Director of Public Prosecutions v Rushford
[2014] VCC 1058
•13 June 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-13-00490 and CR-13-00491
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| GLEN RUSHFORD |
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JUDGE: | HER HONOUR JUDGE PULLEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 4 June 2014 | |
DATE OF SENTENCE: | 13 June 2014 | |
CASE MAY BE CITED AS: | DPP v Rushford | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 1058 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Ms C Burnside | Office of Public Prosecutions |
| For the Accused | Mr D Cronin | Michael J Gleeson & Associates |
HER HONOUR:
1 Glen Rushford, you have pleaded guilty to one charge of recklessly causing injury, the maximum penalty applicable to that offence is 5 years' imprisonment, and one charge of intentionally cause injury, the maximum penalty applicable is 10 years' imprisonment, on Indictment No C10822324.1. You have also consented to the summary charge being dealt with by me pursuant to s145 Criminal Procedure Act being a charge of unlawful assault. The maximum penalty applicable to that offence is 3 months' imprisonment or 15 penalty units.
2
The victim of these three charges was your then partner, Leanne Pacey. These charges arise from three separate incidents between yourself and
Ms Pacey. It is not necessary for me to recount in great details the facts of this matter as they are on transcript, the matter having been opened in some detail by the learned prosecutor. I proceed to sentence you on the basis of the facts as summarised by the prosecutor in the prosecution opening (Exhibit A) and discussed during the course of the plea hearing. It is sufficient for present purposes to simply say in my opinion the facts in relation to your offending are most serious and disturbing.
3 I turn to a brief summary of your offending. You were in a relationship with Ms Pacey at the time of your offending. Living at the home were your two daughters, then 5 and 8 years of age. It would appear from the outset, the relationship between yourself and Ms Pacey was beset by alcohol abuse on your part. The complainant was frequently told by you that the police would not attend at the house, that is, would be unresponsive if she called.
4 On 13 November 2011 at approximately 9.00pm, you were home with Ms Pacey and your two children.
5 All of you were sitting on the couch eating Chinese food. You became angry at Ms Pacey when she mentioned a cheap air fare to Queensland. You stood up and threw a casserole dish towards her face. There was a photograph before me showing both the item in question and the injuries sustained by Ms Pacey as a result. One of your daughters called out, “Don’t hurt Leanne”. Ms Pacey ran upstairs. She felt pain immediately and saw blood pouring from her face. She sustained a cut near her nose. This is referrable to charge 1, reckless cause injury.
6 The police applied for a Family Violence Intervention Order and a partial Intervention Order, which specifically permitted Ms Pacey and you to live at the house with you forbidden to be violent towards her. The mutual intervention order was imposed on 14 November at Heidelberg Magistrates’ Court. You were, in my opinion, on notice at least from that stage that you were not to assault or in any way perpetrate violence against Ms Pacey.
7 On 26 January 2012, approximately two months later, you and Ms Pacey had been drinking together at a hotel. You stayed at the hotel and Ms Pacey went home by taxi. When she was unable to get home, she climbed over a fence and through a window into the house. She went to sleep at about 7.00pm and when she woke went downstairs to get something to eat and drink.
8 You were asleep on the couch and said to her, “I'm fucking asleep, Leanne, fuck off.” You were intoxicated and looked angry. As she walked past you to go back upstairs, you pushed her over. When she got up, you grabbed her by her top, pushed her onto the couch and said, “You dumb fucking bitch.”
9 You then punched Ms Pacey to the forehead three times, then continued to punch her an unknown amount of times. After the last punch, Ms Pacey saw blood dripping from her face.
10 You then threw her to the ground and she fell on her hip. Whilst on the ground you kicked her to the face and said, “I'm going to kick the princess out of you.” This incident is referrable to charge 2, intentionally cause injury.
