Director of Public Prosecutions v Rule
[2021] VCC 1911
•24 November 2021
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT SHEPPARTON
CRIMINAL JURISDICTION
CR 20-01571
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ARTHUR RULE |
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JUDGE: | HIS HONOUR JUDGE SMALLWOOD |
WHERE HELD: | Shepparton |
DATE OF HEARING: | |
DATE OF SENTENCE: | 24 November 2021 |
CASE MAY BE CITED AS: | DPP v Rule |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1911 |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr D. Cordy | Office of Public Prosecutions |
For the Accused | Mr T. McCulloch | Balmer & Associates |
HIS HONOUR:
Arthur Patrick Rule, you have pleaded guilty to one charge of home invasion, one charge of causing serious injury recklessly and one charge of damaging property. Those crimes carry maximum penalties of 25 years, 15 years and 10 years respectively. You also pleaded guilty to one uplifted Magistrates' Court charge of breaching an IVO, on that charge I convict and sentence you or imprisoned for a period of two months, totally concurrent with the sentence imposed on the indictment.
You have pleaded guilty at a relatively late stage, but must get the benefit of that plea of guilty in terms of the utilitarian effect. You are now, as I understand it 49 or 50 years of age. Your plea is obviously not associated with any degree of remorse or insight, and you do not get the benefit of that. That does not aggravate the situation it is just plainly evident. Insofar as the utilitarian benefit is concerned, it is obviously done in the time of Warboys, I am very well aware of that decision. Your pleading guilty has ultimately saved the necessity of the victim who is clearly traumatised by all this, of giving evidence in a trial, although as I understand it there was a committal.
You do have prior convictions and findings of guilt involving violence. Some of them are of antiquity and another one is more recent but clearly not all that serious. However, they are there in the background.
A summary of the offending is that at the time that you were 49, the victim in the matter, Ms Weller, lived next door. She had moved to the country in around about 2016 to set herself up for retirement. She in fact, retired in April 2019. At first after moving in to the address, the two families were on good terms, but that eventually deteriorated. There has been quite some discussion about what the lead up to all this was, and in my view, I do not need to make any findings or rulings upon any of that. There was obviously an element of ill-feeling as to who did what to who and when. That is of no particular concern to me. This is a situation where the nature of the offending that took place, could not possibly be in any way, shape or form be justified in any set of circumstances.
There had been arguments previously, a rock had been thrown. As I have said there were allegations flying backwards and forwards which I am not particularly concerned with. Intervention orders were taken out and the basis of all those again, I do not think matters all that much in this situation.
In the ultimate, on 20 July 2019, Ms Weller went to bed at around about 7.30 pm, but woke up around 11 pm to go to the toilet. She heard a loud noise which sounded like something landing on the roof. She decided to stay up and read, so she went into the dining room. The lamp in the kitchen was on and she could see glass on the floor in front of the glass family room door. She then noticed a small hole in the bottom of the glass door. Something then hit the glass door and it shattered. You and your son, Quinton, stepped through the door and entered the home. She saw that you had a baseball bat in your hand and Quinton held a straight piece of pipe, approximately a metre long. She said it was about as thick or thicker as the lid of a two litre milk bottle. That is the charge of home invasion.
The victim was 64 years of age. She lived alone, that was well-known to both you and your son. Her only companions were her dogs, that was also known well to both you and your son. She had presented absolutely no physical risk to either of you, yet you clearly went there with the intention of assaulting her, and to achieve that end, took with you, not just each other but significant weapons. I have pointed out during the course of this, that there are two versions of events insofar as you and your son are concerned, and that is why, one of the reasons, why we are dealing with the two matters separately. Indeed, as I recollect that on separate indictments, insofar as your summary of offending is concerned, it says that Quinton hit her in the back and she fell to the ground. The two of you then started kicking her and hitting her while she was on the ground. Mainly hitting her back, legs and ankle. Obviously, I have seen the coloured photographs of what occurred to this lady and it is absolutely disgraceful.
