Director of Public Prosecutions v Rutherford

[2017] VCC 1874

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-17-00556

DIRECTOR OF PUBLIC PROSECUTIONS

v

SEAN RUTHERFORD

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JUDGE:	HER HONOUR JUDGE PATRICK
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	6 December 2017
CASE MAY BE CITED AS:	DPP v Rutherford
MEDIUM NEUTRAL CITATION:	[2017] VCC 1874

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	Mr D. Cordy
For the Accused	Mr R. Timms

HER HONOUR:

1Sean Rutherford, you have pleaded guilty to one charge of persistent contravention of a family violence order; Charge 1, one charge of reckless conduct endangering death; Charge 2, one charge of criminal damage; Charge 3, one charge of recklessly causing injury; Charge 4, and one charge of using a carriage service to menace or harass; Charge 5.  You have also pleaded guilty to uplifted summary charges.  They are Summary Charges 6, 15 and 25 of driving while disqualified and Summary Charges 7 and 8 of assault.

2The maximum penalty, in respect of Charges 2 and 3, is ten years' imprisonment.  The maximum penalty, in respect of Charges 1 and 4, is five years' imprisonment.  The maximum penalty, in respect of Charge 5, is three years' imprisonment.  The maximum penalty, in respect of Summary Charges 6, 15 and 25, is two years' imprisonment as these are subsequent offences to prior offending.  The maximum penalty, in respect of Summary Charges 7 and 8, is three months imprisonment.

3The prosecutor made application for the taking of a forensic sample from you, the making of that order was consented to.

4The circumstances of your offending are set out in detail in the Summary of Prosecution Opening on Plea, which was tendered as Exhibit A.  You and the victim, in respect of Charges 1, 2, 4 and 5, had been in an off and on relationship since 2012.  You have a young daughter together, you have lived together at different times and at different addresses.  At times there was violence in the relationship.  A final family violence intervention order was made on 30 June 2015.  That order was served on you on 1 July 2015.  The order expired on 29 June 2017.  That order prohibited you from committing family violence towards your then partner.

5At the time of the offending for which I am dealing with you, you were unemployed and living between your father and your ex-partner’s address.  At the time of this offending you were disqualified from driving, your driver's licence had been cancelled and you had been disqualified from driving on 7 November 2014, for a period of three years.  I understand that you have never had a driver's licence.  Also at the time of the offending you were subject to a 12 month community correction order, which had been imposed on 4 March 2015.

6Charge 2 and part of Charge 1 arise from an incident which occurred on 26 September 2015.  You and your now ex-partner were at the house of a friend. Other people were present.  There was a heated argument between you and your ex-partner over a missing set of car keys.  You went outside the house and then returned with a red petrol container.  You poured petrol over your ex-partner's head and face. She was drenched and the petrol stung her eyes.  You then took a box of matches from your pocket and tried to light a match.  You lit a second match and flicked the lit match at your ex-partner who was about an arm’s distance away.  The match went out.  Your ex-partner believed that she was going to be set on fire.  You then lit a third match. You put it out and then flicked it at your ex-partner.  One of the other people there found your missing car keys and gave them to you.  That matter was reported to the police on 9 October 2015.

7Charge 3 and Summary Charges 6, 7 and 8 arise from an incident, which occurred on 5 October 2015.  At that time you had a young female friend, aged 16, who resided with her mother and her brother.  Your young friend had known you for a couple of years.  On this day you drove to your friend's residence at about 8.30 at night and went into her bedroom.  You then put both hands around her throat and choked her.  She was crying and yelling at you to get off her.  Her mother heard and came in and pushed you off her daughter. She yelled out to her son to call for the police.  You slapped the mother on the left side of her face. You said you would be back for the TVs and left the house.  You went to your car and drove forward a short distance then rapidly reversed your vehicle into the victim's brother's car, causing about $200 damage to the boot lid and the rear bumper.

8Charge 4, part of Charge 1 and Summary Charge 15 arise from an incident the next day on 6 October 2015.  You and your ex-partner were again at the same house where you had been on the previous occasion.  You demanded that your ex-partner get some ice for you. She refused and you became angry.  You then punched her near her right eye, causing a centimetre laceration that bleed profusely.  You then hit her with your palm, causing her top and bottom lips to be cut, bleed and become swollen.  She went to the bathroom to deal with her injuries. You came in and stood next to her and said, "I don't give a fuck about you".  You then left the premises.