11 A neighbour apparently rang police.
12 There were also photographs in relation to this assault before me (Exhibit B).
13 You were arrested and interviewed on 27 January 2012, ie: the following day, regarding the “casserole dish incident”. You denied throwing the dish at her. You said that you flipped the dish in frustration and that it spun out hitting Ms Pacey on the face. You denied any of the allegations that were put to you regarding that incident.
14 As I understand it, you were not interviewed on that date regarding the incident on 26 January 2012, as Ms Pacey had not made her statement to the police at that time.
15 Despite, however, you being questioned in relation to the ‘casserole dish’ incident on 26 January, that did not stop you offending shortly thereafter. On 31 January 2012 you had been to a funeral then to a hotel to drink.
16 An argument that day developed with Ms Pacey when you returned home. Again, you were angry with Ms Pacey. You yelled out, “I'll fuck you up” and “You’re fucked now.” You walked past her, smacked her to the side of her head, grabbed her and pushed her back on the couch, grabbing her around the neck. When Ms Pacey said she was going to call the police, you said, “Fucking try me, bitch.” You then bit her on the nose and the right side of her face. This incident is the subject of the unlawful assault charge before me.
17
On 1 February you were interviewed by police regarding the incident on
26 January 2012. You said Ms Pacey sustained her injuries when she had fallen while trying to climb a fence.
18
There are a number of very concerning aspects of your offending. It occurred on three separate occasions. In particular you were on notice on
14 November 2011 that you were not to be violent towards Ms Pacey. Further, you had been interviewed prior to the third incident occurring which did not deter you from committing the assault charge (summary offence) before me. Your offending behaviour on each of the three occasions involved gratuitous violence and, as I understood, on each occasion occurred in the context of your alcohol consumption.
19 The victim of your offending, as shown in the photographs, has suffered considerably. I note, however, Ms Pacey did not provide a Victim Impact Statement, having declined to prepare one. The photographs, however, speak for themselves and I can accept that the injuries would have caused her some pain and perhaps embarrassment due to them being to her face.
20 You have pleaded guilty to these charges and you are entitled to have that fact taken into account in your favour and I do so. The community has, by your plea of guilty, been spared the time and cost of a trial and witnesses have been spared the ordeal of having to give evidence upon your trial, in particular the complainant of your offending. Having said that, I do note there was a contested committal hearing at which time Ms Pacey was cross-examined by counsel on your behalf.
21
Regarding the timing of your plea of guilty, your plea was entered on the second day of the trial, being 10 February 2014. You had previously indicated your intention to plead guilty to charge 1, reckless cause injury on
29 November 2013, however no other offers as I understand it had been forthcoming, specifically not to the charges before me at that stage. At trial you indicated you would also plead guilty to intentionally cause injury and to the summary offence. Your plea of guilty was therefore effectively, “at the door of the Court” and against a background of denials by you in the two records of interview regarding the two incidents on the indictment. However, having said that, you have pleaded guilty and you are entitled to a sentencing discount as a result. The stage at which you indicated your intention to plead guilty is relevant and again I note that yours was (apart from charge 1) at the door of the Court.
22 In the circumstances I am prepared to accept that your plea of guilty, and timing of it, to the charges indicates some remorse for your actions.
23 You do not have any prior Court appearances. I was told you had been to Court subsequently for an offence of driving whilst under the influence of alcohol, although the date of that offending was not known. It is likely that offending occurred prior to your offending before me. I have disregarded this subsequent appearance. I accept you therefore come to the Court as a person of prior good character.
24 Your plea of guilty is indicative of your remorse also.
25 From that subsequent Court appearance an alcohol interlock was attached to your car. You have not further offended in that regard.
26 Mr Cronin, who appeared on your behalf at your plea, provided a very helpful outline of written submissions and addressed those during the course of the plea hearing.
