Director of Public Prosecutions v Rule

[2017] VCC 891

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-01994

DIRECTOR OF PUBLIC PROSECUTIONS

v

JAMES RULE

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JUDGE:	HER HONOUR JUDGE PATRICK
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	28 June 2017
CASE MAY BE CITED AS:	DPP v Rule
MEDIUM NEUTRAL CITATION:	[2017] VCC 891

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

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms S. Lenthall
For the Offender	Mr C. Terry

HER HONOUR:

1James Rule, you have pleaded guilty to one charge of armed robbery (Charge 1), one charge of robbery (Charge 6), two charges of attempting to obtain property by deception (Charges 2 and 4), one charge of attempting to obtain a financial advantage by deception (Charge 3), and two charges of theft (Charges 5 and 7).

2The maximum penalty for armed robbery is 25 years' imprisonment.  The maximum penalty for robbery is 15 years' imprisonment.  The maximum penalty for the offences of attempting to obtain property by deception, attempting to obtain a financial advantage by deception and theft is ten years' imprisonment.

3You have also pleaded guilty to three uplifted summary charges of unlicensed driving (Summary Charges 2, 7 and 9).  The maximum penalty for that offence is three months' imprisonment or 25 penalty units.

4The circumstances of your offending are set out in the Summary of Prosecution Opening upon Plea which was tendered as Exhibit A.  The circumstances in brief are as follows. 

5Charges 1 to 4 arise from incidents occurring between 14 and 17 May 2016.  On Saturday 14 May 2016 at about 1.30 am the first victim, SS, approached you near Crown Casino in Melbourne.  You had a friendly conversation.  You then told SS that you had had a fight with your girlfriend and needed a lift to Coburg.  SS agreed to give you a lift and you both got into SS's car.  SS drove you to Coburg.  When you got there you asked to use SS's mobile phone to call your "Missus".  After SS handed over his phone you pulled a knife from your pants, told him to turn the car off and asked for his car keys and wallet.  SS handed over his keys and wallet.  The wallet contained a Commonwealth Bank credit card.  You drove away in SS's car.  (Charge 1, armed robbery; Summary Charge 2, unlicensed driving.)

6At about 3.25 am you tried to use a stolen credit card to purchase goods to the value of $81.39 from a petrol station.  The transaction was declined.  (Charge 2, attempting to obtain property by deception.)

7On 15 May 2016 at approximately 3.49 pm you took a taxi.  The taxi fare was $28.24.  You twice tried to pay by using the stolen credit card but the card was declined again.  (Charge 3, attempting to obtain financial advantage by deception.)

8On 17 May 2016 at 6.30 pm you attended Officeworks and tried to pay for a security system valued at $427 with the stolen credit card.  Again the card was declined.  (Charge 4, attempting to obtain property by deception.)

9Charges 5 and 7 arise from an incident which occurred on 22 May 2016.  On 21 May 2016 at about 9 pm your second victim, BK, was driving his car near the Jacana Railway Station.  He saw you walking with a limp, he stopped and asked if you were all right.  You then had a brief conversation and he offered you a lift.  During the drive the two of you agreed to hang out for a while.  BK drove you around until about 10.30 pm when you suggested going to a location on the Maribyrnong River.  You went to that area and spent about 30 minutes there.  On leaving BK gave you the car keys to drive as he was feeling unwell.  You drove the car to various locations.  You told BK, who was in the passenger seat, that you were just borrowing his car.  You then drove to Brunswick and told BK to get out before driving away in BK's car.  You also took BK's mobile phone and his G-Shock watch.  (Charge 5, theft; Summary Charge 7, unlicensed driving.)

10Charge 6, Summary Charge 9 and Charge 7 arise from an incident which occurred on 15 June 2016.  On 15 June 2016 at about 5.50 am your third victim, AA, was in a car parked in Pascoe Vale.  The car was owned by a medical practitioner who engaged AA to drive him.  AA was waiting to pick up the medical practitioner.  You approached the car and asked to get in because it was cold.  AA allowed you to get into the front seat.  You then asked several times for a lift until AA agreed.  You directed AA to a location a short distance away.  After thanking AA for the lift you pointed something hard into the left side of AA's stomach.  AA looked down and saw something in your hand but the item was covered with a black cloth.  You said words to the effect of, "Get out of the car, otherwise I'll shoot you if you don't get out of the car."  You demanded AA's mobile phone which he handed over.  You then drove away in the car.  (Charge 6, robbery;  Summary Charge 9, unlicensed driving.)

