Director of Public Prosecutions v Rose-Mooring

[2019] VCC 412

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-02351

DIRECTOR OF PUBLIC PROSECUTIONS

v

RICKY ROSE-MOORING

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	29 March 2019
CASE MAY BE CITED AS:	DPP v Rose-Mooring
MEDIUM NEUTRAL CITATION:	[2019] VCC 412

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 M. Senia
For the Accused	Ms B. Franjic

HIS HONOUR: 

1Ricky Rose-Mooring, on 12 March 2018, you attended the St James Nightclub in Geelong, arriving around 2 am.  You were with a co-accused, Gordon Bell.  After about an hour and a half, you and Bell aggressively approached two other patrons.  In a short time, both you and Bell both punched and fought with these men, specifically you punched one of the men to the head or punched him hard to his face.  You pleaded guilty to a charge of common assault. 

2That was not the extent of your violence inside the nightclub.  You punched and pushed the victims, they defended themselves and other bystanders became involved.  For this behaviour, you were charged with and pleaded guilty to participating in an affray.

3I will turn to the seriousness of this frightening alcohol fuelled violence shortly.  The security at the nightclub forcibly removed you and Bell from the nightclub.  You ended up on James Street.  You should at that point have walked away and ended your night out in central Geelong.  Unfortunately, you did not leave.  You hovered around the door, aggressively yelling at security staff. 
Your conduct was captured on the CCTV footage which was tendered on the plea and played in court.  The security guard was simply and professionally doing his job to keep the peace by preventing your co-accused in particular in going back into the nightclub to find his hat.  You were in close proximity seeking to intimidate and argue with the security guard.

4When his attention was diverted, you took out a knife from your pocket. 
You held it behind your leg.  You had time to think through what you were doing and put the knife away.  You did not.  Again, when the security guard, the first victim, looked the other way, you launched forward at him, stabbing him forcefully in the chest.  The victim thought he had been only punched.  You turned and ran, holding your knife crashing into other patrons simply walking along James Street enjoying or trying to enjoy a Saturday night out.  Again, you could have kept going away from the nightclub but you turned and went back to the nightclub doorway area in order that seems to cause more trouble and violence.  You came back to the entrance area, still holding your dangerous knife.

5The owner of the nightclub had come down to the entrance to see that things were being properly managed and sorted out.  At this point, the first victim, the security guard, still did not appreciate that he had been stabbed in the chest.  The owner noticed you drop your knife.  He turned to warn or alert the other security staff that you had a knife.  As he turned his back, you quickly picked up your knife and slashed him with it to his back and shoulder area.  He too thought he had been hit until he was informed by a bystander that he had been stabbed.

6You ran a short distance away and were joined by your co-accused, Bell.  Bystanders followed you two men and when you realised this, you took off. 
To this point, the first victim, the security guard, still had not realised that he had been stabbed.  He was bravely continuing to perform his duties trying to locate you and bring you back to the area of the nightclub, I infer, so that the police could be called and arrest you.

7It was only when he was alerted by another bystander to the blood on his chest region that he released that he had been stabbed and was bleeding profusely.  Eventually, he was taken by ambulance to the hospital.

8You kept trying to get away but patrons and importantly the street safety CCTV cameras were able to track you.  These cameras were able to be monitored and monitored the scene and your movements.  The operators were able to guide the police to your location.  You were arrested and thereafter, declined to comment when interviewed.

9Before moving to outline the injuries you caused and the impact on the victims, I pause to emphasise the value of monitored surveillance CCTV cameras in city streets.  That is in streets where people gather and move to and from nightclubs late at night.

10As those in the courts well know, deterrence to crime comes in large part from certainty of detection.  Having a police presence is important but extending that by sophisticated, coordinated and monitored CCTV cameras means that those who commit crimes will be more speedily detected.  The effect is criminals will be less inclined to take the risk of committing crimes on a hope of getting away with it.  Indeed, your co-accused, Mr Bell, realising that there were cameras in the streets as he ran tried to hide his face by pulling his T-shirt over his head.  It was a ridiculous ploy as the camera was more easily able to follow the man with a T-shirt over his head.