27
You are 37 years of age at time of sentence. You were born in Melbourne, and raised in Montmorency/Eltham/Ferntree Gully area. Your father is
63 years of age and works as a landscape gardener and lives in Apollo Bay. Your mother works at McCain’s Foods in Ballarat. Until recently you were living with her for approximately six months caring for her following her suffering a heart attack.
28 Your sister, Joanne, provided a written reference. She described she and your mother as being close, having grown up in a loving home. She described you as a wonderful brother and fantastic father. You are hard working with strong work ethics.
29 I discussed with Mr Cronin her reference to you as a ‘gentleman’ given the charges before me.
30 Your other sister, Kathleen Rushford, gave evidence before me.
31 She said all siblings of the family were very close emotionally. She described you as very caring. Whilst your mother was not at Court at your plea hearing due to other commitments, I was told she was nevertheless supportive of you as were your siblings. It would appear from her evidence whilst she was aware you had some issues with alcohol, she was not aware of the extent of them. She described you as an amazing uncle to her daughter and that you were a very good father.
32 I accept, based on the material before me, your family remain supportive of you and are perhaps now more aware of the issues you have had in the past, in particular in relation to your alcohol abuse.
33
There was also a letter from Ms Leanne Livingstone, Psychologist, dated
12 May 2014, who has been assisting you with employment. You attended with her on 11 March and 12 May 2014.
34 Your parents separated when you were approximately 10 years of age, following which you mainly lived with your mother, spending time with your father on fortnightly weekends and on Wednesday nights. You described a close relationship with each of your family members.
35 You attended Montmorency South Primary School then Swinburne Technical College, completing Year 12, before attending North Melbourne Institute of Technology, obtaining a Certificate III in Small Business Management. You also attended Holmesglen TAFE and have an Advanced Certificate in Horticulture and attended Swinburne University and have Certificates I, II and III in Horticulture.
36 Your first employment was as a kitchen hand when you were 17. By age 21, you had started a landscaping business with your father, leaving that when you were 26 to be primary carer of your children. You then started your own landscape business when the children were in your care, working when you could. You ceased work for a period of time when the children were removed from your care by the Department of Human Services. Their removal as a result of the offending before me.
37 You have had three significant relationships in the past. Your two children are from your relationship with Ms Verneer.
38 In relation to Ms Pacey, you had been living together for approximately two to three years. You described this as a volatile relationship with a number of police attendances, and Violence Intervention Orders on both parties at various times.
39 Your two daughters are now aged 10 and 8 years of age. You were their primary carer between 2008 and 2012, prior to them being taken from you by the Department of Human Services. When you were a full time carer, you undertook that responsibility seriously, taking the children to swimming and dancing lessons and structuring your work commitments around their care. You last saw your children on 15 February 2012, with no contact with them since that time. I discussed this at some length with Mr Cronin on your behalf, in particular your only recent attempt to address your alcohol consumption issues from November 2013. I am told you hope to spend more time with your children once the charges before me were finalised.
40 I was told by Mr Cronin alcohol was a problem for you at the time of this offending, not drugs. You now appreciated alcohol was a contributing factor to this offending and had recently started to address your drinking habits. Mr Cronin relied heavily upon your recent attempts at rehabilitation.
41 Evidence was given by Mr Richard Storer, your friend and also qualified counsellor. He had known you for 18 years and had counselled you regarding various of your life issues approximately 12 times in the last seven months. Your first attendance with him was in approximately November 2013, initially seeing you fortnightly, then monthly. You had not told him why you waited so long to attend for assistance, although he seemed to indicate your concern and desire to be reunited with your children was a motivating reason for your attendance.
42 Mr Storer said he had suggested some time ago you attend AA, however, you had not been willing to so participate to date. Unfortunately you continue to consume alcohol on weekends, according to Mr Storer on your self report, up to half a slab of beer.
43 You were currently living in private rental accommodation and in receipt of Newstart benefits. I was told you had a couple of landscaping jobs recently and another was in the pipeline. Your goal was to develop your business and make it sustainable.
