Director of Public Prosecutions v Rule

[2024] VCC 1510

IN THE COUNTY COURT OF VICTORIA

AT BALLARAT

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-23-00659

DIRECTOR OF PUBLIC PROSECUTIONS

v

DYLAN RULE

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JUDGE:	BLAIR
WHERE HELD:	Melbourne
DATE OF HEARING:	28 May 2024
DATE OF SENTENCE:	29 May 2024
CASE MAY BE CITED AS:	DPP v Rule
MEDIUM NEUTRAL CITATION:	[2024] VCC 1510

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentence

Catchwords:              Aggravated burglary – intent to assault – criminal damage – theft – Bugmy – youth – parity – co-offenders – lesser role in offending – impaired intellectual functioning – plea of guilty – Worboyes – substance abuse

Legislation Cited:      Sentencing Act 1991 (Vic)

Cases Cited:DPP v Meyers (2014) 44 VR 486; Worboyes v The Queen [2021] VSCA 169; Bugmy v The Queen [2013] HCA 37; R v Hermann [2021] VSCA 160; Azzopardi v The Queen (2011) 35 VR 43; Boulton v The Queen [2014] VSCA 342

Sentence:                  Community Correction Order for a period of 9 months

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr P. Teo	Office of Public Prosecutions
For the Accused	Mr N. Mutton	Dribbin & Brown Criminal Lawyers

HER HONOUR:

1Dylan Rule, on 28 May via Webex to Bendigo County Court, you pleaded guilty on Indictment N11603389A to one rolled up charge of criminal damage, one charge of aggravated burglary and one charge of theft.

2You admitted several prior convictions primarily from the Children’s Court. It appears you have one prior conviction from the Magistrates’ Court in 2019 and you have successfully completed a Community Correction Order in the past.

3Your counsel submitted the appropriate sentence was a Community Correction Order and this submission was not opposed by the Crown. In the circumstances I requested a pre-sentence report from Corrections and you have been assessed as a suitable candidate for such an order.

Circumstances of offending

4The agreed factual basis of your offending was contained in the Summary of Prosecution Opening for Plea this document was tendered as exhibit A.

5Late in the morning on 28 July 2022, Cynthia Rowe was at home alone. You and Sharalee Norman, your co-offender knocked loudly and repeatedly on her front door. When no one answered, both of you smashed a large orange pot plant. You then left.

6Ms Rowe called her friend Luana Rose who attended the premises.

7Later that day in the mid-afternoon, you and your co-offender returned to the property. Both Ms Rowe and Ms Rose were home at the time. You and Ms Norman banged on the front door and yelled ‘come outside’. Ms Rowe opened the door and observed Ms Norman to be holding a metal tyre iron. Ms Rowe attempted to close the door and hold it shut however Ms Norman was able to force the door open and both Ms Norman and you pushed your way inside – Charge 1 – Aggravated burglary – Intent to assault

8Ms Rowe ran upstairs and locked herself in the bathroom. You followed Ms Norman upstairs. Ms Norman was still armed with the metal tyre iron.

9You both stood outside the bathroom door. Ms Norman yelled ‘you better have a big fucking knife cunt’. Ms Norman kicked a hole in a bedroom door and both of you then walked back downstairs to the lounge room where damage was caused to a television belonging to Megan Cowton – Charge 2 – Criminal damage – rolled up to include damage caused to the pot plant, bedroom door and television

10As you walked out the front door, you took a parcel containing various cleaning products belonging to Ms Cowton. You left the house together with Ms Norman and Ms Rose. CCTV depicts Ms Rose passing you a black handbag belonging to Ms Rowe as you left the house. Ms Norman was not charged with theft. Ms Rose has not been charged with any offending – Charge 3 – Theft

11Later that day at around 8pm the police attended your home. You were arrested, interviewed and bailed. During your record of interview, you made admissions to attending the property with Ms Norman; being aware of a pre-existing dispute between Ms Norman and Ms Rowe over her boyfriend; and removing a parcel from the premises as you left. You denied any use of weapons during the incident.

Victim impact statement

12Megan Cowton, who was a resident, but not home during your offending, provided a victim impact statement to the Court. This statement was read aloud by the prosecutor Mr Teo. Ms Cowton detailed the emotional impact of your offending. She described how she no longer feels safe in her own home, and has had to change her life to increase security in her home.

13Ms Cowton wrote a part specifically addressed to you and Ms Norman. She said that your past trauma does not justify your actions.

14I have taken into account the admissible parts of Ms Cowton’s statement, and have done so specifically in regards to the sentence I will impose.

