Director of Public Prosecutions v Carruthers
[2024] VCC 1555
•3 October 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-23-00148
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MICHAEL CARRUTHERS |
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JUDGE: | HER HONOUR JUDGE RIDDELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1 September 2023; 12 December 2023; 25 March 2023; 10 May 2024; 21 May 2024; 26 June 2024; 13 August 2024; 22 August 2024 | |
DATE OF SENTENCE: | 3 October 2024 | |
CASE MAY BE CITED AS: | DPP v Carruthers | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1555 | |
REASONS FOR SENTENCE
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Subject:Sentence
Catchwords: Aggravated Burglary --- Threat to Inflict Injury --- Property Damage --- Committed against two female victims in their home --- Offender in possession of knife and metal pole --- Revenge for perceived debt --- Plea of Guilty --- Long history of prior convictions --- Institutionalised --- Recent formal diagnosis of Acquired Brain Injury --- Chronic Drug addiction --- Deferral for Inpatient Rehabiltiation unsuccessful --- Specific Deterrence --- General Deterrence --- Community Protection --- Guarded prospects of Rehabilitation
Legislation Cited: Sentencing Act 1991
Cases Cited:Bugmy v R (2013) 302 ALR 192, R v Verdins (2007) 16 VR 240, Worboyes v The Queen [2021] VSCA 169, R v Akoka [2017] VSCA 214
Sentence: 4 years and 1 month imprisonment --- Non Parole Period of 3 years imprisonment
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr T. Crouch | Office of Public Prosecutions |
| For the Accused | Ms E. Byrt | Papa Hughes Lawyers |
HER HONOUR:
1Michael Carruthers, on 1 September 2023, you appeared before me for your plea of guilty in relation to one charge of aggravated burglary, one charge of destroying property, one charge of making a threat to inflict serious injury and one charge of theft. Those charges are the result of an incident committed against two women and which occurred on 2 February 2022.
2You are 45 years of age, and were 44 at the time of your offending. You have a long history of criminal offending and you have spent a great deal of your adult life in and out of custody. It is clear that you are becoming, if not already, institutionalised. As you indicated to me, prison is often easier than the outside world. You have unsuccessfully tried inpatient rehabilitation programs in the past and various therapeutic orders have been made in relation to you.
3You are a man with a difficult background. In summary, your childhood was one of disadvantage and disruption. You began using drugs at a young age and have a chronic addiction. You were shot at age 18 and in a serious car accident at around age 27. As a result of those incidents, you sustained traumatic brain injury. Prior to your plea and for the first time, you were assessed by a neuropsychologist and formally diagnosed with an acquired brain injury. You now have made an application for a support package via the National Disability Insurance Scheme.
4After hearing your plea in relation to your history of offending along with your personal history, I acceded to counsel’s submissions to adjourn your matter so that enquiries could be made regarding the availability of inpatient drug and alcohol rehabilitation for you. I thereafter adjourned your plea on several occasions, pending availability of such a bed.
5Ultimately, you were assessed as suitable for a bed at Odyssey House in Sale and I agreed to defer your sentence and to bail you to that facility.
6You were bailed on strict conditions on 21 May 2024 to reside at the Odyssey House facility and follow the rules of that facility and the directions of the staff.
7The matter returned to me on 26 June 2024 and at that stage, you were progressing well in the Odyssey House program. However, in August 2024, I was made aware that you had been discharged. The circumstances of your discharge are somewhat unclear to me. I accept that your discharge was unrelated to drug use, but as I understand, it was related to your failure to adhere to other requirements of the facility.
8After hearing from your counsel, I agreed to continue your bail, bailing you to your own residence, on the understanding that you were to be assessed by another residential facility, with a view to entering a further period of inpatient rehabilitation. As at today’s date, you have not entered another facility. You have remained living at your home and as reported to me on the last occasion, you have had at least one relapse to drug use.
