Director of Public Prosecutions v Rule

[2021] VCC 234

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 20-01558

DIRECTOR OF PUBLIC PROSECUTIONS

v

BAILEY RULE

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JUDGE:	HIS HONOUR JUDGE MCINERNEY
WHERE HELD:	Melbourne
DATE OF HEARING:	24 February 2021
DATE OF SENTENCE:	10 March 2021
CASE MAY BE CITED AS:	DPP v Rule
MEDIUM NEUTRAL CITATION:	[2021] VCC 234

REASONS FOR SENTENCE

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Subject:  CRIMINAL LAW

Catchwords:  Sentence – Plea of guilty – Theft – Aggravated offence of recklessly exposing an emergency worker to risk by driving – Summary charges – Low grade risk – Young offender – Effect rehabilitation and treat mental issues – Presentence detention - Imprisonment – Community correction order – Fine – Cancel and disqualification of licence 

Legislation Cited: s.74 Crimes Act 1958 – s.317AF(1)(a) Crimes Act 1958

Cases Cited:ReBourke [2020] VSCA 120 - Marrah v The Queen [2014] VSCA 119 - Bugmy (2013) 87 ALJR 1022

Sentence:Total effective sentence of 335 days. Pre-sentence detention of 335 days. Convicted and ordered to serve a community correction order for a period of 2 years with therapeutic conditions.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms M. Zammit	Office of Public Prosecutions
For the Accused	Ms T. Stokes	Farrelly Legal

HIS HONOUR: 

1In regard to this sentence, Mr Bailey came before the Court aged 20.  He was 19 at the time of this offending, having been born in August 2000.  He is a labourer.

2In the matter, Ms Zammit appeared on behalf of the Director and Ms Stokes on behalf of Mr Rule. 

3I record that these proceedings have been conducted via WebEx and I thank everyone involved. Due to the crisis that this community has been enduring, there has been no other way to finalise legal proceedings.  With the aid of technology and in particular the WebEx system, we have been able to finalise the plea.  It has unfortunately meant that people have not been present in Court which is clearly the preferred manner in which a plea and sentence of this importance should take place.  However, we have all had to cope with that.

4Mr Rule pleaded guilty to the charges on Indictment No.L10611889. Counsel, on his behalf, pleaded guilty to summary charges 9, 10 and 11 referred to this Court pursuant to s.145 of the Criminal Procedure Act.  The plea took place on 24 February 2021.

5Exhibit A was accepted by Ms Stokes on your behalf, as disclosing the facts upon which I am to sentence you. Your priors are admitted.

Charges on Indictment No.L10611889

6Charge 1 is a theft of a Peugeot motor car on 9 March 2020 from a Mr Lang, an offence against s.72 of the Crimes Act for which the maximum penalty is 10 years' imprisonment. 

7Charge 2, the aggravated offence of exposing emergency workers to the risk of injury, in this case Senior Constables Jacqueline Clarke and Sean Almeida and Constable Evan McHugh. Such took place on 10 March 2020. The offence being one against s.317AF(1)(a) of the Crimes Act for which the maximum penalty is 10 years' imprisonment.

8Parliament has classified, since 28 October 2018, this offence as a Category 2 offence which pursuant to s.5(2H) of the Sentencing Act 1991 must be met with a custodial sentence.  The Parliament thereby recognising the inherent seriousness of this offence. 

Summary Offences 

9Mr Rule, through his counsel also pleaded guilty to three summary offences referred to the Court pursuant to s.145 of the Criminal Procedure Act, being Charge 9, drive whilst suspended, a breach of s.31 of the Road Safety Act which has a maximum penalty of 240 penalty units or two years' imprisonment. Charge 10, commit indictable offence whilst on bail, a breach of s.30B of the Bail Act which has a maximum penalty of 30 penalty units or three months' imprisonment. Finally, Charge 12, driving with a proscribed level of drugs in his blood, a breach of s.40(1)(h) of the Road Safety Act which has a maximum penalty prescribed of 12 penalty units.

10The prosecution tendered:

a)Exhibit A, the prosecution opening;

b)Exhibit B, the CCTV footage in regard to Charge 2;

c)Exhibit C, the prosecution submission on sentence tendered today; and

d)Exhibit D, which is the Community Correction Report which I have referred to which was positive, dated 25 February 2021, signed by Corrections officer Sam Williams.

11There was no victim impact statements tendered and the Court was advised none of the officers at risk were injured, see Exhibit A, [19].

12Mr Rule has served on remand, I understand this figure is now agreed, 335 days in regard to these matters.

