Director of Public Prosecutions v Andrusiak

[2020] VCC 162

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 19-01883

DIRECTOR OF PUBLIC PROSECUTIONS

v

RHYCE ANDRUSIAK

---

JUDGE:	HER HONOUR JUDGE LAWSON
WHERE HELD:	Melbourne
DATE OF HEARING:	14 February 2020
DATE OF SENTENCE:	25 February 2020
CASE MAY BE CITED AS:	DPP v Andrusiak
MEDIUM NEUTRAL CITATION:	[2020] VCC 162

REASONS FOR SENTENCE
---

Subject:  CRIMINAL LAW

Catchwords:  Sentencing – armed robbery – unrelated summary charges – possess prohibited weapon – possess cartridge ammunition – no prior criminal history – Community Correction Order appropriate - Community Correction Order imposed

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms F Livingstone Clarke Mr H. Boyd-Wilson	Abbey Hogan, Solicitor for the Office of Public Prosecutions
For the Accused	Mr R. McCloskey	Ann Valos Solicitors

HER HONOUR: 

1Rhyce Andrusiak, you have pleaded guilty before me to one charge of armed robbery and two unrelated summary charges.  They are possessing prohibited weapon and possess cartridge ammunition without license. 

2Armed robbery is a serious crime and that is evidenced by the maximum penalty imposed by Parliament and that is, 25 years' imprisonment.  The maximum penalty for the possess prohibited weapon is 200 penalty units or two years' imprisonment and for possess cartridge ammunition without a license it is 40 penalty units.

3You admitted your criminal record. There is one previous appearance that is of little weight in my sentencing consideration today.  On 26 May 2017, at Werribee Magistrates' Court you appeared before the court in relation to a charge of trafficking tetrahydrocannabinol and charges of possession of various drugs and deal with property suspected to be proceeds of crime.  With conviction your matter was adjourned for a period of 18 months and you were ordered to pay $1,500 into the court fund and various orders were made in respect to the drugs that were seized. 

4I shall now proceed to sentence you on the basis of the prosecution opening, that was read out at the plea hearing. 

5Briefly, the offending involves you in company with Isikeli Walls and another unknown male committing an armed robbery.  On 2 September 2019 you were in company with Mr Walls, a 24-year-old male, and another unknown male.  Around midnight, Walls drove you all to the Chirnside Park football oval.  Also present at the oval were Lachlan Rainbow and four of his fellow teammates, Darcy Phillips, Trae Cook, Logan Cotter and Connor McIntosh.  They were all seated in Mr Rainbow’s car talking about an upcoming football match when the vehicle in which you were a passenger arrived and parked next to Mr Rainbow's vehicle. 

6The driver of your vehicle spoke to Mr Rainbow asking him, and I quote, 'Are you doing drugs?  And where are you from?'  Mr Rainbow answered the questions following which Mr Walls drove away in the vehicle.

7About three minutes later Mr Rainbow and Mr Phillips left the oval in
Mr Rainbow's car.  The three remaining males were then seated in Trae Cook's car.  At around 12.30 am, you and your two co-offenders returned to the football oval in Wall's car.  He parked his car across Trae Cook's car blocking it in.  He approached Trae Cook who was sitting in the driver's seat of the vehicle.  Walls grabbed the driver's door and opened it.  He then stood over Trae Cook who remained seated.  Walls reached into the car removing the car keys from the ignition.

8He asked Trae Cook, 'Is that a phone?  Give me your phone'.  Cook handed over the phone to Walls, who put it in his pocket.  Walls then asked, 'Where's your wallet?' and Mr Cook replied that he did not have a wallet', which reply was accepted and then further conversation took place between those two men. 

9At the same time you approached the passenger side of Mr Cook's vehicle. You were wearing a gold-coloured knuckleduster on your right hand.  You forcibly opened the front passenger-side door of Mr Cook's vehicle and yelled at the passenger, 'Logan Cotter give me your phone, give me your wallet'.  You repeated the demands very aggressively, close to his face and demanded that he give you his gold Uncle Jack watch which he did. 