Nature and gravity of the offending

15In sentencing you I must make an assessment of the objective gravity of your offending. Aggravated burglary, in particular, is an inherently serious offence, and that is clear from the maximum penalty of 25 years imprisonment. Further, in determining the seriousness of your offending, I have had regard to the case of DPP v Meyers,[1] in which the Court of Appeal set out considerations which will ordinarily be relevant to an assessment of the gravity of offending for a charge of aggravated burglary. I have given consideration to these factors.

[1] DPP v Meyers (2014) 44 VR 486.

16Your counsel Mr Mutton, acknowledged that the aggravated burglary was a serious charge . However, he also submitted that you were not the main offender and had gone along with Ms Norman as she was like a step sister to you, she was  pregnant and you did not want her to get hurt. Your counsel also submitted the no one was hurt during your offending as one resident was not home and the other victim was able to lock herself in the bathroom. Although, a weapon was present this was carried by your co-offender. Mr Mutton conceded on your behalf that you entered the victim’s home knowing that Ms Norman was angry and intent on a physical altercation with Ms Rowe.

17The prosecution submitted that your offending took place in the victim’s home and your co-offender was armed with a tyre lever at the time. The CCTV footage shown in court on the day of your plea depicted an incident that would have been frightening for the victims.

18I accept the submissions of your counsel. I agree that you were not the instigator of the offending and I accept that your co-offender had a greater role and therefore bears more responsibility for the offending than you. Further, I accept that your offending was of short duration, there was no assault, the incident occurred during daylight hours and the confrontation between your co-offender and the victim was conducted through a locked bathroom door. In the circumstances I consider this to be an aggravated burglary towards the lower end of seriousness.

Background

19You are now 24 years old and were born and raised in Ballarat. At the time of the offending you were aged 23.

20Your life has not been easy as your parents have had many issues. Your father has been in and out of gaol and your mother has battled problems with her mental health and drug use. Your parents separated when you were only 7 years old and you spent a good deal of time living with your grandmother.

21Child protection were regularly involved with your family due to the variety of concerns including parental substance abuse, exposure to family violence between your mother and previous partners, limited parenting capacity, environmental neglect, exposure to criminal activity and ongoing mental health instability experienced by your mother requiring repeated hospital inpatient admissions. There were 15 reports to child protection relating to you up until the time of your placement in residential care in 2013. Two of your brothers were also placed in residential care at the same time, however, your younger brother was separated from yourself and another of your brothers.

22For the majority of your time in the care of the state you were lived in Berry Street’s therapeutic Residential Care Program. In June 2016 you transitioned into foster care in the Woodend area. This placement last for 6 months and it seems there were aspects of this arrangement that you really enjoyed. The home was on a rural property and you were able to tinker with motors, fish and be outdoors. When this placement ended in January 2017 you returned to residential care and remained there until you turned 18.

23At the age of 18 you were transitioned to live independently, but you struggled to cope with living alone and struggled to care for yourself. You have been evicted from accommodation in the past and you have since experienced periods of insecure housing.

24Despite your stay in residential care you have continued to have significant contact with your family and have strong bonds with your mother, grandmother, your siblings and also extended family members. You have six siblings in total. Some of your siblings share the same mother and father and some are half siblings. One of your younger siblings passed away when you were a child. Mr Solomon from Berry Street noted that you have always had a steadfast desire to protect your family.

25Currently, you are in a settled relationship and your partner is expecting a child. Though you are not the father, you are committed to supporting your partner and helping her raise the baby. You live with your mother in Ballarat but you are planning to live with your partner and you have been looking for a suitable home.

26Substance misuse has been an issue for you from a very young age. You were introduced to alcohol as a child and petrol inhalation at the age of 7. You started smoking cannabis when you were 8 years old and by 9 you were using cannabis regularly. At about 18, you were introduced to methamphetamines and used this substance daily for three years. For the last 3 years you have been abstinent from harder drugs however you still smoke cannabis regularly. In more recent times you have significantly reduced your use and you are hopeful in time, that you will be able to stop completely.

27School was difficult for you given the turmoil at home. You stopped attending after year 6. Later you completed years 7 and 8 through Berry Street. You have not been employed. However, you are interested in pursuing employment in something like woodworking or jewellery making.

28In terms of health you suffer from a hypo-pituitary disorder, which affects hormone production. Treatment for this condition requires the taking of hormone supplements. Your grandmother refused to provide you the required medication for religious reasons and you have never taken this medication yourself. Your disorder has impacted your development and you appear much younger than your age.