9Part of Charge 1 and Summary Charge 15 arise from an incident on 20 October 2015.  At around 2.15 pm on that day you drove into the driveway where your ex-partner was living and stopped your vehicle near the doorway.  You called out to her in an abusive and threatening manner and then left.

10On 29 October 2015 you were arrested in Queensland for offences alleged to have been committed in Queensland. You were remanded in custody and were ultimately sentenced on those matters.  Victorian charges were issued again you on 24 November 2015.

11Charge 5 arises from calls that were recorded on 25 November 2015 that you made from gaol in Queensland to your ex-partner.  You made six calls.  In the fifth and sixth calls you menaced or harassed her in an attempt to get her to contact the police and have charges against you withdrawn. Some of the contents of those calls is set out in the summary of prosecution opening.  Overall, there was a threatening and aggressive tone but there were also aspects of your pleading for her to drop the charges against you.  It is also clear from the content that your ex-partner knew you were in custody at that time.

12On 1 December 2015 you were sentenced to nine months' imprisonment, with a three months minimum for various offences; including driving offences.  You were paroled on 29 December 2016 and an order extraditing you from Queensland to Victoria was made on 29 February 2016.  You were lodged in police cells and then custody from that date in Victoria. There was a contested committal listed and witnesses attended but the matter resolved prior to the committal starting; guilty pleas were entered.

13In sentencing you I have taken into account your personal circumstances.  Your personal circumstances are set out in some detail in a Forensicare report dated 20 November 2017.  You were born in Western Australia.  Your parents apparently spent much of your early childhood fighting.  Their relationship came to an end when you were six years old.  Your two sisters remained with your mother in Western Australia while your brother and yourself came with your father to Victoria.  You describe yourself as being the black sheep of the family.

14You said that at school you were pretty average but dropped out in Year 7.  You said that you did not do well with your academic studies and cannot read or write.  You were registered with disability services when you were about 15 or 16. You were registered as having an intellectual disability.  You have never worked, although you have completed some community service as part of a community correction order.

15After leaving school you stayed first with your father but then moved out when you were about 17 years old, because of your drug use.  You have had two significant relationships.  You told the writer of the Forensicare report that there was a lot of fighting within the first relationship and that your daughter is currently in the care of your ex-partner's grandmother.  You said that you had a subsequent short relationship, which ended when you were imprisoned in Queensland.

16The writer of the report says that you have a long offending history and some contact in the setting of drug-induced psychosis.  The writer says you do not meet the criteria for post-traumatic stress disorder.  At the time of the assessment, which was on 1 November 2017, there was no evidence of any mental health difficulties.  The writer of the report suggests that you continue with your current medication but recommends that your antipsychotic medication be reviewed.

17The writer says that you meet the criteria for alcohol use disorder, cannabis disorder, amphetamine use disorder, and opiate dependents, and are currently on methadone.  She suggests that that should be managed on a weening regime and that you would benefit from ongoing drug and alcohol counselling.  The writer confirms that you are registered for disability services and suggests that you should be linked back in with your disability support worker.

18The writer says, "There appears to have been issues with assuming responsibility for actions, problematic conduct and antisocial attitudes, which began in adolescence.”  The writer recommends that you would benefit from a program such as, "Handling anger wisely", which is run at Forensicare in Melbourne.  That report suggests that the psychosis that you have from time-to-time suffered is as a result of your drug use rather than any underlying condition.  You told the writer of the report that you had been using ice at the time of the offending.  You generally say that you did the wrong thing at various times and made bad decisions and would do that when you were using ice.

19I have referred to your criminal history. You have admitted a significant prior criminal history.  You were sentenced on 1 December 2015, as I have said, in Queensland to nine months' imprisonment.  In respect of your Victorian court history there have been multiple appearances since 2009.  Your offending includes multiple contraventions of family violence orders, assaults causing injury, threats and driving offences including a drive while disqualified.

20During your period on remand for these offences you were sentenced to a term of imprisonment for six months on similar offending.  That sentence concludes on 1 January 2018.

