Director of Public Prosecutions v Carruthers
[2021] VCC 457
•20 April 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-20-01222
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
RYAN CARRUTHERS
---
JUDGE: | HIS HONOUR JUDGE WRAIGHT | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14 April 2021 | |
DATE OF SENTENCE: | 20 April 2021 | |
CASE MAY BE CITED AS: | DPP v Carruthers | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 457 | |
REASONS FOR SENTENCE
---
Subject:CRIMINAL LAW – Sentence.
Catchwords: Plea of guilty – Robbery – False Imprisonment – Causing injury intentionally – Aggregate sentence – Continuous episode of offending against the victim – Prior criminal history – Time in custody onerous.
Legislation Cited: Crimes Act 1958 ss 18, 75; Bail Act1977 s 30B; Sentencing Act 1991 ss 6AAA, 9, 18.
Sentence: Imprisonment for a period of 18 months with a non parole period of 12 months.
---
APPEARANCES: | Counsel | Solicitors |
For the Director | Ms E Tueno (Plea) Ms E Finnigan (Sentence) | Office of Public Prosecutions |
For the Accused | Mr A Chernok with Mr T Brown (Plea) Mr T Brown (Sentence) | Doogue & George Lawyers |
HIS HONOUR:
Introduction
1 Ryan Carruthers, you have pleaded guilty to one charge of robbery, contrary to s 75 of the Crimes Act1958, which carries a maximum penalty of 15 years imprisonment (Charge 1), one charge of false imprisonment contrary to the common law, which carries a maximum penalty of 10 years imprisonment, (Charge 2) and one charge of causing injury intentionally contrary to s 18 of the Crimes Act1958 which carries a maximum penalty of 10 years imprisonment (Charge 3).
2 You have also pleaded guilty to the related summary offence of committing an indictable offence whilst on bail, contrary to s 30B of the Bail Act1977, which carries a maximum penalty of 3 months imprisonment, or 30 penalty units.
3 You have admitted your Criminal Record.
Circumstances of the offending
4 A prosecution opening was tendered on the plea and may be summarised as follows.
5 At the time of the offending you were 35 years old. The victim in this matter is Peter Salvo, a friend of your partner, Lauren Kneebone.
6 In the early morning of 20 January 2020 Mr Salvo caught a taxi to 46 Smiley Road, Broadmeadows, to visit Ms Kneebone. He arrived at around midnight, and they spent the evening chatting with the television in the background. At one point, Mr Salvo asked Ms Kneebone what the name of her boyfriend was, and she said 'Ryan' and that 'he goes by the name of Gigs'.
7 At approximately 3.44 am you drove a dark coloured BMW sedan with two unknown passengers into the driveway at 46 Smiley Road.
8 Ms Kneebone went to the front door while Mr Salvo remained seated on the couch in the living room. Moments later you entered the living room, saw Mr Salvo and said to Ms Kneebone 'who the fuck is that?' She told you Mr Salvo was her friend.
9 You approached Mr Salvo on the couch and without warning punched him once to the left side of his face with a closed fist, which caught Mr Salvo by surprise. It is these facts that form part of Charge 3, intentionally cause injury. You then stood up and went to leave. As you were walking down the hallway towards the front door, you demanded that Mr Salvo give you his bag. The bag was a black Adidas bum bag containing his wallet, keys and a gold ring in a snap lock bag. In his wallet was his Medicare card, Health Care card, an expired driver licence, Myki, a Commonwealth Bank of Australia debit card and $40 cash. Mr Salvo was holding his Samsung mobile phone in his hand at this time, which you also grabbed. It is these facts that relate to Charge 1, robbery.
10 You demanded the passcode for the phone, but Mr Salvo said he didn't have one, and continued walking out of the house. When you reached the outside of the house you hit Mr Salvo again to the face using a closed fist. These facts form part of Charge 3, intentionally cause injury.
11 Mr Salvo ran down the driveway and down the street but was chased by the unknown male who had accompanied you in the BMW. He heard dogs barking and the male saying, 'get him boys, get him', encouraging the dogs to attack the victim. He did not get far down the road before being grabbed by the unknown male, by the scruff of his neck, and he heard you say, 'bring him back here'. The unknown male forced him back against his will to 46 Smiley Road.
