Director of Public Prosecutions v Rankine
[2021] VCC 1698
•29 October 2021
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 21-01489
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SCOTT RANKINE |
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JUDGE: | HIS HONOUR JUDGE M.P. BOURKE |
WHERE HELD: | Melbourne |
DATE OF HEARING: | |
DATE OF SENTENCE: | 29 October 2021 |
CASE MAY BE CITED AS: | DPP v Rankine |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1698 |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms D. Karamicov | |
For the Accused | Mr M. Brogden |
HIS HONOUR:
1Scott Rankine, you are to be sentenced for one charge of assault, four charges of persistent contravention of a family violence intervention order, one charge of possession of a drug of dependence and one charge of theft. They are all offences on indictment.
2The applicable maximum sentences are five years' imprisonment for assault and the persistent contravention charge, 12 months' imprisonment for possession of a drug of dependence and 10 years' imprisonment for theft.
3You are also to be sentenced for a number of summary offences; four charges of committing an indictable offence on bail (a maximum penalty of three months' imprisonment), one charge of possession of a prohibited weapon (two years' imprisonment), one charge of possession of a controlled weapon (12 months' imprisonment), one charge of trespass (six months’ imprisonment), and one charge of simple breach of a family violence intervention order, (maximum penalty two years' imprisonment).
4You pleaded guilty before me on 15 October. When arrested on 9 October 2020, you were found not fit for interview because of intoxication. On earlier occasions, when spoken to police on 3 June 2020 about Charge 1, assault, you made false denials and spoken to about Charge 3, persistent breach of a family violence intervention order, you both made denials and exercised your right to silence. There was a short, contested committal in July 2021 at which your primary victim and ex-partner, Mandy Cummings[1], was cross-examined. The matter resolved to a plea on 16 August.
[1] A pseudonym.
5You receive the benefit of your plea of guilty and that level of cooperation in the proceeding. As to the timing of your plea, I bear in mind that the Crown did not proceed against you on a number of serious charges including kidnapping and aggravated burglary.
6Your plea has facilitated the interests of justice, accepted responsibility and expresses remorse. The utilitarian benefit is enhanced in the circumstance of the impact of the COVID-19 pandemic on the criminal justice system.
7At your plea hearing, also on 15 October, Ms Karamicov for the Crown tendered a written prosecution opening. Mr Brogden, for you, tendered the letter of character reference or support by your parents, certificates related to rehabilitation and educational programs taken in remand custody and drug testing results, also from custody. Mr Brogden provided a written outline of submissions on sentence.
8The circumstances of your offending are set out in the tendered Crown opening which is Exhibit A. My own summary may therefore be shorter. It is also informed by matters put on your behalf, not challenged by the Crown.
9You were 28 and Mandy Cummings 26 at the time of your offending against her, in June to October 2020. Your relationship had ended but you kept contact, it seems often of a somewhat turbulent nature.
10Charge 1 on the indictment is the assault of her on the Syndal railway station. In the afternoon of 3 June, you grabbed her by the throat, pushed her against a concrete wall and headbutted her to the forehead. Police, who were called by others, observed her to be distressed and having a substantial lump on the head.
11Charges 2 to 5 are offences of persistent contravention of a family violence intervention order protecting Mandy Cummings. In accordance with the relevant legislative definition of the offence, there are four specific periods of breach, each of about three to 10 days. In short, during these periods, you breached mainly non-communication conditions of the order multiple times. You also went to where she lived.
12For example, there were 39 texts or phone calls from 16 June to 26 June, part of Charge 2. Some of your behaviour was particularly intimidating. You sent her a threatening text with an image of a sawn-off shotgun on 26 June.
13You made 36 texts or calls on Charge 3, 31 July to 3 August, and made threats to or about her at her grandparents' home where she was living. You went to her home twice in this period.
14There were 34 texts or calls on Charge 4.
15On Charge 5, 1 October to 8 October, you contacted her 10 times and went to her home twice. I accept an element of apparent acquiescence by her during this period, on 2 October. You went to her home in the early hours and she went with you, staying overnight at Narre Warren Quest Apartments and again for a time at Quest Apartments in East Burwood on 3 October. On 4 October, you went to her grandparents' home and again on 7 October. On 8 October, there were texts, some of them threatening.
16On each of the four occasions of breaching the order, you were on bail for matters not related to these before me.
17There was further offending on 3 October. During that afternoon, there was an altercation between you and Mandy Cummings left. Staff at Quest called the police. The police found 34.5 grams of 1,4-Butanediol in the Quest Apartment room, Charge 6. Later at night, when locked out of the room, you broke in, the summary charge of trespass. I was told that you did this seeking to retrieve your car keys.
18On 6 October, you stole jump leads from a car close to your home in Ferntree Gully, Charge 7. The next day, you left a note on the windscreen blaming Mandy Cummings.
19You were arrested on 9 October in possession of a paring knife and a taser, the two summary weapons charges.