11What is revealed is that criminals recognise the potent weapon of CCTV cameras.  In addition, the CCTV cameras at the door of the nightclub clearly showed your cowardly knife wielding attacks on two unsuspecting men who were just doing their job of making it safe for people to enjoy nightlife in Geelong.  The images I saw reveal the gratuitous, deliberate and dangerous violence you chose to employ.

12The injuries you caused to the first victim were very concerning.  At the hospital, when he appreciated how close you had come to stabbing him in the heart or a vital blood vessel, he was deeply frightened.  He thought that he may not survive.  He had to undergo surgery to repair the wound.  He is left with a scar which reminds him of his ordeal.

13The other victim, the owner of the nightclub also had to have surgery to assist in stitching the laceration to his back and right shoulder.  I saw photographs of the injuries and they were concerning, indicating the significant force you decided to use and the dangerousness of the weapon you chose to carry that night and get out so as to stab the men who were just trying to calm things down.

14Each of the victims and the daughter of the nightclub owner made victim impact statements.  The first victim, the security guard, speaks about the scar being itself an issue causing pain and reminding him of the incident and he has flashbacks as a result.  Perhaps more importantly, he says he's been diagnosed by a psychiatrist and a psychologist with Post-Traumatic Stress Disorder and depression and anxiety and that has impacted on his life with such severity that he has not been cleared to go back to work at the time that he wrote this in November 2018.

15He says that his current treatment has helped him in reducing the severity of the diagnosed mental illnesses but it is a struggle day to day to continue with his activities.  He points out with optimism that he has been proactive with his treatment so as to try and regain normality.  He has become withdrawn from social activities as he combats the Post-Traumatic Stress Disorder.  He has, because he was working at the time, been placed on WorkCover but that significantly reduced his income which made things harder for him as he was barely able to cover expenses.

16The owner of the nightclub says "This incident has had a horrific impact emotionally on me, my business and my family."  He was four days in hospital.  He had fear that his lung had been punctured and would be detected and there would have to be major surgery.  He has tried to resume his work but he feels very unsecure walking about his business.  He has no sense of safety.  He locks himself in his office.  His confidence is gone and he feels intimidated in a large crowd.  This is a man who owns a nightclub.  The anxiety he has when he turns his back on people is something that he says he could not even begin to put in words to describe the fear, anxiety and emotions that go through his body. 
He has had panic attacks at work on a number of occasion.  He now is hypervigilant in respect of all his surroundings.  He points out that the incident from which he suffers himself nightmares and emotional trauma has had an effect on his business because customers have repeatedly told him or apologised to him that they won't come back to his nightclub as they fear for their own safety and that has resulted in there being a significant downturn in his business.

17His daughter of the fear that she felt when it was revealed to her that her father had been stabbed.  It haunts her.  Her relationship with her father is very close and she has fear for him each time he goes to work.  She has had with him and has to have with him hours on the phone to calm him down, to relieve his anxiety when he has tried to go back to work.  She herself has anxiety and depression and suffers nightmares about losing her father.

18Fortunately for you and for the victims, the injuries that you inflicted were not as serious as they could have been, although I pause to note the psychological and ongoing impact.  But nonetheless, as examples of the crime of intentionally cause injury for which you have pleaded guilty, these two stabbings are serious.  I have touched on aspects of your conduct that makes these serious crimes, such as the cowardly nature of the attacks when the victims were distracted or looking the other way.  The gratuitous, even retributive nature of the attacks upon you being ejected from the nightclub for earlier violence. 
The time and the opportunity that you had to separate yourself and head away from the nightclub entrance once you were ejected that you did not take up also adds to the seriousness of the crime.

19Of course, adding again to the seriousness of the crime was your use of a potentially deadly weapon on a public street on two occasions.