9When I bailed you to Odyssey House, I made plain that you would need to comply strictly with the conditions of that residential facility, and that you must not relapse to drug use. I made plain that that program was to be a long-term commitment by you. In the event that you failed to comply and complete that program, I indicated to you that I would proceed to sentence you to a term of imprisonment.
10Regrettably, that is now my task.
Summary of offending
11In summary, the offending for which I must now sentence you is as follows.
12The victims of your offending were Renae Rischitelli and Dianne Comport. You had met Ms Comport approximately two weeks prior to the offending through a mutual friend. Ms Rischitelli was not known to you prior to the offending.
13Diane Comport was living with Renae Rischitelli and her sister Sheridan Rischitelli. They were residing with the sisters’ grandmother, Jacqueline Gough, at an address in Sunbury.
14At 10 am on 2 February 2022, you attended at a shed at their property, which is set you up as an additional living room with a couch and a TV. Ms Rischitelli and Ms Comport were inside. You said through the door, 'It’s Mick’ and 'It’s Mick, Alicia’s friend’.
15Ms Comport opened the door, at which point you barged past her and entered the shed. You were holding a knife and a metal pole and you were wearing a black hoodie with the hood up and a face mask on.
16
That entry as a trespasser with an intent to steal and at the time having with you an offensive weapon, namely the knife and the metal pole, forms the basis of Charge 1 – aggravated burglary. The maximum penalty for that offence is
25 years' imprisonment.
17Once inside you demanded money, the keys to a vehicle out the front and for ‘Any money and drugs you’ve got’. Almost immediately you then smashed the TV screen. That is Charge 2 – destroying property intentionally. The maximum penalty for that offence is 10 years imprisonment.
18You then pointed the knife at the two victims. Ms Rischitelli told you that she did not know what you were talking about and did not have any keys. You then grabbed Ms Comport around the neck, putting her in a headlock and with your other hand you pointed the knife at her throat. You said, ‘Give me the keys or I’ll hurt her’. That conduct forms the basis of Charge 3 – threatening to inflict serious injury. The maximum penalty for which is five years imprisonment.
19Ms Rischitelli then agreed to your demands and Ms Comport said the keys are inside and that she would go and get them. You allowed her to do so. That left you alone with Ms Rischitelli.
20You again demanded ‘Money and the drugs’ and you searched the shed. You found a pouch belonging to Ms Rischitelli containing her car keys which you took. This is Charge 4 – theft. The maximum penalty for which is 10 years imprisonment.
21
You left the shed and headed towards the back gate, which was locked.
Ms Comport ran after you and was able to wrestle you to the ground. She grabbed onto the lanyard with the keys and held on to them until you let them go.
22
Ms Rischitelli returned with her sister Sheridan and their grandmother,
Ms Gough. Ms Comport managed to grab the knife you were holding and threw it behind her. Ms Rischitelli attempted to pin you to the ground, whilst her sister phoned police. Ms Gough picked up a broom and attempted to strike you with it. You managed to break free and ran out through the side gate.
23Police arrived within minutes and located the knife with some blood on it and a black mask. Those items along with the keys’ lanyard were swabbed for DNA which ultimately revealed a link to you.
24You waived your right to participate in a record of interview. You were subsequently charged on 5 July 2022, and the matter resolved on 1 March 2023, by way of a plea of guilty.
Sentencing Principles
25Aggravated burglary is a serious offence reflected in the maximum penalty. Entry into another person’s residence armed with weapons and for the purpose of stealing, is terrifying for victims. The sentence I impose must have as a focus general deterrence, denunciation and community protection. That is, it must work to deter others from engaging in this type of behaviour. It must express the community’s strong disapproval of such offending and must protect other people from becoming victims in their own homes.
26Specific deterrence also looms very large in sentencing you. You have an extensive and relevant prior criminal history. Your prior criminal history does not aggravate the circumstances of this offending, and you are not to be punished twice for it, however, it forms part of my consideration of the need for specific deterrence, of the risk you pose to other members of the community and of your prospects of rehabilitation.
