Director of Public Prosecutions v Ruitenbeek

[2018] VCC 871

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-01965

DIRECTOR OF PUBLIC PROSECUTIONS

v

PAUL RUITENBEEK

‑‑‑

JUDGE:	HIS HONOUR JUDGE LACAVA
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	25 May 2018
CASE MAY BE CITED AS:	DPP v Ruitenbeek
MEDIUM NEUTRAL CITATION:	[2018] VCC 871

REASONS FOR SENTENCE
‑‑‑

Subject:         Common Assault.
Crimes (Mental Impairment and Unfitness to be Tried) Act

Sentence:      Custodial Supervision order - 2 1/2 years

‑‑‑

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Moore
For the Accused	Mr L. Richter
For the Department of Human Services	Ms E. Frawley

1PRISONER:  Do it, you fuckheads, do it.  Why not?  Do it, fucking do it.

2MR RICHTER:  If it please Your Honour, I appear for Mr Ruitenbeek.

3HIS HONOUR:  Yes, thank you, Mr Richter.

4MR RICHTER:  And Mr Moore's certainly on the right-hand screen; he may not be able to hear.

5PRISONER:  Mr Moore, is that?

6MR MOORE:  Morning, Your Honour.  I appear for the Crown.

7HIS HONOUR:  Yes, good morning, Mr Moore.  Can you hear me all right?

8PRISONER:  Yeah, you want to see that fucking – yeah, (indistinct words).  Got someone else's fucking chair, yeah.

9MR MOORE:  I can hear most of what you say.

10PRISONER:  Yeah, (indistinct words) everywhere, yeah.

11MS FRAWLEY:  Do you want him muted?

12HIS HONOUR:  Yes.  Could you mute Mr Ruitenbeek, if you would?

13TIPSTAFF:  Yes, Your Honour.

14PRISONER:  Yeah, have they now, mate?  Yeah.  You want these?  Look, they gave me - yeah.  (Indistinct words).

15MR MOORE:  Your Honour, is there any way it is possible to mute the accused?  I can't hear apart from what he's (indistinct).

16HIS HONOUR:  Mr Moore, I'm just going to mute Mr Ruitenbeek.

17MR MOORE:  Thank you.

18PRISONER:  Mr Moore.  I seen him last night ‑ ‑ ‑

19MR MOORE:  That's fine now, I think, Your Honour.

20HIS HONOUR:  Yes, Mr Moore, thank you.  Good morning, Ms Frawley.

21MS FRAWLEY:  Good morning, Your Honour.

22HIS HONOUR:  You appear, do you, on behalf of the Secretary to the Department of Health and Human Services?

23MS FRAWLEY:  I do, Your Honour.

24HIS HONOUR:  Thank you very much.  Yes, Mr Richter, is there anything you wish to say?

25MR RICHTER:  Briefly, Your Honour.  Your Honour would have received the letter that I believe we all received that indicates that Mr Ruitenbeek was moved to a Glenhope unit of the new Ravenhall hospital.

26HIS HONOUR:  Yes, I've received a letter from a Ms Teneille Rickson ‑ ‑ ‑

27MR RICHTER:  Yes, and Ms Rickson's in court, Your Honour.

28HIS HONOUR:  ‑ ‑ ‑ who's described as the team leader of disability client services, Brimbank Melton area, dated 23 May 2018.  It's on the letterhead of the Department of Health and Human Services.  And I'll mark that – I'm not sure what exhibit number we're up to with this matter, but I'll mark it as an exhibit.  That letter really follows on from the last occasion that this matter was before me on 7 March of this year.  Mr Ruitenbeek was transferred from Port Phillip Prison to Ravenhall prison on 26 April of this year, and, in summary, attempts to have him properly assessed at Ravenhall have failed.

29MR RICHTER:  In fact, Your Honour, it's worth pointing out in terms of the matters considered under the title of "outreach support" on p.2 ‑ ‑ ‑

30HIS HONOUR:  Yes.

31MR MOORE:  Could my learned friend speak into the microphone or move the microphone over?  Thank you, Your Honour.