21Your counsel in sentencing submissions accepted that you would receive a sentence of imprisonment with a non-parole period.  Your counsel outlined your personal circumstances.  Your counsel particularly relied on your youth.  You are now 23 and were 21 at the time of the offending.  Your counsel also submitted that your intellectual disability ought to be taken into account.  Your counsel said that you were supported by your father and had made some progress in rehabilitation.  In custody certificates and references were tendered.  Your counsel also relied in mitigation on your plea of guilty.

22A number of letters sent to you by your ex-partner were tendered as Exhibit 4.  Your counsel said that you understand the anguish that your offending has caused.  The content of that letter suggests that your ex-partner is a somewhat confused and venerable young woman.  It is clear that she did feel a great deal of affection for you but the letters also outline her distress and feelings of having been abused by you in a very significant way.

23The Prosecutor in sentencing submissions submitted that a sentence of imprisonment was warranted, especially for the purposes of denunciation and specific deterrence.  The prosecutor submitted that some degree of concurrency would be appropriate, particularly given the overlap between Charges 1, 2 and 4.  The prosecutor accepted that the offending in Charge 5 was perhaps less threatening than some other types of behaviour and that it should also be taken into account that the complainant knew that you were in gaol.

24Sean Rutherford, your offending was clearly serious.  The most serious offending, in my view, is the offending involved in Charge 2 of reckless conduct endangering death.  That episode must have been extremely frightening for your ex-partner.  It clearly alarmed those with you. It was a very, very wrong thing to do.  It was only by a matter of luck that no physical harm arose from that incident. 

25That incident, together with your persistent intervention of the family violence order was all directed against your former partner, so was the incident in Charge 4, where you lost your temper because she would not obey your instructions. This is appalling behaviour towards someone with whom you were in a relationship and with whom you had a child.   Whilst there may have been difficulties in the relationship between both of you, that is no excuse or reason to behave in the way that you did.  That behaviour is particularly disturbing, given that you had been placed on an intervention order and were at the time on a community correction order for offending involving contraventions of a family violence intervention order.

26In respect of Summary Charges 7 and 8.  Those offences were directed at people in their home where they are entitled to feel safe.  Again, this must have been extremely frightening, especially for the young victim of Summary Charge 7.  Not content with that you went and damaged the brother's car. You should not have been driving and you knew you should not have been driving.  It appears that you decided to do what you wanted to do, despite what the law said and despite the safety of other people.  It appears that you understood that when you were using ice you had trouble controlling your behaviour but you still went ahead and used ice.

27I have taken into account that the charges deal with incidents over a period of about three weeks.  Other than Charge 5 the incidents do not involve prolonged offending.

28I have taken into account a number of matters in mitigation of sentence.  You are entitled to a significant discount for your plea of guilty.  I accept that you are remorseful for your conduct. You have made expressions of remorse to the psychiatrist who wrote the Forensicare report, and I accept what you have said through your counsel.

29I have taken into account your intellectual disability.  Given the information that I have about your life and the way you have been able to conduct it, it appears that your intellectual disability is not of a severe nature.  It is, however, a factor which makes you less suitable as a vehicle for general deterrence than other people.  No causal link has been established between your intellectual disability and your offending.  You, yourself, attribute your inability to control your behaviour to your drug intake.

30I have taken into account your youth.  Youth is generally particularly significant because of the issue of rehabilitation.  In my view, your prospects of rehabilitation are guarded in view of your prior criminal history and your offending, despite previous court orders.

31I do note that you have support from your parents and it appears that there has been some progress in custody.  That is evident from the certificates provided and also the reference provided.  Your counsel says that you are now in a, "protective environment", in custody.  That may assist you in maturing and avoiding drug and alcohol use in the future and further offending.

32I have taken into account that there has been some delay in this matter, although that was in part due to the fact that you were serving a sentence in Queensland.  I have taken into account that you will find imprisonment more difficult because of some concern about your child, although you have not had much contact in recent times with your child.

33The seriousness of your offending, particularly the offending involving violence and your guarded prospects of rehabilitation, mean that a sentence of imprisonment is warranted for the purpose of denunciation, just punishment, specific deterrence, general deterrence and community protection.

34I have taken the principle of totality into account in considering the sentence of six months which you have served and also the Queensland sentence.  I have also considered the principles of proportionality and totality in setting the head sentence and non-parole period.  There will be some cumulation in the sentences to reflect additional aspects of your offending and additional victims.

