Director of Public Prosecutions v Ranger

[2017] VCC 433

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

AT BALLARAT (Sitting at Melbourne for Sentence)
CRIMINAL JURISDICTION

CR-16-01316

DIRECTOR OF PUBLIC PROSECUTIONS

v

TY RANGER

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JUDGE:	HIS HONOUR JUDGE PUNSHON
WHERE HELD:	Melbourne
DATE OF HEARING:	7 March 2017
DATE OF SENTENCE:	27 March 2017
CASE MAY BE CITED AS:	DPP v Ranger
MEDIUM NEUTRAL CITATION:	[2017] VCC 433

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P. Bourke	Office of Public Prosecutions Victoria
For the Accused	Ms E. Murphy	Dr Martine Marich & Associates

HIS HONOUR:

1Ty Ranger, you have pleaded guilty to one charge of intentionally causing serious injury (Charge 1), and one charge of possession of child pornography (Charge 2).

2The prosecutor, Mr Pat Bourke, opened the circumstances of the offending by reading from a written summary of prosecution opening which was tendered, and the contents of which were agreed to on your behalf. 

3You are 25 and were 23 at the time of the offending.  You have suffered cerebral palsy from birth due to umbilical cord asphyxia, and require assistance to perform many physical daily tasks.  You have no mental disability, and although your condition produces uncontrolled movements, you are capable of "concentrated control actions", given time and application.

4In short, on 22 November 2015, during the afternoon, you gestured to the victim, a five-year-old girl, who was playing outside her unit, where she then lived with her mother and older sister, to come to where you were, outside your unit.  Both units were in a block of apartments.

5The victim walked over to you. You cuddled her and led her into your unit.  Once inside, you obtained a pocket knife and sat on the victim, and began to repeatedly stab her. 

6You also removed her t-shirt, touched her chest and groin, removed her shoes and attempted to remove her shorts, but were unable to do so because she had her legs closed.

7The stabbing continued, but in the struggle, the victim was able to bite you on the lip, causing you to drop the knife.  She was able to escape and flee to her mother.  She was distressed and covered in blood.  An ambulance and police were called.  The victim was taken to hospital with serious and potentially life-threatening injuries. 

8She had lacerations over her face, scalp, chest, back and abdomen, with a fold of intra-abdominal fat protruding through one abdominal wound.  She was given an exploratory laparoscopy, and her incisions and puncture wounds were repaired and sutured.  She remained in hospital until 27 November.

9The victim suffered five incisions to the chest, six incisions to the abdomen, ten incisions to the head and neck, and four incisions to the back, a total of 25 incisions.  All incisions or puncture wounds were clean-edged and made by a stabbing or slashing motion.

10Photographs of the injuries to the victim and the knife were tendered. 

11Police seized your mobile phone.  Two images of Category 1 child pornography were located amongst another 154 images of adult pornography, hence Charge 2.

12You were interviewed by police and said the victim had walked into your unit, and you told her to leave.  You said she picked up a knife on the coffee table, and was injured as you were trying to get it off her and get her out of your unit.  You have maintained this account to others, which is obviously inconsistent with your plea of guilty to Charge 1 and the agreed summary of facts.

13Victim impact statements from the victim's mother and auntie were taken and read in court.  It is clear that your offending has had significant consequences.  The victim's auntie declined to be in the courtroom with you.  She stated she was unable to write her statement without crying.  The victim was separated from her mother and went to live with her auntie immediately after your attack, because it was considered that her auntie was in a better position to care for her.  She was therefore separated from her mother and sister for some time, and is now being cared for by her auntie as well as her mother.

14The victim has moved school to avoid being the object of attention at school.  This was part of the reason for me making a suppression order to avoid the victim being identified.  The victim herself has suffered obvious physical consequences and expected psychological consequences.  Thankfully, she has essentially recovered from the wounds themselves, but the long-term psychological consequences are unknown.

15You were represented by Ms Ellen Murphy, who provided an "Outline of Submissions in relation to the Plea", which was tendered.  Ms Murphy also tendered a folder of other material.

16You pleaded guilty at the first reasonable opportunity.  You were originally charged with a more serious crime of attempted murder, but the matter was resolved, vindicating your opposition to this more serious charge, together with an acceptance of the agreed statement of facts.  You must benefit from your pleas of guilty, which save time, expense, and the need for witnesses to give evidence.

17In particular, your plea of guilty to Charge 1 means that witnesses, including the victim and those close to her, do not have to give evidence.

