Director of Public Prosecutions v Ralph

[2021] VCC 1962

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

GENERAL LIST

Case No. CR-21-00915
Indictment No. L12592727

DIRECTOR OF PUBLIC PROSECUTIONS

v

TYSON ANDREW RALPH

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JUDGE:	HER HONOUR JUDGE CANNON
WHERE HELD:	Melbourne
DATE OF HEARING:	4 October 2021
DATE OF SENTENCE:	8 October 2021
CASE MAY BE CITED AS:	DPP v Ralph
MEDIUM NEUTRAL CITATION:	[2021] VCC 1962

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentence

Catchwords:              Burglary (two charges) – Theft – Theft of a motor vehicle – Theft of a firearm – Handling stolen goods – Pleas of guilty - Relevant criminal history - Lack of premeditation and offending unsophisticated in nature - Deprived upbringing - Model prisoner in trusted position - History of drug abuse - Psychological opinion - Offending representative of chronic and longstanding mental health and substance abuse problems - Difficult to separate psychiatric symptoms from persistent effects of chronic drug use

Legislation Cited:      Crimes Act 1958, s74(1), s74AA(1), s76(3), s88(2); Sentencing Act 1991, s6AAA, s89(4)

Sentence: Convicted and sentenced to a Total Effective Sentence of 3 years’ imprisonment with a non-parole period of 18 months’ imprisonment - 227 days’ imprisonment declared as having already been served - s.6AAA Sentencing Act 1991 declaration - Ancillary orders - Forfeiture and Disposal

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms H Edwards	Solicitor for the Office of Public Prosecutions
For the Accused	Mr C. Terry	Gallant Law Pty Ltd

HER HONOUR:

1Tyson Ralph, you have pleaded guilty to the following offences:  two charges of burglary, one charge of theft, one charge of theft of a motor vehicle, one charge of theft of a firearm, and one charge of handling stolen goods.

2Burglary and theft each have a maximum penalty of ten years, whilst theft of a firearm and handling stolen goods each have maximum penalties of fifteen years’ imprisonment.  For clarity, theft of a motor vehicle has that maximum penalty of ten years' imprisonment.  I must take into account the maximum penalties in sentencing you, as these reflect the seriousness with which Parliament regards each of the offences.

3I was told that at the time of the offending, you were living at a unit in Maude Street, Shepparton.

4In relation to Charges 1 to 4 inclusive, the victims of the offences are Mr and Mrs Edwards, who lived in a house in Broadford, opposite the Broadford Secondary College.

5On 16 October 2020, the victims left their home for the day.  Between the time that they left, at 7.30am, and about 6.30pm, you entered their home by unknown means; you told your counsel that a door was unlocked.  You then rifled through every room.  This gives rise to Charge 1, burglary.

6You stole the following items:

(a)   a Colorado branded handbag, from a linen press;

(b)   a box of .22-calibre cartridge ammunition, from a steel box inside a wardrobe in a spare bedroom;

(c)   jewellery belonging to each of the victims;

(d)   a Kathmandu brand puffer jacket, from the study;

(e)   a Nissan car key and a Ford car key, from the kitchen;

(f)    a packet of Zooper Doopers, which I understand is a frozen confectionery like an Icy Pole, from a freezer in the laundry;

(g)   a candle gas lighter;

(h)   black garbage bags;

(i)    a digital camera; and

(j)    $300 cash, from a drawer in the master bedroom.

You put the stolen items into the Colorado handbag.  These thefts give rise to Charge 2.

7Whilst you were searching the master bedroom, you discovered a gun safe in the wardrobe.  The safe was fitted with two locks, being a padlock and a manufacturer’s handle lock.  You unlocked the padlock with a key found in a bedside drawer, and somehow bent the handle lock in order to open the safe.  You stole a Winchester .22-calibre rifle, which was in the safe, wrapping it in one of the black garbage bags.  This gives rise to Charge 4, theft of a firearm.

8You went to the garage area, where you discovered a red Honda motorbike.  The bike belonged to Mr Edwards’ grandson.  It did not work properly, and Mr Edwards had been trying to repair it.  You stole the motorbike as well.  This gives rise to Charge 3.

