Director of Public Prosecutions v Rosser
[2018] VCC 1517
•20 September 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE | Revised Not Restricted Suitable for Publication |
Case No. CR-18-01136
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
PETER ROSSER
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JUDGE: | HIS HONOUR JUDGE JOHNS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 4 September 2018 | |
DATE OF SENTENCE: | 20 September 2018 | |
CASE MAY BE CITED AS: | DPP v Rosser | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 1517 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW SENTENCE
Catchwords: Extortion – Threats to kill – Steps towards rehabilitation – Stable home environment – Troubled childhood – Limited relevant priors – Community Corrections Order.
Sentence: Three year Community Corrections Order
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms Kathryn Hamill | OPP |
| For the Defendant | Mr Greg Thomas | Greg Thomas Solicitors |
HIS HONOUR
Peter Rosser, on 4 September 2018 you pleaded guilty to one charge of extortion, namely that on 13 August 2015 you made demands for the repayment of a debt with threats to kill. The maximum penalty for this offence is 15 years’ imprisonment. Additionally, you pleaded guilty to a related summary offence, Charge 1, fail to answer bail. The maximum penalty for this offence is 2 years’ imprisonment.
You admitted the matters shown on your criminal record.
Tendered as Exhibit A and read aloud in Court was the amended summary of prosecution opening on the plea. The facts set out in Exhibit A are accepted by you through your counsel and form part of these reasons for sentence.
In summary, in August 2015 you were in a relationship with Alice Furber.[1] During your relationship, Ms Furber told you that her former partner Mr Jones owed her money that he was not paying back.
[1] Alice Furber is a pseudonym.
On 13 August 2015 you contacted Mr Jones using your own telephone number. Over a period of 2 hours in the early evening you made a number of calls and text messages to Mr Jones making demands and threats for money owed to Ms Furber. You threatened to injure or kill Mr Jones and his partner. You did not know your victim and did not identify yourself.
The text messages and phone calls as set out in Exhibit A demonstrate what can only be described as extremely chilling and terrifying conduct on your part. The threats you made were vile. They were directed not just at Mr Jones but toward his pregnant partner and his pet dog as well. You made it clear you knew where he resided. You threatened not only his life and the lives of his loved ones, you also threatened torture and you were graphic to a disturbing degree.
I have listened to Exhibit B, the recordings of the messages you left on your victim’s telephone. I was told you were inebriated whilst making these calls. You may well have been, however this is not apparent from the messages you left. Your voice is deep, gruff and undoubtedly threatening. It is clear your aim was to cause extreme fear in order for the debt to be repaid.
Mr Jones did not recognise your voice or phone number. Mr Jones owed money to
Ms Furber and another man by the name of Aitkin at the time of this offending. Following your threatening calls and messages Mr Jones called Mr Aitkin who informed him that he was not involved.Mr Jones then called Ms Furber who denied any knowledge of the calls being made but stated that she was struggling and had bills to pay. Mr Jones sent the money he owed Ms Furber - $6,262.50 - by way of electronic funds transfer soon after.
On 17 August 2015 you brought up the money transferred with Ms Furber and told her that $2,000 of it was yours to get your car fixed since you had facilitated the money being repaid. Ms Furber did not comply with your request and you were quite persistent in demanding that she did.
On 24 October 2015 you were arrested and conveyed to Moorabbin police station where a record of interview was conducted. You made denials in regards to your offending.
You were charged on summons on 11 April 2016 but failed to appear at the Filing Hearing at the Melbourne Magistrates Court on 17 June 2016 and a warrant was issued for your arrest. On 5 July 2016 you signed an undertaking of bail to appear at a Further Filing Hearing at Melbourne Magistrates’ Court, on 29 July 2016, which you failed to attend causing a further warrant to be issued. On 28 December 2017 you were arrested and spent 1 day in custody by way of pre-sentence detention. You were bailed on that day.