32MR RICHTER:  Sorry, Mr Moore.  Is that better?

33MR MOORE:  Yes, it is, thank you.

34MR RICHTER:  All right.  So, under "outreach support", in fact Your Honour will notice the second sentence says that two staff members of Jigsaw Blue visited Port Phillip Prison on 9 March.

35HIS HONOUR:  Yes.

36MR RICHTER:  And then the managing director of Jigsaw Blue, Mr Peter Quail, advised the Department on 10 March ‑ ‑ ‑

37HIS HONOUR:  Well, you left out a sentence.  "Mr Ruitenbeek refused to meet with them."

38MR RICHTER:  Oh no - absolutely – no, no, no.  There's no question that that's the state of affairs, Your Honour.

39HIS HONOUR:  Yes.

40MR RICHTER:  But the point that I wanted ‑ ‑ ‑

41HIS HONOUR:  That's why I think it's important that be on the transcript.

42MR RICHTER:  I'm certainly not trying to conceal that, and obviously the letter is an exhibit.

43HIS HONOUR:  Yes – no, no.

44MR RICHTER:  But the point that I was trying to draw Your Honour's attention to was that those attempts occurred at Port Phillip before his transfer to Ravenhall.

45HIS HONOUR:  I see, yes, yes.

46MR RICHTER:  So, that was still in March.  And he was not, in fact, transferred to the Ravenhall facility until 26 April.

47HIS HONOUR:  Yes.

48MR RICHTER:  The end point of that is, of course, that he's been at Ravenhall for about three or four weeks; not for a very long time.

49HIS HONOUR:  Yes.

50MR RICHTER:  So, I didn't mean to cut Your Honour off ‑ ‑ ‑

51HIS HONOUR:  No, no.

52MR RICHTER:  ‑ ‑ ‑ but I can proceed, or I'm happy to proceed, as Your Honour sees fit.  I just thought that that was worth nothing.

53HIS HONOUR:  Yes, thank you.

54MR RICHTER:  Your Honour, the position is this – and it won't be a popular one.  But I've discussed the matter with Ms Rickson from the Department, and the situation is this:  it is not anticipated – it was never anticipated – that Mr Ruitenbeek would should any particularly detectable signs of improvement within a short period of time.  Unfortunately, it took until 26 April, three or four weeks ago, for him to be transferred to Ravenhall.

55My understanding from Ms Rickson is that a period of about six months in that institution - or some less gaol-like institution, a more hospital-like institution - is what is required or what is preferred by those looking after him at the Department, in order to assess the progress.  My application, though – and I am well aware of the implications for the progress of the matter – is to adjourn it once again.

56Now, that is unpalatable for a number of reasons, but there are also reasons why it ought be considered; namely, that he hasn't had – the whole point of adjourning it at this point was to have him moved to Ravenhall and to have him in that situation for at least a sufficient period for potential improvements to be observed, if they occur.  In addition to that, MACNI, as I understand it from Ms Rickson – so, the Multiple and Complex Needs Initiative – they are still on the job.  There doesn't seem to be any progress to report, but case conferences have been held – or organised?

57VOICE (from body of the court):  Being organised.

58MR RICHTER:  They're still being organised for potential supports to be put in place.  This matter is longstanding, really, for two reasons:  one is the difficulty of Mr Ruitenbeek as a client of the Department, and the second is that sometimes these things take a long time to organise.  And no blame, really, can be laid in either case.  But that's as the matter stands, and that's the application.  Perhaps before I give Mr Moore and Ms Frawley an opportunity to be heard, I thought it might be useful to play out, if I can, the alternatives.

59And the alternative, in a sense, really, I think, is probably to impose a custodial supervision order.

60HIS HONOUR:  In a prison?

61MR RICHTER:  Yes.  I mean, the Ravenhall unit is a prison, so his referral to Ravenhall, one is to hope, would see him remain at the Glenhope unit at Ravenhall.  But I mean, of course, we would lose control over that; it would devolve to Corrections entirely, which it is at the moment, but they wouldn't have a court to consider.  And the other issue with that, Your Honour, is this:  Mr Ruitenbeek has been found to have committed common assault – two counts of common assault – but they are the only charges.  They carry with them – well, that charge carries with it a statutory maximum of five years.