11At approximately 8.40 am on that day you drove the stolen car to a hardware store.  You placed two cans of spray paint in your pocket and left the store without paying for them.  (Charge 7, theft.)

12You then returned to the stolen car.  You were arrested by police, you were transported to Fawkner Police Station.  You participated in a recorded police interview.  You said you did not remember being involved in any incident involving SS and denied using his credit card.  You said various things to the police in respect of your offending involving BK and AA.  You made some admissions but said you took the car from BK as part of some plan with BK for an insurance claim.  In respect to AA you said that you got in the car and took off because you thought it was abandoned.

13You were charged and committed to stand trial following a contested committal hearing.  The matter resolved at a final directions hearing on 1 May 2017.  You have been in custody since your arrest.

14In their statements to the police each of the victims described their fear during the incidents.  SS said, "During the incident I felt scared and shocked.  As soon as I saw the knife I feared for my life."  BK told police, "I was panicking a lot and maybe hyperventilating."  AA said, "I was very afraid."

15SS's car was recovered some weeks later and BK's car was discovered burnt out within 24 hours of the offending. 

16Application is made for a disposal order in relation to various items seized from the car stolen from AA.  The making of that order was not opposed.  The prosecution also sought an order for the restoration of BK's watch to him.  The making of that order was not opposed.

17In his Victim Impact Statement which was tendered as Exhibit C SS describes the effect that your offending has had on him.  He says that it has changed who he is.  He says he is in a state of fear even engaging in simple tasks.  He says his fear and stress have adversely affected his relationship with friends and family.  He says that, "As a result of this crime my once outgoing personality has been reduced to that of a fearful, closed off person."  He says he has trouble sleeping and frequently has bad dreams.  He says he does not feel safe anywhere or at any time as a result of your crime. 

18In sentencing you I have taken into account your personal circumstances.  Your personal circumstances were outlined by your counsel orally and in written submissions for plea in mitigation which were tendered as Exhibit 1.  Your counsel also relied on a psychological report from Mr David Ball dated
16 June 2017 (Exhibit 2) which includes a summary of your personal history.  You are now 28 years old.  You were brought up by your mother.  You do not know who your father is.  You have one brother.  Your upbringing was dysfunctional and characterised by poverty and your mother's substance addictions.  You were cared for by your grandmother for much of your early childhood.  You were often taken out of your mother's custody and placed into foster care because of your mother's problems.  After you were about eight years old you lived mostly in the care of your mother until you left the family home at 14.

19Your mother had had a number of relationships with men who were drug users or alcoholics, but when you were 12 she formed a relationship with a man who is a medical practitioner and who has had a stabilising influence on your mother's life.  You did not get on with your stepfather and this was one of the reasons you left home when you were 14 in Year 8.  You then completed two years of a carpentry apprenticeship.

20You began consuming alcohol at about 12 years old, cannabis from 16 years old and methylamphetamine from about 21 years old.  Your use of methylamphetamine was occasional until 2013.  At that point you separated from your partner of three years and your drug use significantly escalated.  After your drug use escalated you stopped attending work.  You lost your caravan accommodation and took to living in cars and occasionally sleeping on friends' couches. 

21You have admitted a significant prior criminal history.  Your first court appearance was in January 2010 and your last previous court appearance was in December 2015.  You have committed a number of driving offences.  In 2013 you were convicted on two charges of make threat to kill and five charges of stalking.  You were sentenced to three months' imprisonment to be followed by a community correction order.  You failed to comply with that order and were re-sentenced to a 12 month community correction order in June 2014.  On that same occasion you were sentenced to a suspended sentence of three months for driving offences and offences including make a threat to kill.  Again you contravened community correction orders. 

22In March 2015 you were found guilty of charges including possession on court premises of an offensive weapon and possession of a prohibited weapon without exemption or approval.  Again you were sentenced to a short term of imprisonment.  In June 2015 you were sentenced on charges of robbery and possession of ecstasy to 100 days imprisonment to be followed by a community correction order of 15 months.  Your last court appearance in December 2015 was in relation to driving offences.