The matter resolved on 22 March 2018 and you pleaded guilty at the committal mention in April 2018. Your plea should be regarded as being at an early stage. You are entitled to the benefits that flow to you from your plea, being that it is some evidence of belated remorse and that it has utilitarian value.
Personal circumstances
You are 40 years of age and were 37 at the time of the offending.
Tendered as Exhibits 2 and 3 on your behalf were the reports of Ms Gina Cidoni, psychologist, dated 3 April 2018 and 28 August 2018, which set out your background and psychological assessment. In summary, you suffer from a complex combination of psychological issues.
It is uncertain where you were born as your biological mother gave you up for adoption when you were two years old. This separation has understandably had a deleterious effect upon you and I have also been told that you experienced trauma and abuse through the child welfare system prior to being placed with your adoptive parents.
You were raised in York, Western Australia by your adoptive parents along with your adoptive brother who currently resides in Perth. Your adoptive father worked as a school teacher and your adoptive mother works as a disability worker. Your adoptive parents encouraged you to seek out your biological mother which you did and discovered that she was both an alcoholic and heroin addict. You ceased further contact.
Despite having a stable and caring home life you left home at the age of 13 and spent time living in boys homes, hostels, on the street and living in cars. You spent time in secure welfare as well as intermittently returning to the home of your adoptive parents, but you eventually had a falling out with them.
You were diagnosed with ADHD at a young age and were medicated throughout your childhood.
You completed year 12 at Craigieburn Secondary College, afterwards attending a University course in Western Australia before becoming a qualified plasterer. You spent time working in the mines in Western Australia and worked in Tasmania for a period of time before moving to Victoria in 2012 where again you were homeless living in motels and your car. You continued plastering in Victoria but ceased due to having injured your back while plastering.
In 2015 you began a relationship with Alice Furber which lasted a couple of months during which time you stayed at her home in Parkdale. You described your relationship with Ms Furber as tumultuous as you were both abusing alcohol. Your relationship ended with Ms Furber following this offending and she had an intervention order taken out against you.
Following the end of your relationship your accommodation was again unstable until you began your current relationship with Lia Fasciale and began residing with her at her residential property in Maribyrnong.
Ms Fasciale, an office and marketing manager, gave evidence on your behalf on your plea. I found her a very impressive witness. She told me that she met you in June 2016. At that time you were living at back-packers accommodation. When Ms Fasciale went to Europe in July of 2016 she invited you to reside at her home while she was away so that you could look after her cat. You did so and have been there ever since. Ms Fasciale returned from Europe in August 2016 and from that time to the present you have been in a de facto relationship with her.
Ms Fasciale provided me with considerable insight into the difficulties faced by you, most typically in managing severe anxiety, ADHD and the personality issues flowing from childhood trauma. I was told you are effectively housebound due to anxiety.
Ms Fasciale has been central to your efforts to seek appropriate medical assistance for your problems as well as helping manage your problem with alcohol.Ms Fasciale’s evidence supports your counsel Mr Thomas’ plea that you are a different man from the offender of August 2015. I accept that. I also accept the thrust of her evidence which supports Mr Thomas’ submission that your complex psychological makeup would make a period of incarceration extremely difficult for you.
Ms Fasciale’s presence in your life, and her support of you in many ways, provides me with some confidence that you can be rehabilitated.
Psychological background
In 1998 you were diagnosed with ADHD, conduct disorder, attachment disorder and depression by Dr Geoffrey Dixon, psychiatrist.[2]
[2]Exhibit 5.
In 2011, you saw Dr Steven Proud, psychiatrist who made mention of Bipolar Affective Disorder but did not agree there was a strong case for a diagnosis of Bipolar Disorder.
In his report dated 30 June 2018, Dr Ravindra Srinivasaraju of the Harvester Consulting Clinic diagnosed you with ADHD and chronic depression. [3]
[3]Exhibit 6.