62HIS HONOUR:  A nominal period.

63MR RICHTER:  Of 2.5 years.  Two years and six months is the nominal period.  So, according to the table in the legislation, aside from murder and some other offences ‑ ‑ ‑

64HIS HONOUR:  I thought it was five years.

65MR RICHTER:  No, five years is the statutory maximum for the offence, and the nominal period is half of the statutory maximum.  And that is to be found on – I apologise, Your Honour.

66HIS HONOUR:  Section 28, isn't it?

67MR RICHTER: Your Honour may well be right. Yes, the nominal term of a supervision order, sub-s.1, "The court must set a nominal term of a supervision order in accordance with the following table." Entry A is murder or treason. Entry B is a serious offence within the meaning of the Sentencing Act 1991, which – common assault is not a serious offence within that statutory provision. And C, another other offence for which there is a statutory maximum term of imprisonment. And the adjoining column says, "A period equivalent to half the maximum term of imprisonment available for the offence", which yields two and a half years.

68HIS HONOUR:  He's approaching that now.

69MR RICHTER:  Yes.

70HIS HONOUR:  If he has not yet already reached it.  I haven't done the arithmetic; what is two and a half years in terms of days?

71MR RICHTER:  I can indicate to Your Honour that the nominal period, two and a half years, would expire on 14 October this year because he was arrested on 14 April 2016.  Now, s.35, which provides for major reviews, indicates that a major review must be undertaken at least three months before the end of a nominal period, which is 14 July, which is in a little less than two months now.  So, we are essentially in the jaws of a difficulty born of someone who is very difficult to engage with and assess.

72HIS HONOUR:  That's the critical problem here:  he won't engage in any way.

73MR RICHTER:  No.  And in terms ‑ ‑ ‑

74HIS HONOUR:  So, we can adjourn – it seems to me there's enough evidence before me to conclude that it's highly unlikely that there'll be any satisfactory assessment in which Mr Ruitenbeek engages in the foreseeable future.

75MR RICHTER:  I don't wish to be Pollyanna-ish about this, and I'm not here to barrack against ‑ ‑ ‑

76HIS HONOUR:  Pollyanna-ish?  I don't follow that.

77MR RICHTER:  Well, outrageously ‑ ‑ ‑

78HIS HONOUR:  It's been a long time since I've seen that movie.

79MR RICHTER:  Well, Panglossian, if Your Honour prefers Voltaire.  But "unwarrantedly optimistic", let's say.  So, I don't want to caffle with the substance of what Your Honour's saying, save perhaps to suggest that this is a man who, before this period of time, was at larger in the community with continual offending, but not of significant scope.  He must have been living with people, living in places – he was communicating with his parents and so on.

80HIS HONOUR:  But there is the opinion of Professor Carroll that he poses a risk ‑ ‑ ‑

81MR RICHTER:  Yes, yes, of offending.

82HIS HONOUR:  ‑ ‑ ‑ of offending violently.

83MR RICHTER:  Yes.

84HIS HONOUR:  One must have at the forefront of one's mind protection of the community, regrettable though it is because it involves depriving him of his liberty.

85MR RICHTER:  Yes.  Well, Your Honour, there's ‑ ‑ ‑

86HIS HONOUR:  Probably through no fault of his.

87MR RICHTER:  Yes, I think that's fair, with respect.  Well, if Your Honour were to impose a custodial supervision order – Your Honour, well, setting a commencement date of that order as the date of his arrest - which in my submission would be just, according to the ordinary course of things in this jurisdiction ‑ ‑ ‑

88HIS HONOUR:  The legislation doesn't seem to provide for that, does it?

89MR RICHTER:  It does.

90HIS HONOUR:  Does it?  Does it say when it is to commence?

91MR RICHTER:  Yes.  My learned friend's assisting me.  It's 28(5).