23You gave evidence during the plea hearing.  You read a letter which was tendered as Exhibit 3.  You apologised to your victims.  You said that during this period on remand you have had the opportunity to reflect on your behaviour. You said that your behaviour is not acceptable and you really want to change yourself.

24You were asked about your re-offending after previous gaol terms.  You said that there had been some difficulties given that you had stayed at your mother's place each time for a period and there was conflict with your mother.  You said that with your release on this occasion you did not wish to go back to your mother's but wanted to live on your own as you would get on better with her when you were not living together.

25You said that you have come a follower of the religion of Islam during your period in custody and that the Islamic Council of Victoria has said that it will be able to give you some assistance with accommodation on your release.  You said you intend to stay away from people using drugs and that you would like to go into a long term detoxification or rehabilitation program such as Odyssey House or Windana.  You say you have spent time in custody doing gym and work.  You would like to finish your carpentry apprenticeship although your main goal is to work in the fitness industry. 

26In cross-examination you said that you had not written the letter yourself because you had bad handwriting, but you had dictated what you wanted to say to somebody else.  You said that at the time of the record of interview you were drug affected and you did not know what you were saying.

27In contrast to what you told police you say that you do remember the offending with SS and BK but do not remember AA.  You said you accept that your behaviour was wrong and that it was not normal behaviour.  You said you had done well on CISP bail but otherwise had relapsed into drug use.  You said you were stable in gaol and that you were not going to get upset but would make the most of it, including getting an education.  You said that you were sorry for what you had done and thought about if it had happened to you.  You said again you really wanted to change. 

28In re-examination you said that your practice of the Islamic faith had been of assistance to you and that the prayer times had been an opportunity for reflection.  You said that Islam teaches you positive character attributes and that consumption of drugs and alcohol is forbidden.

29Mr Ball reports that the results of intelligence testing and clinical interview reflect that you fall within the dull/normal range of intelligence.  It is Mr Ball's opinion that your IQ skills would improve with further application to formal education and literacy studies.  Mr Ball says that you do not have sufficient literacy and numeracy to attempt the psychometric personality instruments at his disposal.

30Apart from your alcohol and stimulant use disorders which are in remission in a controlled environment, you do not satisfy any other criteria for mental illness, personality disorder, mood disorder or other clinical syndrome.  Mr Ball says, "Overall Mr Rule impressed me as a low functioning and socially isolated man with impairment in his capacity to plan and exercise good judgment."

31It is Mr Ball's opinion that your "social reasoning is unsophisticated" and that you tend to reduce complex problems to simplistic concrete terms.  He says you tend to be impulsive and often make poor decisions and choose a course of action based on short-term considerations.  He says you learn poorly and slowly from negative consequences.  Mr Ball makes some suggestions in terms of your rehabilitation and management in the community.

32Your counsel submitted that your evidence in court suggested that you had a greater capacity than described by Mr Ball.  It appears that you are able to read to a certain level given your reading out in court of the letter.  It appears from your completion of part of your apprenticeship and what you said in court that you have some capacity to gain skills and understanding.  Those matters and the contents of your evidence generally are not inconsistent with Mr Ball's conclusions.  Mr Ball's opinions are consistent with your lengthy history of criminal offending, inability to comply with community based orders and your background generally and I accept them.

33Your counsel said that he was not relying on the application of any Verdins' principles.  He submitted that your plea had not been an early plea but that it was not a very late plea and should be taken into account in a utilitarian sense.  Your counsel accepted that there could be only limited remorse indicated by your plea of guilty, given that there had been a contested committal.

34Your counsel submitted that it was positive that you had made peace with your mother, although there were ongoing difficulties in your relationship.  Your counsel submitted that you have limited relevant prior convictions.  Your counsel addressed your conviction for robbery. A summary in respect of this matter which occurred on 26 December 2014 was tendered as Exhibit D.  Your counsel said that matter was squarely relevant. 

35Your counsel submitted that your offending in respect of armed robbery was at the lower end of such offending, though not at the lowest end.

36The prosecutor in sentencing submissions addressed the nature and gravity of your offending.  The prosecutor submitted that the armed robbery was at least in the mid-range of such offending.  The prosecutor agree that it was on one hand opportunistic but not spur of the moment.  The prosecutor submitted that you had the particular modus operandi of getting access to a vehicle and then turning on the driver.