20After arrest and in remand at Marngoneet prison, you committed a single breach of the family violence intervention order by sending a letter on 28 August of this year to Mandy Cummings. It was a more benign breach, apparently thanking her for some charges being dropped at the committal proceeding in these matters.
21Mr Brogden raised that communication between you and Ms Cummings was also two-way and this may have been to some extent right. However, the order applied to you. Further, I find that a good deal of this offending was aggressive, oppressive and intimidating. There is no victim impact statement; however, I should presume such an effect upon your victim. The assault on the Syndal railway station, Charge 1, was uncontrolled, vicious and it was cowardly. You told police who attended that Mandy Cummings had herself headbutted a wall.
22You are a 29-year-old man, presently awaiting this sentence in remand custody. On my reckoning, there are 385 days of pre-sentence detention. You grew up in the Berwick area. You may live there with your parents when you are released from this sentence. They are highly supportive of you. Your father has recently been diagnosed with cancer.
23Your life has been badly impacted by drug use. I accept that you were using heavily and often affected by that during the offending period. Your drug abuse overtime is consistent with aspects of your criminal record. There are offences, mainly possession, related to methylamphetamine, amphetamine, ecstasy, GHB, prescription drugs and cannabis. On my reckoning, that criminal record states 11 court appearances between March 2011 and July 2020, which is during the early part of this offending period. I am mindful of the fact of some duplication in the sense; for example, of returning to court because of breach or further offending under
community-based orders. There is prior offending related to drugs; but also violence, dishonesty and weapon charges. You were on a community corrections order when committing these offences. There is prior persistent breaching of a family violence intervention order, I was told, against Mandy Cummings. There are a number of breaches of a community corrections order.24You have made attempts to rehabilitate from drug abuse. Particularly you successfully completed a four-month residential rehabilitation, the Bridge Program, in the first half of 2019. You returned to the community and, your parents’ letter states, functioned well for a period until a TAFE course and your rehabilitation was affected by the circumstances of the COVID-19 pandemic when you lapsed. You have kept contact with your Bridge counsellor.
25Although inhibited by custodial COVID restrictions, you have sought programs in remand and taken part in some. This appears to include attendance at Narcotics Anonymous.
26This offending was serious. The breaches of the intervention order evidence uncontrolled, drug-fuelled and obsessive behaviour which was at times specifically intimidating and nasty. It also shows that you are or were fundamentally not willing to comply with such orders when it did not suit. You did so very often.
27You have relevant prior offending.
28The other offences include the attack on Syndal railway station and reflect also a concerning failure to control yourself and respect others, particularly when using drugs. That drug use cannot be seen as mitigation. Such offending as this against women is seen as a major community problem.
29The circumstances make relevant sentencing considerations of moral culpability, deterrence, that is both specific and general deterrence, condemnation of what you did and a need to proportionately punish it.
30There must be a term of imprisonment. I have decided that it should be one of a head and minimum term. You have failed to comply in the past with community corrections orders.
31On 15 October, I requested an assessment of your suitability for a community corrections order in the context of a so-called combined sentence order. You are found not suitable. The report refers to multiple failures on past orders and “minimal insight” into this offending. I agree with the assessment.
32However, the length of sentence will take into account moderating factors. They include the following.
33However, the length of sentence will take into account moderating factors. They include the following.
i.Your plea of guilty. As to genuinely felt remorse, I am at least guarded really doubtful. You persistently offended against Mandy Cummings. There are aspects in the explanations given of your offending which understated its seriousness and likely effect; and, perhaps more significantly, indicate a failure to have insight into the purpose and need for such orders.
ii.You have failed to succeed in rehabilitation before and one cannot be highly optimistic about it. However, I do not utterly discount your prospects. You have good support and I accept that, as in the past at the Bridge Program, you are motivated to reform. If you do not reform and abstain from drug use permanently, your future is bleak.
iii.I also take into account the additional hardship of imprisonment caused by the COVID-19 pandemic and its necessary restrictions. I accept that there is risk, particularly given developing outbreaks in the prison system, anxiety and well-known impacts such as lockdowns, on movement, programs and personal support.
iv.The principle of totality must be applied. This will mean only partial cumulation and whole concurrency on a number of sentences. The aim is a just, total sentence which makes inevitable some apparent anomaly in this.
34Mr Brogden argued that I should impose a straight sentence, effectively of time served. I have decided that the circumstances of offending and adverse considerations and sentencing purposes which flow require a head term significantly beyond what you have served in remand. However, I shall set a minimum term which allows you the opportunity to seek parole and then, if granted, have the supervision and supports I think you need to rehabilitate.
35After considering and weighing what I see to be the relevant matters, I sentence you as follows.
36On Charge 1, you are sentenced to 10 months' imprisonment; on each of Charges 2, 3, 4 and 5 to 12 months' imprisonment; on Charge 6, to one month's imprisonment; on Charge 7, to four months' imprisonment.