92HIS HONOUR:  I see.

93MR RICHTER:  So, for the purposes of declaring a day under sub-s.4, the court may take into account any period of time during which the person subject to the order was held in custody or detained in an appropriate place in relation to proceedings.

94HIS HONOUR:  Yes.  So, when was he taken into custody?

95MR RICHTER:  14 April 2016.

96HIS HONOUR:  Yes.

97MR RICHTER:  And as I said, that would require the major review to take place by 14 July of this year.  The concern, Your Honour, would be this:  it seems unlikely that there would be – and certainly, if I can be so bold, it seems Your Honour will agree with me in this sense – that it seems unlikely that there would be sufficient, and potentially any, real improvement by 14 July.  So, that major review would be of limited utility.

98HIS HONOUR:  But look, I fail to see the point of looking ahead like this.  One must face the major review.  If it's me that has to deal with it, if I'm the judicial officer that has to deal with, I'll deal with it in terms of the legislation and the material that's before me on that major review.  For the present time, let's put the cart before the horse and deal with this matter.

99MR RICHTER:  Yes.

100HIS HONOUR:  I can't see the point in really looking too far ahead.  I don't wish to cut you off; you're doing an admirable job for your client, if I may say so.  But one has to say:  when is enough, enough?  And I think I've given every possible opportunity, and I wish to thank and commend all the people that have assisted, but I think we've reached the point where this first phase of the confinement of Mr Ruitenbeek must be dealt with.  And then the procedures and processes for dealing with people who unfortunately find themselves in his position will have to take over.

101MR RICHTER:  Yes, as Your Honour pleases.  I can certainly expressed that I'm not surprised to hear Your Honour say that, and in a very real sense, I'm in Your Honour's hands.

102HIS HONOUR:  Yes.

103MR RICHTER:  There's very little that I can put before the court by way of evidence or submissions at this stage on this matter.

104HIS HONOUR:  Let me ask you this:  he was convicted of two charges.

105MR RICHTER:  Found to have committed.

106HIS HONOUR:  Sorry, found to have committed, on the special hearing, two charges of common assault.  Does one total ‑ ‑ ‑

107MR RICHTER:  Yes.  There's no cumulation.  There's no provision for cumulation.  What one does is one takes – where someone liable to the fitness regime is found at a special hearing to have committed multiple offences, the court takes the offence with the highest maximum ‑ ‑ ‑

108HIS HONOUR:  Is that dealt with in the legislation.

109MR RICHTER:  Twenty-eight, sub-s.2.

110HIS HONOUR:  Twenty-eight, two.

111MR RICHTER:  Again, I'm indebted to my learned friend.

112HIS HONOUR:  Just a moment.

113MR RICHTER:  Of course.

114HIS HONOUR:  I see.

115MR RICHTER:  Yes.  So, there's no provision for cumulation or concurrency or anything.

116HIS HONOUR:  Yes.  So, one works off the maximum.

117MR RICHTER:  One works off the maximum.

118HIS HONOUR:  And the implication, from the way the legislation is drafted, is that there's no cumulation.  Yes, I follow.

119MR RICHTER:  That's correct.  And in my experience, Your Honour, that's how it's always done.

120HIS HONOUR:  Yes, yes, I follow.

121MR RICHTER:  I suppose, as a sidelight, because there's no culpability involved, it's unnecessary to look further than that.

122HIS HONOUR:  Yes, thank you.

123MR RICHTER:  My understanding, for what it's worth, Your Honour, is, from speaking to Ms Rickson this morning – is that there will continue to be liaison between the departments – so, between DHHS and Corrections – about Mr Ruitenbeek.  And obviously, that will have to take place in anticipation of the major review because certain things need to be investigated which are essentially the same things that are being investigated.  So, for what it's worth, some effort – although it's uncertain exactly what – but some effort will continue.

124HIS HONOUR:  Yes.

125MR RICHTER:  Unless I can be of any further assistance, Your Honour.

126HIS HONOUR:  No.  Thank you very much, Mr Richter.  Ms Frawley, did you wish to say anything?