29Mr Rule, you have several prior convictions however I note the majority of these were dealt with in the Children’s Court and occurred as a result of behavioural issues and conflict whilst you were in residential care. It appears your only appearance in the adult jurisdiction resulted in a 12 month therapeutic Community Correction Order that was imposed without conviction.

30A psychological report prepared by Mr Warren Simmons dated 3 May 2024 was tendered on your plea. Mr Simmons opines that your medical condition has left you with multiple difficulties, including that you have a significant level of immaturity and that this condition has potentially impacted your intellectual functioning. A neuropsychological report from Louise Boin dated in 2017 assessed you as having a very poor level of adaptive functioning, and a borderline range IQ and attentional difficulties likely to be associated with your marijuana use and your medical condition.

Factors in mitigation

31Your counsel Mr Mutton raised several powerful matters in mitigation on your behalf.

Plea of guilty

32The first was your plea of guilty, this was indicated at the committal mention stage.  I consider this to be a plea entered at a very early stage in the court proceedings. Further, no witnesses were required to give evidence and the court system was spared the resources and expense of conducting a trial. In these circumstances, your plea has significant utilitarian value and I find you have facilitated the course of justice.

33Though the court's case backlog caused by the pandemic has now eased, at the time your matters entered the court system in July 2022 and their resolution in August 2023, your plea facilitated justice during the tail end of the backlog period.

34I have given you a significant discount for your early plea of guilty and have applied a modest extra discount given the timing of your plea towards the end of the covid backlog.[2]

[2] Worboyes v The Queen [2021] VSCA 169.

35In addition, I accept that your plea of guilty together with the significant admissions in your record of interview demonstrate your remorse and your acceptance of responsibility for you involvement in the offending. Additionally, Mr Simmons in his report noted that you “expressed remorse for [your] actions and did not attempt to justify what occurred.”  

36I note that in the presentence report completed by Corrections, you did say the offending was a ‘dumb thing to do’ and that you were ‘being stupid’ and that you ‘regret it’. However, it appears that you did not have a good deal of victim empathy and there was some justification of your actions.

37I accept, on the basis of the whole of the evidence, that you are remorseful and you do regret being involved in the offending.

Bugmy

38Your counsel submitted in the circumstances of your case and in light of the letter from Berry Street and the information from Department Families Fairness and Housing the principles enunciated in the case of Bugmy were enlivened.[3] The prosecution made no submission either way as to the applicability of these principles.

[3] Bugmy v The Queen [2013] HCA 37.

39In making an assessment of your moral culpability or degree of blameworthiness for your offending conduct it is necessary to closely examine your personal circumstances and background and an exploration of factors which may explain the offending conduct. To the extent that the offending conduct is due to factors beyond your control the harshness of the moral judgement is likely to be moderated.[4]

[4] R v Hermann [2021] VSCA 160 at [14].

40An examination of your personal history reveals that you suffered significant childhood neglect and deprivation. Further, you were exposed to domestic violence and substance abuse for many of your formative years. You have a strong sense of family and are protective of those you consider as family. I note this included Ms Norman your co-offender, who you indicated to Mr Simmons was like a ‘step sister’ to you. In my view, both limbs of Bugmy have application in your case. That is the more general expression that; [5]

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.

[5] Bugmy v The Queen [2013] HCA 37 at [40].

41And the more specific expression that;[6]

An offenders childhood exposure to extreme violence and alcohol abuse may explain the offenders recourse to violence when frustrated such that the offenders moral culpability of 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.

[6] Ibid at [44].

42Further I consider the following observation of the High Court has relevance in your case that;[7]

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 capacity to mature and to learn from experience. It is a feature of the person’s make-up and remains relevant to the determination of the 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 offenders deprived background in every sentencing decision.

[7] Ibid at [43]-[44].

Youth

43Another substantial factor in mitigation is your youth. At 24 years of age at the time of sentence, and 23 at the time of your offending you fall to be sentenced as a 'youthful offender'. In this regard I note the opinion of Mr Simmons that your medical condition has resulted in your youthful presentation and immaturity.

44The Court of Appeal in Azzopardi v The Queen summarised the three considerations which underlie the general primacy afforded to an offender's youth as a sentencing consideration.[8]

Firstly, young offenders are often more prone to impulsive and ill-considered decision making. They may lack the insight and self-control of adults and may not fully appreciate the nature, seriousness and consequences of their criminal conduct.

Secondly, that courts recognise the potential for rehabilitation in young people because they are at an earlier stage in their mental and emotional development. They therefore may be more open to positive change than adults with entrenched anti-social behaviours. Further, the community has an interest in such rehabilitation as in the long term it is protective from the impacts of future offending.