9You propped open the side gate and put the handbag and rifle onto the motorbike, then pushed it out of the garage, leaving the premises via the side gate. 

10The basis for Charge 5, another charge of burglary, is that after leaving the Edwards’ premises, you pushed the motorbike across the road to the Broadford Secondary College.  You went into a physical education shed, which contained camping and other equipment.  You arranged the equipment in the shed to make a bed.  You then emptied some of the contents of Mrs Edwards’ handbag.  You tried to get into the staff room by forcing open a window and removing an air vent from the bottom of a door into this room.  At about 6.30pm, you were seen by a cleaner.  You were standing with the motorbike and looking through Mrs Edwards’ handbag.  The cleaner pushed a filing cabinet across the missing air vent of the staff room to prevent access into the room.  Eventually, you left the school with the motorbike, handbag and rifle.

11When Mr and Mrs Edwards returned to their home, at about 8.30 that night, they discovered the burglary.  They contacted their son, who lived nearby.  When he arrived, Mr Edwards and his son entered their premises and discovered all of the cupboards, drawers and wardrobes had been opened, that the gun safe was open, and items from inside the house were scattered through the garage and inside a caravan, which was also in the garage.  They then contacted police.

12Police arrived shortly thereafter and found two empty Zooper Dooper wrappers on the floor of the garage.  Swabs were taken, and a DNA match to your DNA was subsequently reported, after appropriate analysis had taken place.

13On 19 October 2020, police attended the school and found some items from Mrs Edwards’ handbag in the shed.  However, nothing of value has ever been discovered.  The gas lighter which had been stolen from the house was found inside the staff room at the school.

14CCTV footage identified you on the school grounds in possession of the motorbike, rifle and handbag.

15On 2 November 2020, you were arrested in the carport of your address without incident.  You told your brother the police were in attendance, and to facilitate entry to the house.

16A search of your property was conducted, and the following stolen items were found and seized:

(a)   in a car parked in the carport:

(i)a Samsung mobile phone;

(ii)registration plates;

(iii)a Makita hammer drill and attachments;

(iv)an electric hedge trimmer;

(v)a four-bay Electrosafe power centre;

(vi)a bag with first aid equipment; and

(vii)a Coleman branded machete;

(b)     in your bedroom:

(i)a black Anko branded jacket was found;

(ii)a Makita chainsaw; and

(iii)a Maxi Trac air compressor;

(c)     in the back yard of the property:

(i)a Mikasa wacker vibration plate; and

(ii)a Shibuya concrete jackhammer were found.

All of the property to which I have just referred gives rise to Charge 6, handling stolen goods.

17You were arrested and taken to the Shepparton Police Station, where you took part in a record of interview which was largely no-comment.  However, you made admissions in respect of Charge 6, in that you said that you bought the drill and tool case and the wacker vibration plate from someone you knew, two or three days earlier, for $450.  You said you knew the items were stolen and intended on-selling them to make some money from them.  You said that the registration plates were attached to the car which police found at your premises.

18Mr Ralph, your offending is serious, and is deserving of a punishment which is just in all of the circumstances.  Your conduct must be appropriately denounced.  Strong weight must attach to general deterrence, in a bid to deter others from offending as you have.  You entered the home of two law-abiding people, who were entitled to have the sanctity of their home respected.  Whether you entered via an unlocked door or not does not matter; you knew very well that you were not entitled to enter at all.  However, in flagrant disregard for this, you went through everything they had, in an apparent bid to find items of value.  You were abusing methamphetamine at the relevant time, but you were not so drug-addled or -fuelled that you were not able to behave in a most deliberative fashion, systematically rifling through every room of the victims’ home and taking anything of value that you found, including items of sentimental value which have not been recovered.  Although your offending was not premeditated, and lacking in sophistication, you still were able to take what was of value, and in some cases, went to some lengths to do so.