37On the summary charges, you are sentenced on four charges of committing on indictable offence on bail, one month's imprisonment on each; on possessing a prohibited weapon, three months' imprisonment; on possessing a controlled weapon and on trespass, two months' imprisonment on each; on breaching a family violence intervention order, three months' imprisonment.
38I am just checking that I have not overlooked one of the summary charges. Does anybody think I have? I am just going back in my notes.
39MS KARAMICOV: I am just checking back in the list.
40HIS HONOUR: No, I do not think so. I have put one down twice, that is all I have done. That is the mistake.
41Do you want me to go over those summary - I will just so it is clear.
42On each of four charges of indictable offence on bail, one month's imprisonment; on possessing a prohibited weapon, three months' imprisonment; on possessing a controlled weapon, two months' imprisonment; on trespass, two months' imprisonment; on the single breach of a family violence intervention order, three months' imprisonment.
43As to cumulation, I direct that four months of the sentences for Charge 1, Charge 3, Charge 4 and Charge 5 be served cumulatively on the sentence for Charge 2 and upon each other.
44That is a total effective sentence of two years and four months; 28 months.
45I set a minimum term before eligibility for parole of 14 months.
46My declaration under s18 is 385 days. Is that the correct figure?
47MS KARAMICOV: Yes, it is. Thank you, Your Honour.
48HIS HONOUR: Yes. Well, I declare under that section, 385 days.
49Had you not pleaded guilty, I would have imposed a sentence of three and a half years with a minimum term of two years.
50Now, the other orders sought are just the disposal order?
51MS KARAMICOV: There is a couple sought, Your Honour. There is a disposal order, there is a forfeiture order that we discussed.
52HIS HONOUR: I see. You have got them there.
53MS KARAMICOV: And then there is a forfeiture order under the Controlled Weapons Act as well.
54HIS HONOUR: I see.
55MS KARAMICOV: For forfeitures of the weapons.
56HIS HONOUR: So I have got a disposal order that says under the Schedule a vial of liquid located in the freezer room of the Quest Apartment room.
57MS KARAMICOV: That would be the drugs.
58HIS HONOUR: The drugs, yes.
59MS KARAMICOV: The 1,4-Butanediol.
60HIS HONOUR: And a silver-coloured Steering lock key. What is that?
61MS KARAMICOV: That would relate to the Steering lock that was placed on the car that was then found to have the note stuck on the windscreen.
62HIS HONOUR: Yes. From which the jump leads were stolen.
63MS KARAMICOV: Correct.
64HIS HONOUR: Yes. Thank you. All right. Well, I will make that order.
65There is a forfeiture order in relation to the taser and the paring knife. I do not have the disposal order in respect of the phone. All right. Well, I am just being told that it needs to be amended. So I might state the suggested amendment. Just give me the order. That will help me do that.
66So I make the disposal order in respect of the drugs and Steering lock key.
67MS KARAMICOV: Thank you.
68HIS HONOUR: And I make the forfeiture order in respect of the weapons. Now, if I can get handed the other order, I will make a suggested amendment and we will find out whether that is workable.
69MS KARAMICOV: I do not have an instructor at the moment ‑ ‑ ‑
70HIS HONOUR: No, I have got it.
71MS KARAMICOV: ‑ ‑ ‑ to be able to email it to Your Honour directly.
72HIS HONOUR: No, I have got it. Yes, I have got it.
73MS KARAMICOV: All right.
74HIS HONOUR: I am just using it to help me make the order.
75MS KARAMICOV: Right.
76HIS HONOUR: There are two mobile phones.
77To make this work, you will have to identify, will you not, Mr Brogden, what personal information is in it.
78MR BROGDEN: Yes, Your Honour. If Your Honour phrases it as you suggested before, I can get my instructor to give those instructions and work together with the informant to return any of those items.
79HIS HONOUR: So I am going to put this - it reads this, that the property referred in the Schedule be forfeited to the Minister and I will add this; prior to that personal information within the phone identified by the accused can be downloaded and returned to him. Well, that is about as good as I can do, I think. So I will just write that in.
80MS KARAMICOV: Well, when Your Honour refers to personal information, should Your Honour just also not make clear that it is personal information not related to the offending?
81HIS HONOUR: Yes. All right. Yes.
82MS KARAMICOV: So any photographs or texts or whatever that still may exist.
83HIS HONOUR: Yes.
84All right. Now, it may need some amendment but at the moment I have got this, 'Prior to that, personal information within the phones not related to the offending and identified by the accused be downloaded and provided to him'. So we will just see what happens.
85I will have that amendment typed in and then I will sign the order, all right?
86MS KARAMICOV: Thank you, Your Honour.
87HIS HONOUR: Now, is there anything else I need to do? No?
88MS KARAMICOV: No, I believe that is everything.
89MR BROGDEN: No, Your Honour.
90HIS HONOUR: No, all right. Well, thank you for your assistance in this matter, Ms Karamicov and Mr Brogden, and I will now adjourn and it means I will turn people off. Thank you.
91MR BROGDEN: As Your Honour pleases.
92MS KARAMICOV: If the court pleases.
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