Director of Public Prosecutions v Rucker

[2022] VCC 1001

IN THE COUNTY COURT OF VICTORIA Revised
Unrestricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR-21-00010

DIRECTOR OF PUBLIC PROSECUTIONS

v

NATHAN RUCKER

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JUDGE:	HIS HONOUR JUDGE O'CONNELL
WHERE HELD:	Melbourne
DATE OF HEARING:	28 October 2021, 23 June 2022
DATE OF SENTENCE:	23 June 2022
CASE MAY BE CITED AS:	DPP v Rucker
MEDIUM NEUTRAL CITATION:	[2022] VCC 1001

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:  Sentence after guilty plea; Aggravated burglary; Intentionally damage property; Common law assault; Make threat to inflict serious injury; Possess drug of dependence; Serious examples of serious offending; Protection of the community; Denunciation; General and specific deterrence moderated by Verdins principles; Reduced moral culpability in context of childhood abuse and significant psychological problems; Remorse; Early plea of guilty during currency of COVID-19 pandemic; Delay; Prospects of rehabilitation.

Legislation Cited:     Sentencing Act 1991 (Vic)

Cases Cited:R v Verdins & Ors (2007) 16 VR 269; Bugmy v The Queen (2013) 249 CLR 571; DPP v Herrmann [2021] VSCA 160

Sentence:Total effective sentence of 5 years 3 months imprisonment, non-parole period of 3 years 3 months.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms E. Fargher	Office of Public Prosecutions
For the Accused	Ms B. Oliver	Rolfe Criminal Law

HIS HONOUR:

Introduction

1Nathan Rucker, on 28 October 2021 you pleaded guilty to five charges comprising Indictment L12290963.

2Those charges were:

(a)   that on 24 September 2020 at Long Gully you entered as a trespasser a residential unit in Wells Street, with intent to commit an offence involving an assault to a person and at the time you had with you an offensive weapon, namely an axe (Charge 1);

(b)   that on the same day you intentionally and without lawful excuse damaged a coffee table, television and chair belonging to Elise Grayson (Charge 2);

(c)   that on that same day you assaulted Elise Grayson contrary to common law (Charge 3);

(d)   that on that same day you without lawful excuse made a threat to inflict serious injury to Elise Grayson, intending that she would fear that the said threat would be carried out or being reckless as to whether or not she would fear that the said threat would be carried out (Charge 4); and

(e)   possession of cannabis (Charge 5).

3I heard further submissions this morning, 23 June, and as I have indicated, I will now proceed to sentence.

Circumstances of the offence

4On Thursday, 24 September 2020 at about 6.10 pm you drove to Ms Grayson's home address in Wells Street in Long Gully. At the time Ms Grayson lived at that property alone. You were known to the victim through her partner, Chris Purvis, although she was not personally friends with you. Prior to this offending she had met you on perhaps three or four occasions when you had visited Mr Purvis at her home.

5At the time you attended at these premises you were angry at the victim's partner, Mr Purvis, apparently because you thought he owed you $100. When you arrived at the property you found that no one was at home and you decided to sit outside the property in your car. As you waited you consumed some Bourbon.

6At about 6.30 that evening you got out of the car and armed yourself with an axe and walked up the driveway. Unfortunately, Ms Grayson had recently arrived home and was sitting alone in the lounge room of her home when she heard some banging and clanging and the sound of metal on metal coming from the side of her house. She then heard someone trying to get in the back door.

7You entered the victim's home through a side door, walked into the lounge room where you confronted the victim whilst holding the axe. She saw the axe and thought that something was not right, and became, as she put it, “really scared”. It is that conduct which constitutes Charge 1 on the indictment, aggravated burglary.

8You then asked Ms Grayson where Mr Purvis was and began yelling and ranting at her about him owing you money. Your voice and your body language was particularly aggressive and Ms Grayson told you to 'get the fuck out of her house'.

9She feared that you might hurt her and she tried to run to her bedroom and to the front door. However, you chased her, grabbed her by the arm and dragged her back to the lounge room. You pushed her face down onto the floor and struck her in the middle of her lower back. While doing that you yelled at her to listen to you and told her that you were in charge. It is that conduct which constitutes Charge 3 on the indictment, common law assault.

10You then told Ms Grayson to call her partner, Mr Purvis, whilst you held her on the floor. The victim did as she was told and made a call to Mr Purvis using her mobile phone. When he answered, she screamed into the phone and hung up. When Mr Purvis received that call he immediately phoned the police.

11You and the victim struggled over the phone before you pulled her off the ground and over to the area where the TV was located in the lounge room. You said to the victim, 'I'm going to cut you up. People who fuck around get their hands chopped off'. While you said this you swung the axe around and the victim thought that you were going to chop off her hands. It is that conduct which constitutes Charge 4, making a threat to inflict serious injury.