18You have indicated that this was part of your motivation for pleading guilty, this is very much to your credit.  By pleading guilty, you accept the inevitable consequences of those pleas, and particularly in the case of Charge 1, the inevitability of imprisonment.

19However, it cannot be argued that your pleas demonstrate remorse, because despite your plea of guilty to Charge 1, you do not accept that this plea and the agreed facts on which it is based represents the truth.

20Your counsel argued that, putting any scarring to one side, there are no long-lasting physical injuries to the victim.  She noted that the victim's injuries were described by Dr David Tickell, Head of Paediatrics, Ballart Health Services, as superficial, although one abdominal wound had omentum protruding through.  She submitted that this is to be contrasted with many cases of intentionally causing serious injury where the physical and psychological injuries suffered by the victim may be far more serious than suffered by the victim here. 

21That is true, but your plea still accepts the serious nature of the injuries, physical and psychological, taken in combination. And I must keep in mind that it was your intention to cause serious injury to a five-year-old child.  It is also accepted that the knife wounds themselves were potentially life-threatening.

22Your counsel also submitted that your offending should be seen as opportunistic rather than pre-planned.  As discussed during the plea, this is matter of degree, and steps were taken by you to shepherd the child into your unit and away from scrutiny by adults before you attacked her, which seems to have begun very soon after entering.

23It was conceded that there is really no satisfactory explanation for your attack.  You seem to have had a history of abusing alcohol, and may well have been drinking to excess on the day of the attack, although there is no clear evidence of your level of intoxication, however, in any event, intoxication alone would provide little explanation for your conduct. 

24The evidence compelling suggests a sexual component to the attack.  You touched the victim's chest and groin and tried to remove her shorts.  I accept your counsel's submission that no inference concerning motive can be drawn from the presence of the child pornography images on your phone, given that they were amongst many more images of adult pornography.  They were downloaded many months before the attack, and there was no evidence of when you last had access to the two images. 

25A report from Associate Professor Michael Fahey, Paediatric Neurologist and Clinical Geneticist, was tendered.  The report focused on the nature of your cerebral palsy, its impact on your functioning, the severity of your condition, and how it might affect you in the future.  It is clear that your condition significantly reduces your capacity to engage in many physical activities.  For example, you cannot write, cannot talk to others easily, and struggle to be understood. 

26You have stated that people assume you to be "retarded", which you are not.  You require support for many daily tasks, such as bathing and hygiene.  You have difficulty eating.  You fall regularly.  In the past, you have been determined to walk without aids, but you are currently using an electric wheelchair.

27Associate Professor Fahey thought you required access to rehabilitative programs, including strength and endurance therapy, as well as therapy to aid your communication.  Without therapy, he said that there was a risk that you will physically worsen while in prison, and your chance of employment on release from prison will be detrimentally affected.

28A psychological report from Gary McMullin was also included in the folder of tendered material.  Mr McMullin summarised some of the pertinent features of your upbringing and background. 

29You have four siblings, all of whom are supportive of you.  Only one of your siblings, your younger brother, shares the same father as you.  You parents separated when you were about five for reasons that I will not state, but you then had no relationship with your father until you reconnected when you are 17.

30When you were 14, your mother moved to Christmas Island, and you moved there with her.  You remained there until you were 19, when you moved to Perth, for reasons I do not intend to describe, to live with your father for a brief period before returning to Christmas Island to live with a friend of your mother.

31You completed Year 12 in mainstream schooling on Christmas Island, and whilst on Christmas Island, you had internet friendships with two girls.  The second of these, Tess, lived in Ballarat, and was also disabled.  You moved to Ballarat from Christmas Island to be closer to her.  This relation was ruptured in March 2015, however contact continued, and you are still friends.  This young woman has provided a very supportive character reference for you. 

32You report a history of alcohol abuse, and have stated that imprisonment is beneficial in keeping you off beer.  You also described to Mr McMullin the circumstances of a fire in August 2015 that occurred in your unit, which you said "traumatised" you, and another event when you were age 22 or 23, which also affected you psychologically.

33You have had periods of unstable housing, residing in hotels or homeless centres.  Prior to the offending, you received services through disability services.  Prior to prison, you had been undertaking an Advanced Diploma in Building.  In prison, you completed a substance use program. 