10Simultaneously, the unidentified co-accused approached the rear passenger side of Mr Cook's vehicle and demanded that Connor McIntosh get out of the car.  He did so and then a demand was made of him to produce his wallet and phone.  He handed over his wallet and said to the other male, 'My phone is tracked for security purposes'.  Therefore that phone was not taken by the unidentified co-accused.

11Walls then gave the car keys back to Trae Cook and was asked by Mr Cook if he could return his phone.  Walls snatched the car keys back and said, 'Are you sure you want your phone?  Do you want me to steal your car as well?', to which Mr Cook answered, 'Just have the phone then'. 

12Your group then returned to
Mr Walls' car and drove away and the incident was reported to police.  Sometime later on 18 June 2019, police executed a search warrant at your home and you were arrested, cautioned and told of your rights.  You volunteered the location of an item that you indicated had been stolen during the armed robbery. 

13During a further search of your home, police found a VIPERTEK Taser in a black box, two gold-coloured knuckledusters, a press seal bag containing two shotgun cartridges, a press seal bag containing two .22 rim fire cartridges and an extendable baton. 

14You were taken to Melton police station where you participated in a formal record of interview. You made full admissions to the offending. 

15Mr Andrusiak, your offending is serious, in particular, the armed robbery involving as it does the commission of this serious offence by you at an isolated location in the early hours of the morning, whilst in company. 

16Walls has been charged and dealt with in relation to robbery, whereas the unknown male
co-offender has not been identified. 

17Understandably, your young victim, Logan Cotter, has been effected by your actions and the victim impact statement he declared on 13 February 2020 describes how it has had a big impact upon him and his life.  He now hates going out or visiting crowded places because of his fear that he will be exposed to further violence from your group.  He never feels safe at night and prefers to be safe at home when he knows nothing can happen to him.

18I just interpose at this point.  Those boys were only 18.  So, it is understandable that they were effected in the way in which was described by Logan. 

19There are no other victim impact statements from the other boys who were present, but common sense dictates, they would have been very scared and potentially still effected and impacted by your actions.  So, think about the consequences of your conduct. 

20Courts in this state have long emphasised the need for general and specific deterrence and denunciation as well as protection of the community for this sort of offending.

21I accept the offending did occur at a low ebb in your life.  You had recently experienced the breakdown of a long-term relationship.  You were mixing with negative peers and you were heavily abusing alcohol and Xanax.  You now acknowledge what you did was wrong and you are extremely remorseful for your behaviour.  Whilst providing a context to the offending and giving some explanation for this offending, those circumstances do not excuse your behaviour.  Your actions were aggressive and confronting to the young men and must be condemned. 

22There were, however, powerful mitigating factors that were highlighted by Mr McCloskey.  Following your arrest you were fully cooperative with police and participated in the record of interview during which you made full admissions to the offending and I have taken into account the fact of your cooperation and admitting to the offending as well as the fact that you entered an early plea of guilty at the earliest stage in the proceedings.

23Your plea has real utility and I am satisfied it is indicative that you are genuinely remorseful.  By your plea you spared the victims of this crime of armed robbery the further trauma of having to come to court and give evidence and you also save the state the expense and the inconvenience of a trial.  You have facilitated justice and your sentence is discounted accordingly. 

24You were 26 at the time of the offending and you are now 27.  You were born and raised in Werribee.  You mother, Jacqueline, is a hospital worker.  She was present at the plea hearing and is very supportive of you and you are currently living with her.

25You are in a relatively new relationship with Kelsey, who is a hairdresser, and she has been fully supportive of you and been present at each of the hearings.  Tragically your father died at age 47 from an aggressive form of cancer.  His death occurred when you were at a very vulnerable age, you were only 15. He died in 2007.  You have had some real difficulties in coping with the trauma associated with his death. 

26Your parents separated when you were young.  You were about three and your father re-partnered and there are two half-sisters who are aged 21 and 19.