12You then swung the axe at the coffee table, at the television and at a chair, causing damage to each of those items and that conduct constitutes Charge 2, intentionally damaging property.

13Ms Grayson asked you if she could sit on the couch and you allowed her to do so. You threw the axe to the floor on the side of the couch and knelt down on the floor in front of the victim and began yelling at her.

14You told her that she was going to be there for a long time and that she was not going anywhere and that you would kill her. You continued to be aggressive but over time calmed down somewhat and you told the victim that you had broken up with your girlfriend and that it was hers and Mr Purvis' fault.

15After a short time police arrived at the property in response to the call that had been made by Mr Purvis. The victim shouted for help and police entered the house through the front door. When they did so you moved into their view, placed your hands above your head and identified yourself when requested to do so by police. You then proceeded to comply with further police directions and were arrested.

16Police located a small plastic container in the pocket of your pants containing about 1 gram of cannabis. That possession forms the basis of Charge 5 on the indictment.

17The following day you were interviewed by police. During that interview, you told them that you were 'super drunk' and you admitted that you went to the property to 'bash that junkie round the corner'. You told police you 'wanted to beat the fuck out of the dickhead around the road'. You said, 'I just wanted to punch that Chris cunt in the head like real bad. I just wanted to fuckin' at least break a cheekbone or two'. You also said in that interview that Chris had ripped you off and owed you $100. You said that you had given Chris $100 to buy you drugs but you never received any drugs, and that you were 'just surprise attacking him'.

18You said that you drove to the property then sat outside, drinking, when no one was home. You said initially that you did not have any memory of being inside the victim's house, but later remembered the victim screaming at you in the lounge room. You also said some disparaging things about the victim.

19However, you also recognised at times that you had behaved in an appalling way. For example, you admitted scaring the victim, saying, 'I don't want to go and scare chicks either. Like it's just an arsehole fucking thing to do but obviously I did it and I am feeling really low about that as well'. You said that you felt like a 'dickhead', apologised to the police and said the victim would have felt terrified obviously, 'that's why it shut me down I suppose, because I realise I was scaring the piss out of some poor bitch'.

20You admitted that you had drunk a fair bit of Bourbon in the past and that this sort of thing had happened before. You said that someone you drink, 'I – I just wig out. I hung myself last time. I got super drunk. It was just fucking shit in my head. I get way too over-reactive or emotional or fuckin’ things go stupid'.

21You were then remanded in custody where you have remained to this day. There is no victim impact statement filed in this matter, however, it is clear that this must have been a terrifying ordeal for the victim, bearing in mind that you were carrying an axe and you assaulted her and threatened to inflict serious injury upon her.

Procedural history

22As to the procedural history of this matter, you entered a plea of guilty at a committal mention hearing on 6 January 2021 and I am therefore satisfied that you entered your plea at the earliest practicable opportunity and for reasons I will elaborate in a moment, your sentence will be significantly reduced.

Personal circumstances

23Turning to your personal circumstances, you were born in May 1986 and are now 36 years of age. You were 34 when you committed these offences. You grew up in rural Queensland and your biological parents separated when you were three years of age. Your biological father drank heavily and regularly physically assaulted your mother and you.

24Even though you were very young, you still have vivid memories of your father trying to kill your mother by smothering her with a pillow and having threatened her with a gun. You were also severely assaulted even though you were still in nappies.

25Your mother re-partnered but your stepfather was also abusive to both you and your mother. For example, on one occasion that you related to your solicitor, when you were six or seven your stepfather beat you severely because he saw you wearing what was described as nice clothes and told you you were 'getting above yourself'. You spent much of your childhood trying to appease your stepfather so as to avoid being beaten and that situation persisted until you were about 16 or so when you were better able to defend yourself.

26Beyond that extreme family violence you were, I was told, the victim of sexual abuse when you were about eight years of age. You told your assessing psychiatrist, Dr Zimmerman that you had not disclosed that abuse at the time because of threats made to you and that you had not received any subsequent counselling or treatment for that abuse.

27Interestingly, when this matter was before me in October of last year there was a concern that you may have had some cognitive deficits. The neuropsychological material available at that time was limited because you could only be assessed over a video link. The matter was adjourned to enable a proper assessment and a further report from Dr Evelyn Chen, neuropsychologist, of 2 May 2022 was tendered in this morning's further plea.

28Dr Chen found upon further testing that you have a full scale IQ in the order
of 117, that is, in the high-average range, and that you do not suffer from any cognitive deficits. Dr Chen's findings are reflected in your academic performance – that despite the terrible situation at home you appear to have done quite well at school, achieving high academic grades. You left school halfway through Year 12 and commenced working in forestry because you wanted to earn some money at that time.