13As to prior history, given his social history from the age of 11, it is not surprising that Mr Rule has been before the Children's Court on many occasions.  No convictions were recorded in that Court, albeit findings of guilt as to a number of unlawful assaults and theft were made.  Mr Rule’s one adult prior was the conviction, one month before these crimes, of theft and fail to stop upon police direction when he was given a community correction order.  Obviously these offences, once convicted, will effect a breach of such order.

Criminality 

14As I indicated during the plea, and is accepted, Charge 2 is a very serious charge, hence the sentence imposed by Parliament and its categorisation.  Clearly the intent of Parliament is to protect, in this instance, police emergency officers going about their duty.  While the CCTV footage is dramatic, when analysed the risk was in fact low grade.  The following can be said as to Charge 2:

a)the actuality of the risk was low;

b)the time frame the officers were put at risk was very short;

c)clearly the crime was committed ancillary to Mr Rule wanting to escape being found in possession of a stolen car;

d)subsequent to the damage to the divisional van, it is estimated that at no stage did the car each more than 7 kilometres per hour;

e)Mr Rule stopped when approached by the police officers.  I am unsure whether this was due to the state the car had been rendered by the collision with the divisional van and the path it took or that he simply woke up to himself after his initial panic; and

f)it is a defined aggravated crime because Mr Rule was in possession of a stolen car.  It was not put to the Court by the prosecution on the basis that he was in the process of committing any other crime.

15The prosecutor submitted, the Court had to take account of Mr Rule being on a community correction order at the time, on bail and being affected by drugs whilst driving.  On assessment of all the above facts, I accept the defence proposition that Charge 2 should be assessed objectively at a low level of gravity.

Submission of Prosecution 

16The prosecutor submitted that in addition to time served, a community correction order should be imposed to ensure Mr Rule gets the best assistance possible with his rehabilitation, which he appears to have begun to effect whilst in gaol.

Plea of Mr Bailey Rule

17Coming then to the plea entered on Mr Rule's behalf by Ms Stokes. 
Ms Stokes tendered her written submissions, Exhibit 1.  Also tendered was Exhibit 2, which was the psychological report of Alison Mynard, dated 22 June 2020, Exhibit 3 the program certificates undertaken by Mr Rule whilst on remand and Exhibit 4 were the four negative urine samples, tendered today, being the samples as to the taking of drugs while in gaol.

18In regard to the plea, Ms Stokes took the Court to similar cases and analysed those cases insofar as assisting the Court by way of various other sentences in similar circumstances, by way of, as the Court of Appeal indicates guideposts.  I appreciate that analysis.

19Ms Stokes referred to the early guilty plea, the fact that it effects remorse, is utilitarian and in particular, in these times, is of assistance to the Court by way of the problems wrought in listing matters and trials, the impact of delayed trial dates caused by the COVID-19 issue and I take all of those matters into account as referred to by the recent Supreme Court decision of ReBourke [2020] VSCA 120, [32]. For all those matters, I provide an appropriate discount on the plea.

20One of the substantial issues of course is and was the youth of Mr Rule. 
I accept that rehabilitation is a paramount sentencing consideration and that such bears upon the assessment of not only moral culpability, but a determination of appropriate sentences.

21The personal circumstances were set out in the written submissions, from [34] to [41].  It is quite clear that the references to the Court of Appeal decision in Marrah v The Queen [2014] VSCA 119 and the High Court decision in Bugmy (2013) 87 ALJR 1022 are appropriate given Mr Rule's background. As I indicated, the offending within the Children's Court from a young age indicates the impact of that upbringing.

22Indeed, at [41], without going specifically to Ms Mynard's report, the Court notes the reference by Ms Stokes to Ms Mynard's opinion at p.9 about the effect of trauma upon his life, Ms Mynard said:

'He does not appear to have clear memories of trauma he experienced as a child, however in the writer's opinion, his disrupted childhood had a significant impact on him.  Mr Rule exhibits symptoms of dysregulation in his nervous system, an inability to self-sooth, anxiety, impulsivity and risk-taking behaviours.'

23I accept effecting rehabilitation as being a predominant principle when sentencing a young offender.

24Insofar as that matter is concerned in determining the appropriate sentence, further reference was made by Ms Stokes in her submissions, [53] to Ms Mynard's report at p.11 where insofar as the prospect of rehabilitation is concerned Ms Mynard said:

'The writer believes that Mr Rule's prospects of rehabilitation are moderate if he is able to engage in treatment programs.  The main factor impeding his recovery is his addictions and if he relapses again, he may find it difficult to focus on being accountable for treatment.  There are many treatment approaches that can assist Mr Rule to improve his mental health and reduce his risk of relapsing into substance abuse.  With a focus on treatment and rehabilitation, it is the writer's view that Mr Rule's risk of offending will be reduced.'