37In respect of SS the prosecutor said that it was an aggravating circumstance that the weapon was in very close proximity to SS.  The prosecutor also submitted that it should be taken into account that a motor vehicle was an item of high value and theft of a motor vehicle was a prevalent offence.

38The prosecutor submitted that the harm to the victims ought also to be taken into account.  The prosecutor referred to the fact that you were on a community correction order when this offending occurred as an aggravating matter.  In respect of your prior criminal history the prosecutor said that she had calculated there were 45 convictions arising from seven appearances over a seven year period.  She submitted the most relevant prior conviction was for the robbery matter to which I have already referred.  She also referred to the prior matters involving threats to kill, stalking and weapons offences. 

39The prosecutor submitted that you would have guarded prospects of rehabilitation and that specific deterrence would be required.  She submitted that the letter you had read was self-serving and in respect of remorse ought to be considered in the light of what you had said in the record of interview and that a contested committal had been conducted prior to the plea.

40The prosecutor accepted that your plea of guilty did have a utilitarian benefit although it was not at the earliest opportunity. 

41The prosecutor submitted that the dominant sentencing purpose should be general deterrence in addition to community protection and that those sentencing considerations, together with specific deterrence ought be the primary sentencing considerations.  She further submitted that denunciation and just punishment all have an important role to play in the sentence imposed. 

42In respect of the summaries of cases provided by your counsel the prosecutor did not take particular issue with those, but submitted that those in 2016 might be the most helpful as being the closest in time.  The prosecutor submitted that it needed to be taken into account that there were three separate incidents with three separate victims and that there should be some cumulation of sentence between the three incidents. 

43Your counsel submitted that there should be a significant degree of concurrency in the sentences imposed given that the offending occurred over about one month.

44Your counsel also submitted that the application of the principle of totality would moderate the degree of cumulation in respect of the three victims. 

45You are entitled to a significant discount for your plea of guilty.  That plea was not made early but has saved the expense and trauma of a trial.  I accept that you are now genuinely remorseful about your offending.  You were certainly not remorseful at the time you were interviewed by police.  You were not demonstrating remorse at the time of the contested committal.  I do not accept that the way in which you offended was indicative of remorse.  Your counsel submitted that you were being friendly and not aggressive throughout the armed robbery, together with asking a victim whether he had insurance suggested that there was at least some remorse present.  I consider these matters go to the way in which you induced each victim to trust you and then offended against them as your method of committing crime rather than being an indication of remorse.  The question about insurance may be one that constituted some form of self-justification, but I do not consider that to be indicative of remorse at the time.

46Your counsel submitted that the armed robbery charge falls at the low end of the spectrum for seriousness of this type of offending.  Your counsel addressed various circumstances that he argued supported that characterisation of this offence as low end armed robbery.  I consider that your offending falls between the low to medium range of seriousness for this type of offending.  You induced the complainant to trust you sufficiently to give you a lift.  You abused that trust.  You used a knife in circumstances where the knife was in close proximity to SS.  SS says, and I accept, that this was an extremely frightening incident given that you and he were close together in an enclosed space and you were armed with a knife.  The incident has had ongoing consequences for SS.

47I accept your counsel's characterisation of the theft in respect to BK as being between the low to medium end of the spectrum of seriousness of this offence.  I also accept your counsel's submission that the robbery falls at the medium or mid-range part of the spectrum of seriousness for that offence.

48Your offending is serious.  You induced three different people on three different occasions to trust you sufficiently to take you into their cars.  You then abused that trust by taking the cars and other items from those persons.  Each of them was understandably very frightened.  You used a weapon in respect of SS.  You used the threat of a weapon in respect of AA.  You tried to use the stolen credit card dishonestly.  You drove when you were not entitled to drive. 

49Your counsel submitted that your prospects of rehabilitation should be considered taking into account your relative lack of prior criminal history until 2013.  He submitted on the basis of your previous ability to hold down full-time work and a long-term relationship that you had reasonably good prospects for rehabilitation, especially given that you had no underlying mental illness that would make rehabilitation more difficult for you.  I consider that your prospects of rehabilitation are reasonable but guarded.  You have had considerable difficulty in the past remaining drug free when difficulties hit you in life particularly.  You have been in custody twice before with an opportunity to remain drug free.  On each occasion you have relapsed into drug use and re-offended.

