Director of Public Prosecutions v Ruge

[2019] VCC 345

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-01695

DIRECTOR OF PUBLIC PROSECUTIONS

v

TIMOTHY RUGE

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JUDGE:	HER HONOUR JUDGE HANNAN
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	22 March 2019
CASE MAY BE CITED AS:	DPP v Ruge
MEDIUM NEUTRAL CITATION:	[2019] VCC 345

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

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms J. Dickson
For the Accused	Ms N. Sheridan-Smith

HER HONOUR: 

1Timothy Ruge, you have pleaded to one charge of blackmail.  The maximum penalty for that offence is 15 years' imprisonment.

2The facts which found your offending are set out in the prosecution opening, dated 11 October 2018.  I do not propose to recite those facts in full now, noting that the document represents the agreed factual basis of your plea. 

3In essence, you were, at the relevant time, aged 34.  On 2 March 2018, the victim in this matter was using a dating application called Grindr.  At 3.25 pm, he initiated a conversation with a user profile being utilised by you.  The victim sent a picture of his face with the text, "Hi".  Following that, he received a text from you which made clear that you knew his name.  The victim enquired who you were and in response, you sent an image of the victim's fiancée's social media profile photo.  The accompanying message read, "She's pretty, you cheating bastard, (redacted)." 

4The victim again enquired who you were and questioned why you had an image of his partner.  You then sent an abusive message to the victim, calling him a "dirty cheat" and an "immoral little bitch".  Following this, you threatened the victim saying, "Call me again.  I'll send her the Grindr messages."  You told him that all the messages had been ‘screenshotted’.  The victim asked you what you wanted of him and how you found him.  You responded demanding $500 now and another $500 in 30 minutes.  You said, "Are we clear?"  The victim replied, "Wow, blackmailing me."  You responded in part by saying, "Lesson learnt and then I vanish." 

5There were then ongoing discussions in relation to the money, how it was to be transferred and the amount.  The victim told you he did not have $500 and offered $200.  You responded by telling him to borrow it and told him that you did not care.  You then told the victim to send money via a mobile app, using the number that he had available to him.  You told him he had five minutes.  The victim attempted to transfer the money, but was having problems with the application and communicated this to you.  Eventually an arrangement was made to meet at Southern Cross railway station. 

6At that location, CCTV camera footage captures you and the victim.  It was at that location that he handed you $200.  When the victim handed you the money, he said, "Here's the 200.  Please leave me alone.  Are we good?"  You agreed and left. 

7A short time later he received a further text message from you saying, "Thirteen hundred to go."  You told him, amongst other things, "We are not done."  A little under an hour later, you used a different phone to send another message saying, "Mate, get that 300 to my friend by six at the latest or I'll take your girl and make her mine."  This communication caused the victim to fear for his partner's safety and he contacted police.

8While he was at the police station making a report, there were further communications sent by you.  You left a number of voicemails on the victim's phone and I have had the advantage of hearing those upon the plea.  You are properly described as exhibiting at times aggressive, at times threatening and at other times taunting behaviour. 

9You were eventually identified as a result of CCTV footage being shown by way of media release by Victoria Police.  You were arrested on 4 May.  You made full admissions during the course of your record of interview.  I think it is fair to say that the contents of the record of interview, whilst containing the admissions to which I have referred, also demonstrate victim blaming and they are
self-serving and lacking in remorse, to the extent that you seek to take some perceived moral high ground.

10In my view it is clear that your motivation was money.  You saw a soft target, that is, a man who wished to keep his sexual preferences and activities confidential. 

11The offence to which you have pleaded is objectively serious, as is demonstrated by the maximum penalty.  Your conduct and the nature of the threat were calculated.  You had to have done some research to obtain the information to blackmail the victim.  That being said, I also accept that it was opportunistic and unsophisticated.  It extended over a relatively short period of time, albeit it that it really came to an end as a result of a report being made to the police. 

12You have no prior convictions or appearances and nothing subsequent.  You fall to be sentenced on the basis that you are, apart from this matter, a man of good character. 

13You are now aged 35, having been born on 7 December 1983.  You have two half-siblings aged 28 and 23, who both reside in Adelaide.  You were raised by your mother and step-father.  You report being close to your maternal grandmother.  You have had one long-term relationship, which ended in 2015 and you have no dependents.  You grew up on Kangaroo Island and attended Kingscote area school from prep to Year 11. 

14You report excelling in arts and drama.  You report that your home life was marred by harsh discipline at the hands of your step-father, who was a shearer.  You report being asked to leave home at age 15, subsequent to which you resided with your grandmother until you completed school.  I was told at one stage during the plea that you commenced some sort of tertiary education, but that was not pursued. 