20Your counsel submitted that your actions were more spontaneous.  While it is clear, and I accept that this was not an attack planned before you went to the nightclub or any time that you were in the nightclub, nonetheless, as I have said, you had time to walk away, but rather you got your knife out, waited for your best opportunity to stab the first victim before running away, then returning again to attack the unsuspecting second victim.  These were not spur of the moment decisions.  This informs my assessment of the gravity of your crimes and your moral culpability.  I will defer further analysis of your moral culpability until I have discussed matters personal to you and the submissions of your counsel on the topic.

21The affray and the common assault in the nightclub are also troubling.  You and Bell were the instigators.  Alcohol fuelled violence inside nightclubs must be roundly condemned.  It diminishes the enjoyment of the many who should be able to safely enjoy a nightclub in a modern city, it creates difficulties for the security staff and it could escalate things as it did on this occasion.

22Before leaving the question of the gravity of your crimes, I need to consider your prior criminal offending as it is the case that you have some concerning criminal convictions and attendances at the Children's Court as a result of your violence.  Your two appearances in the adult courts were for a similar offence of violence being recklessly cause injury.  This was heard on 14 February 2017 in which you were fined.  The other matter was for a number of weapons and drug offences, which again saw fines imposed by a magistrate on 10 October 2016.

23Much earlier, in the Children's Court, you were dealt with on 22 September 2011 for affray and recklessly causing serious injury and earlier again, by some two years or more on 22 January 2009, you were before the Children's Court for affray and intentionally cause injury.  These Children's Court matters are old and I do not overlook that those matters were when you were a child, indeed in the first instance, a very young child.  However, all your priors are for violence and possession of weapons.  As I have noted, they are relevant.  It makes this offending all the more serious.  These matters also impact upon the weight to be given to the sentencing purpose of deterrence to you and to my consideration of your prospects of rehabilitation.  I will deal with these and all other sentencing purposes shortly.

24Before doing so, I turn to matters personal to you.  You are now 26.  You were 25 at the time.  You were raised in the Geelong area.  You have an older brother.  Your mother, the proprietor of a small business, has been and remains a strong and loving support to you, so too her partner.  Your mother's letter was important in this plea and I have considered every word of it.  Your education was successful to Year 12 level in the vocational stream, VCAL.  This is very much to your credit as you have had a diagnosis of ADHD since early childhood.  I will say more of this shortly.

25You successfully moved from school to vocational employment as an apprentice boilermaker, first at Ultimate Plant Trailers in North Geelong. 
You were there for your apprenticeship and beyond, a total of six years. 
It is not small matter for a young man.  You then moved to another like business working for about six months.  That employment ended as the business experienced a lack of work and you were put off.  You were off work for only a short period of time before securing a job at Hanlon Industries, that is on
10 April 2018.  The general manager, Mr Tom Hanlon took the time to write a very helpful letter, setting out your strong work ethic.  He wrote after having spoken to your direct supervisor, your direct supervisor says that you are "Willing to learn, willing to listen, punctual, quiet, courteous and reliable." 
That supervisor says that you are still young and so you still have a lot to learn in your trade, however in terms of productivity, he says "Ricky is unbelievable."

26Your supervisor says that you are a young man or a young kid who has made a mistake and it seems that you have learnt from your mistake and wants to do something in your life.  He spoke to, Mr Hanlon, as did your immediate supervisor, Mr Young, of your remorse and how the offences do not accord with how you conduct yourself at work.  Mr Hanlon writes, "When I found out about the charges facing Ricky, I was extremely surprised.  Ricky is a valued employee in the workshop.  He is relatively quiet, gets along with everyone, is cooperative, hard-working, well-mannered and polite.  Ricky has never shown any signs of violence or aggression in the workplace.  He has explained to me that he is remorseful for his actions.  Ricky has told me he enjoys being at work because it keeps him focused and it keeps him away from the group of people that are not good for him."

27It continues, "We hope that the above," he is speaking to me, the sentencing judge, Mr Hanlon writes on behalf of himself and Mr Young and the business itself, "We hope that the above, coupled with your remorse, the fact that you had turned your life around and that you have permanent ongoing employment holds weight during Ricky's hearing."  I pause to say that it does.  The effort of your employer is to be commended.  They go on to say, "Ricky's absence from Hanlon Industries will be noted, however we will have a job waiting for him when he returns."