50You have re-offended despite being placed on community based orders.  I accept that the current period of incarceration has given you time to think and that you do have a positive wish to change.  It appears that you continue to have concerns yourself about your ability to remain drug free in the community given that you would like to attend a long-term drug rehabilitation program.  You have some personal capacity but will need support in order to remain drug free.  If you remain abstinent from the use of illegal drugs there are reasonable prospects that you could engage in future education and the acquisition of employment skills and life skills.  It appears that you are trying whilst in custody to work on those matters.

51A sentence of imprisonment is clearly warranted for the purposes of just punishment, denunciation, general deterrence, community protection and specific deterrence.  Some cumulation in sentence is warranted to reflect that your offending involved three separate victims.  I have applied the principles of totality and proportionality in determining the degree of cumulation and the total effective sentence.  I have also taken into account current sentencing practices.

52James Rule, you are convicted on each charge and sentenced as follows.  Charge 1, armed robbery, three years' imprisonment.  Charge 2, attempting to obtain property by deception, two months' imprisonment.  Charge 3, attempting to obtain a financial advantage by deception, two months' imprisonment.  Charge 4, attempting to obtain property by deception, three months' imprisonment.  Charge 5, theft, 12 months' imprisonment.  Charge 6, robbery, 18 months' imprisonment.  Charge 7, theft, three months' imprisonment.  Summary Charge 2, unlicensed driving, one month imprisonment.  Summary Charge 7, unlicensed driving, one month imprisonment.  Summary Charge 9, unlicensed driving, one month imprisonment.

53The sentence on Charge 1 is the base sentence.  Four months of the sentence on Charge 5 and eight months of the sentence on Charge 6 are to be served cumulatively on each other and on the sentence on Charge 1.  The total effective sentence is four years' imprisonment.  I fix two years and nine months as the period you are required to serve before being eligible for release on parole.

54I declare that you have served 378 days of this sentence by way of pre-sentence detention to be deducted administratively.  But for your plea of guilty I would have sentenced you to a term of imprisonment of five years and six months with a non-parole period of four years.

55In respect of Charge 5 any driving licences that you hold are cancelled.  You are disqualified from driving in the State of Victoria for a period of 12 months.  I have made the orders for disposal and restitution that were sought.  Thank you, can you please take your seat, Mr Rule?

56Would you like me to repeat anything, Mr Terry or Ms Lenthall?

57MR TERRY:  The only thing I would ask, Your Honour, I think I've got everything down, is the date that the driving licence suspension or disqualification commences.  I assume it's today.

58HER HONOUR:  Today, yes, to commence from today.  That was my intention, that it was from today and I think that makes sense in the circumstances.  I should explain I did not make any orders against the unlicensed driving.  I understand I have a discretion but in the context that there was already a
12 month cancellation within the same sentence I considered that to be unnecessary.

59MR TERRY:  If I could just check to make sure I've taken these down right,
Your Honour?

60HER HONOUR:  Do you want me to repeat them?

61MR TERRY:  Yes, thank you.

62HER HONOUR:  That might be easier.  So it is Charge 1, three years, Charge 2, two months, Charge 3, two months, Charge 4, three months, Charge 5,
12 months, Charge 6, 18 months, Charge 7, three months and each of the unlicensed driving, Charges 2, 7 and 9, one month on each.  The sentence on Charge 1 is the base sentence.  Four months of the sentence on Charge 5, which is the theft of the motor vehicle, and eight months of the sentence on Charge 6, which is the robbery, are to be served cumulatively on each other and on the sentence on Charge 1.  The total effective sentence is four years' imprisonment.  The non-parole period is two years and nine months, 378 days pre-sentence detention and I have given you the 6AAA declaration.

63MR TERRY:  Yes, Your Honour, thank you.

64HER HONOUR:  Any technical errors immediately spring to mind?

65MS LENTHALL:  No, Your Honour.

66MR TERRY:  No, Your Honour.

67HER HONOUR:  Otherwise the arithmetic seems to work as I understand it.  Thank you.  Mr Rule, if you could please stand?  I hope that you are able to continue with your good intentions and if it seems to be that your faith is of help to you so I hope you continue with that and it would be an excellent thing if you were able to remain drug free and offence free when you are released this time.  Thank you, very much.

68MR TERRY:  Thank you, Your Honour.

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