25I must say that the receipt by the Court today of Exhibit 4, being the negative drug urine samples taken at the prison is a very positive step, Mr Rule, on your behalf I will have some general comments to make later to you, but that is a very positive.

26There were further submissions in regard to Mr Rule’s mental health and I take those matters into account. Verdins[1] was not put, apart from Verdins 5 and 6, in regard to the circumstances of the offending given the fact that Mr Rule was under the influence of drugs.  I accept that the submission put that Verdins 5 and 6 are raised generally in regard to a prison sentence being more burdensome, given his diagnoses.

[1](2007) 16 VR 269, 271.

27I also take into account in considering whether any further imprisonment should be imposed, the effect of COVID-19 on prison conditions at the moment.  We hope that that does not continue for too long.

28It was the final submission, both spoken to and set out at [69] of the submission, that on the basis of the matters put to the Court, the term of imprisonment served was an appropriate disposition.  There was further discussion about the impact of a community correction order, and its benefit to Mr Rule and it was the view of both Ms Stokes and Ms Zammit that if the Court was of the view that a community correction order was appropriate to assist him in his rehabilitation, dependent of course on the report itself, that would be within range, subject to complying with the requirements of Parliament as to Charge 2 of course.

29Taking all those matters into account, I come therefore to sentence Mr Rule and I do so as follows.

Sentence

30In regard to all of the charges, Mr Rule, you will be convicted. 

31On the first charge of theft, I impose upon you a community corrections order of two years.  That order is deliberately meant by me to be therapeutic.  That means that you will be subject to treatment and rehabilitation conditions to continue the steps you have taken in prison to rid yourself of the effect of drugs, also in regard to alcohol and reoffending.  You will be subject to supervision, and required to report to the Ballarat Community Corrections office.

32In regard to Charge 2, that is the aggravated offence of exposing emergency workers, in this case three police officers, to risk of injury, you are sentenced to imprisonment of 335 days.

33The total effective sentence therefore by way of imprisonment, in regard to Charge 2, is 335 days and in regard to Charge 1, a community corrections order of two years which begins today.

34Pursuant to s.18 of the Sentencing Act, I declare that the 335 days that you have served to date be declared as part of this sentence and the effect thereof is that the period of almost a year that you served while on remand has now been served.

35As to the summary offences, on Charge 9, the charge of drive whilst suspended, you will be convicted and discharged. 

36On Charge 10, the bail breach, you will be sentenced to a period of one month's gaol. 

37On Charge 12 in regard to the Road Safety Act and your condition when driving, you will be fined $500, and I will give a 12 month stay in regard to payment of that fine.

38The consequences of your convictions means that I have to impose mandatory impacts upon your capacity to drive and your capacity to be licensed. Firstly, under s.87P(ba) of the Sentencing Act 1991, Charge 2 is a ‘serious motor vehicle offence’.  As a result therefore under s.89(1) and s.89(2)(b) I must cancel all your licences and disqualify you for a minimum period of 24 months from obtaining another licence.

39In regard to Charge 1, the theft charge, under s.89(4), I also do same in regard to your licence, cancel and forbid you from obtaining a further licence for a minimum period of three months. Pursuant to s.89C I am satisfied that the consumption of illegal drugs contributed to Charge 2 in this instance.  That means that before you are regranted a licence, you will have to undergo an alcohol and drug assessment report in the Magistrates' Court.

40In addition, I have also got to make an order under Charge 12, that is the driving while affected, pursuant to s.50(1E)(a) of the Road Safety Act and as a result of that, I cancel your licence for a minimum period of 12 months. 
To make it clear, all of those cancellations of licence orders will run concurrently and therefore your licence is cancelled and you are disqualified for 24 months.

41Pursuant to s.6AAA, I am required by Parliament to indicate what sentence would have been imposed on you had you not pleaded guilty.  This is a very difficult task for a Judge to assess in circumstances where one is asked to consider one factor only.  Because of a mandatory provision relating to this Act, I find it impossible to make such a determination.

42Mr Rule, I want to make some general comments to you.  Given the seriousness of Charge 2, that is placing emergency workers, in this instance police at risk of injury, it was mandatory to sentence you, as there was no other alternative submissions, to gaol. In your case, that has meant a sentence of, 335 days.