29Between the ages of 18 and 26 you were employed in a number of manual jobs. The main employment that you had during that period was for a wood products store. When you were 26 years of age you had to have a hip replacement operation, which meant that you were unable to continue to do manual work in the way that you had previously and you ultimately went on to the disability support pension.

30You were involved in a relationship from an early age with a young woman you knew as a teenager and there are two children of that relationship, now aged 12 and 8. Unfortunately, you no longer have contact with them. It seems that you started abusing alcohol at an early age but that once you went on to the disability support pension you lost purpose and direction and started, in addition to abusing alcohol, using methylamphetamine. In that context your first relationship dissolved. A further relationship ended some time afterwards after the stillbirth of a child.

31You have a relevant criminal history which commenced with one appearance in 2007 where you received a drug diversion for possession of dangerous drugs. Thereafter, between 2014 and 2020, you were dealt with for committing a number of drug offences in particular, which were heard summarily and for which you were punished by way of fines, probation and, most recently, on
24 February 2020 at Caboolture Magistrates' Court in Queensland, a three month sentence of imprisonment, which was suspended for a period of
12 months. You were subject to that sentence when this offence was committed. Also relevant is the fact that you have a prior conviction for an offence described as ‘going armed so as to cause fear’ for which you were fined $500, again on 24 February 2020.

32Your psychiatric and psychological history is complex and troubling.
Dr Zimmerman summarised it in this way at paragraph 115 of her report:

'Mr Rucker presents with personality traits of mixed borderline antisocial type. Such traits include his unstable, intense interpersonal relationships and his intense inappropriate anger and difficulty controlling his anger.
Mr Rucker's affective instability due to marked reactivity of mood has led to intense episodic dysphoria, recurrent self-mutilating and suicidal thoughts in his later years and reckless substance abuse. It is not possible to make a diagnosis of a personality disorder on the basis of a single interview and without any collateral information that is not based largely on his own account. However, his reported early experiences of trauma are likely to have increased his poor sense of self-esteem and contributed to an impaired ability to cope with stress or negative emotions. Mr Rucker failed to develop the ability to self-soothe or manage negative emotional states and described a (indistinct) pattern of managing distress through self-harming behaviours, aggression and substance misuse'.

33On the plea I was taken to some significant events involving self-harm or attempted suicide events which included the following. In April 2016 you inflicted a serious chest wound on yourself requiring surgical investigation and psychiatric hospitalisation. In June 2019 you attempted to hang yourself and were thought to have suffered a hypoxic brain injury as a result. Fortunately, Dr Chen, as I have indicated, was able to rule that out, but it was nonetheless a very serious attempt. In December 2019 you again attempted suicide by slashing your wrists, and in May 2020 you were admitted to the emergency department of Bendigo Hospital with self-inflicted knife wounds to the neck and forearm. Those incidents underline the severity and the precariousness of your mental health difficulties, even if there be no firm diagnosis.

34Your condition is, of course, complicated by your continued abuse of alcohol and methylamphetamine, which appear to have accompanied most, if not all, of the episodes I have just described. You have now been in custody for about 20 months, and I will take into account the fact that you have endured that incarceration in the extremely restrictive conditions imposed by the prison authorities to deal with the pandemic.

35To your credit, you have set about availing yourself of every possible educational and rehabilitative course open to you and I have been provided with a large number of certificates of completion from various rehabilitative courses, such as the ATLAS program and various other drug and alcohol programs, some of which are quite lengthy. I accept that you are highly motivated to abstain from further drug and alcohol abuse. You appear to be quite insightful as to how it has ruined your life. Obviously, the test will come when you are no longer within the structured environment in prison.

36Your educational pursuits are equally impressive. It seems you have applied your considerable intellect to the various vocational courses available to you, particularly in the fields of engineering and horticulture. You have also maintained contact with your half-siblings and your mother and I am told that when released you plan to return to Queensland to live with your brother.

Defence submissions

37Ms Heley submitted on your behalf that the principles in Verdins’s case were engaged insofar as those principles operate to moderate general deterrence and specific deterrence. It was also submitted that the nature of your childhood experiences rendered you less morally culpable than an offender who had not had such experiences. Ms Heley also relied on your plea of guilty, particularly its utilitarian benefit, what she contended was your remorse, the delay in the resolution of this matter and, in particular, how you have used the delay to enhance your prospects for rehabilitation.

Prosecution submissions

38Ms Fargher submitted on behalf of the prosecution that this offending encompassed confrontational aggravated burglary in that you intended to confront the victim's partner about a debt. The victim was entitled to feel safe in her own home, it was submitted, and you violated that sense of safety when you broke in, wielding an axe. Moreover, you grabbed and struck the victim when she tried to run away. Clearly, it was submitted, this was a serious example of serious offences.