19At the plea hearing, I was told that you threw the rifle into a river as you panicked about your possession of it.  I must say that the explanation rings rather hollow, in circumstances where you went to no end of trouble to access it from the safe and to wrap it and hold onto it, to the point where you still had it at the school over the road.  You instructed your counsel, when I asked, that the items of jewellery had been left in your room at your brother’s house and you were not able to say what had happened to them from here.  Police did not find these items.  I must say that I strongly suspect that you sold the firearm and the jewellery, just as you sold the motorbike, but I cannot say.  Therefore, in the circumstances, I simply cannot make any finding as to where these items ended up.  However, I note that, in submissions made this morning, Mr Terry indicated that you had taken some steps in a bid to find one of the items of jewellery, and if you were able to do this, you would indicate that to the police.  I do hope that it is able to be recovered.  I factor in that you had taken some steps, having heard the victim impact statement.

20In sentencing you, I take into account the impact on the victims in this matter.  Mr Edwards prepared a victim impact statement, which was read aloud by the learned prosecutor at the plea hearing.  Mr Edwards said that the impact of your offending had been life-changing:  that he and his wife had experienced a dreadful sense of violation, to the point where they could not return to their home for seven weeks.  Even after returning, they could no longer feel safe, even after putting in a number of new security measures.  Mr Edwards spoke of his ongoing sense of distress and hypervigilance.  He spoke of the trouble and expense they had to go to in order to feel more secure and at ease, including having to buy a new bed and putting in a security system.  He said that his personality had changed to being constantly grumpy and untrusting of others, besides members of his own family.  He also spoke of his heartbreak at losing some items which had immeasurable sentimental value, which were meant to be kept safe or handed down and which have not been recovered.  Because of the impact of your offending upon him, Mr Edwards has not been able to continue to work and has taken an early retirement.  He said that he was a quiet gentleman who was non-judgmental and easy-going before you offended against him, but that your offending had caused ongoing negative effects on his mental, emotional and financial wellbeing.  These are the very real effects that your offending has had upon Mr Edwards and, no doubt, his wife.

21I was told that this is the first time that you had heard a victim impact statement in relation to any offending of yours.  While that might be so, it would not take much imagination to work out that offending in the way that you did would cause a good deal of distress and harm in the ways that Mr Edwards has expressed.  I noted that you put your head down and expressed shame and embarrassment when you heard the victim impact statement read aloud, which hopefully was genuine.

22You have a most concerning criminal history, which is lengthy, and a number of the offences are similar to the offending now before me.  All of your prior matters were dealt with in the Magistrates’ Court at either Shepparton, Bendigo or Dandenong, although in one instance, I note that you successfully appealed one of your sentences to this Court, being the County Court.

23Your criminal history is filled with court appearances for dishonesty offences, including burglaries, thefts and handling stolen goods.  You also have a number of prior convictions or findings of guilt in relation to violent offending, and a number of driving offences.  Your criminal history reflects that you have appeared in the courts almost every year since 2004, up until October 2020.  In a number of years during that time, you have appeared before the courts on more than one occasion.  You have received the benefit of community-based dispositions on a number of occasions, as well as suspended gaol sentences.  However, you have constantly breached such dispositions, and eventually you commenced undergoing immediate gaol terms. 

24Also I have been told that you are to be dealt with for subsequent offending in the Magistrates’ Court in respect of a number of matters, and I have been told that you intend pleading guilty to those matters.  I understand that the Magistrates’ Court is waiting on the sentence from this Court before dealing with you for these other matters.

25Your criminal history and subsequent offending gives me grave cause for concern when it comes to assessing your prospects of rehabilitation. 

26In sentencing you, I have factored in the absence of aggravating features, namely the lack of premeditation of your offending and its unsophisticated nature, which inevitably meant that you would be arrested for the matters now before me.

27In your favour, I allow for, as I must, a significant discount in the sentence you would otherwise receive due to the early stage of your pleas of guilty.  The prosecution accepted that you pleaded guilty at the earliest possible stage, and this entitles you to a significant discount, as you have saved the witnesses the time and trouble of giving evidence in contested proceedings, and you have also saved the community the time and expense of such proceedings.

28Moreover, I am required by law to make a solid allowance in your favour for the fact that you were prepared to plead guilty to the offences during the COVID-19 pandemic, which has helped the courts in dealing with the immense backlog that they have in respect of hearings, in particular trials. 