27You have an older sister, Jenna and twin brother, Benjamin.  Following your parent's separation, your mother was single until you were about eight and then she commenced a long-term relationship with John who became your step-father.  That relationship broke down approximately three years ago and that relationship, sadly, was characterised by one where your step-father was violent towards your mother as well as physically abusive towards you. 

28Growing up you were fortunate in that you had regular contact with your maternal grandparents as well as aunts and uncles who live in the Werribee area. 

29You had fairly erratic contact with your father over the years but between the age of 10 and 14 he committed to having more regular contact with you.  His diagnosis of cancer was tragic insofar as it was a very aggressive cancer and he was quickly placed in palliative care and died approximately two months after you were told of his diagnosis.  You found it very difficult to cope following his death and did not attend school for about six months. 

30Sadly your step-father John became more physically abusive towards you following your father's death and that led to conflict within the home. You were at times homeless and that in part explains your prior appearance at court, the context of that offending was that you were homeless and you were using drugs and also had drugs and were trying to sell drugs in order to fund your habit.

31You do have a comprehensive work history.  You left school at year 11 but you have done many different jobs such as landscaping for about three years;  you tried but did not complete a butcher's apprenticeship for about a year; you have worked as a storeman in various capacities and you have done some concreting work.  When you were 23 you commenced a diesel mechanics apprenticeship and that went on for three and a half years but that ceased when you were the subject of an industrial accident when you crushed your finger in September 2018 and that necessitated two months of work and you were unable to complete that apprenticeship.

32Recently you have been working on a casual basis for up to three days per week with a landscaping company.  And that work is still available to you. 

33From about age 15, you have had a long-term history of drug abuse, starting initially with cannabis and then progressing to using ecstasy and methamphetamines. 

34You completed a six-week residential course at Odyssey House in 2016 known as ‘the Discovery Program’ and that was effective insofar as you stopped using at that time but a year after your discharge from Odyssey you experimented with methamphetamines but that made you feel ill and so you have not used that drug since.

35There has also been coexisting a pattern of heavy alcohol use as well as drug use over the years and in the past you combined heavy alcohol consumption with abusing Xanax tablets.  That is apparently what had been happening around the time of this incident, the subject of the armed robbery. 

36Recently, you have been on a mental health plan and you have been prescribed Effexor for anxiety and depression. 

37The court was provided with a comprehensive report from Mr Simmons, psychologist and his report of the 12 February 2020 confirms that you are currently suffering with symptoms consistent with the diagnosis of generalised anxiety disorder.  You told
Mr Simmons you were having trouble sleep and that you were seeing your local doctor monthly to manage your mood state.

38You told Mr Simmons why it was that you offended and you were involved with the men who were involved in this incident.  You told him that you were at a loose end.  Your relationship, a long-term relationship had broken down.  You were out socialising a lot and you met up with and you were hanging out with Mr Walls who is a cousin of a close friend from school.  You were consuming alcohol as well as taking Xanax and on the night of the offending you had gone for a drive and came across the victims by chance at the oval.  Importantly what you did say to Mr Simmons was you acknowledged what you did was wrong and that there is no real explanation for this behaviour.

39You now understand how your actions on that night impacted upon the young victims who were all only 18 and you have expressed genuine remorse for the trauma that you have put them through.  I was impressed that you did not attempt to justify your behaviour and you admitted that it was inappropriate and wrong. 

40Mr Simmons makes several recommendations in respect to treatment that you would benefit from that have been picked up in the presentence report that has been prepared by Steven Miriklis who was the assessing officer.  He recommends referral for drug and alcohol counselling, referral to a psychologist for treatment to address anxiety and depression, general counselling to address your complex life issues and a referral to a psychiatrist may be of assistance to review your current treatment regime and make adjustments as necessary. I commend those recommendations to Corrections.