127MS FRAWLEY:  Just one thing, Your Honour.  I note my learned friend's comments around s.28(5), and Your Honour certainly has power in relation to taking into account any period of time in prison.  In my respectful submission, Your Honour, in relation to that section, given Your Honour's comments about the foreseeable future, Your Honour could – although I hear what my learned friend said about his submission, he wants Your Honour to take into account all the time in custody.  But in my respectful submission, Your Honour can take into account some or all of the time in custody.

128HIS HONOUR:  Yes.

129MS FRAWLEY:  So, Your Honour could, for example, count some of that time so that the major review could be in six months' time.  And I agree with my learned friend's comments around the utility of a major review in two months' time.  It may be more appropriate – and certainly my instructions are in six months' time it would be a more useful time of court resources in terms of any likely change for Mr Ruitenbeek.

130HIS HONOUR:  Well, I can see the practical sense in that.  However, it does seem somewhat unjust to a person who is afflicted with the problems Mr Ruitenbeek has to be deprived of what would normally be the justice of the situation.  That is to say, the time that he has been confined would normally be fully taken into account.

131MS FRAWLEY:  Yes, Your Honour, and I'm certainly in Your Honour's hand in respect of that matter.  My only response to that is in some respects, putting Mr Ruitenbeek through another assessment that's not likely to go anywhere – it might be more useful to set a date that's going to be realistic for him to potentially move on to a non-custodial supervision order.

132HIS HONOUR:  But the trouble with that is that that's pure speculation, too.  It's really asking me to on the evidence form an opinion as to when it might be a better chance of getting a realistic assessment.  And having regard to the sad situation here, I just don't think I can do that.

133MS FRAWLEY:  Yes, Your Honour.

134HIS HONOUR:  So, it may be that we'll find ourselves in three or four months' time having a similar discussion about a major review, but my perhaps overly legalistic approach to this is that these are all statutory-governed.  It deprives the individual of liberty, and one must be careful to abide the statute.

135MS FRAWLEY:  Yes, Your Honour.  The only further thing I can add, as Your Honour's already aware, is that the statute provides that Your Honour may take into account.  So, there's certainly ‑ ‑ ‑

136HIS HONOUR:  Yes, it provides a general discretion.

137MS FRAWLEY:  Correct.

138HIS HONOUR:  I appreciate the way you put it, thank you.

139MS FRAWLEY:  Yes, as the court pleases.

140HIS HONOUR:  Mr Moore.

141MR MOORE:  Thank you, Your Honour.  Look, consistent with the approach the prosecution took on the last occasion, the Crown's attitude is neutral, Your Honour, in the circumstances.

142HIS HONOUR:  Yes.

143MR MOORE:  It's a very, very unfortunate case.  But we seem to be going around in circles to some extent, and that's no fault of the court, or anyone's, really.  It's just the point that Your Honour made previously that Mr Ruitenbeek just continues to fail to engage with people who are trying to help him.

144HIS HONOUR:  Yes.

145MR MOORE:  And although the Crown's attitude is neutral, I can see on behalf of the prosecution merit in proceeding to impose the custodial supervision order with the nominal term.

146HIS HONOUR:  Yes.

147MR MOORE:  I agree with the submissions about the term being half of five years – the nominal term.

148HIS HONOUR:  Yes.

149MR MOORE:  I agree with the submissions about pre-sentence detention.  If Your Honour proceeds down this path, the Crown's submission, with respect, would be that it would be artificial and unjust to adjust the pre-sentence detention - in other words, shorten it – just to accommodate a longer period of time for the authorities to get themselves into a position to properly, in their view, conduct the major review.  I think if the court imposes pre-sentence detention or declares is, it should be all of the detention that the accused has served.

150HIS HONOUR:  Yes, thank you.

151MR MOORE:  Unless I can be of further assistance, Your Honour.

152HIS HONOUR:  Yes, thank you, Mr Moore.  This matter was last before me on 7 March of this year, and on that occasion I made an order adjourning a further hearing relating to Mr Ruitenbeek until today.  On the last occasion, I went through the chronology of events and what had transpired in relation to Mr Ruitenbeek, and there has been prepared in unrevised form what is described as reasons for sentence.  It is not necessary that I here revisit that which I set out in some detail on 7 March.