15At age 18 you disclosed your homosexuality to your parents.  You report your mother and father as having "flipped".  Your father apparently banned you from seeing your younger brother for a significant period of time.  You moved to Adelaide and commenced a course in children's services, which you did not complete.  Subsequent to that, you worked in a supermarket whilst living with your aunt and uncle. 

16After moving to the city, you started going to clubs and meeting people online.  You report that it was during this period that you started doing drag and crossdressing shows and performances at various clubs.  Indeed at one stage you had your own show.  You were represented by talent agencies and employed at corporate events.  It was whilst you were engaged in these activities, it seems that your life started to spiral as a result of drug use, which, at that stage, included ecstasy and speed.  You describe yourself as ‘out of control’ during those four years that you lived in Adelaide. 

17You then returned to Kangaroo Island for two years, where you worked at your uncle's café.  Subsequent to that, you again went back to Adelaide, where you relapsed into drug abuse.  It was at this time that you were involved in a seven year relationship with a man who worked in hotel management.  You report that that period was quite stable, until the relationship ended in 2015.  At that time it seems that your drug abuse again escalated.  You lost employment. 

18You moved to live with a friend in Broken Hill for about six months, but there was a falling out.  Thereafter you told Ms Lechner that ‘three years of hell’ started.  You moved in with friends, you were escorting, one of your exes showed your family ads for your escorting and you report being shut off.  There was an occasion where you report being kidnapped for a period of about eight hours and seriously assaulted.  That was also in the context of your identity being stolen.  It was around this time, it appears, that you started to self-harm.

19You moved to Melbourne, where you report you had another relationship marred by domestic violence.  When that relationship ended after some 12 months, you found yourself again homeless and escorting. 

20Your greatest difficulty with drugs began at age 25, when you commenced using ice.  For the last three years, you have used that drug intravenously.  In addition, you have at times, continued to use ecstasy, speed, cocaine, GHB, as well as prescription drugs.  You have been on anti-depressants since your teenage years. 

21You were homeless at the date of this offending and it seems, as I have already noted, motivated to obtain funds.  You are currently receiving support from Thorne Harbour, including in relation to accommodation, alcohol counselling and individual counselling in relation to domestic violence and mental health. 
I have received the report detailing these matters, dated 19 March 2019.  You are currently receiving Centrelink payments and you report, at least to some extent, having reconnected with your family.

22I have received a report from Ms Carla Lechner.  Ms Lechner opines that there is no evidence of psychotic process.  She says you reported a range of symptoms of PTSD, including flashbacks to what you described to her as ‘kidnapping and Christian's violence.’  Ms Lechner assessed you as being of average intelligence.  She says that while you were able to reflect on the impact of your behaviour on both yourself and other, you are easily overwhelmed by social and emotional factors that may undermine your judgment and decision making. 

23Ms Lechner further opines that you exhibit a range of behaviours and symptoms consistent with a diagnosis of borderline personality disorder and that this appears to have been evidence in your history of abuse and emotional neglect at the hands of your step-father and mother respectively.  Ms Lechner notes that you have had a number of destructive relationships which have undermined your self-confidence and self-esteem.  She placed your depression in the extreme range. 

24As discussed with counsel during the course of the plea, unfortunately
Ms Lechner's report, in my view, lacks any real analysis.  Assertions are made without supporting facts, nor explanation of how expertise caused the author to come to a conclusion.  Counsel agree that no Verdins can be made out on the basis of this inadequate report.  Such reports, I say by way of comment, should have been a thing of the past, given the expert evidence practice note.  I gave counsel the opportunity to call the witness or to obtain a further report, but counsel determined to proceed on the current material. 

25At p.6 of her report, Ms Lechner opines that you present with symptoms of stimulant abuse disorder, PTSD, major depressive disorder and borderline personality traits.  She says you may benefit from residential drug rehabilitation programs in the future and specialist psychological support for your post-trauma symptoms. 

26As regards your offending, she says you have expressed regret and shame for your actions, stating that you were at a very low ebb in your life, especially in the context of being homeless and depressed.  She opines that you were overwhelmed by social and emotional factor that may undermine your judgment and decision making.  She says from a purely psychological perspective, you would benefit from engagement in treatment services and further, that immediate imprisonment is likely to lead to a significant deterioration in your mental health.  She said she would have concerns about you becoming actively suicidal.