27That history dates back to 1996. You have been dealt with for burglary, and attempted burglary on twenty-seven occasions. In 2018, you were sentenced to imprisonment for aggravated burglary where a person was present.
28You have multiple other dishonesty charges including thefts, deceptions, going equipped to steal and theft of motor vehicles. You have numerous drug possession charges relating to cannabis, heroin and other drugs of dependence.
29You have numerous serious driving prior convictions, including a charge of culpable driving heard in this court in 2006, which resulted in a sentence of six years' imprisonment with a non-parole period of four years. Despite having served that term, you have numerous subsequent driving matters, including driving at a speed dangerous and dangerous driving while pursued by police.
30Your prior criminal history reveals that many sentencing dispositions aimed at your rehabilitation have been attempted, including intensive corrections orders, and drug treatment orders, along with suspended sentences. Almost without exception, you have breached each of those orders.
31
You have served numerous terms of imprisonment. In 2019 on appeal to this court, you were sentenced to 10 months imprisonment, to be followed by a
12 month community correction order. You ultimately breached the community correction order, and in June 2021, the order was varied and you were sentenced to undertake a further community correction order for 12 months on your release from imprisonment. This offending contravenes that order. This is an aggravating feature in sentencing you.
Objective Gravity
32In relation to this offending, you yourself acknowledge this is an escalation in your pattern of offending. That is so. It was a confrontational aggravated burglary. It must have been frightening for victims who were confronted by you and by the fact that you were in possession of two weapons which you then used to threaten and terrify them. You were clearly aggressive and making demands of them.
33The offence of aggravated burglary is complete on entry to the premises. Yours is a reasonably serious example of that offence. It was pre-meditated, though I cannot say for how long. But you believed you were seeking revenge on behalf of a third party. In that sense, you had attended purposefully, and it was determined and deliberate.
34It was committed when you were somewhat disguised, although I note you used your real name when you were at the door.
35You brought with you two weapons, both of which were threatening, in particular the knife.
36Aggravated burglary is often eclipsed by what occurs once an offender is inside. Here, your destruction of the TV screen was completely unnecessary and in no way going to assist you in achieving your demands. You destroyed an item of value to the victims.
37The act of grabbing Ms Comport in a headlock and holding the knife at her throat is very serious. You made a threat to inflict injury on her at a time when she clearly would have felt that you had capacity to follow through. That must have been extremely frightening for her and for Ms Rischitelli. It must be seen as a more serious example of that type of offending.
38The theft relates to taking the pouch containing the car key which was clearly your aim. Fortunately, you did not get far thanks to the bravery of the victims in apprehending you.
39The victims here have elected not to provide a victim impact statements, nonetheless, I can anticipate the event must have been frightening and must have left them feeling unsafe and anxious for some time after.
40There is little doubt that the only appropriate sentence here is one of imprisonment, with a head sentence and non parole period.
Personal Circumstances
41
I turn now to your personal circumstances. I have been provided with helpful submissions by your counsel over the course of the plea hearings. Indeed
Ms Byrt has advocated skilfully and in a compelling way. She has managed to convince me to give you a number of opportunities, where I otherwise might not have done so.
42
Her helpful submissions in turn draw on a psychological report from
Mr Warren Simmons, dated 24 August 2023, and a neuropsychological report authored by Ms Laura Scott, dated 7 December 2023.
43Mr Simmons concluded that your past history of head trauma was strongly suggestive of an acquired brain injury. The plea was adjourned in order for the neuropsychological report to be obtained. That report confirms that diagnosis on account of several traumatic brain injuries, coupled with your chronic illicit drug addiction. Ms Scott concludes that you have a range of deficits as a result of the ABI and will likely need ongoing support for life. I will return to those matters in due course.
44You grew up in Avondale Heights and are the younger of your parents’ two children. Although you describe your childhood as ‘pretty good’, and your parents were together until your mother’s death at age 52, your father had issues with gambling and alcohol and there were several domestic violence incidents throughout your childhood. Their relationship improved as you grew older, and you were close to your mother. You were deeply affected by her death.
