Director of Public Prosecutions v Rushton

[2018] VCC 682

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-02195

DIRECTOR OF PUBLIC PROSECUTIONS

v

JOSHUA RUSHTON

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Melbourne
DATE OF HEARING:	14 May 2018
DATE OF SENTENCE:	14 May 2018
CASE MAY BE CITED AS:	DPP v Rushton
MEDIUM NEUTRAL CITATION:	[2018] VCC 682

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr N. Goodenough	Office of Public Prosecutions
For the Accused	Mr M. McGrath	James Dowsley & Associates

HIS HONOUR: 

1Joshua Rushton, sometime between 6 pm on 6 December and the early morning of 7 December 2015, you went from your nearby house and then broke into the St Leonards Bowls Club.  Your intent was to steal.

2Once inside the Bowls Club, you caused significant, gratuitous damage to the Club's property.  You set about burning the building, turning on and tipping a heater onto the carpeted floor.  You set tea-towels alight, leaving them on the lino floor.  You turned on the gas jets on the stove, though without the flame the gas cut out.  Finally, you set alight the Christmas tree, and the fire spread to the floor, blinds and window frames.

3Fortunately, the fire did not spread extensively to other parts of the building, however smoke caused significant damage to the ceiling and carpets, as well as electrical items and other property.

4You also stole cash.

5Of concern were your actions in simply breaking and smashing many expensive but essential items in the bar, kitchen and other areas.

6The total cost of the fire damage was $247,413.  The other damage caused by you in this rampage, amounted to $24,274.

7There is no other way to put it, other than your actions seriously damaged a property originally built and then built up over the years by volunteers in the local community who loved bowls and the friendship of the Bowls Club. 

8A victim impact statement from the chairman of the club speaks of the heartbreak in the community when members realised just how extensive the damage was, and how the Club could not be used fully during the summer bowls season, and the busy holiday time when tourists can add to the coffers of the Club.

9The impact of your crimes is a matter that I must and I have taken into account.

10You were arrested over six months later.  You denied setting the fire to the premises, making only ambiguous admissions about the burglary.  During the burglary you cut yourself, and forensics were able to link your DNA to the blood left at the scene.  You did, however, offer apologies for the damage, notwithstanding you could not remember doing it.

11You were granted bail, but then failed to appear in November 2016.  The warrant for your arrest was executed in February 2017, and you were again bailed.  Thereafter you failed to appear and were arrested on warrants and rebailed two further times.  This has led to you facing no less than three charges of failing to answer bail.  How you were permitted to remain on bail after this behaviour is hard to fathom.

12This bewildering set of circumstances is added to because, throughout the second half of 2016 and early 2017, you were before the Magistrates' Court at different venues for various crimes, receiving small fines and a community corrections order, and a sentence of imprisonment, likely being time served.

13Plainly, therefore, your offending did not stop after you were arrested for these offences in St Leonards and continually placed on bail.  This is matter that impacts on your prospects for reform.

14While your arson did not totally destroy the Bowls Club, as the authorities make clear, it is no matter of mitigation that the fire did not take hold.  There can be no doubt that you intended that the arson be extensive, evidenced by your efforts to set the place on fire.  Your other gratuitous damage property reveals a concerning side of your criminality.  You simply went on a rampage, it seems for no other reason than you were in the building and you could.

15I note you spoke in your record of interview of having no memory of the offending, and of hearing voices.  You spoke in those terms to the medicolegal psychiatrist you saw.  But any psychosis that you were suffering was plainly drug-induced.  I will say more of this a little later.

16You have a long history of drug use, which continued in Victoria in 2015 after you left North Queensland and came to this state for the purpose of dealing with your drug problem.  You have used a range of drugs, cannabis from your teens, then ice, heroin and prescription opioids.  You claim that at the time of the arson, you were hearing voices, however the expert medical report that I have referred to expressed the following opinion:

"Mr Rushton has had many years of heavy drug use, and at times has probably reached a level of psychosis where he has hallucinated and heard voices.  He insisted that at the time of the offending, he was instructed by those voices and was in an advanced state of drug intoxication.  I am not sure that I would take at face value his recollection that his actions were exclusively at the behest of voices."