44 Mr Cronin conceded the charges before this Court were serious. He relied heavily on your lack of prior criminal history and lack of any subsequent or pending relevant matters. I am also very much aware of this.
45 He also relied upon your plea of guilty and of course you are entitled to a discount for your guilty plea, as I have previously stated. I also accept that you have strong family support.
46 Turning to your rehabilitation prospects, I accept that since this offending you have recently commenced counselling. I have no doubt at the time of this offending, in 2011 and 2012, you were however well aware of the impact of alcohol consumption upon you, including the likelihood of violent behaviour. Your children were removed from your care as a result of these charges. You would have been in no doubt at that time you needed to do something about your alcohol consumption. I find it surprising you left it until approximately November 2013 to start to address this. I understood there might have been some counselling given to you regarding the interlock device, although I was not given details of that counselling.
47 Having said that, you have finally done something in an attempt to commence counselling and that is to your credit. I can only hope you continue with this in the future to not only improve your chances of access to your children but also to help you remain offence free.
48 I also accept that in the time that this matter has taken to come to Court for it to be resolved as a plea is relevant and that you have no doubt been concerned about the likely disposition of this matter. However having said that, there is no delay over and above what would normally be expected for a matter to proceed through the Court system on the basis of a plea of not guilty. I do, however, note that in that period of time you have in November last year started to address your alcohol use and not re-offend, relevant to your rehabilitation prospects.
49 Mr Cronin submitted you could be appropriately dealt with for your offending by imposing a sentence which did not involve an immediate term of imprisonment. Specifically, he submitted the appropriate disposition would be to impose a term of imprisonment and wholly suspend it.
50 His secondary submission, without abandoning his primary submission, was that I could partially suspend any sentence of imprisonment I impose. If I considered such a sentence to be inappropriate, and only a term of imprisonment as appropriate, then I should set a longer period on parole.
51 I am, of course, aware you have not previously been in custody, and that a term of imprisonment to be served must always be the last resort of the Court.
52 Ms Burnside, who appeared on behalf of the prosecution, submitted yours was serious offending. In charge 1, your children witnessed your violence towards Ms Pacey and such, she submitted, was an aggravating feature. I have not sentenced on the basis of this being an aggravating feature specifically for the purposes of sentencing, however it is concerning that you displayed this behaviour in front of your children.
53 Ms Burnside submitted the prospects of your rehabilitation were guarded, she described as “bare prospects”. Ms Burnside conceded while you had family support, your sister who gave evidence, was obviously not aware she said of the extent of your alcohol use and/or your violence.
54 Ms Burnside conceded you did not have any prior court appearances and that there had been a level of delay in this matter being finalised.
55 I was referred by Ms Burnside to Saltalamacchia v R[1]. I read that decision in Court, as did Mr Cronin. There are difficulties comparing cases factually as facts vary enormously case to case as do matters personal to an offender. There were some differences in Saltalamacchia compared with your case. However, the observations by the Court in Saltalamacchia regarding the seriousness of this type of offending in my opinion are applicable here. Buchanan JA stated:
“On the other hand, the offences were serious. Violence by men against women is a social evil. The victims are to be protected by the courts and the perpetrators suitably punished.” (para 17)
[1] [2010] VSCA 83
56 In my opinion, yours was serious offending and on three separate occasions.
57 I also note Buchanan JA’s reference to the Court having a significant community interest in rehabilitation of offenders. In your case you have started the process but still have a long way to go. I am in no doubt you are aware of the need for you to address your alcohol consumption. Only you can do that.
58 Regarding your rehabilitation prospects, I have some optimism albeit guarded. Your prospects of rehabilitation will improve, providing you continue to address your alcohol consumption and, also considering your anger, address how you might best manage that in a domestic situation. When sentencing you, I must seek to maximise your chances of rehabilitation as they may be.