While this attack was taking place on her defenceless body, her dogs were in the room barking. The allegation is that you kicked one of the dogs and I am not - there is no charge of that here, so it is just simply part and parcel, it must have added to her apprehension when she saw that. She heard one of you hit something against the wall near the kitchen bench. You screamed at her, 'Get out, get out of town and don't go to the cops.' She told you she didn't think she could get up. So you kicked her again.
She managed to crawl through the family room over broken glass from the door and the garden bed outside and made it to her car parked in the carport. As she was crawling you handed her, her car keys. She asked if she could take her dogs with her and you said, no. As I indicated to your counsel, this is not a question of animal cruelty, but in that situation where your and your son's behaviour is so violent she must have been terrified, not just for what was going to happen to her but what was going to happen to her life companions as well.
10 She was struggling to breathe and was in a lot of pain as she opened the driver's side door. She dragged herself into the driver's seat. She kept her front gates closed as a rule, but noticed on this occasion that they were open. As she put the car into reverse to drive away, you hit the car windscreen with the baseball bat. You were screaming at her to get out and leave town. Your son also hit the bonnet of the car.
11 She managed to drive to a friend's house, which I am not sure how close that is, but relatively nearby, sounded the horn and got herself out of the car and down the driveway. She yelled for help. She was then assisted, an ambulance was called. She was in her dressing gown and moving was difficult, and I have seen photographs of her in that situation. She had blood on her hands, blood coming from her mouth. She sat down on the veranda and said she wanted to lie down, blankets and a doona were obtained. She was having difficulty breathing so she sat up. She told the neighbours that the two of you had come into her house and hit her with a baseball bat and an iron bar and that you had hit the car as well and her dogs had been kicked.
12 Police were called and a short time later police and ambulance arrived. The neighbour noticed that her car had a smashed windscreen on the passenger side and driver's side headlights had been damaged. At approximately 11.54 pm police received a report from your wife, about a neighbour dispute, shortly after that she again called police back again apparently and cancelled police attendance as she said it was all a misunderstanding. Whilst that might arouse certain suspicions I do not take that in these circumstances any further. A short time later police arrived, saw the condition she was in and took photographs of her and her car and obviously I have seen those.
13 She was taken to Shepparton Hospital by ambulance initially and was in and out of consciousness. An emergency chest drain was inserted and she had to be intubated to maintain breathing by artificial ventilation. She was then transported by helicopter to the Royal Melbourne Hospital due to the seriousness of her injuries.
14 Police attended the scene of the house, the double-glass door to the house had been smashed, and they located a brick underneath the kitchen table which clearly would have been used to inflict the damage that occurred to the house itself. The dogs appeared frightened, understandably, and some were hiding. The house was locked down to be examined again the next day.
15 When you were arrested at 2.30 pm on the 21st with your son, you said you were unable to remember the incident, said that you had been drinking that evening, you told them that you often do not remember things after having an epilepsy seizure, but were unable to say if you had a seizure in the lead up to that.
16 Insofar as you are concerned that ends your involvement. Due to the assault
Ms Weller remained a patient at the Royal Melbourne Hospital for 14 days. Four of those days were spent in the Intensive Care Unit. She underwent three separate surgeries during that time, including the removal of her spleen, which was shattered as a result of the assault. She had surgery on her ribs where seven ribs on the right-side and one on the left of her chest had to be pinned and screwed back together. She required hand surgery , due to four broken fingers. One of the fingers on her right-hand required five screws to hold the splintered bone together.
17 She sustained the following injuries in summary as a result of the assault by the two of you. Multiple fractures including her hand and fingers. Complicated right index finger. Right ring finger fracture and the neck of the left fifth hand bone fracture. Multiple complicated rib fractures and dislocations of the right seventh, eighth, ninth and tenth ribs, with flail chest segments directed towards the side, that is rib segments that had become detached from the rest of the chest, causing abnormal breathing. That can have a fatal outcome. Multiple spinal bone fractures, T10, 11 on the right side and LT4 on both sides. A tibia fracture that had to be plaster-cast. Multiple internal organs requiring emergency procedures, including lacerated and large volume bleeding of the spleen. Air and blood collection between the pleura and the plural space covering the lungs, resulting in both lungs to collapse.
