the episodes before me shows an appetite for violence and an indifference to the harm, pain, injury and terror experienced by your victims.
40These offences were committed in company, they were planned, and they were committed in furtherance of some criminal activity. Whilst planned, I am satisfied that they were planned and executed through a drug addled lens.
41The psychological material relied upon on your behalf provides a basis for finding that you have an anti-social personality disorder, with little victim empathy. Your Counsel Mr Connelly advances an argument that limbs 1,3 and 4 of R v Verdins[5] are engaged by virtue of paragraphs [77] and [78] of Mr Mackinnon’s psychological report, which are expanded upon by Mr Connelly in his outline of submissions (19 April 2023) at paragraphs [8]-[13].
[5]R v Verdins [2007] VSCA 62
42Mr Connelly also realistically accepts the counterweight to such a submission. There are consequences of such a finding when considering prospects of rehabilitation and the protection of the community.
43The Prosecution concede that some mitigation is available to you if I were satisfied that you suffered antisocial personality disorder, complex PTSD and substance abuse disorder. The Prosecution do not concede that there is sufficient evidence before me on this point.
44I accept on balance that you experience anti-social personality disorder, and that you have little empathy. Substance abuse disorder seems apparent also. These traits, together with your size (you stand 6 foot 6 inches tall and weigh 135 kilograms according to Mr Mackinnon), are attributes no doubt that Mr Smith could use in his activities.
45Slight mitigation in relation to moral culpability on this basis is outweighed by the negative implications for your prospects of rehabilitation and the need to protect the community.
46Further, I am not satisfied that you are not an appropriate vehicle for general deterrence however. Your criminal antecedents, which include periods of incarceration together with your commission of the offences before me, the psychological report of Mr McKinnon, and submissions on your behalf offer bleak prospects for rehabilitation in my view.
47You are now 41. You were 39 at the time of the offences. You are the oldest of the co-offenders before me, by some way. You grew up in Dandenong. When you were around 9 your parents separated and you remained in the care of your mother. You had regular contact with your father. You described yourself to Mr Mackinnon as a ‘disruptive kid.’
48Your father, a labourer, recently passed away in Fiji or Tonga, you are unsure. He was 72. Your mother is 72 also and resides in Pakenham with your 16-year-old son. You are currently single, I was told.
49You attended a number of high schools: Dandenong High, Collingwood College, Carlton Secondary College, and Berengarra School (Berwick) – a school that supports emotionally and socially challenged students. You told Mr Mackinnon that you regularly got into fights at school.
50You have done some labouring work in the past. As I have noted you have also spent time in custody over the years. You say that you have not held down a job for 10 years.
51You have stated that since leaving school at 16 there has been a lot of drugs. You have also suffered injuries due to significant car collisions, you say you have been shot and suffered a range of other injuries.
52It is of some note that your criminal history begins with culpable driving and negligently causing serious injury charges – for which you received a significant period of imprisonment at the time.
53It is quite possible that you suffer complex PTSD associated with this event and other events in your life, such as a reported shooting, however I am not satisfied on the material before me to the requisite standard, that you do suffer that specific condition. It is likely that there would be psychological sequalae from such events but that is as high as I can find.
Experience in Custody
54You are currently working in the prison maintenance program. You train at boxing and weightlifting.
55You have been in custody since 8 August 2021. You have experienced pandemic restrictions during that period. You only have pre-sentence detention of 156 days due to a sentence of 1 year and 8 months on 8 September 2021 which lapsed on 27 January 2023.
56That sentence had a non-parole period of 14 months. You were not eligible for parole due to your remand on these matters. I take that into account.
57I apply the principle of totality with regard to not only the offences before me, but with regard to the period of custody you have experienced since August 2021.
58You are entitled to a significant discount for your plea of guilty. You pleaded guilty before the committal proceeding. It is a significant plea and it has significant utilitarian value.
59Denunciation and general deterrence are important factors in your case. Your preparedness to engage in the brutal extortion and terror these episodes reveal, with no doubt perceived impunity due to your victims being part of a drug or criminal milieu must be denounced in strong terms, and other likeminded individuals; standover men, affected by drugs, with an indifference to the pain and suffering of others – must be deterred from engaging in similar conduct.
Sentence
60I sentence you as follows.
61McNamara indictment.
62Charge 4, False imprisonment: you are sentenced to 2 years’ imprisonment.
63Charge 5, Extortion: 18 months’ imprisonment.
64Charge 9, False imprisonment 2 years imprisonment.
65Charge 10 on that indictment, Extortion: 18 months’ imprisonment.
66On the relevant summary offence: assault with weapon, you are sentenced to 1 month jail.
67Thomas indictment.
68False imprisonment: you are sentenced to 2 and a half years imprisonment.
69On the Common assault: 3 months imprisonment.
70On the Extortion with respect to Mr Thomas, 2 years’ imprisonment.
71The sentence on the Charge of False Imprisonment on the Thomas indictment will be the base sentence.
72I direct that 5 months of each of the sentences imposed on the Charges on the McNamara indictment be served cumulatively upon each other and upon the sentence imposed on Charge 1 on the Thomas Indictment.
73I direct that 10 months of the sentence imposed on Charge 3 on the Thomas indictment be served cumulatively upon the sentence imposed on Charge 1.
74I direct that 1 month of the sentence imposed on Charge 2 on the Thomas indictment be served cumulatively upon Charge 1.
75Total effective sentence of 5 years’ and 1 month imprisonment.
76I set a non-parole period of 4 years
77I declare that pre-sentence detention is 155 days not including today.
78Pursuant to section 6AAA of the Sentencing Act, had you not pleaded guilty I would have sentenced you to 6 years’ and 9 months imprisonment with a non-parole period of 5 years.