12 At approximately 3.48 am, you and the other unidentified male walked up the driveway. You grabbed Mr Salvo by the shirt, pulling him along the driveway. You told your male co-offender to 'bring him into the back'. The male forced Mr Salvo through the gate and into the backyard, where he was pushed on the ground in the corner of the north west fence. The gate was then closed. It is these facts that relate to Charge 2, false imprisonment.
13 Once he was on the ground, you and the unknown male then proceeded to kick and punch Mr Salvo. One of you said to Mr Salvo 'you're fucked now, nowhere to run'. You hit Mr Salvo around ten times, and the unidentified male hit Mr Salvo about four or five times. You both tried unsuccessfully to incite nearby dogs to attack Mr Salvo. These facts form part of Charge 3, intentionally cause injury.
14 Mr Salvo managed to make his way to his feet and pushed the gate off its hinges to escape. He heard you yell, 'look now you've broken the fucking gate. Go fucking run, go'. Mr Salvo ran down the driveway, along Smiley Road to Camp Road, where he tried unsuccessfully to flag down passing cars for assistance. A few minutes later, you ran down Smiley Road, followed by the BMW sedan. You did not catch up to Mr Salvo.
15 Mr Salvo was in considerable pain at this stage, so he continued along Camp Road until he reached the Metropolitan Fire Brigade Fire Station, where he requested assistance. A station officer helped him inside and called the police and an ambulance.
16 Police attended the scene and observed Mr Salvo's injuries. Mr Salvo was conveyed by ambulance to the Northern Hospital for treatment. Police officers in attendance at the hospital photographed Mr Salvo's injures and seized the shirt he was wearing. While the prosecution opening does not detail the nature of the injuries received by Mr Salvo, having reviewed the notes from the Northern Hospital it seemed he suffered bruising and soreness, and did not have any broken bones.
17 Police officers then searched the area outside of 46 Smiley Road but did not find any object of interest. They also attended at the house at this address, but there was no vehicle present, and no one answered the door.
18 At 8.14 am police attended 45 Smiley Road and accessed the CCTV camera recording system installed at this address. The footage from the system covers Smiley Road, including the house at No. 46 where Ms Kneebone was residing, and the street north of this house. Details of the footage are reproduced in the prosecution opening that largely support the facts, as outlined above.
19 On 28 January 2020, Detective Poore attended Mr Salvo's home address and obtained an account of what had occurred on the morning of 20 January 2020. Mr Salvo identified you as one of the offenders. On 5 and 17 February 2020 Mr Salvo attended the Broadmeadows police station to make his statement. He informed police that on 30 January 2020 he had accessed Ms Kneebone's Facebook page (under the name of Lauren Jane), in which she stated that she was in a relationship with you. Mr Salvo had then clicked on your name and saw photographs of you. Looking at these photographs, Mr Salvo immediately recognised you as the person that had assaulted him at Ms Kneebone's house on 20 January 2020.
20 On 25 April 2020 police located you in the driveway at 46 Smiley Road, Broadmeadows, and arrested you.
21 At the time of this offending you were on bail for unrelated matters, which give rise to Summary Charge 4, commit indictable offences on bail.
22 On 24 May 2020 police executed a search warrant at 46 Smiley Road, Broadmeadows. They seized two mobile phones belonging to Ms Kneebone, and photographed the premises, including the damaged gate and a black BMW sedan.
23 On 3 June 2020 Mr Salvo identified you when presented with a photo board. On 4 June 2020 Detective Poore examined and photographed text messages on Ms Kneebone's mobile phone.
The messages included the following:
(a) Text messages between Ms Kneebone and 'Chucky' on 26 April 2020, at 1.27 am onwards in relation to a fight and discussing cleaning up evidence in anticipation for a potential raid;
(b) Text messages between Ms Kneebone and Leroy on 29 April 2020, at 2.34 pm onwards discussing your charges arising from this offending, and the potential outcomes;
(c) Messages between Ms Kneebone and Michelle Carruthers on Facebook messaging discussing your offending, to assist
Ms Carruthers with a reference; and
(d) Messages with 'Beau Beau' via Facebook in relation to the police arriving following the assault on the victim.