45Your family was financially challenged, largely owing to your father’s gambling behaviours. You had some assistance from your maternal grandmother, with whom you were also close. Your brother was involved in criminal behaviour and drug use.
46You had significant medical problems as a child and frequently suffered from pneumonia, ear infections, influenza and also glandular fever.
47You struggled academically and required additional class help. You continued to have problems into secondary school and your continued academic deficiencies began to affect your overall behaviour and your relationships with peers and teachers. You eventually left school after failing Year 9.
48You undertook an apprenticeship as a diesel mechanic, where you remained for four years, until a traumatic brain injury left you unable to work. Your ability to engage in work since has been unsuccessful, largely due to your substance abuse problem s.
49You were introduced to cannabis by your brother at the age of 13. When you were 15, you began using amphetamines. At the age of 26, you began using methamphetamines, regularly smoking up to a gram a day, although at the peak of your usage, you were having between two and three grams a day.
50You began sprinkling heroin on your cannabis at the age of 18. When not using, you suffered significant withdrawal symptoms. You then commenced injecting heroin and started with using up to a gram a day. You have continued to have ongoing issues with heroin over many years.
51At the age of 18, you were shot in the arm and the head. The bullet grazed your skull. You were also pistol whipped to the head and suffered a depressed skull fracture. You had to undergo surgery for that injury. It is now clear that you sustained a traumatic brain injury from that event.
52Following the surgery, you could not walk or talk for a period of time and you needed speech therapy. You spent five months in hospital rehabilitation. You discharged yourself on account of your heroin addiction.
53After you had recovered from the shooting, you had a relationship with a woman who had a three-year-old daughter. That relationship broke down due to your problems with your anger, which you believe may have been related to your head injury, and in addition, your substance use.
54In 2006, you were involved in a motor vehicle accident. You were driving and affected by methadone, Xanax and heroin. Your friend started to overdose in the car and you began to drive at speed to seek help. You had several minor accidents before you yourself passed out and hit a tree. Your friend went through the windscreen and was killed. You were impaled on the steering column and suffered a ruptured spleen. You spent a month at the Alfred Hospital.
55You were thought to have an acquired brain injury at that time and following that, began having seizures which continue to this day.
56You were dealt with in this court in 2006 for culpable driving and sentenced to six years imprisonment with a non parole period of four years.
57You were prescribed various medications for your seizures. You report ongoing difficulties with drug addiction, including Benzodiazepines and GHB to help you sleep.
58You have used Ketamine as well as other drugs. You reported to Mr Simmons that your most recent pattern was to have heroin when you wake up in the morning, then methamphetamines during the day, as well as other drugs including Benzodiazepines and GHB.
59You have experienced multiple drug overdoses in the past.
60You have undertaken numerous community residential drug withdrawal programs and also attended Odyssey House for 12 months, but did not complete the program. You began a relationship with a female resident at Odyssey House and were asked to leave.
61You have undertaken counselling while in custody.
62You describe yourself as a closet addict and despite being on methadone for 15 years, you still use heroin.
63In the days leading up to this offending, you report you had been using methylamphetamine and Benzodiazepines and had not slept properly in eight days. As a result, you report not remembering much of the offending. You report being in a brief relationship with a woman who suggested to you that the victims of this offending owed her money. You say you committed the offending to impress her. To be clear, and as I believe you acknowledge, your drug use and vigilante behaviour are no excuse for this offending.
Physical Health
64You have a number of ongoing physical health issues including a hernia which will require treatment. You are prescribed Lexapro, are on antibiotics due to not having a spleen, and blood thinners after you suffered clots in your lungs.
65You have prescribed medication to control your seizures and Lyrica for back pain. The frequency of seizures varies, but as I understand it, more recently they seem to have become increasingly frequent. I was informed today you have an upcoming appointment with a neurologist, which of course imprisonment will interrupt.
66You report sleep is varied and you often wake up during the night due to sciatic nerve pain.
67Your concentration and memory are poor and you say you enjoy very little. You see your future as negative and hopeless about your future.