18 Bruising to both lungs, blood loss requiring blood transfusion and ongoing impaired hand functions, including swelling and scar tissues. She has had to attend numerous medical appointments following her discharge and I will be reading her victim impact statement in a moment. It is quite clear that the injuries that she sustained were very much life-threatening. It is also clear, that had she not been able to get to that neighbour and then taken to hospital, she would have died.
19 The pair of you are extremely lucky in one sense that this matter's not being heard in a very different jurisdiction. In her victim impact statement and I will read it in its entirety, it is only short. Ms Weller says,
'I was 64 years old when the crime was committed. I'd been living in the town of St James for three and a half years. I was enjoying part-time retirement involving myself in town activities. I worked as a registered psychiatric nurse when called upon by Goulburn Valley Health. I lived in a home I owned, had renovated and added solar power, extra water storage and a chook pen. I undertook all the maintenance required. As it probably was half an acre the garden required continual upkeep which I enjoyed. I have always had animals in my life. At the time of the crime I had two cats and five poodles, that I clipped and groomed myself. This was my family, I believed my future was safe and secure. The impact of the crime has been unrelenting fear, the offending happened so fast, I didn't have time to process what was happening. I lost consciousness for a time and felt overwhelming fear as I drove away from my home. It was then it registered how scared I was. I had three surgeries in four days whilst I was in hospital. I'd been diagnosed with life-long health issues due to the multiple injuries I sustained. [There is a list of those attached which I will not - I have no need to go through in these circumstances.] I continue to have pain and permanent decrease in function of the affected areas. I am unable to groom my dogs, tend to my garden and work as a nurse. I could not manage without the support and validation from my sister on a daily basis. This overwhelming fear has affected my mental health severely and I see a trauma psychologist regularly. I returned home from hospital. At the committal hearing in November 2019, I continued to fear for my life. [Is a matter which is probably is inadmissible. But in any event, which I do not take into account] she had to seek assistance from her granddaughter to leave her house in February 2020 and she never returned. These all-encompassing fears lead me to selling my home, the home I once owned and had to sell at a financial loss to myself and have to start again. I now find I will never be in a position to buy let alone own another home and I am faced with the private rental market. I had to re-home two dogs which is heartbreaking. My youngest dog was nine. There is no possibility of renting with five dogs. I am still alive but my dogs have gone. My lifestyle, my secure future and home I loved have been eliminated by this crime. What was my once my nest egg for retirement has gone. My secure future and well-being was shattered in an instant.'
20 That is what you and your son achieved Mr Rule. The offending clearly is extremely serious, it calls for in the normal course of events, the application of general and specific deterrence. In this situation, denunciation in my view has a very high significance, as does appropriate punishment. There are any number of adjectives which one could try to use to describe this, it is almost incomprehensible that two adult men could give such a kicking and belting to a defenceless woman on her hands and knees on the middle of the night, knowing her age and knowing that she was in serious bother.
21 The Crown prosecutor in his submissions at the end described it as despicable and I do not think that is a word that too many people would quibble with. A sentence at the high end is inevitable in this situation as I have indicated it is very serious indeed. It must be one of imprisonment together with a non-parole period and your counsel very sensibly has not disagreed with that position.
22 You were in custody for 280 days and had been on bail since your ultimate release. I take into account that there has been a significant delay which is not due to your fault between the matter - you being charged with the matters and the ultimate disposition of them. A lot of the delay has been about trying to get an appropriate psychological report on you and your son. I do take that delay into account knowing that this will have been hanging over your head.
