Director of Public Prosecutions v Ramsden
[2023] VCC 279
•17 February 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 21-02309
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MARK RAMSDEN |
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JUDGE: | HIS HONOUR JUDGE CHETTLE |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 8 and 10 February 2023 |
DATE OF SENTENCE: | 17 February 2023 |
CASE MAY BE CITED AS: | DPP v Ramsden |
MEDIUM NEUTRAL CITATION: | [2023] VCC 279 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW SENTENCE
Catchwords:
Legislation Cited: s5(1), s5(4) Sentencing Act 1991
Cases Cited:DPP v Meyers, Boulton v The Queen [2014] VSCA 342, Toumngeun [2008] VSCA 91
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms M. Zammit | Office of Public Prosecutions Ms. A. Sakar |
For the Accused | Mr A. Imrie | Stary Norton Halphen Mr. S. Moodie |
HIS HONOUR:
1Mark Ramsden, you have pleaded guilty to one charge of criminal damage, one charge of making threat to kill, one charge of aggravated burglary and one charge of intentionally cause injury, and finally one charge of making a threat to destroy property.
2The facts of your offending are set out in Exhibit A, the summary of prosecution opening. I incorporate that document into these reasons for sentence and I sentence you on the basis of the facts set out therein.
3Very briefly stated on 20 November 2019 at about 8.45 pm you approached the front of your neighbour, Lee Devlin's home in Roslyn Park Road, Melton West. You had had an acrimonious relationship with Mr Devlin for several years. You yelled and bashed upon his front door. You were visibly alcohol affected.
4Mr Devlin came out his front door and you charged at him, punching his head. Mr Devlin retreated inside, and you broke the security screen door handle attempting to stop him.
5Another man joined you at the front of the house and you both commenced kicking and banging on the front door. Your dog had been outside Devlin's home initially, but somehow got inside the house before Devlin closed the door.
6Both you and Devlin separately called Triple 0. You can be heard on the Triple 0 call making a series of threats to kill Devlin, and you repeatedly asked for your dog back. Your language was colourful.
7You and the unknown man and a third man, Shayden Baker, forced your way inside Mr Devlin's house. The front window and the kitchen windows had been broken. Once inside you punched Devlin repeatedly to the head. Baker hit him with a bottle that smashed and cut his hand. The unknown man smashed another bottle on Devlin's head, cutting his nose.
8You did not intend the injuries caused by the bottles. You intended to bruise and hit him. Devlin was assaulted for about a minute, just inside the front door of his home by you and your co-offenders. Then before you all left, damaging the CCTV cameras on the house as you departed.
9One of the neighbours heard you say that you were going to burn the house down, and that is the basis of Charge 5.
10Police arrived and you were arrested. Devlin was taken to hospital and treated for wounds that he had to his right elbow, a gash to his left eyelid and another above his left eyebrow. He had two deep gashes to his nose as well as bruising to his forehead and a cut on his finger.
11You spent 78 days in custody after your arrest, until you were bailed on 12 February 2020.
12Your victim was given the opportunity to make a victim impact statement but declined to do so but acknowledged, according to the Prosecution, that the court was faced with a difficult sentencing decision.
13You have admitted a prior criminal history. That history is dated but nonetheless relevant.
14In 1993 you were fined for using threatening words.
15In 1994 you were convicted and fined for criminal damage, unlawful assault, and fraud charges.
16In 1995 you were convicted and fined for behaving in an offensive manner.
17Perhaps more significantly, in 1997 you received a three-month intensive correction order for intentionally or recklessly causing injury.
18In 2004 you were fined for possessing a controlled weapon; and
19Finally in 2007 you received a suspended term of imprisonment of three months for criminal damage by fire, unlawful assault and recklessly causing injury and intentionally causing injury.
Personal circumstances and history.
20You are now 52 years of age being born in Sunshine in March 1970. Your history is set out in the report of psychologist, Jeffrey Cummins, Exhibit 2, and summarised in your counsel's submissions, Exhibit 1.
21Your formative years saw you exposed to domestic violence perpetrated by your father. You were the youngest of five children, but your parents separated when you were seven. You left school at about 14 and you had limited literacy, which still to this day persists.
22You commenced working in hotels with your mother and your stepfather and apparently that started your problematic relationship with alcohol.
23At the age of 17 you started using drugs, methylamphetamine recreationally. You have had a number of relationships. When you were 17 to 19, a relationship that saw your now 34-year-old daughter, Ashleigh, born.
24In 1993 you had another relationship that saw you have a stepson and a son, Stephen, who was born in February 1998.
25You have a long-term diagnosis of depression that pre-existed any of the psychological reports you obtained for the purpose of this case.
26You have been consistently employed in a number of different occupations, working in hospitality, construction and notably for a period of four years as a production supervisor.
27You started attendance with a psychologist for your depression issues in May 2016; Dr Elzo's report is an exhibit before this court. You were finally diagnosed with ADHD in 2019.