17Dr Turnbull went on:

"While I understand that mental health assessment and psychiatric diagnosis can be less than straightforward, I do not share Mr Rushton's view that he suffers clear cut diagnosis independent of the effects of drug use.  It is fairly commonplace for those with heavy ice use to continue to suffer hallucinosis, which is the experience of voices in the absence of actual delusions.  He might have been a sufferer of that."

18In my view, that is a refreshingly straightforward psychiatric opinion, which I accept, and which means that in the end there can be no moderation of your moral culpability because of any impaired mental functioning.

19Your counsel made clear that you appreciate that if you continue to take drugs, it is highly likely, if not a certainty, that you will continue to offend.  As a drug user, you present as a danger to the community, and in this sense protection of the community is important.

20Your plea of guilty was after the case was for some time before the courts.  I take into account much of it was due to your failing to appear.  You will receive a lesser sentence as a consequence of your plea of guilty, but not as it would have been had you pleaded guilty earlier.

21As to your personal circumstances, you were raised, as mentioned, in North Queensland.  Your family life was not ideal.  Your father was aggressive and a poor role model.  Your parents were heavy drinkers.  You remained emotionally close to your mother, notwithstanding that some time after your parents separated, she moved to New Zealand.  She died suddenly there in 2015, and you have unresolved grief.

22You left school at Year 10 and thereafter had work in various jobs, including on farms and tyre fitting.

23You came to Victoria for the first time in your teens.  Your drug abuse did not abate.  You ended up homeless or in youth refuge.  You returned to Queensland, where again you were involved in drug use and drug crimes.  You were gaoled in Queensland in 2012 and 2014.  You did seek and obtain some drug rehabilitation in Queensland.

24After your mother's death you came to Victoria to deal again with your drug problem, but you quickly fell back into heavy use.  You had been in St Leonards, a place where you could afford the rent, for about a month before these crimes at the Bowls Club.

25As noted, after those crimes you left the St Leonards area, but continued to offend on the Mornington Peninsula and in Melbourne.

26You did seek some assistance from a general practitioner in the Narre Warren area, who put you on methadone and referred you to a psychiatrist.

27A key sentencing purpose here is denunciation of your crimes that have caused much concern in the local community.  My sentence must be seen as a practical expression of the community's intolerance of crimes like this.  You must now meet the consequences of your mindless criminality.

28Also important is deterrence to you and to others.  The message is a simple one:  if you break into premises and set it on fire and cause other damage, you must expect to go to gaol for years.  Arson is a dangerous and frightening crime.  Likewise for you personally, Mr Rushton, it must be made clear to you that you will receive stern sentences of imprisonment if you keep offending.  You must learn, and take serious steps, to put drugs behind you on your release.

29I note that you have done all you could on remand to complete courses and to take up opportunities provided in prison.  These efforts are impressive, and they include seeking out an understanding of your Indigenous history.  This is all to your credit.  Your time in prison has not been all straightforward, and I note and take into account the violent incident upon you that was set out in your counsel's written submission.

30Your counsel in his realistic submissions conceded that imprisonment, but asked for consideration of a community corrections order.  Although a longer community corrections order is available for arson offending, it was not put that you have a mental health problem such as an attraction to arson, requiring that type of community corrections order.

31I have considered a community corrections order, albeit that I did not obtain a report, but in the end the offending that you committed, and you as an offender with your past and your drug difficulties and your prospects for the future, lead me firmly to a sentence of imprisonment with a non-parole period.

32In all this, your rehabilitation is not overlooked, but your prospects are guarded at best, though they have been advanced by what you have done in prison of late.

33There needs to be some measure of cumulation, but I have applied the principle of totality so as to ensure that you serve no more and no less than your overall criminality deserves.

34Can you please stand, Mr Rushton?

35For committing the crime of burglary, you are sentenced to 12 months' imprisonment.

36For committing the crime of theft, you are sentenced to two months' imprisonment.

37For committing the crime of arson, you are sentenced to three years and four months' imprisonment.

38For committing the crime of destroying property, you are sentenced to 18 months' imprisonment.

39For committing the crimes of failing to answer bail, being Charges 1, 3 and 4, you are sentenced as follows:

40Charge 1, one month.