34You told Mr McMullin that prison was affecting your mood, and that you were suicidal at times.  The prison authorities need to be aware of this, and it will be noted on the court order.  A Forensicare report, to which I will refer later, noted that you still have occasional suicidal thoughts, and some time ago, before treatment in prison, you had been thinking of hanging or strangling yourself. You said that, on two occasions whilst on remand, you had attempted harm, including strangling yourself with a towel and trying to cut your arm.

35Mr McMullin reported that he thought you of average intelligence, and there was no evidence of any brain dysfunction beyond the cerebral palsy.  He considered you satisfied the criteria for post-traumatic stress disorder (PTSD).  He identified the basis for this.  He thought your scores were indicative of severe chronic PTSD. 

36He thought you met the criteria for Major Depressive Disorder with Anxious Distress. Your scores being indicative of Severe Depression, Extremely Severe Anxiety, and Severe Stress.

37He noted that your current circumstances probably have had a significant impact on your mental health, but was unable to say whether this condition developed prior to incarceration. 

38Finally, Mr McMullin considered you met the criteria for Alcohol Use Disorder in Early Remission, In a Controlled Environment.  He thought you probably used alcohol to inappropriately manage your PTSD.

39In summary, Mr McMullin considered that your physical disabilities and serious mental disorders made incarceration more onerous for you than a prisoner without these difficulties. 

40You clearly struggle with many activities in prison.  An affidavit from Brendan Money, Assistant Commissioner, Sentence Management Division, Corrections Victoria, was included in the folder tendered by your counsel. 

41On entry to the prison, you were assessed as a maximum security risk, and classified to Port Phillip Prison.  This classification was for your protection.  You were soon transferred to St Paul's Psycho-Social Hospital Unit at Port Phillip.

42In June 2016, you were transferred to Marlborough Disability Unit at Port Phillip.  The management panel has recently confirmed that a placement at Marlborough remains appropriate for you. 

43You receive Nursing Support to assist with showering, dressing, and personal care needs.  You have been allocated a "prison mentor" who assists you generally.  Your clothes are washed by another prisoner. You have physical aids, including a personal electric wheelchair, and disability spoons and forks.

44The system noted two minor incidents relating to you.  One concerned you being tripped, the other concerned a sprained ankle suffered during a soccer match.

45Your future placement remains uncertain and depends on a variety of matters for the consideration of the management panel. 

46Clearly, your capacity to work in prison is very restricted.  You will however have access to a variety of programs and activities. 

47A Personal Support plan covering 2015 was also included in the folder, and gives further insight into your needs and abilities, as does the individual support funding package plan, also part of the folder material. 

48Two very supportive character references were tendered.  One from Tess, as referred to earlier.  The other is from a person involved in Prison Fellowship Victoria.  Tess, who also has cerebral palsy, visits you, but travelling is difficult for her.

49You are separated from your family in Western Australia, and relatives in Melbourne are unable to visit because they are too young.  You are currently housed with mainly intellectually disabled prisoners, making communication additionally difficult. 

50With the agreement of the parties, I ordered that a psychiatric report be prepared by Forensicare.  The report, prepared by Dr Carolyn Simms, Consultant Psychiatrist, Victorian Institute of Forensic Mental Health, was also tendered.

51You told Dr Simms that the injuries occurred to the victim accidentally when you were trying to get the knife off her. 

52Dr Simms thought it likely you are suffering from a major depressive disorder, which had responded to antidepressants and psychological treatment, but that you still experience intermittent suicidal ideation. Your reported history is consistent with an alcohol misuse disorder and post-traumatic stress disorder.  She found no evidence of bipolar effective disorder, or psychotic disorder.  She thought it likely you were under the influence of alcohol at the time of the offending, and that this would have affected your ability to make calm and reasonable decisions, and lead to some degree of disinhibition. You expressed sorrow for the victim and her family.  She confirmed that you are likely to find prison more onerous than others given your physical and psychological difficulties.  You would benefit from treatment and medication, drug and alcohol counselling, as well as assistance for your physical disabilities.

53Your counsel urged me to be cautious about reaching any conclusion about motive, submitting that "we may never know".  She noted that there appears to have been a deterioration in your mental state leading up to the offending after the fire in your unit.  She noted comments from your disability worker that in late October and early November, you were cancelling more shifts, which your disability worker thought suggested you were drinking more, and more likely drunk.  I was told that police tried to breathalyse you subsequent to your arrest. 