28Dr Elzo reported in Exhibit 5:
Mr Ramsden was originally referred by GP Dr Douglas Spence [there is a report from him] from Station Medical Centre via the mental health care plan on 17 May 2016 for severe anxiety and depression symptoms. However, once the initial assessment was completed it was ascertained that Mr Ramsden had been exposed to complex trauma and appeared to be self-medicating with alcohol and poly illicit substance use. Subsequently he completed a complex episode of psychological counselling consisting of 10 sessions. Mr Ramsden was re-referred by Dr Spence on 8 February 2017 and 13 January 2018 and 14 February 2020 and most recently on 9 June 2022. Thus far he has completed over 40 sessions of psychological counselling. It was also ascertained that Mr Ramsden met the DSM-5 criteria for adult attention deficit hyperactivity disorder.
29Dr Elzo further reports:
That Mr Ramsden has lived most of his life with an ADHD diagnosis which has been untreated. Hence, this would impact his decision making, impulse control and his drive for instant gratification, which most definitely will detrimentally impact the manifestation of his anger reactions.
30I understand the doctor to be saying is that there is a connection between your anger and your underlying conditions.
31Your counsel relied upon a number of factors in mitigation of your offending. Firstly, your pleas of guilty. Those plea of guilty are of significant utilitarian benefit; you have spared your victim and the court the need for a criminal trial. You are entitled to a reduction in sentence to reflect those pleas of guilty. That reduction of sentence is greater because of the increased value of your pleas of guilty in the time that COVID-19 has damaged our justice system. I do not treat your pleas of guilty as late pleas, given that the serious other charges you were facing have been withdrawn against you.
32Significantly and secondly, there has been a lengthy delay in bringing this matter to conclusion. Some three years and three months have passed since you offended. You have been compliant with strict bail conditions for over three years since your release from custody.
33It seems that COVID-19 made the passage of your case through the Magistrates' Court problematic; you could not get the matter completed. In that time, you regularly reported to police, ceased using alcohol and undertook steps to deal with your mental health issues. You have moved away from Melton and have been offence free.
34You successfully completed a court integrated services program. You have found employment and assumed a role as a carer for Mr James Butler, who you have moved to live with in Brooklyn. Mr Butler provided a reference for you, Exhibit 9, and he is greatly assisted by you.
35Other references tendered attest to your value to the community and the changes you have made to your life since your release on bail.
36The thrust of your counsel's submission was to urge the imposition of a of sentence, ‘time served and a properly structured community corrections order’.
37The prosecution submitted that a term of imprisonment with a non-parole period was the appropriate disposition. But for the lengthy delay in this case and the now demonstrated rehabilitation, I would have no hesitation agreeing with the prosecution submission. Your offending was ugly, violent, frightening, and serious. Your aggravated burglary, in my view, represents a mid-level example of that very serious criminal offence. I have had full regard to the decisions of the Court of Appeal in DPP v Meyers[1] and the prosecution's submissions as to the nature of your offending.
[1]DPP v Meyers
38The Sentencing Act 1991, which is the Act that Parliament regulating sentencing in this State, has many provisions which effectively mandate custodial sentence in many circumstances. Those provisions do not apply in your case.
39Section 5(4) of the Act provides that:
… a court must not impose a sentence that involves the confinement of the offender unless it considers that the purpose or purposes for which the sentence is imposed cannot be achieved by a sentence that does not involve the confinement of the offender.
40Section 5(4C) provided that:
… a court must not impose a sentence that involves the confinement of the offender unless it considers that the purpose or purposes for which the sentence is imposed cannot be achieved by a community corrections order with appropriate conditions.
41The purposes of sentencing are set out in s5(1) of the Sentencing Act. Just punishment, general and specific deterrence, promotion of rehabilitation, denunciation of your conduct and protection of the community are all relevant factors in your case.
42In balancing these factors, the court must have regard to the maximum penalties described by Parliament, current sentencing practices, the nature and gravity of your offending, and your culpability and degree of responsibility for the offending.
43The court must also have regard to the impact on the victim and any loss or damage resulting from your offending.
44I must finally have regard to whether you pleaded guilty and when you pleaded guilty. Your previous character and the presence of aggravating or mitigating factors concerning you, and any other circumstance, must be taken into account.
45Thus, sentencing involves many different considerations and is not determined by one factor or consideration alone.
46The Court of Appeal has provided this court with guidance as to the operation of the community corrections structure on many occasions. In the case of Boulton v The Queen[2] the Court said at paragraph 2:
The community corrections order is a flexible sentencing option, enabling punitive and rehabilitative purposes to be served simultaneously. The community corrections order can be fashioned to address the particular circumstances of the offender and the causes of the offending, and to minimise the risk of re-offending by promoting the offender’s rehabilitation.
[2]Boulton v The Queen [2014] VSCA 342
47At paragraph 108 the Court continued:
In addition, imprisonment is often seriously detrimental for the prisoner, and hence for the community. The regimented institutional setting induces habits of dependency, which lead over time to institutionalisation and to behaviours which render the prisoner unfit for life in the outside world. Worse still, the forced cohabitation of convicted criminals operates as a catalyst for renewed criminal activity upon release. Self-evidently, such consequences are greatly to the community’s disadvantage.