29Your counsel submitted that you are remorseful for your actions, submitting that this was reflected in your preparedness to plead guilty at a very early stage, and in your expressions of remorse which were conveyed to the Court, especially upon you learning the victim impacts, hearing the victim impact statement.  He submitted that it was only in the cold light of day, when you were not affected by substances, that you were able to express such remorse, and I ought factor this in in your favour.

30As against this, there is the fact that you have continued to commit offences over an extensive period of time and, moreover, you continued to do so after the offences for which I now sentence you.  Even though these may well have been committed in the context of drug abuse, and you are able to now express regret, I give such expressions of remorse limited weight in all of the circumstances.  You have a good way to go before you truly appreciate the seriousness of your offending and how it affects others.  I accept that you are sorry that you are in the situation that you are, but you have a way to go in demonstrating true remorse and insight, in my view.

31I take into account your background, which has been a most unhappy one.  You were raised by a father who was violent towards you, and you were exposed to violence and drug abuse from an early age.  You were also the victim of sexual abuse as a young child.  You did not continue schooling and were homeless from the age of thirteen.  You have a limited education and work history, and were addicted to drugs from an early age. 

32I understand that you were raised by your mother predominantly, as your father was either in gaol or battling drug issues in your early years.  I understand that your parents are still together and lead stable lives nowadays.  You are the second of six children.

33I was told that your father has experienced mental health issues and used drugs when living with the family.  I am unsure if this is still the case, but certainly that was the case when you were a child.  You were sexually abused by a cousin between the ages of five and ten.  Your counsel was unable to say whether you had spoken to the police about this offending.  At the age of thirteen, you commenced to leave home for lengthy periods, and lived with friends.  When you were fifteen, you moved from home permanently, staying with older peers who were drug users.  Eventually, you lived with your maternal grandmother in Shepparton, but there was no supervision of you and you used drugs whenever you wished to. 

34You are the father of seven children, to a number of different mothers. Sadly, one of your children died when very young.  You had your first child when you were only seventeen years old.  Your two oldest children are seventeen.  Your son lives in residential care, and your seventeen-year-old daughter is leading a transient life.  You are concerned about her wellbeing, and you have said that you wish to help her when you are released from prison.  You have two daughters and a son who live with your sister, with whom you have regular contact.  Your youngest daughter is with her mother.  She is three years old, and I understand that you have had contact with her once a week.

35I have taken into account the character reference from your sister, who leads a stable life and speaks well of you in terms of your character, although she accepts that you have had ongoing struggles with drugs.  She spoke of the good relationship you have with the three children she looks after and the desirability of you to resume your role as a father to them.  I note that she is watching these proceedings today, and has been most supportive of you.

36The other reference is from a fellow prisoner whom you looked out for whilst he was on remand.  He had been in gaol for the first time, and spoke very highly of your kindness to him and how you enabled him to deal with his first experience of incarceration. 

37In the prison, you have a most trusted position of being one of the three maintenance workers.  You are able to have access across all areas of the prison, which speaks of your good behaviour whilst incarcerated.  Further, I understand that you have not used drugs since being in gaol.  I was not provided with any drug screen tests to verify this.  Mr Terry became involved in the matter late in the piece and did not have enough time to organise for these to be provided.  However, I accept that you are free of drugs and you are a model prisoner. I understand that this has not been the case on previous occasions when you were in gaol.

38I was told that upon your release, your plan is to embark on a slow-release medication, with a view to addressing your drug issues.  In his written submissions, Mr Terry said that you wish to obtain work as an arborist and to remain abstinent with the help of a long-acting buprenorphine.

39I sentence you in the context of having endured a most deprived upbringing, which I accept has resulted in mental health issues tied in with a resort to drug abuse.  I make some reduction in your moral culpability, although, in circumstances where Mr Terry indicated that your moral compass was intact, I make an allowance which is fairly minimal.  Mr Terry did not submit that any other sentencing principles were impacted by this finding; in fact, he submitted that they were not. 