27I note that this morning an addendum report has been tendered to the court, in which Ms Lechner expresses further:

"His general level of anxiety is already high, but in a prison environment, characterised by aggression, violence and unpredictability, I would anticipate that his anxiety would be extreme and he would be constantly hypervigilant to any potential conflict/aggression.  This would, in turn, lead to a deeper sense of isolation and depression and in response, he is likely to withdraw into himself.  Further to this, Mr Ruge is a homosexual man who engages in crossdressing.  This is likely to be an additional concern to Mr Ruge, for any event that this becomes common knowledge, he may be either physically or sexually assaulted or leaned on for sexual favours.  This also adds to a high level of anxiety.  Given his level of depression and his strong desire not to be a victim of violence again, Mr Ruge may see suicide as a viable option, especially in light of his past suicidal ideation and engagement in self-harm."

28I note for completeness that it remains the case that no Verdins principle is sought to be relied upon. 

29As regards your prospects of rehabilitation, I think that they must be assessed as good, given your lack of other offending, however you will need to deal with the issues which have underpinned this offending, including drug use. 

30Your counsel points to your plea of guilty.  You entered the plea of guilty at the earliest possible opportunity, having made full admissions.  You are entitled to the full benefit of that plea. 

31I accept that you would find custody more onerous than the average prisoner, as a result of personal factors, as detailed by Ms Lechner, which would likely make you a target in custody.

32As well as matters personal to you, to which I have referred, I must take into account other relevant sentencing consideration.  In my view, general deterrence is of considerable importance in matters such as this.  The nature of the offending makes victims reluctant to go to the police and expose the very matter the blackmail relies upon.  That is, I must seek to deter, not only you, but others who would engage in this disgraceful conduct.  Your sentence must manifest the community's denunciation of your conduct and impose just punishment.  Specific deterrence can be given less weight in light of your history.

33Your counsel submits that a community corrections order is within range.  The prosecution concur, despite what they submit is the serious nature of your offending, taking into account the other factors to which I have already referred, the prosecution agree that a disposition other than an immediately servable term of imprisonment is appropriate. 

34Would you stand, thank you. 

35Ultimately I have determined, on the charge of blackmail, to convict and sentence you to serve a 24 month community corrections order.

36You are to undertake 220 hours of unpaid community work. 

37You are to submit for drug assessment and treatment, mental health assessment and treatment and you are to be under the supervision of a Community Corrections officer.

38I direct that you pay $200 compensation in the terms of the draft which you have consented.

39Finally, I make an order pursuant to s.464ZF of the Crimes Act, you are directed to undergo a forensic procedure for the taking of a scraping of the mouth, in accordance with Subdivision 30A of Part III of the Crimes Act, until a sample of sufficient standard is obtained for placement on the database. 

40Pursuant to s.464ZF(2)(a), you are ordered, for the purposes of undergoing this procedure, to report to the officer in charge of the Transit Safety Division police station at Tower 1, Level 2/637 Flinders Street, Docklands, during the period of four weeks, commencing 28 days after the date of this sentence, or once any instituted conviction appeal is finally determined and the conviction forensic sample offence is upheld, whichever is later. I have made the order, having regard to the seriousness of the circumstances of the offending, the fact that you consent to it, in my view it is in the public interest.

41What that means in practical terms, is that four weeks from today, another period of four weeks will commence.  In those four weeks, it is your obligation to present yourself.  You will not get a further notice.  If you do not present yourself, you breach this order.

42As regards to the community corrections order, I need to tell you this.  You were very close to finding yourself in custody today.  You breach this order, it is like holding your hand up and saying, "Send me to gaol".  It is not variable because it does not suit you, it is not variable because you have got other things to do, you need to comply with this order absolutely.  Some of it is obviously aimed at your rehabilitation. 

43So I am going to have my associate and Ms Sheridan-Smith approach you. 
I want you to read the order and make sure you consent to the order before you sign it, because a breach is a significant matter and I do not want you to breach the order, all right?  Thank you.  Yes.

44MS SHERIDAN-SMITH:  May it please the court.

45HER HONOUR:  The order can be prepared and you then can approach with Ms Sheridan-Smith please.

46MS SHERIDAN-SMITH:  Thank you, Your Honour.  Might I approach in the meantime? 

47HER HONOUR:  Yes. 

48MS SHERIDAN-SMITH:  Thanks, Your Honour.  Mr Ruge will consent to that order and has signed as such.

49HER HONOUR:  Yes, very well.  Is there anything else I need to do, counsel? 

50MS DICKSON:  Was Your Honour intending to make a s.6AAA declaration?

51HER HONOUR:  I think it's really hard on a community corrections order.  What am I going to say, less hours?  No.  I am not proposing to make one.  Thanks very much for reminding me though. 

52MS DICKSON:  No worries, thank you, Your Honour.

53HER HONOUR:  All right, parties are excused. 

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