28Mr Hanlon also emphasises that the importance of mental health within the place that you are working.  This is the place for you, Mr Rose-Mooring, and it is of great comfort that you will have a job waiting for you when you return. 
As I will say in respect of your mother and your family, that you should not let them down.  You should not let your employer who is holding out hope for you down again if you return back there.

29Your work history is to your credit.  It also gives a good foundation to your prospects of reform.  As mentioned, you were diagnosed with ADHD as a child.  You were treated by your general practitioner and a paediatrician with the prescription, Ritalin.  The medication seems to have improved your concentration and lessened your anxiety and your impulsivity.  You were seen by a specialist child and adolescent psychiatrist in your adolescence, that is
Dr O'Brien.  You saw him four times between 2011 and 2016.  He noted your improvements which continued when you moved onto the medication dexamphetamine.  

30You have of late been treated by a psychologist, Mr David Sullivan.  You have seen him four times from October 2018.  The last of those attendances was in mid-January 2019 in circumstances of urgency as you found yourself suffering an episode of acute paranoia.  This led Mr Sullivan to the view that you have a chronic, complex multifaceted disorder from which he sadly believes will be lifelong and not likely to remit.  That is the case despite your appropriate medication and treatment for ADHD as a child and in adolescence and your current psychological treatment.  He considers you will need ongoing expert psychological treatment lifelong.

31Your counsel submitted on the basis of your history and the expert opinion, you have an impaired mental functioning as relevant to the sentence process in the way described in a well known case of Verdins & Ors v The Queen.  Specifically, your counsel argued that all six matters referred to by the Court of Appeal in Verdins were of mitigating operation in your case.  The expert reports do establish your lifelong ADHD together with anxiety.  You have been medicated and appropriately treated such that you have been able to complete secondary school, secure solid, lengthy and almost continuous periods of employment, including completing an apprenticeship.  You have and continue to impress your employers.  You are seen by your mother as committed to your family life.  Indeed, when ill-health struck your family in 2017, you were motivated and capable of looking after much at home as well as holding down a full time job.  These are no small matters for a young man with your difficulties at your age.

32You have had a solid long-term relationship, a girlfriend.  Though you have drunk to excess and used drugs, it has not impaired your capacity to work.  Thus, while I am of the view that your ADHD is what is described as an impaired mental functioning, the overall impact on your adult life is limited. 
While Mr Sullivan described the common features of ADHD to include impulsivity and impaired judgment, it seems by and large you are not chronically impaired in these ways.  You may appropriate decisions most of the time.

33The complication in this case is your intoxication on the night.  The alcohol you had on the night also worked to disinhibit you.  You acted in the way that you did because you, with your ADHD problems, were seriously drunk. 
Your aggression stems from all those factors, not one unconnected from the other.  Thus, the mitigatory aspect of your impaired mental functioning are more complicated because of your intoxication, which, as I said, facilitated or contributed to your unrestrained, ill-considered actions.  Intoxication in all these circumstances is not mitigatory, on the contrary.

34The contention put by your counsel in a very considered plea on your behalf, both written and oral, was firstly that your moral culpability for all your crimes ought be seen as lower by reason of your impaired mental functioning.  As discussed, your actions could not be seen as simply spontaneous. 

However, I am not prepared to dismiss the role of your impaired mental functioning.

35It seems on balance that the interpretation of the case of Verdins in the circumstances of your impaired mental functioning results in an appropriate but moderate lessening of your moral culpability.  This means I will lessen to a moderate degree the weight to be given to denunciation.

36Your counsel further argued at the time of the plea that I should also moderate the weight to be accorded to general deterrence and specific or deterrence to you.  This morning, I referred counsel to the sentencing appeal portion of the recent decision of the Court of Appeal in Davies v The Queen, which was published yesterday, [2019] VSCA 66. In light of the judgment in
Davies v The Queen, especially at paragraph 688, counsel did not seek to press the general deterrence or specific deterrence ought be moderated in your case.