40You have an entrenched and longstanding methamphetamine addiction, which needs to be addressed.  According to the report of Ms Jackson, psychologist, you have attempted drug treatment by way of rehabilitation, drug withdrawal programs, and drug counselling.  You were admitted into The Cottage in Shepparton, which is a drug and alcohol recovery program, but discharged yourself eight days later as, you said, you were exposed to more drugs in the program than in the community.  You also tried a program called Team Challenge, but only stayed for two days.  You have had a number of community-based dispositions which involved treatment and rehabilitation for substance abuse.  However, these have obviously not been successful, at least in the long term.

41Apparently, you had some contact with Odyssey House at one stage, which supervised a home-based withdrawal program.  You had community-based treatment with Primary Care Connect in Shepparton, with a positive response, in 2019.

42Ms Jackson has said that you had been assessed for the long-acting injectable buprenorphine program, which was currently available in prison.  I understood that this was something you would access once you left gaol.  However, in any event, the program has had some success amongst chronic substance abuse populations when used in conjunction with drug counselling.  I do hope that you are successful upon embarking on this program, as you have said you intend to.

43You did not rely on any impairment of mental function to reduce your moral culpability or the weight to be attached to any relevant sentencing principles in your case.  You reported to Ms Jackson that you had been previously diagnosed with bipolar disorder by a psychologist in 2011, but you went on to say that you had “bunged it on” in order to access the medication Seroquel.  You told her that you had experienced bad depression and unpredictable mood changes, unreliable interpersonal functioning, and erratic behaviour, which, she said, might be consistent with Bipolar II disorder.  Ms Jackson said that a further criteria of the disorder was hypomanic episodes, but it was difficult to clarify whether you were having these because of your history of stimulant abuse. 

44Ms Jackson said that you had experienced one psychotic episode, in October 2020, but this appeared to have been triggered in part by excessive methamphetamine use.  You said that this occurred on the day that you committed the offences of burglary and theft for which I now sentence you, and that you had a psychiatric admission afterwards, where you were treated with sedatives, but discharged yourself the following day with no further follow-up.  It was not submitted by your counsel that you suffered psychosis at the time of the offending before me.

45I understand from the report of Ms Jackson that you have had a good response to Seroquel, and you have continued to take it from time to time, having been prescribed 200 milligrams at the time of the assessment.  This antipsychotic medication is useful in preventing severe mood swings, and helps in decreasing the frequency of them.

46In terms of your substance abuse history, at the age of thirteen, you used cannabis daily with friends, with the quantity increasing when you were living with your grandmother.  You were smoking up to one quarter per day.  You maintained daily use of drugs until 2011, when you recognised your problems with anger management worsened with the side effects of the drug.

47I was told that when you were thirteen or fourteen, you experimented with amphetamine, and developed a dependency at the age of fifteen, when you were injecting the drug.  You went on to methamphetamine in 2000, also using this on an intravenous basis seven days a week.  You told Ms Jackson that you trained yourself to sleep on the drug, but you could go on fourteen-day benders with no sleep.

48In 2019, you managed a two-year period of abstinence, which coincided with you being in a stable relationship, having housing, stable work and support.  However, you relapsed when the relationship ended, and you continued to use methamphetamine up until your remand in custody for the offences now before me.

49In this regard, I understand that you were initially on bail for the offences before me.  However, your bail was revoked upon committing further offences, which are now the subject of the Magistrates’ Court proceedings to which I have previously referred.

50Ms Jackson concluded that your offending for which I now sentence you is representative of chronic and longstanding mental health and substance abuse problems, which impacted on your judgment and ability to make rational choices and to properly understand the consequences of your actions.  She went on to say that you recognise that you had problems with impulse control as a child and teenager, which was reflective of your disruptive history.  She said that this increased your risk of developing antisocial and mental health problems in your adult years, which had been characterised by unstable relationships, homelessness, and transient accommodation.

51She said that it was difficult to separate your psychiatric symptoms from persistent effects of chronic drug use.  However, you presented with a mood disorder and unreliable interpersonal functioning, in view of your history.  She said that maintaining the antipsychotic medication Seroquel was important as part of your treatment plan.

52I take into account in a general way the state of your mental health at the time of the offending and now and the other matters to which I have referred from Ms Jackson’s report.