Two reports of psychologist Ms Gina Cidoni were tendered on your behalf.[4] Ms Cidoni opined that your overall clinical picture is consistent with an adult ADHD profile and a persistent depressive disorder. Ms Cidoni further notes there is a high chance you are suffering from Bipolar disorder and you have post traumatic symptoms, mainly of avoidance behaviours and arousal.
[4]Exhibits 2 and 3.
Ms Cidoni writes:
“In an effort to explain his offending behaviour, Mr Rosser was consuming alcohol excessively. He also reported poor compliance with his prescribed medication. Taken together, the writer is certain he was demonstrating extreme symptoms, particularly with agitation and an inability to contain or control his emotions. It is likely these symptoms were present at the time of offending where his behaviour may have not have been in his control. His psychological state clouded his judgment in this time and excessive drinking produced confusion and he was disinhibited.”
Ms Cidoni noted that you continue to struggle with fluctuating mood states and that due to this you would “experience hardship coping in a prison environment that can be harsh and tense and where your presentation could be misinterpreted by others.”
In Ms Cidoni’s view, prison would also serve to “further deteriorate your mental health where you may harm yourself.”In her report dated 3 April 2018, Ms Cidoni stated: “Care and understanding is required in this very reduced man’s case. Regular psychological counselling is also recommended as an adjunct to psychiatric therapy.”
In her most recent report Ms Cidoni concluded that you are in need of professional counselling and in her view alcohol and the misuse of prescribed medications, namely Ritalin: "provided precarious escape and relief as well as reducing your control over good judgment and clear thinking.”
Your counsel Mr Thomas urged me to accept a causal link between your mental impairment and the offending behaviour such that I should reduce your moral culpability from what it otherwise would be.
As I stated during the plea, your complex psychological profile and the circumstances of the case make such an exercise difficult if not impossible. Alcohol abuse and the misuse of prescribed medication played a role in reducing your inhibitions, your impulse control, and any sense of decent restraint. Aspects of your personality, ADHD, the effects of childhood trauma, and depression and anxiety - all formed the psychological backdrop to your offending. In particular these factors contributed to your abuse of alcohol and abuse of your prescribed Ritalin regime, as well as contributing to the outpouring of vitriol and abuse once the ‘lid was off’ (as I understood the submission of your counsel Mr Thomas).
It is not possible to delineate, with any satisfaction, the contribution made to the offending due to a particular impairment, as opposed to a personality disorder, or the abuse of substances (or failure to take medication). Accordingly I am not able to sentence on the basis of a distinct reduction of moral culpability as understood in the Verdins sense.
However, as stated by me on the plea, I take your circumstances at the time of the offending, your difficult personal history and what has been described as your complex psychological makeup – and the nexus between it and the offending - into account in assessing your overall criminality, which necessarily involves an assessment of your moral culpability. To be clear, the effect of each of the factors I have set out is mitigating.
Hardship in Custody
For the reasons set out by Ms Cidoni already referred to herein, and on the basis of the evidence of Ms Fasciale, I accept that your experience in a custodial setting will be significantly harsher than it would be for an individual without your history and complex psychological makeup. I have given this factor considerable weight in reducing the sentence I would otherwise impose upon you.
Today I have received a psychological report rom Bernard Healy, Psychologist. I have also received further submissions from Mr Thomas. And I have also received the letter from Ms Fasciale. As previously indicated, I had considered a short period of imprisonment in combination with a Community Corrections Order may be necessary to reflect the important factors of general deterrence and denunciation. I was extremely troubled, however, about your ability to cope with even a very short sentence of imprisonment, particularly given my acceptance of your reformation (although you remain extremely vulnerable).
The further material provided , particularly confirmation of your mental health care plan, involving referral for psychological counselling, further submissions made by
Mr Thomas, and the matters that I accept in the letter by Ms Fasciale, have all persuaded me that a lengthy Community Corrections Order with appropriate conditions can meet all of the sentencing requirements in this case.