23 I take into account that the sentence I impose will be served in uncertain times as to regard to COVID, and as I understand it certainly a significant part of what you had already undergone would have been done in a COVID situation.
24 I then look to matters personal to you, in terms of determining what the appropriate sentence should be. As I have already indicated the normal member of the community would find this offending just shocking and denunciation has to play a significant part. I look at your background and your counsel very ably and very well put submissions on your behalf as to what matters I should take into account.
25 You and your partner had been living together for some 25, 27 years, had a number of children, apparently one of whom unfortunately died at a young age. You, yourself had a transient childhood, I note that you were born in Brunswick, that you went to Lionel Hall which is an institution is known to me, and you clearly had learning and behavioural difficulties. I accept that you are functionally illiterate. I accept that your parents remained together but your father abused alcohol and was violent towards your mother. You had a varied working life and I accept for these purposes with your limitations, that is a pretty good working history.
26 You worked at various jobs over the years. You are functionally illiterate which obviously would make it more difficult to obtain employment, but from the age of 14 when you did leave school, having attended a number of them, you had been involved in car wrecking, panel beating and then security for over a decade. I am told by your counsel that one of your prior matters relates to that work.
27 You were diagnosed with epilepsy in 2006 and ceased work at that time. I am not going to go through all the medical material relating to that, but it seems that the matters are not epilepsy per say, but a psychological factor. Again, there is nothing much I can do about. I point out that there are clearly no matters involved in your health which cannot be dealt with effectively in a custodial environment. You have been able to do some limited labouring and handman work subsequently.
28 You have been tested and diagnosed with a mild intellectual disability and it is at that point that a more formal neuropsychological assessment was required. My understand is that you had been originally diagnosed as having a full scale IQ of 69, which puts you within the mild range. Although that mild is an extremely unfortunate word to be using in these circumstances. The neuropsychologist Ms Lofthouse who examined you since, holds it at 61, these things can tend to vary but I certainly accept that you are, and were at the time of the offending mildly intellectually disabled. I make it clear that with the word 'mild' when it comes to intellectual disability is extremely misleading.
29 I have read the neuropsychological report a number of times and I do not know that there is all those many matters I need to go through. She says, that your full scale IQ was 61 and an extremely low range. She said that your - many of the aspects of your functioning were very limited. She did however say that your test regarding non-verbal problem solving were a relative strength in your intellectual profile but apart from that everything fell beyond the low range.
30 You have had past episodes of self-harm and you clearly, subsequently to all this, have become, and I accept this, at times severely depressed. I accept that gaol for you will be more difficult than for a person who did not have your difficulties. There is no reason to expect that a gaol is unable to deal with them. You, in summary, when one looks at the relationship between your intellectual disability, and the offending. Your counsel and I debated this robustly the other day. The neuropsychologist says:
On testing Mr Rule demonstrated an intellectual impairment with mild to moderate deficits of his executive functioning, marked by restricted problem solving skills. Deficits in problem solving such as noted with Mr Rule are likely to impact on times on his ability to make reasons, and informed decision, and place him at risk of impulsive behaviour and ill-considered problem solving. Considering Mr Rule's intellectual impairment is developmental in nature, it would have been present at the time of his current charges and been a contributing factor in the criminal offending that resulted in his current charges.'
31 I am well aware of the principles in cases such as Muldrock and Stevens about general deterrence and any sentence on that basis will clearly amount to specific deterrence and potentially moral culpability. I have real concerns that in these circumstances, a man of your age with your life experience, would continue to belt into a totally defenceless woman, who was just trying to get to her car to escape the violence of you and your son. In these circumstances, I am reducing the sentence I would have otherwise imposed, because of your intellectual disability, but I do so with a certain degree of caution.
32 Insofar as general deterrence are concerned, again, this sort of conduct I would have thought that a sentence should deter anybody no matter what their mental state, from behaving in a manner such as this. It was not a - not a sudden decision, weapons were obtained whether you gee'd each other up, and I do not know. And once she had been disabled by whichever one of you, you each continued at it, even when she was trying to get away, you then could not help yourselves in terms of trying to smash up her car.