35Can you please stand up, Mr Rutherford.

36In respect of Charge 1 you are convicted and sentenced to 15 months' imprisonment.  On Charge 2 you are convicted and sentenced 22 months' imprisonment.  On Charge 3 you are convicted and sentenced to three months imprisonment.  On Charge 4 you are convicted and sentenced to 12 months' imprisonment.  On Summary Charges 6, 15 and 25 you are convicted and sentenced to nine months' imprisonment, which is an aggregate sentence.  On Summary Charge 7 you are convicted and sentenced to nine months imprisonment.  On Summary Charge 8 you are convicted and sentenced to four months imprisonment.

37I direct pursuant to s.16(4) of the Sentencing Act 1991, that the terms of imprisonment imposed on Charges 1, 2, 3 and 4, and the aggregate term of imprisonment imposed on summary Charges 6, 15 and 25 are to commence today; 6 December 2017. I direct that the sentence of imprisonment on Charge 5 is to commence today; 6 December 2017. I direct that four months of the sentence imposed on Charge 1, one month of the sentence imposed on Charge 3, three months of the sentence imposed on Charge 4, two months of the aggregate sentence imposed on summary Charges 6, 15 and 25, two months of the sentence imposed on summary Charge 7, two months of the sentence imposed on summary Charge be served cumulatively upon each and upon the sentence imposed on Charge 2.

38The total effective state sentence is three years' imprisonment. I direct that the minimum term to be served before being eligible for parole is 24 months' imprisonment.  I declare that the period that you have been in custody, in respect of these offences, namely 498 days, be reckoned as a period of imprisonment already served under this sentence, which is to be deducted administratively.

39In respect of Charge 5 you are convicted and sentenced to three months' imprisonment and as I have said, I direct that this term of imprisonment is to commence today; 6 December 2017.

40In respect of Summary Charges 6, 15 and 24, on each of those charges all licences and permits held by you in Victoria are to be cancelled and you are disqualified from obtaining any such licence or permit for a period of two years from 6 December 2017.

41I now make an order, pursuant to s.464ZF of the Crimes Act 1958, that you undergo a forensic procedure for the taking of an intimate sample, consisting of a scraping from the mouth and/or a blood sample. Mr Rutherford, I am required to tell you that you must cooperate with the authorities when they came to take a sample of your saliva from your mouth.

42OFFENDER:  Yes.

43HER HONOUR:  I am sure you will cooperate.  If you do not cooperate they are entitled to use reasonable force and to take a blood sample.  All right, thank you.  Could you take your seat, please.

44       I should also declare that the reason that I'm making that order for the taking of

a forensic sample is because of the seriousness of the circumstances of the

offending, the prior convictions and that it is by consent.

45       HER HONOUR:  Now, Mr Rutherford, you understand that they'll come and

take a blood sample from you and that means that your DNA will then be on

record.

46     OFFENDER:  Yep.

47     HER HONOUR:  So you need to bear that in mind because that means that if  

you do offend again it might be easier to catch you.  On the other hand it might

also mean you are excluded, if you didn't offend again, from some offending. 

So it cuts a bit both ways.  The Forensicare report suggests some programs

that might be of use for you.  It looks like you are getting on quite well in custody

with some of the people that are trying to help you there and support you.

48      OFFENDER:  Yeah.

49     HER HONOUR:  So please can you do your upmost best to keep working with

them, because otherwise you're going to lead a very unhappy life and cause

trouble for other people and possibly physical harm for other people.

50     OFFENDER:  Yep.

51     HER HONOUR:  And nobody wants that to happen, all right.  Now, Mr Timms,

I was thinking about whether the Forensicare report should be provided to the

correctional authorities, that it might be of some assistance.

52     MR TIMMS:  Indeed, it would, Your Honour.

53     HER HONOUR:  Would you have any problem with that?

54     MR TIMMS:  Absolutely none.

55      HER HONOUR:  Mr Rutherford, would you have any problem with the

Forensicare report ‑ ‑ ‑

56      OFFENDER:  Nah.

57       HER HONOUR:  ‑ ‑ ‑ being given to the prison authorities?

58       OFFENDER:  Nah, that's fine.

59      HER HONOUR:  All right, because I think that might help, possibly, cause it's

got some useful suggestions in it.

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