Director of Public Prosecutions v Ruscoe

[2015] VCC 1687

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-15-00830

DIRECTOR OF PUBLIC PROSECUTIONS

v

JASON RUSCOE

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JUDGE:	HIS HONOUR JUDGE PILGRIM
WHERE HELD:	Melbourne
DATE OF HEARING:	17 July 2015, 9 September 2015
DATE OF SENTENCE:	23 November 2015
CASE MAY BE CITED AS:	DPP v Ruscoe
MEDIUM NEUTRAL CITATION:	[2015] VCC 1687

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms K. Churchill	Office of Public Prosecutions
For the Accused	Ms S. Devlin	Greg Thomas Barrister and Solicitor

HIS HONOUR: 

1Mr Ruscoe, you have pleaded guilty to one count of attempt to pervert the course of justice.  You have heard the learned prosecutor tell this court that the maximum sentence for attempting to pervert the course of justice is that of 25 years' imprisonment.  That maximum sentence should indicate to you and to the community that this offence is, indeed, a very serious offence.

2I pause there for a moment.  This type of offending has huge variation.  I had better explain it this way.  I have seen attempting to pervert the course of justice occur over speeding fines.  In fact a learned member of the judiciary was charged with that.  I can think of two of them that were charged with that, over fines for speeding and even parking, and then another high profile person that I am sure you know, because I think you have been in prison in the same outfit that he is in, Fat Tony, where there was a conspiracy to pervert the course of justice where he was secreted out of the country, where big crime was involved, massive crime in terms of values of drugs and things of that nature.

3So it is a huge variation, and the prison term, when you look at it on the surface, accommodates that huge variation, and I think I say it later in my sentencing remarks, your attempting to pervert the course of justice, for all sorts of reasons, is at the lower end, serious, but at the lower end of offending.  It is nowhere near at the top end.  It is certainly above the level of trying to pull the wool over the eyes of the revenue collectors for fines and things of that nature.  You are certainly above that level but way below the top level, and obviously the 25 years' gaol term is specifically available because it can be a very, very serious crime indeed.  I do not know that I should have to explain it but I feel compelled to, to try and set your mind at ease so that you understand why that sentence is capable of being so high.  Twenty-five years is what persons who commit capital crimes such as murder are facing.

4For having pleaded guilty I will impose a lesser sentence than I otherwise would have imposed.  In other words, you receive a discount for having pleaded guilty.

5As you now know, an acquaintance of yours, Kayle Stewart, was also charged with this offence.  He has been dealt with earlier this year and you no doubt are aware of that.

6The background of the commission of this offence occurred in the following circumstances.  I put it this way.  You pleaded guilty to a count of theft committed at the All Motorcycle Accessories where two motorcycle tyres valued at $300 was stolen.  Police officers, not surprisingly, identified you from CCTV footage that was apparently running and working at the motorcycle place or at premise very near thereto where these tyres were stolen from.  They looked at the CCTV, that is Ruscoe, straight away.

7On 12 December 2014 two search warrants were executed at your home.  You were then living at 4 Daisy Way, Carrum Downs, where you then lived with your partner, Britney Dobinson and her mother.

8The following items were seized from your bedroom.  What was found in this bedroom was the following.  A blue and beige top similar to that worn by the person observed to be on the CCTV.  Also there was a bowl containing a small amount of cannabis and tobacco, an open yellow bum bag containing 45 grams of methylamphetamine.  The police officers apparently valued that at approximately $45,000, and $2650 in cash and a large quantity of plastic deal bags.  Also found was a plastic bag containing approximately 0.2 grams of methylamphetamine, a plastic bag containing approximately one gram of cannabis, two Taser guns, 38 rounds of .22 calibre cartridges, four Suboxone strips, three notebooks containing drug tick lists, an ice pipe, two sets of scales, a stolen drivers licence and a mobile phone that contained messages that related to drug trafficking with your mother, Karen Abela.