33 However, again, so far as general deterrence is concerned I do make what allowance I can, bearing in mind the principles enunciated in Muldrock and similar such decisions. Insofar as rehabilitation and reoffending are concerned, in my view with your difficulties clearly obviously a risk of violent reoffending. There are a number of references that have been tendered on your behalf about what your disposition is normally like. I take them at face value, they do not sit well with your criminal history and they certainly do not sit well with what you and your son did on that particular night.
34 I do not find this in any way aggravating as I made it clear to your counsel, but you were - pleaded guilty reluctantly when you were originally arraigned and your demeanour yesterday on plea showed very little insight or remorse in regard to the matter. So as far as your rehabilitation is concerned that is problematic, if you do not even come to terms, accept what you have done. It is a situation where I am not Nostradamus, and I am not going to try and foresee into the future as to what your circumstances will be. What I am going to do is I am going to give a slightly lower than normal minimum terms, so that if the authorities at the relevant time decide that you are not a risk to others, and that is all a matter for them, then they can consider parole at that time.
35 As an indicator I have taken into account the delay, the COVID the Verdins, I think obviously and Muldrock, it is a situation where unfortunately for you in your situation, the sheer objective seriousness of what you have done tends to make the other matters part of a little however, I most certainly have endeavoured as best I can to take them all into account. If I have not done it already, I should also point out that we have kept these matters separate, there is matters contained within your son's report, which I have not taken into account in this particular sentencing in any way, shape or form, and I made that very clear as well.
36 All the materials have been tendered. Anyone with a general interest can read what I have read, they can read the references and they can read your counsel's submissions. I have taken all the submissions into account and I think as I have already indicated he performed very ably on your behalf in a very, very difficult situation and his submissions, while some of them obviously I disagreed with, were sensible and he did his best by you. But at the end of the day this is very highly - very serious offending that calls for a very significant custodial sentence.
37 Accordingly on Charge 1, seven years.
38 On Charge 2, five years. Charge 3, six months concurrent.
39 The summary matter two months concurrent. I direct that two years of the sentence imposed on Charge 2 be served cumulatively on the sentence imposed on Charge 1 which is a total effective sentence of nine years. In these circumstances I direct that you serve a minimum term of six years before becoming eligible for parole.
40 I declare that 280 days be reckoned as having been served under this sentence. In the situation where there is no remorse or insight, s6AAA becomes difficult, but so that you clearly understand the utilitarian benefits you have got and there's a Worboyes discount as we call them, imposing this I say that but for your plea of guilty you would have been sentenced to prison for a period of 13 years with a minimum of 10.
41 HIS HONOUR: No other orders I have to make gentlemen?
42 MR CORDY: The compensation order I think made.
43 HIS HONOUR: That's been made, I made that yesterday, I think.
44 MR CORDY: Yes, thank you, Your Honour.
45 HIS HONOUR: Yes, all right. You can remove him, thank you thank you gentlemen.
46 MR MCCULLOCH:: From the statement PSD I think I've been in error, I'm sorry, Your Honour, 280 days.
47 HIS HONOUR: I can't hear you.
48 MR MCCULLOCH:: Sorry, Your Honour I just think Your Honour's statement of the pre-sentence detention Your Honour said 228 and I think it's ‑ ‑ ‑
49 HIS HONOUR: No, 280, I said. I did say 228, sorry. Yes, you're right I meant to say 280, yes.
50 MR MCCULLOCH:: If Your Honour pleases.
51 HIS HONOUR: Becoming dyslexic as I get older I think, yes, thank you. Yes, thank you Mr McCulloch it was a good effort and under very different - difficult circumstances yesterday, thank you for that.
52 MR MCCULLOCH:: If the court pleases.
53 HIS HONOUR: Thank you Mr Cordy.
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