Bugmy v R[1]
[1] Bugmy v R (2013) 302 ALR 192
68Ms Byrt submitted that a number of principles relevant to sentencing are enlivened on account of your personal history and specifically your experiences of childhood and adolescence.
69First, I accept that the principles enunciated by the High Court in the case of Bugmy v R apply to you. That is, what Ms Scott describes as your exposure to traumatic experiences via your father’s alcoholism and violence, the criminal behaviour of your brother and a general lack of other supports. Those difficult early life experiences have left their mark on you and on how you interact with the world. That mark does not diminish with the passage of time. It is likely that in your time in the criminal justice system, some of those behaviours have been even more entrenched. As a mark of equal justice, I must, and do take those matters into account as against a person whose background is stable and supportive. In that way your moral culpability is reduced.
R v Verdins[2]
[2] R v Verdins (2007) 16 VR 240
70As I indicated, Mr Simmons raised the prospect of an ABI which has been confirmed by Ms Scott. She confirms you have had an ABI likely from age 18, but certainly from the 2006 car accident and likely exacerbated by your chronic drug addiction. As I understand it, this is the first time that has been definitively diagnosed.
71She says your full scale IQ is 70, which is the extremely low range. She says you have moderate to severe impairments in a number of areas, including aspects of information processing, higher attentional abilities, memory function and executive function. In addition, you have mild impairments in other areas of cognitive function.
72In addition, she describes those results occurring in the context of psychological distress, including extremely severe depressive symptoms, as well as severe levels of anxiety and stress. Behaviourally, she says you present with signs of disinhibition, including inattention, impulsivity and perseverative tendencies.
73In her opinion, those symptoms of your acquired brain injury and psychological profile were likely significant contributors to your offending behaviour, alongside other factors such as substance use, financial insecurity, lack of employment and a history of offending.
74Your behavioural dysregulation she says, is likely to display itself through impulsive or reactive aggression.
75She also confirms your ongoing substance use is a significant factor in your offending.
76Ms Scott recommended that an NDIS application should be made on your behalf, as you will require lifelong supports with managing daily living needs.
77She confirms your level of psychological distress is very high. You became suicidal on your last release from custody and there is an ongoing risk in that regard.
78Those opinions were relied on as establishing the necessary basis for a finding that the principles enunciated in R vVerdins are enlivened here. I accept that they are.
79Specifically, that your moral culpability is reduced as compared to someone without those cognitive impairments. Similarly, that deterrence should be moderated. And finally, that your time in custody is more difficult and potentially your psychological state is likely to decline.
80I accept the conclusions of Ms Scott, that those conditions have an impact on your cognitive functioning, specifically your capacity to exercise good judgment and consequential thinking. In that way, your moral culpability is lessened and similarly, the community would not expect you to be held up as a vehicle for general deterrence in the same way that a person without those conditions would be.
81However, as I have touched on those considerations are very much complicated by your drug use. To your credit, when you are sober in custody, you are able to recognise the impact drug use has on you and that most if not all of your history of offending has occurred when you have been drug affected. In those ways, the principles of deterrence are not eliminated, but moderated. Further, any moderation can only be modest. Nonetheless, I take those matters into account.
82While I accept those principles apply, those factors also point to the increased need for community protection. That is particularly reflected in the seriousness of your offending here.
Plea of Guilty
83I take into account your pleas of guilty. That has a utilitarian benefit in that it saves the court and the community the time and cost of a criminal trial. Importantly in a case like this, it also saves the witnesses and victims the additional stress of having to give evidence. You receive the benefit of your plea of guilty.
84I can also see evidence of remorse. You have taken responsibility for your offending and you have been able to express empathy for the victims, acknowledging that what you did must have been frightening for them.
85I also take into account that the principles enunciated in Worboyes[3] are still applicable to you, given your plea was entered at a time when there was still a backlog caused by the COVID 19 pandemic. As such, resolution of your charges must result in a discount in sentence.