9Mr Ruscoe, you were arrested and interviewed.  You admitted to attending at the All Motorcycle Accessories on 26 September but you denied stealing the tyres.  You admitted to using and possessing a small quantity of methylamphetamine but denied ownership of the yellow bum bag, telling police, and the Tasers belonged to another unidentified friend named Stevie.  You said that the licence belonged to Jarod Bardley, whom you had worked for as a concreter.

10Bardley was spoken to and he denied that he knew you.  Mr Ruscoe, you were remanded to the Melbourne Assessment Prison and then ultimately you were transferred to the Melbourne Remand Centre.

11Between 17 December and 22 December you communicated with several parties on prison telephones, including Dobinson, who, of course, is your partner, Abela, your mother, and Stewart, which I assume, of course, is the co-accused, Kayle Stewart's older brother, Scott.Stewart.

12On 20 December you made a telephone call to your mother, Abela, during which you asked if Steve was going to attend the police station and confess to possession of the drugs.  You also told Abela to tell Kayle and Scott Stewart, that if they told the police that the drugs and ammunition were theirs you would offer $10,000 for their efforts.

13Later that day you made a further telephone call to the same number and told Dobinson, that is your partner, "I'm going to give him 20 to do it.  All right, I'm gonna sell my car."  Dobinson then handed the telephone to Scott Stewart.  You told Scott Stewart that you would give his brother, that is Kayle, 20 grand if he, Kayle, confessed to possession of the yellow bum bag containing the drugs and ammunition.  You also told Stewart what to say to the police in relation to where the drugs were located and how they had been left at that address.

14On 22 December 2014 you again spoke to Dobinson, your partner, after calling the same telephone number.  Your partner, Dobinson, told you that Stewart was there, waiting to speak to you.  Ms Dobinson said words to this effect.  Before he goes down there - and these are the words - I assume that means before he goes down to the police station.  Ms Dobinson subsequently handed the telephone to Stewart and Stewart confirmed that he would attend the Frankston Police Station and you assured Stewart that he would be looked after when he was remanded to the Melbourne Assessment Prison.

15At approximately 1 pm on 22 December 2014 Ms Dobinson drove Stewart to the Frankston Police Station.  Stewart told the uniform police members at the reception desk that he wanted to confess to owning the drugs and the ammunition.  Stewart was ultimately interviewed but had limited knowledge of the offences and was released pending further investigation.  As you know, the whole thing was a farce and, not surprisingly, the police officers were onto it before it had even started, for all sorts of reasons.  As you heard me saying before, they were listening into you.  They knew what was happening.  It was not those policemen that were listening into but staff at the prison, they knew what was going on.  It was being recorded.

16

After Mr Stewart was interviewed Ms Dobinson spoke to you on the telephone regarding that interview that Stewart had had with the police officers.

Ms Dobinson told you that Stewart had been released by the police after they had taken his DNA and that the police officers, named Daly and Davey, were the police officers who had interviewed Stewart.

17Later you were interviewed.  You made a no comment record of interview which, of course, is your right.  You are not to be condemned for that.

18Mr Ruscoe, a report has been prepared by Ms Cina Sedoni, psychologist, who interviewed you by way of a video link for two hours on 15 July of this year.

19Mr Ruscoe, you are now aged 24, having been born on 22 January 1991.

20Ms Sedoni reports as to your education and employment history.  Sedoni said this, and I quote directly from her report:

"He attended Woodland Primary School from prep to Grade 6 and later attended Karingal High School in Frankston and was expelled in Year 7 for lack of attendance.  He then attended a teaching unit in Bon Beach for a time before returning to Karingal High School.  He was expelled again during Year 9 for tardiness.  He reported being assigned a teacher's aide in primary school".

21Sedoni goes on to say:

"After leaving school he worked as a bricklayer's labourer in Cranbourne for 12 months.  He then conducted work as a concreter in Cranbourne for two or three years on and off.  He began working as a plasterer, also in Cranbourne, again on an on and off basis".

22Ms Sedoni says:

"He is presently working in the laundry in prison and has obtained his white card.  He reported no further education or physical activity in prison, that you played football in your youth".