Remorse and Prospects of Rehabilitation
It was put on your behalf that your offending “terrifies” you and that you are “remorseful” for your conduct. I consider your remorse to be belated, however I do accept that in the words of your counsel, and as evidenced by Ms Fasciale, you have changed considerably from the individual who engaged in this offending in August 2015.
I accept that you have made progress in relation to alcohol abuse. Alcohol was a key ingredient of your relationship with Ms Furber at the time of your offending. Your consumption of alcohol is now within acceptable limits. You are no longer itinerant, you have a stable home and I am told you are compliant with medication and you are seeking the counselling and treatment you need to address your psychological issues.
You have a criminal record, including jail sentences in the late 1990s for dishonesty and burglary offences. In the past 10 years your criminal history does not present any particular concern in relation to these matters and I note that you do not have any prior convictions for threats or violence. There is certainly no prior occasion of anything remotely approaching the facts in this matter.
I consider your prospects of rehabilitation to be reasonable. However, a considerable aspect of this finding rests on the support in its various forms provided by Ms Fasciale.
Delay
Your counsel pointed to the period of delay between the commission of the offence and your plea hearing and placed reliance upon your good behaviour in the interim, as well as your change in personal circumstances and a degree of rehabilitation. I have accepted these matters, although as I pointed out on your plea, you were at large for a substantial period of that delay. In the circumstances of your failures to appear at court, the extent to which it can be said you were of good behaviour in the interim is tempered.
I was urged by your counsel to impose a sentence that avoids incarcerating you. I was urged to place you on a lengthy Community Corrections Order. As I have indicated, without the matters raised on the further plea I was leaning toward a short term of imprisonment substantially reduced, due to your personal factors, in combination with a Community Corrections Order.
Having given the matter deep consideration, I consider that a Community Corrections Order without a component of custody can reflect the weight that must be given to general deterrence, denunciation and just punishment in this case. Although your offending was of brief duration, the threats made by you over a carriage service constituting the offence of extortion were extremely chilling. The threats had the desired effect; the money was paid, and you sought a portion of the funds although you were never entitled to any portion.
As I have stated, due to the matters in mitigation available to you, but in particular due to the hardship you will experience in any custodial setting, and your rehabilitation over the past two years or so, I have reduced the sentence substantially from what it otherwise would have been.
You have been assessed as suitable for a Community Corrections Order. You have been assessed as being a medium risk of reoffending. I will impose a Community Corrections Order with the recommended conditions of community work, mental health assessment and treatment, supervision and judicial monitoring.
I sentence you as follows. Stand up, please, Mr Rosser.
On the charges of extortion with a threat to kill and on the charge of failure to answer bail, I convict you and impose a Community Corrections Order of three years' duration.
In addition to the core conditions of that order, I impose 300 hours of unpaid community work; mental health assessment, treatment and rehabilitation, and supervision. I will also impose a condition of judicial monitoring in your case. I will monitor your progress on the order at 9 months from today. I direct that up to 100 hours undertaken pursuant to the treatment and rehabilitation conditions can be credited as hours of unpaid community work.
Pursuant to s.6AAA, I declare that but for your plea of guilty, I would have imposed a sentence of 2 years imprisonment with a non-parole period of 18 months.
Mr Rosser, I imagine you understand how close you have come. It was more than three years ago, but it was very serious. You are going to be asked to sign the Community Corrections Order.
You must attend at the Sunshine Community Correctional Services within two days of today, any breach of this order and you will be back before me. You know how close you have come today, so you know what we will be looking at then.
OFFENDER: Yes, Your Honour.
I have also been asked to make an order pursuant to s.464ZF of the Crimes Act.
I will make an order that you undergo a forensic procedure for the taking of a scraping from the mouth, not a blood sample.I will sign that order now. I will provide a copy of the order, Mr Thomas. Nothing else required?
MS HAMILL: No, Your Honour.
HIS HONOUR: I thank Counsel for their assistance.
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