153On 23 June of last year, I declared that Mr Ruitenbeek is a person liable to supervision under part 5 of the relevant act, and pursuant to s.18(4A), I remanded him in custody.  And also pursuant to s.19(1C) and 19(3), I ordered that Mr Ruitenbeek undergo examination by a registered medical practitioner and that the results of that examination be put before the court as soon as possible.  I also asked the Secretary to provide a certificate of available services within s.47 of the Act.

154That was provided, as I indicated on the last occasion, on 13 October 2017, and it advised the court that should a non-custodial supervision order be imposed, outreach support would be sourced for Mr Ruitenbeek, to ensure he is appropriately supported in the community and that accommodation in a supported residential service would be provided.  Unfortunately, since that advice was provided to the court, it has proved impossible to secure an agency to provide both outreach support and accommodation in a supported residential service.

155The Secretary advised the court of this by letters of 15 December 2017 and 6 March 2018, and more recently on 23 May 2018.  Pursuant to s.26(4) of the Act, the court must not make a supervision order committing a person to custody in prison unless it is satisfied that there is no practical alternative in the circumstances.  On the last occasion, I expressed the opinion that proper interpretation of that section is that every possible chance should be given to the Secretary to arrange both outreach support and accommodation in a supported residential service before an order committing a person to custody in a prison is made.

156For those reasons, on 7 March last, I again adjourned the matter to enable the course which would hopefully result in the issuing of a certificate by the Secretary under s.47 of the Act, stating the available services that would be available, should a custodial supervision order in an appropriate facility be imposed.  Regrettably, the letter from the Secretary of 23 May 2015 shows that it has proved impossible thus far to provide such a letter.  The principal problem is that Mr Ruitenbeek, afflicted as he is by mental illness, has refused to engage with those who seek to assess him.

157Mr Ruitenbeek, as envisaged on the last occasion the matter was before the court, has been moved from Port Phillip Prison to Ravenhall Forensic Health Facility, and that occurred as recently as 26 April.  Professor Carroll has provided the court with an opinion – I beg your pardon – has provided the Secretary with his opinion relating to Mr Ruitenbeek, and he has opined that Mr Ruitenbeek has a major neurocognitive disorder with behavioural disturbance.

158In the opinion of Professor Carroll, Mr Ruitenbeek poses a high risk of violent, destructive reoffending if left unsupervised and untreated, and all attempts to find a facility to accommodate him and capable of meeting his needs have failed.  In these circumstances, I accept the prosecution's submission that the only disposition available to me is to make a custodial supervision order which commits Mr Ruitenbeek to a prison.  I am satisfied there is no practical alternative available to this course.

159The jury on the special hearing, having found Mr Ruitenbeek committed the offence of common assault – the nominal period of a custodial supervision order in a prison is two and a half years, calculated in accordance with s.28(2) of the Act.  I order that Mr Ruitenbeek remain subject to a custodial supervision order in a prison for a period of two and a half years.  And that order is to commence on the day that he was first incarcerated, namely 14 April 2016.  Is there any need for any further orders?

160MR RICHTER:  I don't believe so, Your Honour.

161MR MOORE:  No, Your Honour.

162MS FRAWLEY:  No, Your Honour.

163HIS HONOUR:  Very well.  Look, could I thank everyone that's been involved in this case with their assistance.  Particularly you, Mr Richter.  As I have said previously, you have gone over and above the call of duty, and I thank you for your submissions in what has been a difficult case for the court, but I'm sure a difficult case for you also.  I thank you for your assistance.  And thank you, Mr Moore, for your help.

164MR MOORE:  Thank you, Your Honour.

165HIS HONOUR:  And you, Ms Frawley.

166MS FRAWLEY:  Thank you.

167HIS HONOUR:  I'll just adjourn for a moment whilst I get the papers from downstairs.

‑ ‑ ‑