37As I said at the time of your plea, and I repeat here, it seems to me the community would well understand you being used as an example to others and that you well understand the concept of deterrence to yourself, notwithstanding your impaired mental functioning or your ADHD and anxiety.

38After discussion about the nature of your impaired mental functioning, your counsel's sensible submission this morning was that your moral culpability ought be moderated to some degree but that it could not be substantial.  I agree with those submissions as I have already indicated.

39It was further submitted that little could be said of the impact of prison on you since your remand, that is in the last 42 days, as the unique circumstances of a lockdown due to the outbreak of influenza in the prison meant you had not experienced the usual routines or interactions with others in the prison thus far.  I also take into account that your experience in prison in the 42 days has been by and large in lockdown and harder due to that.  I have moderated your sentence because, with your impaired mental function, you will likely find prison, when the routines become more ordinary, more onerous.

40Your counsel sought a community corrections order in alone or in combination with a term of imprisonment.  The prosecution contended that was not a sentence that would be within the sound exercise of my sentencing discretion.  The prosecution contended a sentence of imprisonment and a non-parole period was the only just and appropriate sentence.

41Before turning to the sentencing purposes and ultimately my sentence,
I emphasise that your plea of guilty and its early timing are important mitigatory matters.  Your sentence is, when I announce it, less than it otherwise would have been.  Also apart from the utilitarian benefits of your plea of guilty, I take your plea to the evidence of your remorse.  As I pointed out, there is solid evidence of your remorse.  I here base this on the evidence especially from your mother who knows you best, from your employer, your friends and
Dr Sullivan.

42The material that was gathered about you from all those sources, family friends, employers, taken together with your own efforts to manage and significantly moderate one, your anger, two, your abuse from time to time of alcohol and three, your antisocial associates, that is to separate from them.  All these are important mitigatory matters.  It shows your determination to rehabilitate and to start that as soon as possible after you woke up to yourself as to the seriousness of this crime.

43Those matters add to your genuine remorse and your determination not to behave violently in the future.  You have qualities that will likely see you rehabilitate.  I consider your prospects to be reasonable.  The ongoing support of your family is important here, as I have said, you should not let them down and have them go through all of this again.

44I had you assessed for a community corrections order and the report is unsurprisingly favourable.  However, when I consider all the significant matters for you and the matters against, I have come to the grave conclusion that the only sentence that I can pass is one that requires imprisonment and for longer than will allow for than a community corrections order.

45I must denounce your conduct, though that is somewhat moderated as discussed because of your impaired mental functioning.  I must contribute to the courts' ongoing efforts to deter others from knife wielding and alcohol fuelled violence and crime in our streets and nightclub districts.  Such violence is corrosive.  It creates fear in our community.  It's every parents' nightmare that their children won't come home safely.  It is a problem that must be addressed by firm and stern punishment.

46You yourself must be deterred and the protection of the community must be given its proper place.  As I have made clear, your rehabilitation is not overlooked.  You are still relatively young and have reasonable prospects, but in the end your rehabilitation must, to a degree, yield to the other sentencing purposes that I have outlined.

47What I have in order to facilitate your rehabilitation is the potential for parole and I will allow for a period, in my view a significant period, of potential parole.

48I must recognise that there were a number of crimes and victims.  These cannot simply be overlooked with a concurrent sentence.  There must be some measure of cumulation, though itself must be measured and I have endeavoured to achieve that.

49Mr Rose-Mooring, can you please stand?  For committing the crime of intentionally causing injury, Charge 1, which is directed at the nightclub owner, you are sentenced to two years' imprisonment.  In respect to Charge 2 of intentionally cause injury, which is directed at the victim, the security guard, you are sentenced to two years and four months by reason if the more seriousness and potential for serious injury.  In respect to Charge 3 of common assault inside the nightclub, you are sentenced to two months' imprisonment.  In respect of Charge 4, the affray, you are sentenced to four months' imprisonment.

50I order that eight months of Charge 1 and four months of Charge 4 be cumulative upon each other and on the base sentence in Charge 2 of two years and four months.  That provides a total sentence of three years and four months.  I should add at this point you were charged with the summary offence of being armed with a weapon in the vicinity of a nightclub, that matter is proven and discharged.