23Ms Sedoni's report indicates that you come from a family that struggled to conform.  It is apparent you were impoverished in terms of a responsible role model.  You were virtually cast adrift.  I have some sympathy for young people that that happens to because young persons cannot control the activity of older people and the number of times I find myself saying this in court is quite staggering.  I think in sentencing two or three young men last week in Shepparton I was using the same words.  They did not have proper role models, they were cast adrift virtually and with no guidance, no help, they found themselves in difficulty with police officers and ultimately getting involved in all sorts of mischief and damaging behaviour such as drug abuse.

24Again, I say I have genuine sympathy for young persons - you are way out of that league now, but young persons because children cannot control what adults do not do or what they do do.

25Again I quote from Sedoni's report:

"He was born in Frankston and raised in Langwarin.  He has a brother, 28, and two sisters, aged 26 and 20.  His younger sister is currently serving a sentence in the Dame Phyllis Frost Centre.  His older brother was recently released from prison, though he was unsure of his other sibling's whereabouts".

26You reported to Sedoni that your parents consistently argued and you described their relationship as on and off.  This resulted in their living situations alternating frequently between their mother and father's houses.  So you were bouncing from one house to the other.  Though their mother was your primary caregiver.  You reported being raised in an environment where illicit substances were used frequently.  He indicated his extended family and his parents' acquaintances were constantly coming and going from their house.  Police indicated the accused's family were well known to the police for their recidivist criminal lifestyle.

27You reported to Sedoni, "No discipline as well as freedom to do as you wished from an early age.  His mother suffered from alcoholism.  He could not recall whether Department of Human Services were ever involved with the family".

28Mr Ruscoe, your involvement with the criminal justice system reflects your irresponsible upbringing.  Your list of court appearances and your convictions is an utter disgrace.  The adults in your life are certainly to blame to a significant extent for you becoming antisocial.

29You first appeared in the Children's Court on 25 January 2007.  You had three further appearances in that court before then amassing 14 court appearances in the Magistrates' Court, wherein you have 64 convictions for many and varied offences.  I again quote from Sedoni's report where it is expressed, and this is the opinion of Sedoni.  This is what she said:

"Jason Ruscoe is a very reduced man, suffering the effects of institutionalization.  A legacy of drug dependency and extreme low cerebral function.  He was raised in a disturbing home setting where there was considerable negative input and minimal supervision.  He was exposed to drugs from a very early age and his father died of a heroin overdose a few years ago.  Through drug taking and his association with negative peers, he commenced offending from age 16 and his criminal history indicates limited periods of freedom from 2011.  The effects of institutionalization were evident with extremely poor coping when he's released in the community".

30Mr Ruscoe, your counsel, Mr Devlin, in his plea on your behalf, submits that you have a drug history and that you had been abusing ice excessively at the time of the commission of this offence.

31Ms Sedoni in her report makes several references to your struggles with illicit drugs.  I again quote from the report.  Sedoni said:

"He began using cannabis at age12, increasing to daily use at age 13.  From age 14 he began using amphetamines and ecstasy regularly.  At age 17 he commenced methamphetamine.  An escalation of use since 2013 using several times a day.  In conjunction with his ice use he reported periods of days without sleep.  He indicated regular use of gamma hydroxibuiric acid, which is GHB, as well as prescription medication, for example, Xanax".

32You also admitted to Sedoni that you had used whilst in prison.

33A little later in the report Sedoni says this:

"He reported most, if not all, of the offending was linked to drug abuse and what became apparent in discussions was his early association with unhelpful peers and unstable home life".

34Noted in the remand summary, police indicated the home was well known to local police as a hub of criminal activity.

35You reported to Sedoni, exposure to drugs from a very early age.  Sedoni, among other things within this report, forms the opinion that your coping skills when released from prison are extremely poor.  Sedoni says this:

"Intellectually testing indicated cerebral dysfunction with a verbal IQ of 56 and a working memory of 69 that warrants further investigation.  He indicated use of teacher's aides in schooling but reported periods of unconsciousness due to fighting and excessive drug use that may also contribute to the low findings".