54Your counsel submitted that Limbs 5 and 6 of Verdins were engaged, namely that prison is more onerous for you than others without your physical and mental state problems, as well as presenting a risk that you will worsen in prison. 
Ms Murphy emphasised the risk of deterioration in your physical state, referring to the opinion of Associate Professor Fahey, but I consider a risk of both mental and physical decline exists. The hope is that your mental state will continue to improve, but the risk of deterioration remains.  Ms Murphy submitted that the likelihood is that mental state problems either developed after incarceration, or at least became worse after incarceration.  I accept this.  I have already referred to your suicidal ideation.

55Ms Murphy submitted that your condition makes you vulnerable in prison, and is a considerable additional burden on you serving a sentence of imprisonment.  I accept this.  I also accept that the first period you served in St Paul's would have been very difficult.  Although the move to Marlborough was beneficial, some services, such as a nursing aide, have only been provided relatively recently. 

56I have already noted that although you can expect to receive such support that the prison authorities consider appropriate, precisely what this will be remains to be determined.  In part, this may depend on you.  For example, until last month you declined the use of an electric wheelchair, but now accept that you need special care.  You have suffered back pain, which at times has been considerable.

57When released from prison, you plan to pursue your studies and your relationship, as I follow, with Tess. 

58Ms Murphy argued that despite risks expressed by Dr Simms, you have positive prospects for rehabilitation.  You have no prior criminal history, and there is evidence of your previous good character.  The offending seems out of character, she submitted. You are not drinking alcohol, and have addressed this problem.  You have sought counselling, and will continue to do so. 

59Mr Bourke submitted that the absence of remorse that might flow from the acceptance of wrongdoing, which is not admitted by you, is cause for real concern about reoffending.  He emphasised that your conduct was a seriously violent attack on a child that remains unexplained.

60In my view, I cannot conclude that I have much confidence in your rehabilitative potential without further evidence to explain why the offending occurred.  Without that explanation, it is not possible to conclude that the cause of the offending is being addressed.

61Specific and general deterrence need to be considered, as does denunciation and just punishment.  I am conscious of your relative youth, both at the time of the offending and now, as well as the absence of prior offending and previous good character. Of course, your rehabilitation is highly desirable. I must give considerable weight to your cerebral palsy and its consequences. However, your offending is very serious, and protection of the community remains very relevant. 

62Ms Murphy accepted that a prison sentence was inevitable for Charge 1.  Concerning Charge 2, in the circumstances, she submitted it was the only option, but the term should be ordered to be served concurrently, or with only modest accumulation.  The charge relates to a single day, the imagery having been downloaded some considerable time before.

63You will be convicted of Charge 1 and sentenced to nine years' imprisonment.  You will be convicted of Charge 2 and sentenced to one months' imprisonment.  The sentences are to be served concurrently.  I fix six years and three months as the period you must serve before becoming eligible for release on parole.

64My calculation is 492 days.  Counsel correct me if that is wrong. 

65You have served 492 days in presentence detention.  This period is to be reckoned as time already served under the sentence I have imposed.

66A disposal order was sought and not opposed.  I will make it.  You are subject to the provisions of the Sex Offenders Registration Act.  The reporting period is for eight years.  Had you not pleaded guilty, I expect I would have sentenced you to about 12 years' imprisonment.  I am not sure what the non-parole period would have been, but expect it would have been about eight and a half years.

67Is the PSD correct?

68MR BOURKE:  Yes Your Honour.

69HIS HONOUR:  Thank you.  So the prison authorities should note what I have said about Mr Ranger's fragility and suicidal ideation.  I was just wondering whether I should provide any of the material concerning that to the prison authorities.

70MS MURPHY:  Perhaps if Your Honour would be so good as to note it as a custody management issue on the order itself.

71HIS HONOUR:  I will certainly do that.  I will certainly do that.  Well, you have got access to them, so you can provide them yourself, or your instructors can.

72MS MURPHY:  Yes.

73HIS HONOUR:  I mean, ordinarily I might, but if you have got a reservation about it, I am happy to leave it to you.

74MS MURPHY:  There may be matters in that material that he does not want the prison authorities - - -

75HIS HONOUR:  Say that again?  Correct, it is a matter for you I think, I will leave it to you.

76MS MURPHY:  - - - be aware of.  Thank you.

77HIS HONOUR:  Is there anything else Mr Bourke?

78MR BOURKE:  No thank you, Your Honour>

79HIS HONOUR:  Ms Murphy?  Thank you very much, I will leave the  Bench.  I have signed those orders - the disposal orders, Mr Bourke, and they will be available.

80MR BOURKE:  Thank you Your Honour.

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