43Given your background, the circumstances, your age, your mental condition, such a mandated sentence is somewhat concerning for the Court.  But it obviously demonstrates the will of Parliament to protect emergency workers.  Despite all those matters that one would normally take into account, which may well have meant that you received a much less reduced gaol sentence, it was not possible in this case because of the will of Parliament.

44Given the general principles which relate to sentencing young persons and their rehabilitation, can I tell you it is no joy for this Court to see you sentenced to such a term of imprisonment, you being such a young man.

45Hopefully, you will take the opportunities that the community correction order presents, both in regard to the support that is offered to you and supervision and ensure, as you have in prison to date, that you effect rehabilitation and treat your particular mental issues, as best as you are advised.  It is clearly the view of the Court that the community benefits from your rehabilitation.  I hope that you do effect rehabilitation, however, as I have said, a maximum sentence in this case of 10 years gaol for this very serious charge is mandated by Parliament and  is done for a specific reason.  It is a very difficult balance in those circumstances to effect an appropriate sentence, but I do obviously as best as I can in everyone's interest.

46Is there any clarification needed for either counsel?

47MS STOKES:  Yes, Your Honour.  In relation to the one month imprisonment on Charge 11, is that concurrent?

48HIS HONOUR:  That is concurrent, yes.

49MS STOKES:  Thank you, Your Honour.

50HIS HONOUR:  Charge 10 I think.

51MS STOKES:  Ten, sorry, Your Honour, it is Charge 10, concurrent.

52HIS HONOUR:  yes.

53MS STOKES:  So that means Mr Rule should be released today.

54HIS HONOUR:  That is the intent.

55MS STOKES:  Thank you, Your Honour.  I do also have members of the media here.  I am just wondering if there is an application before the Court in relation to any of the exhibits.

56HIS HONOUR:  I am told by my associate there has been an application to peruse the indictment.

57MS STOKES:  All right, thank you, Your Honour.

58HIS HONOUR:  And that was by a member of the Fourth Estate from Prime 7 News.

59All right, thank you.  Now, Madam Prosecutor, any matters as far as you are concerned?

60MS ZAMMIT:  No, Your Honour.

61HIS HONOUR:  No, all right.  Well, Ms Stokes, if you would benefit from it,
I am quite prepared to adjourn the Court on the basis that you have the ability then to talk to your client on WebEx, while everyone is in the ‘lobby’, in circumstances where, as best I understand it, there is no recording made but I cannot guarantee that. I understand that is the position.

62MS STOKES:  Yes, Your Honour.

63HIS HONOUR:  As you would expect given the integrity of counsel talking to their client.

64MS STOKES:  I will speak to Mr Rule.

65HIS HONOUR:  Mr Rule, I am sure that Ms Stokes will emphasise to you how important it is for you to take the opportunities given by a community corrections order.  That is a very serious charge that you have been sentenced on today and it would not be to your benefit if you return to the Court having breached the CCO.  You have been advised of the conditions and it would certainly not be something the Court would enjoy if I had to impose further imprisonment upon you, do you understand that?

66OFFENDER:  Yes, I do, Your Honour.

67HIS HONOUR:  All right.  Ms Stokes, the proposition put to me by you was that your client would consent and he has indicated that in his CCO report.  Do I accept that he would consent to such order?

68MS STOKES:  Yes, Your Honour, he does consent.

69HIS HONOUR:  So how do we do that now?  Yes, well with the COVID special conditions, you are advising the Court that he would consent to such an order with such conditions is sufficient in the circumstances, for us to issue that document and where will we send that, to the prison?  Well we will send a copy of the order to your instructing solicitors, Ms Stokes.

70MS STOKES:  Thank you, Your Honour, and you said that it was Ballarat that my client needs to attend upon in two days?

71HIS HONOUR:  Yes, within two days.

72MS STOKES:  Thank you, Your Honour.

73HIS HONOUR:  There is an address - have you got a copy of the report, I can give it to you.

74MS STOKES:  I have a copy of the report, Your Honour, if there is an address on it ‑ ‑ ‑ 

75HIS HONOUR:  All right, well the address is 206-208 Mair Street, Ballarat.  Your client no doubt would know it well.

76MS STOKES:  Yes, Your Honour.

77HIS HONOUR:  All right, thank you both and good luck Mr Rule.

78OFFENDER:  Thank you.

79HIS HONOUR:  Well you are an adult, but you are going now into your 20s and it is very important for you to make no further mistakes, all right.

80OFFENDER:  That's the plan..

81HIS HONOUR:  And keep up the good work on the drugs.

82OFFENDER:  Thank you.

83HIS HONOUR:  Thank you.

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