36I pause there for a moment, but it is no doubt that Mr Devlin, who has been around a bit - I have been around for far too long but I have heard it said many times, if the reading is lower than 62, I think from memory, there are alarms bell ringing.  This person says your IQ level is 56, and that is part and parcel of what then flows onto the assessments being done to assist you so that you can be a useful and productive citizen.  You need help and you are going to have to comply with that.  If you do not it will all start re-happening again.

37Sedoni goes on to say:

"Personality testing revealed psychological disturbance with signs of depressed mood, anxiety, hostility and paranoid ideation.  He presents with stimulant use disorder, resulting in depressed mood, sleep difficulties, psychomotor slowing or agitation and powerful cravings.  Also present is impaired judgment" -

38limiting your ability to make sound decisions or learn from experiences and plan ahead.  Sedoni opines that your low intellect would have a compounding effect.

39Further to the psychological report of Sedoni's, you have at the request of this court, been seen by Dr Patel, who is a consultant psychiatrist.  I quote from Dr Patel's report, which was dated 7 September 2015.  Among other things, Dr Patel says, under the heading, "Mental State Examination", this is what Patel said:

"Intelligence appeared to be within the normal range or possibly lower average but did not appear on clinical impression to be indicative of a man with an intellectual disability as indicated in Sedoni's report.  Insight appeared reasonable in that Mr Ruscoe clearly identified his substance abuse as his major difficulty and the need for intensive residential drug rehabilitation to address the problem"

40Patel then forms these opinions:

"I can find no evidence in this young man of a significant mental disorder that requires intervention.  I can find no evidence of clinical assessment today of an intellectual disability as identified in the psycho-social assessment of Sedoni.  As this assessment occurred over a video link and utilized, it deviates from usual methodology, there is a possibility it is not a true reflection of Mr Ruscoe's intellectual functioning.  However, as I am not trained in formal assessment of intelligence I am unable to categorically exclude the possibility that this man may indeed have a mild intellectual disability.  It would appear form his sister that he was able to, despite significant disruption to his schooling, obtaining a reasonable level of numeracy and literacy, which would indicate a reasonable capacity for learning".

41We see at the end of that day that has proved to be incorrect, but Patel said he is not qualified to make the assessment.  Another person has made an assessment that is consistent with Sedoni's.

42Patel goes on to say:

"It would indeed appear that Ruscoe has been raised in a familial environment in which both substance abuse and antisocial behavior was significantly present.  It is likely that he would therefore have found that such behaviours were tolerated, and conditioned him to see such activities as normal.  It would appear that he therefore started to engage in significant substance abuse in his early teens that has had an adverse effect on his subsequent functioning.  Ruscoe has been able to demonstrate a capacity for engaging in work and sustaining stable, intimate relationship, despite his significant difficulty with substance abuse, which would attest to a capacity for stable functioning in the absence of substance abuse.  It also appears that the birth of his twin sons last year may be a significant motivator to achieve abstinence from drugs, as he is keen to take on a positive paternal role.  Mr Ruscoe also identified the inter-generational pattern.  Ruscoe appears to feel that at the time he committed the offence he was not in a stable mental state due to withdrawing from substances upon his incarceration.  However, Ruscoe wasn't able to give any clear specific details as to how his mental health was being impacted upon and how this was casually linked to his actions at the time.

43The doctor got it wrong but he certainly recognised his own shortcomings and that has been proved because yet another psychologist confirms what Sedoni had said in the first place.

44The doctor finds no evidence to support the application of the Verdins principles.

45Dr Patel in his report refers to your employment history.  The doctor's observations are consistent with the observations of Sedoni.  You have, when not incarcerated, worked in the building industry, firstly as a brickies labourer, a concreter, and in recent times as a plasterer.  Mr Mitchell Holt of Pristine Plaster says this of you:

"Jason Ruscoe was employed by me on a casual basis before his incarceration.  He is a reliable worker with a good work ethic and enthusiasm to come to work.  Upon his release Mr Ruscoe will be employed by me on a full time basis".