39The prosecutor did accept that general deterrence may be moderated by your mental condition but submitted that there was still a significant role for that sentencing purpose to play, as there was for specific deterrence and the protection of the community. It was also quite fairly acknowledged that the considerations discussed in Bugmy as to a reduction in moral culpability are indeed apposite to your circumstances. Both counsel accepted that the only appropriate penalty was the imposition of an immediate term of imprisonment and the fixing of a non-parole period.

Consideration

40Turning to my consideration of these submissions, I should say that I readily accept Ms Fargher's assessment of the nature and gravity of this offending. To have terrorised the victim, who was alone, vulnerable and completely defenceless, with an axe, is completely and utterly unacceptable and must merit substantial punishment. I accept that you have a debilitating mental health condition, but you are intelligent enough and insightful enough to understand that your condition is badly exacerbated by self-induced alcohol and methylamphetamine abuse and that was precisely the case in this instance.

41Be that as it may, I also accept that there is scope to reduce the emphasis that might otherwise be placed on general deterrence because of your underlying psychological condition. You are not, as I perceive it, an ideal vehicle for general deterrence, but that sentencing purpose is by no means wholly eliminated in this sentencing exercise.

42Having regard to your prior convictions and now being satisfied that you do not suffer from any cognitive deficits, specific deterrence also has a role to play in your sentencing, though that purpose too should be, I think, moderated. On the other hand, the protection of the community, as was discussed on the plea, acquires some importance in your case, having regard to your history and the use of violence on this occasion. Equally, it almost goes without saying that what you did must be also denounced.

43I do accept your counsel's submission as to there being some basis on which to reduce moral culpability by the application of the principles in Bugmy. Those principles were helpfully discussed in a decision of our Court of Appeal in DPP v Herrmann [2021] VSCA 160, where the five-member Bench stated, by reference to the High Court decision in Bugmy, at [36]:

'As to deprivation, the submissions on behalf of CH rested on what was said by the High Court in Bugmy v The Queen. The court there expressed in two different ways the potential relevance of childhood deprivation to the assessment of moral culpability. The first more general expression was as follows: The circumstance that an offender has been raised in a community surrounded by alcohol abuse and violence may mitigate the sentence because his or her moral culpability is likely to be less than the culpability of an offender whose formative years have not been marred in that way'.

44The second, more specific expression was in these terms:

'An offender's childhood exposure to extreme violence and alcohol abuse may explain the offender's recourse to violence when frustrated, such that the offender's moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender'.

45Importantly, the High Court also said:

'The experience of growing up in an environment surrounded by alcohol abuse and violence may leave its mark on a person throughout life. Among other things, a background of that kind may compromise the person's capacity to mature and learn from experience. It is a feature of the person's make-up and remains relevant to the determination of an appropriate sentence notwithstanding that the person has a long history of offending. Because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving full weight to an offender's deprived background in every sentencing decision'.

46It is, I think, not difficult to conclude that your experiences in childhood have left their mark on you in the form of the severe psychological problems you appear to have and in your resort to violence. Accordingly, I will apply the principles as have been submitted and your moral culpability will be reduced.

47Beyond those considerations, as I have indicated, your plea of guilty, particularly because it has been made during the pandemic, and, I accept, accompanied by some remorse, will substantially reduce your sentence. During the delay to the finalising of your case you have, I think, shown a motivation to change, given the way that you have used your time in custody, and I will particularly take that matter into account in fixing the non-parole period.

Sentence

48Taking all relevant matters into account, you will be sentenced as follows, Mr Rucker:

(a)   on Charge 1, aggravated burglary, you will be convicted and sentenced to serve a term of imprisonment of four years and nine months;

(b)   on Charge 2, intentionally damaging property, you will be convicted and sentenced to a term of imprisonment of three months;

(c)   on Charge 3, common law assault, you will be convicted and sentenced to a term of imprisonment of six months;

(d)   on Charge 4, making a threat to inflict serious injury, you will be convicted and sentenced to a term of imprisonment of six months;

(e)   and on Charge 5, possession of cannabis, you will be convicted and sentenced to pay a fine of $100.

49I will order that three months of the sentence imposed on Charge 3 and three months of the sentence imposed on Charge 4 be served cumulatively upon the sentence imposed on Charge 1, with all other sentences to be served concurrently. Accordingly, that renders a total effective sentence of five years and three months and I will fix a non-parole period of three years and three months.

50I will further make a declaration pursuant to s 18 of the Sentencing Act 1991 that you have already served 637 days by way of pre-sentence detention and I will cause that declaration to be noted in the records of the court.

51I will further declare pursuant to s 6AAA of the Sentencing Act 1991 that but for your plea of guilty you would have been sentenced to a total effective sentence of six years and six months and a non-parole period of four years and six months would have been set, and I will cause that declaration to also be noted in the records of the court.

52I will also make the order for forfeiture as has been sought.

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