53It appears that from time to time, when conditions are right, you are able to abstain from drugs and lead a stable existence.  It is also positive that when you are released from gaol, you wish to engage in a program to address your substance abuse issues and to have a meaningful relationship with your children who, no doubt, need their father to be a presence in their lives rather than in gaol.

54According to your sister, you have strong family support, as your children are very keen to have you in their lives.  She said that given the chance, with the love, support and care of your family, as well as specialist support, you could be a better person.  She said that you would always have your family’s support, and they would be there for you when you are released.

55It is to be hoped that when you are released from custody, you do take advantage of the support that your family has offered you, and that you find stable accommodation, as well as pursue the rehabilitative treatment that you need, as well as stable employment. 

56I have taken these aspects into account when assessing your prospects of rehabilitation, but I must also factor in the nature of the offending on the occasion before me, your criminal history and subsequent matters, as well as your mental health and longstanding drug issues.

57In all of the relevant circumstances, I assess your prospects of rehabilitation as being fairly poor, I am afraid.  I hope that I am wrong about this, and that you go from strength to strength when you are released.  However, I can only act on the information before me at present.  But I do hope that you finally make a go of things when you are released from gaol.  In making this assessment, I have also factored in your early pleas of guilty and the character material.

58I give strong weight to general deterrence, in a bid to deter others from behaving as you have, and I place fairly strong weight on specific deterrence, in a bid to deter you from offending again in the future.  I must also attach strong weight to protection of the community.

59Your counsel submitted that a straight gaol term was warranted in your case.  He pointed to current sentencing practice in respect of the charge of theft of a firearm.  Current sentencing practice is but one matter that I must take into account in sentencing you, and is not a controlling factor.

60The prosecution submitted that a sentence involving a head sentence and non-parole period was appropriate in your case.

61In my view, the most serious offences that you committed were the burglary and thefts that occurred at the Edwards’ home.  In sentencing you, as I have said I am most mindful of the maximum penalties, but this does not mean that the theft of the firearm charge has to have the highest sentence.

62Having placed appropriate weight on all relevant sentencing factors, I have arrived at the view that nothing short of a head sentence with a non-parole period is appropriate.

63You are convicted of each of the offences.

64I make the forfeiture order which are sought by the Crown and which is not opposed by you.

65In relation to the charge of theft of a motor vehicle, I suspend your driver’s licence for a period of 12 months.

66You are sentenced to the following periods of imprisonment:

Charge 1 – two (2) years

Charge 2 – two (2) years

Charge 3 – twelve (12) months

Charge 4 – eighteen (18) months

Charge 5 – ten (10) months

Charge 6 – twelve (12) months.

67I direct that six months of the sentence imposed in relation to Charge 3 and six months of the sentence imposed in relation to Charge 4 be served cumulatively with each other and with the base sentence, producing a total effective sentence of three years.  I direct that you serve eighteen months before becoming eligible for parole.

68If not for your pleas of guilty, I would have sentenced you to a total effective sentence of five years' imprisonment, with a non-parole period of three years.

69I declare that you have already served 227 days by way of pre-sentence detention.

70I make that disposal order, as well.

HER HONOUR:  Is there anything arising from those sentencing remarks, Madam Prosecutor?

MS EDWARDS:  There was also a disposal order, Your Honour, that was filed.

HER HONOUR:  Yes, I am sorry.  I will make that disposal order as well. 

MS EDWARDS:  Otherwise, nothing arising.

HER HONOUR:  Yes, Mr Terry?

MR TERRY:  No, nothing arising, Your Honour.

HER HONOUR:  All right.  Thank you.  Now, did you want to have a quick word with your client before we shut the link down?

MR TERRY:  Yes, I would.  Thank you, Your Honour.

HER HONOUR:  All right.  Yes, thank you.  If you could accommodate that, please, Mr Taylor.  We've only got the - a link, I think, until 12.15.  So, yes, if you could make it quick, but we will now adjourn, and we'll leave the transmission, and if you could tell Mr Taylor when you're ready to have the whole transmission shut down.  Thank you.

MR TERRY:  Will do.  Thank you, Your Honour.

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