46So it may be that you have got a job waiting for you if you are up to performing it.  Mr Ruscoe, I assure you that I have taken into account all that has been said on your behalf by Mr Devlin.  I take into account your early plea of guilty.  That plea is an indication of your remorse.  Your counsel, Mr Devlin, again on your behalf, has expressed your remorse to this court.  As you can see, this offending was doomed from the very beginning.  You well knew that your phone calls from the prison were being monitored.  That indicates a total lack of reasonable intelligence, I would have thought, which seems to indicate some sort of intellectual dysfunction.

47Your prospect for rehabilitation has to be guarded when you take into account all of your past offending and the drug abuse you have got.  However, you have the support of your mother, who attended court previously to demonstrate her support of you, together with your partner, Britney, who is here today again.  A further indication of support is Britney's mother.  She provides a reference of support, and I quote from Sandra Newman's reference.  Sandra, of course, is Britney's mother.  Sandra said this, and I do not wish to be familiar saying that but I do not want to get the names all mixed up.  Sandra said this:

"He has been in a relationship with my daughter, Britney, for a number of years now.  They have two children together, whom he has not been able to see whilst he's in custody.  To my knowledge, he wants to get himself stable employment upon his release.  I am of the understanding he already has an offer of a job which will enable him to be able to provide and support his family, which he has not previously been able to do".

48Sandra goes on to say:

"I received an apology letter from Jason whilst he has been in custody.  I believe he is now rehabilitated with no intentions of ever returning to gaol."

49I am not sure he can be rehabilitated in that short time but I understand what she is saying.  You have got a long road to travel yet, young man, and I will come back to that in a minute.  A further two references have been supplied.  One from your sister and one from Kylie Heywood.  Both of these ladies are supportive of you and believe you have learnt your lesson and will not re-offend.  It is made clear by both of these women that you are a devoted father to your twins.  If for no other reason, you owe it to these two young people to the obligation to be a good father and set a proper example to each of them.  That is not what you received but they are entitled to it and do not let them suffer what you suffered through the irresponsible behaviour of older people.  I have been on about it all morning.

50Would you stand up, please?

51As I have said earlier, and I say it again now, whilst I am somewhat guarded about your prospects of rehabilitation - I will explain that in a moment - you certainly have a number of people in the community willing to give you their support.  You have a stable home to return to and a job offer with Pristine Plaster, as I read from Mr Holt's reference.

52Your criminal history, as I said earlier, is an absolute disgrace.  It is now or never for you to turn the corner and become a good and lawful citizen.  The offence of conspiracy to pervert the course of justice, as I said earlier in the day, if judged by the maximum sentence is a very serious offence indeed.  Your commission of this offence is certainly at the lower and of the offending, as I also said earlier today and I hope you understand it.

53I must take into account the provisions of the Sentencing Act, in particular, s.5, wherein it is set out that the purposes of sentencing are for just punishment. The words used are, "The purpose of sentencing is to punish the offender to an extent and in a manner that is just in all of the circumstances". The next part of that section goes on to say - it directs the court to general and specific deterrence, that is to deter you and others from committing the same or similar offences. If you keep committing these offences you are going to be made an example of to deter others from doing it.

54At the same time the next sub-section speaks of establishing a proper rehabilitation program or scenario, and further, to manifest the denunciation by the court on behalf of the community to the type of conduct that you engaged in.  As I have said earlier, that it is very, very serious and unpleasant behaviour.

55I talk about rehabilitation.  That is probably the sole purpose of what is happening here.  You might be a bit confused at the end of the day when I say what I am going to say about the time served, but you will have it in the bank if you misbehave.