Nature and the gravity of the offending
24 As was discussed at the plea, while the individual charges on the indictment are clearly made out, this was in effect a continuous episode of thuggery on your part. The offending that, in combination, forms the injury charge is in my view a serious example of intentionally cause injury, as the victim was assaulted on numerous occasions by you and your co-offender. You were clearly angry and punched the victim while he was seated with a closed fist to the face. The first strike was entirely unprovoked. Then, while attempting to leave and get away from you, you followed the victim, demanded his bag, hitting him again to the face with a closed fist.
25 Rather than letting the victim go at that point, your co-offender chased him, at your request, and dragged him back to the house, where he was pushed to the ground.
26 There can be no doubt that after what had already occurred, what the victim then endured would have been frightening, particularly in light of your comment that, 'you're fucked now, nowhere to run', at which time you and your co-offender punched him repeatedly.
27 While his physical injuries were not serious, as he noted in his initial statement following the assault, the psychological impact was significant, which is understandable given the nature of the attack. Mr Chernok, who appeared with Mr Brown on your behalf, while conceding that the offending was serious, admitted that it did not occur over an extended period. In that sense I accept that the false imprisonment, if viewed in isolation, could be described as a lower level example of that offence. However, as I have already observed, that charge forms part of a course of conduct that included a number of assaults on the victim, in addition to the gratuitous taking of his personal property.
Personal circumstances
28 You are 36 years of age, having been born in 1984 in England when your mother was 17. Your mother is an Aboriginal woman who was born in Australia, but then moved to England with your grandmother. You have never known your father.
29 Your mother re-partnered with your stepfather and they had a daughter together. You had a fractured relationship with your stepfather, and he was physically and emotionally abusive towards you.
30 You attended schools in England, where you struggled behaviourally and got involved in fights. You became involved with the police and the criminal justice system at a young age for offences such as shoplifting. You moved to Australia, and Melbourne, with your family at the age of 13. You had difficulty adjusting at school and got into trouble. You engaged with school supports and health professionals for assessment in relation to your behaviour.
31 You attended Gladstone Park Secondary College, but you were expelled and then attended Box Forest Secondary College where you were involved in anger management classes weekly. You were asked to leave the school before completing your Year 10 as a result of your poor engagement.
32 Your relationship with your stepfather worsened in your teen years, as you began to fight back in response to his abuse. At the age of 16 you were advised you were not welcome in the family home, and became effectively homeless, living on the streets and at friends' houses. It is at this point that you began to use heroin. You associated with a bikie gang, and you struggled with mental health issues.
33 You have experienced mental ill health to varying degrees, for which you have been medicated. You have experienced depression at times and have a reported past diagnosis of post-traumatic stress disorder, and other mental health issues associated with your substance use. Currently, you take an anti-depressant and are on methadone.
34 You have used alcohol and drugs since adolescence, including heroin, ice, GHB and cannabis use. Your use of ice and alcohol has reduced in recent years, however you admit that you had consumed alcohol and ice at the time of this offending, but denied to a psychologist that you were unduly under the influence of substances when the offences were committed.
35 In terms of your employment history, you have worked in fruit picking, labouring, factory and warehouse work. You often lost jobs as a result of being affected by cannabis and poor attendance. Your last job was in 2012, when you worked installing crash barriers and wire rope fences on freeways. You then suffered an injury to your left eye as a result of a violent assault while you were in custody for previous offending, causing blindness in that eye, and are unable to work in certain jobs as a result.
36 You have been in a relationship with your current partner, Ms Kneebone, for two years, and she is supportive of you. You gave evidence at the plea confirming your commitment to a future with Ms Kneebone, who has stable accommodation. Despite the Covid-19 restrictions, you have used your time in custody productively, initially working in the laundry. Currently, you are unable to work as you have been transferred to a different correctional facility.