51In fixing a non-parole period, I fix a term of two years.  That will seem to you an inordinately long time.  But in my view, it is as merciful as could be for this violent offending.

52Had you pleaded not guilty to these offences and been found guilty of them, I would have sentenced you to six years with a minimum of four.  You have already served 42 days in gaol.  That figure having ben reckoned, I declare that 42 days as part of the sentence that I have just imposed.  I will ensure that that is entered into the records of the court so as the authorities are left in no doubt that you have already served 42 days of the sentence I have just imposed.

53There are a number of orders that are sought which are forfeiture and disposal and I intend to make those orders.  A further and perhaps unusual order is one that seeks to have you, because of your intoxication, because of it significantly contributing to the commission of the offence, the subject of an alcohol exclusion order.  I need to be satisfied on the balance of probabilities that intoxication at the time of committing the offence significantly contributed to the commission of the offence, I have no doubt about that and I find it on the criminal standard.

54You have not or have not been the subject of a previous alcohol exclusion order.  Thus, I intend to make the alcohol exclusion order against you.  This will prohibit you for a period of two years from entering or remaining in any licensed premises characterised as a nightclub, bar, restaurant, café and reception centre, entering or remaining at a location of any major event as described under the Liquor Control Format, entering or remaining in a bar of any licensed premises to which paragraphs (a) and (b) do not apply or consuming or attempting to consume any liquor in a licensed premises, which paragraphs (a) and (b) do not apply.

55Now, is there an operative period that that goes from or is it operative from
6 July 2018?

56MR SENIA:  Your Honour, the order is to commence, I'm referring to s.89D(e), paragraph (5B).

57HIS HONOUR:  Yes, you can seated, Mr Rose-Mooring.  You can be seated.

58MR SENIA:  So it will commence upon his release from custody.

59HIS HONOUR:  All right, released from custody.  I note that within the community corrections order report, there was a sense that you did not want to go to any of those places and to that end, the community corrections officer thought that this exclusion order was not necessary, I think it is and I make it.  Is there anything further about that?

60MS FRANJIC:  No, Your Honour.

61HIS HONOUR:  Thank you.  Is there anything further about any of these matters?

62MR SENIA:  Your Honour mentioned the forfeiture order.

63HIS HONOUR:  Yes.

64MR SENIA:  There is also an application for a forensic sample.

65HIS HONOUR:  Forensic sample?

66MR SENIA:  Yes, Your Honour.

67HIS HONOUR:  Is that opposed?

68MS FRANJIC:  It is not opposed, Your Honour.

69HIS HONOUR:  Mr Rose-Mooring, I have overlooked that the application has been made that you provide a forensic sample, a scraping of your mouth. 
That application having been made, I intend to grant it because the seriousness of these offences because of your prior criminal history and because it is in the interests of justice that you provide a forensic sample and it is in the interests of justice that the order be made.

70What you have to understand is when the authorities come to take that forensic sample from you, that if you do not cooperate, then they are authorised to use reasonable force to get that forensic sample.  The way through it is, as your counsel has just said you do not oppose it, the way through it is to cooperate.  I will sign those orders.

71What I am told about this alcohol exclusion order is that you have to sign it,
Mr Rose-Mooring, to say that you understand it.  So that will be provided to you by your counsel.  It is simply to say that you understand it.  You do not have to agree with it?

72MS FRANJIC:  May I leave the Bar table, Your Honour?

73HIS HONOUR:  Yes, of course.  I do have to be elsewhere.

74MS FRANJIC:  I presume that my client will get a copy of this order for his records?

75HIS HONOUR:  Of course, he will get a copy of everything.  You will get it.

76I thank counsel for their very considerable assistance in respect of this matter and keeping up to date with the law as it unfolded.  Mr Rose-Mooring, you have to go downstairs.  Your family will be in touch with you at the prison.  

(Prisoner removed.)

77Again, I thank counsel.  I thank all those that are here for putting up with it.

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