56The reality is you have been in prison for quite a long time because you were dealt with for other offences as well, and totality says I have got to take that into account, and in fact you have been in custody for a little over three months, leaving aside the time you served, awaiting this result, and normally you get a credit for that now.  I am not going to give it to you now, but I am specifically asking both the barristers at the Bar table to mark their brief that I have not allowed it, because I am not fixing a prison term, but I am specifically saying I recognise you have served 99 days, and were you receiving a prison term, then you would get a credit.  You have not got it now and if you are stupid enough to come back and you are facing prison you will certainly be able to call up that time.

57There are some cases, it is not Renzella, is it a Greek name that I find almost impossible to pronounce.  So where I think the words are used, "wasted time", was what the Court of Appeal called such time.

58You will be convicted and released on a community corrections order for a period of 18 months.  I am just slowing down so that these people can write this down.  Firstly, there is a non-association order, and there is no difficulty with that because Mr Devlin has already spoken to you about it.  The Stewart boys are out.  You are not to associate with them at all.  That is Kayle and Scott.  If you are found by police officers, because you are well known in the district, as you know, if they see you together with those fellows you are in breach of your community corrections orders straight away and you will be back before me.

59Further, pursuant to s.48D(3)(a), you are to undergo assessment and treatment aimed at drug matters being attended to on your behalf.  I will come back to that.  Pursuant to 48D(3)(f) you are to undergo programs to reduce re-offending.  Really, that is a program, I suppose - it is not anger management but it is a program that you are to undergo so that you have strategies in place to be able to say, no, I am not going to get involved, because there will be dopes out there that want to involve you in it because you have got acquaintances that you have known in your life that are big trouble, peer group we called it before.

60You are to undergo, pursuant to s.48E, supervision.  That means there is a Community Corrections officer appointed for the next 18 months as your supervisor.  You can use that person if you like to bounce any concerns you have got off that you might not be able to raise with Britney or others.  That is another professional social worker in your life if you need that sort of help.  Do you understand that?

61And you are also to comply with all of the terms and conditions of the Justice plan.  I am not going to go through that at length, but between the people at Department of Human Services that manage the justice plan, and the Office of Corrections, they will be setting up programs for you to undergo.  You will be assessed to see whether or not you need assistance for drug abuse.  If you are assessed as being in need then you must comply with the treatment.  Once they say you no longer need treatment, well, then that is the end them, but if they say you are assessed as in need then you must comply.  Do you understand that?

62ACCUSED:  Yes.

63HIS HONOUR:  When you are involved with the rehabilitation programs, this again, they make assessments as to what programs you should attend.  You must attend them.  If you do not attend them or you just do not comply, again, you will be in breach, they will bring you back, and if you do not comply with all of the terms and conditions of the justice plan, then on that matter as well, if you are in breach of any of the terms and conditions which is virtually running parallel with what those other orders are anyway, so they are all working together, if you do not comply you will be breached and you will be brought back before me.

64This is not an idle threat.  With your criminal history, and it is extensive, you wold be in great difficulty re-avoiding being sentenced to a substantial prison term for that offence.

65I am also bound, and I should tell you this.  Whilst the other offender, Kayle Stewart, had very few, if any, prior convictions, I think he had one from memory, and he may have had a traffic offence, you have got many, but I have got to take into account sentencing principles - we use the word, parity.  You may not understand what that means but I have got to look at what happened  to him and look at what happens to you.  The reality of life is that you have in fact served at least three months' imprisonment for this offence.  I have not given you a credit under s.18.  If you are silly enough to commit crime in the future Mr Devlin will be convincing whoever has to deal with you for any other offending, that you be given credit.  So it is not lost in that sense.  Do you understand?

66I cannot say you are free to leave.  You have got to sign some forms here.  As far as we are concerned you are free to leave but you might have to go with the prison officers to collect property and you might be released from some other place but not in here.

67There are no other matters or orders I have got to make?

68MR DEVLIN:  No, Your Honour.

69MS CHURCHILL:  No, Your Honour, there are no ancillary orders sought.

70HIS HONOUR:  Thank you.

71MS CHURCHILL:  And there is no s.6AAA because Your Honour is not imposing a custody sentence.

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