[3] Worboyes v The Queen [2021] VSCA 169
Prospects of Rehabilitation
86Your prospects of rehabilitation are very guarded. As I have outlined, despite numerous therapeutic dispositions aimed at your rehabilitation, including the most recent attempt at Odyssey House, drug addiction still grips you. It is chronic, complex, involving the use of multiple substances in various ways. It is a very difficult addiction to break. It will now be a matter for you to determine how you will beat it, and with what supports.
87I understand the neuropsychological report of Ms Scott forms the basis of your application under the NDIS. If granted, a package under that scheme has the capacity to support you in various ways upon your release.
Totality
88I am conscious of the principle of totality. I am dealing with you for a series of offences which occurred in close succession on a single occasion. I am conscious that the aggravated burglary stops at the time you enter the premises. Nonetheless, it will be the base sentence here, given in my view it as a reasonably serious example of an aggravated burglary. Each of the other offences is discreet and there will be an element of cumulation reflective of those actions.
89I must also take into account the fact that you have been sentenced on other matters during the period since you were remanded on this offending. You were in fact remanded on another matter on 7 March 2022. That matter included charges of burglary, committing an indictable offence on bail and intentionally damaging property. It also included the breach of the CCO.
90You were dealt with at Bendigo Magistrates Court on those matters in January 2023. The total effective sentence of those sentences was 22 months imprisonment with a non-parole period of 14 months. You in fact served the entire head sentence which expired on 12 December 2023. It was only after that time that presentence detention started to accumulate on these charges.
91Your pre-sentence detention therefore runs from 12 December 2023 until I bailed you to Odyssey house on 22 May 2024, amounting to 163 days. There is no opportunity for any concurrency with the Bendigo Magistrates’ Court sentence and I must make allowance for that fact.
92I also take into account the fact that you spent 76 days at Odyssey House, which is a quasi-custodial environment.[4]
[4]R v Akoka [2017] VSCA 214
Current sentencing practices
93I have taken into account current sentencing practices and a number of cases helpfully provided by counsel and a number of cases referred to by the Judicial College of Victoria Manual.
94There are many and varied forms of aggravated burglary in particular, and many variations on what occurs once an offender is inside. For these reasons, other cases are often of limited use. Ultimately, I am required to impose a just sentence in all the circumstances and that is what I have endeavoured to do.
95If you could stand up Mr Carruthers, please.
Sentence
96In all of the circumstances, I propose to sentence you as follows.
97On Charge 1, aggravated burglary, you are convicted and sentenced to three years and two months imprisonment.
98
On Charge 2, intentionally destroy property, you are convicted and sentenced
18 months
99On Charge 3, making a threat to inflict serious injury, you are convicted and sentenced to two years imprisonment.
100On Charge 4 of theft, you are convicted and sentenced to 15 months imprisonment.
101The base sentence will be the sentence on Charge 1 of three years and two months imprisonment.
102I make the following orders for cumulation.
a)Three months of Charge 2.
b)Six months of Charge 3.
c)Two months of Charge 4 are to be served cumulatively upon each other and upon the base sentence.
103The total effective sentence therefore is four years and one month imprisonment.
104I direct that you are to serve a minimum period of three years imprisonment before becoming eligible for parole.
Pre-Sentence Detention
105I declare that you have already served 163 days imprisonment and that that period should be reckoned as having been served under this sentence.
6AAA
106But for your plea of guilty, the total effective sentence I would have imposed would have been one of six years and six months imprisonment, with a non-parole period of five years imprisonment.
Ancillary Orders
107The prosecution make application for disposal of a number of items. That application was not opposed. I will make that order in the terms sought.
108Have a seat there Mr Carruthers. I will ask counsel to check those figures please.
109MR CROUCH: I think that's all correct, Your Honour.
110HER HONOUR: Thank you very much counsel to both of you for your assistance in this matter. Mr Carruthers it is a difficult day for you I understand that. I hope that you pursue that NDIS package, I think that could really assist you, but ultimately, it's a matter for you. All right, thank you very much.
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