37 A report prepared by Laura Fleming, psychologist, was tendered on the plea. Whilst Ms Fleming only had a limited video conference with you, she has provided a detailed history, and provided her opinion on your psychological state and future risk. Ms Fleming is of the view that you suffer from an anti-social personality disorder. While that may be the case, she did not conduct any formal testing, and has not provided any detail as to the nature of the disorder. Nonetheless I accept that, whatever label describes your psychological state, it is clear from your difficult background, that includes exposure to violence and drug use, you would benefit from counselling to assist you in identifying the triggers that lead you to behave in an anti-social and violent manner, as you did on this occasion.
38 Ms Fleming assessed your risk of re-offending as high, based on the offender assessment and management tool she applied. This is primarily as a result of the significant number of your previous convictions, including violent offences, your previous incarceration, the breaches of past court orders, and your substance use history.
39 Undeniably, one of the most identifiable problems that can be solved is your drug use, which clearly influences your behaviour and lifestyle choices. You gave evidence that you have not used in custody, and it is apparent to me that you have the insight to recognise that remaining drug free will be the steppingstone to turning your life around.
Sentencing considerations
40 A contested committal hearing was heard in the Magistrates’ Court in October 2020. The matter resolved to a plea of guilty at a case conference before me in March this year, in circumstances where the debate was focused on whether kidnapping or false imprisonment was the most appropriate charge to reflect your conduct.
41 You offered a plea of guilty to imprisonment to false imprisonment in October 2020. As such, the prosecution accepted that your plea of guilty is a plea at the earliest reasonable opportunity. Your plea facilitates the course of justice and has spared time and expense of a jury trial, as well as avoiding a need for witnesses to give evidence again.
42 Mr Chernok conceded that given the seriousness of the offending, general and specific deterrence, denunciation of your conduct and just punishment are important sentencing considerations in this instance. Ms Tueno, who appeared on behalf of the Director of Public Prosecutions, concurred with that submission, as do I.
43 Mr Chernok has submitted that the conditions in custody while you have been on remand have been particularly onerous. You have received threats to your safety, requiring you to be transferred to a different prison. As noted, you have in the past been involved in violence in prison, where you lost the sight in your left eye. Further, your time on remand has been served under Covid-19 restrictions, where visits and access to treatments and courses have been restricted. I take these matters into account.
44 Given your prior criminal history, your failure to comply with previous orders, such as community corrections orders designed to assist your rehabilitation, and your long term drug addiction, your prospects of rehabilitation can only be approached with caution. Nonetheless you gave evidence on oath that this current period in custody has been a wakeup call for you. You want to settle down with your partner and become more involved in your wider family, who continue to support you. Critically, you have committed to remaining drug free. That will not be easy.
45 You have gained insight in custody, and in my view if you adhere to your commitment to change, your prospects can be viewed more positively. While there are three charges on the indictment, as noted above they are part of a series of offending of a similar character, and as such in my view an aggregate sentence pursuant to s 9 of the Sentencing Act1991 is able to imposed, in place of separate sentences of imprisonment on each charge.
Sentence
46 Mr Carruthers, please stand.
47 Ryan Carruthers, on Charge 1, robbery; Charge 2, false imprisonment; and Charge 3, intentionally cause injury, pursuant to s 9 of the Sentencing Act1991, you are convicted on each charge and sentenced to an aggregate term of 18 months imprisonment.
48 In relation to the Summary Charge of committing indictable offences whilst on bail, you are convicted, and sentenced to 1 month imprisonment. That sentence will be wholly concurrent with the aggregate sentence I have imposed in relation to the indictable charges.
49 I direct that you serve 12 months before becoming eligible for parole. Pursuant to s 18 of the Sentencing Act1991, I declare that 284 days be reckoned as the period of imprisonment already served under the sentence I have imposed. That does not include today.
50 Pursuant to s 6AAA of the Sentencing Act1991, if not for your pleas of guilty I would have sentenced you to two years imprisonment, with a non-parole period of 18 months.
- - -
0
0
0