41Overall, given your expressed remorse and insight into the offending as well as your acceptance that you do require some further support to deal with your complex life issues and your willingness to accept help, I do consider your prospects for rehabilitation are reasonable.  You are now at a stage in your life where you have begun to make some positive changes and you are committed to working towards being a more law abiding person.  I am satisfied that you are now detoxed from drugs and you have good support in the community from your girlfriend, Kelsey and your mother.

42Ultimately your rehabilitation is very important, not just to you personally but also to the rest of us in the community as it offers the community the best protection and ensures that the risk of your reoffending, particularly offending of this nature is reduced. 

43I have been guided by the Court of Appeal decision in Bolton v The Queen[1].  It is also important in a case such as yours that the court looks to the future as well as to the past and there is real benefit for the community at large as well as to you, individually, and your family, if your future criminal activity can be stopped. 

[1] [2014] VSCA 342

44Mr McCloskey on your behalf submitted the principle of parity applies. Mr Walls was dealt with at the Magistrates' Court in respect to a different charge of robbery.

45Summary jurisdiction was granted.  He was convicted and sentenced to a Community Correction Order for 12 months.  He was slightly younger than you,  at age 24 and he had no prior convictions.  I accept he was the more aggressive offender insofar as the conduct that was involved in this incident, he was responsible for blocking Mr Cook's car preventing it from leaving the oval and he stood over him and was aggressive and abusive and took his keys from his ignition. Nonetheless I consider your culpability to be as equal to his insofar as you were also aggressive and stood over and demanded Mr Cotter hand over his phone and wallet and also you had your knuckledusters on.  You face a different, more serious charge of armed robbery.

46Whilst there are some similarities, there are differences and the fact is that you had been to court previously whereas, I understand Mr Walls did not have any prior criminal history, so that justifies some disparity in the sentence I am to impose. 

47Ultimately Mr McCloskey sought a Community Correction Order and Ms Livingstone Clark on behalf of the prosecution, submitted in all the circumstances such an order was within the range of sentencing dispositions available to the court.

48I am satisfied that a Community Correction Order can provide for your punishment as well as offer you rehabilitation and also address your particular circumstances, the cause of your offending and minimise the risk of reoffending by promoting your rehabilitation.  The Court of Appeal has said in Boulton that a Community Correction Order may remain open even in cases of very serious offending which is the situation here. 

49I will now make the formal order.  So, I just ask that you stand please, Mr Andrusiak. On the one charge of armed robbery and the two summary charges of possess prohibited weapon and possess cartridge ammunition without license, you will be convicted and sentenced to a two-year community correction order in the terms that I have explained to your earlier, including supervision, 200 hours of community work, treatment and rehabilitation for drugs including testing as well as alcohol, mental health and other offender behaviour programs as may be deemed appropriate and as I have told you earlier, any time spent undertaking those programs can be credited towards your community work hours.

50I make the s.6AAA declaration, but for your plea of guilty, I would have sentenced you to 18 months' imprisonment to serve nine months. I make the disposal order sought and the forfeiture order sought, noting that they were consented to.  The order is ready for you to sign.  I will just get my associate to approach you and get you to sign that.  Yes. Mr Andrusiak, I will sign that order now and then we will get you to wait while we copy that for you.  I just urge you after you have finished here today that you make the contact with the Melton Community Corrections Service and make your appointment and go and see them as quickly as possible.

51Look, there is real hope for you for the future and I can say, you know, having sat here for a long time now, I have been a judge for nearly 18 years, that I have met a lot of young men like you who made the wrong decision but because of their changed circumstances, they are now no longer in contact with the criminal justice system and they have good lives.  So, there is real hope for you for the future but it is in your hands now.  It is your responsibility.

52OFFENDER:  Thank you.

53HER HONOUR:  And hopefully the two years will pass quickly and you will get the benefit of all the treatment options that are available to you under your order and complete your work hours and you will be able to put it behind you in your life and construct your own future that is not ‑ ‑ ‑

54OFFENDER:  Thank you, Your Honour.

55HER HONOUR:  ‑ ‑ ‑ associated with the criminal justice system.  Good.  All right, we can adjourn.

‑ ‑ ‑