41Charge 3, three months.

42Charge 4, six months.

43I order that two months of Charge 1, the burglary, and nine months of Charge 4, the criminal damage, and three months of the summary offence for the failure to answer bail, are cumulative upon each other and upon the sentence imposed for the arson.

44That gives a total effective sentence, if my maths is correct, and it will be checked, of four years and seven months, and I fix a minimum non-parole period of two years and six months.

45MR McGRATH:  Sorry, Your Honour, what was the non-parole period?

46HIS HONOUR:  Two years and six months.

47MR McGRATH:  I had that head sentence, and I might be incorrect, Your Honour, at four years and six months.

48HIS HONOUR:  I am sorry.

49MR McGRATH:  But my learned friend, I think, might have heard something different.  Was it two months on the burglary in terms of the cumulation?

50HIS HONOUR:  Yes, two months.

51MR McGRATH:  The base sentence being the arson.  Two months on the burglary.

52HIS HONOUR:  Yes.

53MR McGRATH:  It was nine months on the damage property.

54HIS HONOUR:  Correct.

55MR McGRATH:  And three months on Charge 4.

56HIS HONOUR:  Correct.

57MR McGRATH:  Meaning a cumulative sentence of another 14 months.

58HIS HONOUR:  Yes, you are right.  It is four years, six months.  Yes, four years, six months, with a  minimum non-parole period of two years and six months.  Thank you, I apologise.

59You have already served 263 days in custody.  That figure having been reckoned, I declare that 263 days is part of the sentence that I have just imposed, and I will ensure this declaration is entered into the records of the court so that the prison authorities are left in no doubt that you have already served 263 days of the sentence I have just imposed.

60Had you pleaded not guilty to these offences and been found guilty of them, I would have imposed a sentence of five years and six months, with a minimum non-parole period of three years and six months.

61Are there other orders required?

62COUNSEL:  No, Your Honour.

63HIS HONOUR:  Thank you.  You can be seated, Mr Rushton.  The sums are right.  Thank you, if there is nothing further, I thank counsel for their very significant assistance, Mr McGrath, in this matter at reasonably short notice, and Mr Rushton can be removed.

64MR McGRATH:  I'll go down and see Mr Rushton now, Your Honour.

65HIS HONOUR:  Certainly.  A journalist is leaving.  I just need to add to it that for your benefit, this will be available on the media portal as soon as possible, as well as Mr Pham, both of those.  So you can listen to it if you need to, that is all.

66VOICE (From the body of the court):  Thank you, Your Honour.

67HIS HONOUR:  Anything further in the business of today?

68MR McGRATH:  No, Your Honour, I was just thinking out loud.  Do counsel get access to the media portal?

69HIS HONOUR:  No, because you are not a media representative.

70MR McGRATH:  I might have to become one.  Yes, Your Honour.

71HIS HONOUR:  Well, you can give up that job.  It is simply what I said is available to the media.

72MR McGRATH:  No, I understand that, Your Honour.  Yes, I appreciate that.

73HIS HONOUR:  For a limited period of time, if they are accredited in the way that is required.

74MR McGRATH:  I understand all that, Your Honour.

75HIS HONOUR:  If you want to listen to it again for the purposes of appeal, go to ‑ ‑ ‑

76MR McGRATH:  No, it's not that, Your Honour.  No, I wasn't suggesting it for that reason, Your Honour.

77HIS HONOUR:  Oh, all right.

78MR McGRATH:  I was only just - it would be a useful thing for counsel to have access to as well, for all sorts of reasons.  Appeal or otherwise.  But that wasn't my intention, Your Honour.

79HIS HONOUR:  All right.

80MR McGRATH:  I wasn't asking for that reason.

81HIS HONOUR:  No, well it does not matter.  As soon as you can get something to aid you in the next steps for Mr Rushton, the better, but it's not through the media portal.  What I said will be transcribed fairly promptly.  I will try and settle it promptly and you can see it.

82MR McGRATH:  Yes, Your Honour.

83HIS HONOUR:  It will be delivered to you.

84MR McGRATH:  Thank you, Your Honour.

85HIS HONOUR:  Good.

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