59 I must also take into account matters such as deterrence, especially general deterrence which is of considerable importance in a case such as this.
60 Turning to specific deterrence, there is an element of specific deterrence required when sentencing you. I repeat, you do not have any prior Court appearances or any similar subsequent offending. However, your offending did occur on three separate occasions, and after you had been made aware of the Intervention Order on 14 November 2011 prior to your offending in relation to charge 2 and the summary offence. Further, despite having been interviewed by police on 27 January 2012 you committed the summary offence just four days later.
61 I must also consider the question of the protection of members of the community from you and bear in mind the likelihood of your re-offending. Of course, I will be less concerned about that if you continue with your rehabilitation, which will probably include further reduction of your alcohol intake than your current consumption.
62 I am called upon by the Sentencing Act to manifest the community’s denunciation of your conduct and generally to impose a just punishment.
63 When sentencing you, I take into account the principles of totality and proportionality.
64 On charge 1, you are convicted and sentenced to 10 months' imprisonment.
65 On charge 2, you are convicted and sentenced to 12 months' imprisonment.
66 On the summary charge, you are convicted and sentenced to 1 month’s imprisonment.
67 Turning to cumulation and concurrency, charge 2 is the base sentence and I direct that 3 months of charge 1 be served cumulatively upon charge 2 and 14 days of the summary charge be served cumulatively upon Charge 2.
68 That results in a total effective sentence of 1 year 3 months and 14 days imprisonment, and I direct that 9 months and 14 days of that sentence be suspended for 15 months That means you are required to serve 6 months' imprisonment immediately.
69 Following that 6 months the balance of the sentence, being 9 months and 14 days, will be suspended for 15 months.
70 That means you must not commit another offence punishable by imprisonment when you get out of gaol for 15 months or you will be back before me and unless you establish exceptional circumstances (a very high bar) you can expect to be ordered to serve that 9 months and 14 days. (Beware, offences that can breach this suspended sentence can include driving whilst disqualified, etc). So you need to be extremely careful.
71 In my opinion you do not require a term on parole, rather you can be appropriately sentenced by partially suspending the term of imprisonment.
72 Pursuant to s6AAA Sentencing Act 1991, had you been found guilty by jury verdict, I would not have imposed a partially suspended sentence, rather I would have sentenced you to a term of imprisonment of 4 years with a non-parole period of 3 years.
73 I declare, pursuant to s18(1) Sentencing Act 1991, that you have spent 9 days in custody by way of pre-sentence detention and I direct that this be entered into the records of the Court.
74 No other orders were sought by the prosecution.
76 HER HONOUR: I was right, no other orders, excellent, Anyone want help with the maths, no.
77 MS BURNSIDE You're very swift Your Honour, let's try.
78 HER HONOUR: Repeat, Charge 1, 10 months, Charge 2, 12 months, summary charge 1 month, Charge 2 the base sentence, 3 months of Charge 1, on top of cumulative upon Charge 2, and 14 days of the summary charge cumulatively upon Charge 2. Total effective sentence 1 year 3 months and 14 days and I direct nine months and 14 days suspended for 15 months. So the difference is 6 months to be served immediately.
79 MS BURNSIDE: I agree Your Honour.
80 MS ANDREWS I agree Your Honour.
81 HER HONOUR: Are you right with that?
82 MS ANDREWS: Yes.
83 HER HONOUR: Now what about the PSD is that right, 9 days up to and including yesterday?
84 MS BURNSIDE¨ Yes that's so Your Honour.
85 HER HONOUR: You agree with that Ms Andrews?
86 MS ANDREWS: Yes Your Honour.
87 HER HONOUR: All right then, so is there anything further in this matter?
88 MS BURNSIDE: No there's not Your Honour.
89 MS ANDREWS: No Your Honour.
90 HER HONOUR: Thanks very much for that, thank you, can you remove
Mr Rushford thanks very much. Thank you.
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