Thirdly, the incarceration of young offenders is more likely to hinder rather than improve their prospects of rehabilitation. Young people in custody are likely to be exposed to corrupting influences which can entrench criminal and anti-social tendencies. These effects have detrimental flow-on consequences in the community.

[8] Azzopardi v The Queen (2011) 35 VR 43, at [34] - [36].

45In situations of particularly grave offending or offender characteristics, considerations relating to youth may give way to varying degrees to considerations such as general and specific deterrence. Though your offending is serious offending, I do not consider yours to be such a case where I am required to significantly displace youth in favour of other factors. This is in light of the circumstances of this particular offending including your more minor role in the aggravated burglary offence.

Parity

46I agree with the submissions of your counsel that parity is a fundamental requirement of the rule of law and a condition of just punishment. Further, I accept that the principle requires, when sentencing co-offenders the court should take into account the relevant similarities and differences between them.

47As I have previously indicated I consider you to have had a lesser role in the aggravated burglary.

48Although, there are some differences between your circumstances and those of Ms Norman I consider when looked at globally you are of a similar age, you both entered an early plea, you have both experienced deprived childhoods, you were both introduced to drug use at a young age and have some prior criminal history.

49In the circumstances as indicated I accept that you should be treated in a broadly similar manner to your co-offender Ms Norman.

Rehabilitation

50Lastly, as to your prospects for rehabilitation I consider that the court should make provision for supports to assist you to address your drug use and medical issues. I agree with your counsel that this would be the best way of preventing future offending and protecting the community.

Sentencing principles

51Mr Rule I want to make clear to you that what you did was seriously wrong. As you have heard it has had a lasting impact on at least one of your victims. I denounce your conduct.

52The basic purposes for which a court may impose a sentence are punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community. In my view given your lesser role in the offending, your youth, your medical condition, my findings pursuant to Bugmy and your background circumstances, general and specific deterrence should give way to the promotion of your rehabilitation.

53The principles of proportionality and parsimony are also important considerations. They require me to make sure the punishment imposed fits the crime committed and that I do no more than is necessary to punish you for your role in the offending. I have taken these principles into consideration in fixing the sentence I will now impose.

54I also take into account the sentencing guidelines referred to in s5 of the Sentencing Act,[9] where relevant in your case. In particular, I have had regard to the sentencing landscape for the offending before me, particularly the offence of aggravated burglary. Ultimately the sentencing exercise requires that I balance all relevant factors and make a judgment as to the appropriate sentence in the circumstances of your particular case.

[9] Sentencing Act 1991 (Vic) s 5.

55In my view the appropriate sentence in your case is the imposition of a Community Correction Order. In coming to this conclusion, I am mindful of the guidance given by the Court of Appeal in Boulton v The Queen.[10] Further a Community Correction Order will provide punishment for your offending and protection of the community by way of supervision and programs to assist in your rehabilitation.

[10] Boulton v The Queen [2014] VSCA 342.

56Mr Rule, you are convicted in relation to each of the charges, that is the aggravated burglary, criminal damage and theft and you are to be placed on a Community Correction Order for a period of 9 months.

57The conditions of this Community Correction Order include that you must

(a)   Attend for supervision

(b)   You must submit for assessment and treatment for drug abuse;

(c)   you must also submit for assessment and treatment for medical issues; and

(d)   You must submit for treatment and rehabilitation programs to reduce re-offending;

58In addition to the conditions that I have imposed, there are standard conditions you must comply with, first and foremost, you cannot commit an offence punishable by imprisonment over the 9 months. If you do you will breach the order. If you do breach the order, you will be brought back to me, and I will likely have to re‑sentence you. That could involve sending you to gaol.

59You need to report within two working days to Ballarat Community Correctional Services by 2 pm on 31 May 2024.

60You are required to advise your supervising Corrections Office of any change of address where you are living or working within two clear working days. And it is a term of all Community Correction Orders that you must submit to visits as directed and obey the instructions and directions of the Community Corrections and you cannot leave the State of Victoria without prior permission.

61I can only place you on a Community Correction Order if you agree – so firstly, do you understand what is involved?

62OFFENDER:  Yes.

63HER HONOUR:  Yes, all right and do you consent?  Do you agree to doing an order? 

64OFFENDER: Yes,

65HER HONOUR: Great.

66Pursuant to s6AAA of the Sentencing Act, but for your plea of guilty, the sentence I would have imposed is 6 months imprisonment and a Community Correction Order in similar terms to the order I have imposed today. [11]

[11] Sentencing Act 1991 (Vic) s 6AAA.