48At paragraph 112 the Court continued:
Given the adverse features of imprisonment to which we have referred, the conclusion that imprisonment is the only appropriate punishment amounts to a conclusion that the retributive and deterrent purposes of punishment must take precedence. Put another way, it is a conclusion that the offender's 'just deserts' for the offence in question require imprisonment, even though the court is well aware that the time spent in prison is likely to be unproductive, or counter-productive, for the offender and hence for the community.
49At paragraph 114 and 115 the Court stated:
The community corrections order option offers the court something which no term of imprisonment can offer, namely, the ability to impose a sentence which demands of the offender that he/she take personal responsibility for self-management and self-control and (depending on the conditions) that he/she pursue treatment and rehabilitation, refrain from undesirable activities and associations and/or avoid undesirable persons and places. The community corrections order also enables the offender to maintain the continuity of personal and family relationships, and to benefit from the support they provide. In short, the community corrections order offers the sentencing court the best opportunity to promote, simultaneously, the best interests of the community and the best interests of the offender …
50The Court continued:
On this analysis, if defence counsel submits that a community corrections order would be appropriate, it is no answer for a prosecutor (or a judge) to say, 'How could a CCO be appropriate given that an offence of this seriousness has always received imprisonment?' As we have endeavoured to explain, that question should mark the beginning, not the end, of the court's consideration.
51Finally, the Court said at paragraph 131, the much-quoted paragraph in these courts:
It follows from what we have said that a community corrections order may be suitable even in cases of relatively serious offences which might previously have attracted a medium term of imprisonment (such as, for example, aggravated burglary, intentionally causing serious injury, some forms of sexual offences involving minors, some kinds of rape and some categories of homicide). The sentencing judge may find that, in view of the objective gravity of the conduct and the personal circumstances of the offender, a properly-conditioned community corrections order of lengthy duration is capable of satisfying the requirements of proportionality, parsimony and just punishment, while affording the best prospects for rehabilitation.
52Finally, I received assistance from the judgment from Neave JA in the decision of DPP v Toumngeun[3] [2008] VSCA 91. In that case at p9 Her Honour said:
In the circumstances of this case his Honour was entitled to show mercy to the respondent and to take account of the fact that he was a full time carer of one of his daughters and that he shared the care of his other daughter with her aunt. As the Court recognised in the DPP v Leach, 'It is particularly important that this court should not devalue or deny the right of a sentencing judge to act mercifully in a case where it seems to the judge to be an instance where an opportunity for reformation of an offender ought be grasped. That, after all, may be a decision which redounds very much to the benefit of the community'.
[3]Toumngeun [2008] VSCA 91
53Her Honour then continued:
Further, as Maxwell P said in DPP v Tokava: 'A sentencing judge should be astute to investigate whether a non-custodial disposition is to be preferred, even in a case of a serious offence, if in the long term the community's interest will be best served by that course. This Court should seek to promote public understanding of the fact that — apart from the interest of the individual whom it is sought to rehabilitate, an important interest in itself — there is a vital community interest in maximising the prospects of rehabilitation of an individual who has been convicted of a serious crime.
54Her Honour continued:
His Honour was also entitled to place some weight on the three and a half year delay between the offending and the imposition of the sentence. I do not accept the DPP's submission that the respondent’s good record during this period should be given limited weight … His Honour appropriately regarded the lack of offending as indicating the respondent’s good prospects of rehabilitation.
55Clearly, in my view, similar principles apply in your case.
56I have had you assessed for suitability to undergo a community corrections order and you have been found so suitable. I propose to reflect what the Court of Appeal said in Boulton and impose both significant punitive aspects and rehabilitative aspects in such an order. I note and accept the submission of your counsel in his recent submissions, Exhibit 11, that the community corrections assessment report demonstrates a notable degree of insight on your part, to the precipitating factors to your offending and a fulsome acceptance of the wrongfulness of your actions.
57Your counsel submitted, correctly in my view, that it is instructive that those comments were made notwithstanding the fact that you had already received a favourable sentence indication and thus demonstrates that your prospects for rehabilitation.
58On all charges you are convicted. You are sentenced to an aggregate term of imprisonment of 78 days. I declare that that sentence has been served by way of pre-sentence detention.
59Secondly, you will be released upon a community corrections order for three years. The conditions of that order will be that you:
· Perform 250 hours of unpaid community work;
· Undergo assessment and treatment for alcohol;
· Assessment and treatment for drugs;
· Assessment and treatment for mental health; and
· Any programs required to reduce offending.
60You are to report to the Sunshine Community Corrections Office at Ballarat Road, Sunshine by telephone within the next 48 hours, they want to talk to you on the phone first.
61Pursuant to s6AAA I indicate that but for your pleas of guilty, I would have imposed a term of imprisonment of four years and six months with a non-parole period of three years.
62Are there any other orders required?
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