Director of Public Prosecutions v Ruthven, Dean
[2013] VCC 715
•6 May 2013
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-13-00297
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DEAN RUTHVEN |
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JUDGE: | HIS HONOUR JUDGE RYAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1 May 2013 | |
DATE OF SENTENCE: | 6 May 2013 | |
CASE MAY BE CITED AS: | DPP v Ruthven, Dean | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 715 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms B Goding | Office of the Director of Public Prosecutions |
| For the Accused | Mr J Mortley | Revill & Papa Lawyers |
HIS HONOUR:
1 Dean Ruthven, you have pleaded guilty to one charge of armed robbery. The maximum penalty for this offence is 25 years' imprisonment. Additionally, you have pleaded guilty to a summary offence of possess cartridge ammunition, whilst not being the holder of a license under the Firearms Act of 1996. The maximum penalty for this latter offence is 40 penalty units.
2 The facts that support the charges are set out in a summary of prosecution opening which was read allowed by the prosecutor and tendered as Exhibit A on the plea.
3 The facts of the armed robbery may be dealt with in short compass. On Thursday, 15 November 2012, at about 12.25 a.m. you entered the console area of the 7-Eleven Service Station in Coburns Road, Melton, and threatened the male attendant with a knife saying, "Open the till. Give me the fucking money." You removed the cash register drawer and stole between $300 and $350 cash. You were driven away from the scene by a person yet to be identified.
4 On 26 November 2012, you were arrested and interviewed by police. You denied any recollection of the event. You told the police that you were on a suspended sentence, that you had not worked for three or four months, that you had no source of income and no place of residence and that you had a problem with "ice". Later that day you were remanded in custody.
5 At the time of this offence you were undergoing a three-month suspended sentence of imprisonment, suspended for nine months, imposed at the Magistrates’ Court at Sunshine on 24 September 2012, only some seven weeks prior to this offending.
6 Armed robbery is a serious offence and offending of the kind committed by you, at night, on a convenience store, a soft target, staffed by hardworking people going about their lawful business is an all too frequent occurrence in our community.
7 There was no impact statement tendered on the plea but the victim of this armed robbery deposed of his statement to police that he was shocked and scared by your conduct.
8 Tendered on your behalf on the plea was a report from Bridget Miles, Provisional Psychologist (Exhibit 1). You gave Ms Miles an account of your conduct immediately prior to the armed robbery, and the reasons for it. As well, you told her that you "instantly regretted it as soon as I did it, just stupidity." It is plain that you have a recollection of the events of that morning.
9 That you have had a disrupted upbringing is evidenced in the history recorded in the Miles report. You have been a poly-drug user since the age of thirteen. Your time on remand for this matter is the first time in your life since you were thirteen that you can be said to be truly drug-free.
10 Tendered as Exhibit 2 on the plea were three references from your mother, an aunt and a family friend. It is clear from these references that you were “a loving kid”, "a fantastic kid” until drugs became a part of your life, and that now that you are drug-free "that loving and considerate kid I used to know" has returned. You appear to those who have visited you in prison to have improved both physically and mentally.
11 Despite your long history of drug abuse you have almost always been in work. After leaving school at age 13, you worked for 12 months as an apprentice carpenter. Against the wishes of your mother you left that trade and the potential for a good life that it offered you. You went to live with your father and worked with him as a concreter. Your father had drug problems of his own, conflicts developed and you left his employ but continued to work as a concreter. You went to live with your new employer, you were still an adolescent. In this new environment you witnessed alcohol-fuelled domestic violence. After about a year you returned to your mother's home. You continued to work as a concreter but after some time you took up a job as a kitchen-hand at a club in Melton. You worked split shifts at the club, and alcohol and amphetamine abuse became part of your life. You left that job as business dropped off and for a time you had no work. At this time it appears that your drug abuse increased.
12 At the age of 20 you met Amanda Ryan and you have a 19 month old child to her. You have lived in Werribee and Ballarat with Ms Ryan. There has been more than one period of separation during your relationship, caused in the main by your drug abuse. Despite this, Ms Ryan was present in court to support you and hopes to reunite with you upon your release from prison. Likewise, your mother was in court to support you and offers her home to you upon your release. Upon your release you have a base from which to make a future with Ms Ryan and your child, Kaylee, with the support of your mother. In my view, you are lucky to have these women in your life. This fact, together with your strong work ethic causes me to be guarded but hopeful about your prospects for rehabilitation.
13 You have pleaded guilty at the earliest opportunity and I accept that you are remorseful. You are entitled to the benefit of your plea, not only because of evidence of remorse, but because it is of utilitarian value. You will be sentenced to a lesser sentence than might otherwise have been passed upon you because of your plea of guilty and what it represents.
14 During the course of your plea Mr Revill, solicitor, who appeared on your behalf, sought to rely upon the principles set out in R v Verdins (2007) 16 VR 269. He sought to do so on the basis of Ms Miles' report and, in particular, the contents of page 5 of that report headed "Diagnosis and Opinion".
15 As to your conduct as a child at school, Ms Miles opines that:
"…Mr Ruthven would have likely met the criteria required for diagnosis of Attention Deficit/Hyperactive Disorder."
16 It is plain from your history that you have been substance dependent for many years.
17 Ms Miles reported further:
"Moreover Mr Ruthven reports ongoing difficulties with depression expressing suicidal ideation and past attempts. Given Mr Ruthven's ongoing substance issues it is difficult to establish the extent to which such symptoms are not due to the direct psychological effects of a substance necessary for diagnosis of depressive disorder. His substance use further makes it difficult to establish the course of one or many depressive episodes. Nonetheless, it is evident that Mr Ruthven experienced symptoms of depression now and at the time of his offending. It is further apparent that Mr Ruthven has a tendency to self-medicate for depressive symptoms through increased methylamphetamine use. Since he has recently been more appropriately medicated for his various symptoms whilst imprisoned Mr Ruthven has begun to notice improvements in his mood further suggesting his depressive symptoms are inherently linked to his substance dependence.”
18 In my view the principles set out in R v Verdins have no application to you. The cause of your offending was eloquently described by you to Ms Miles and is reported by her in the following terms:
"…He reports having 'tripped out bad felt anxious' whereby he was in a car with a friend who had been discussing the idea of various offending, including assault, throughout the evening, but had not followed through with his intentions. 'He was acting like a fool. I thought if you're going talk about something just do it.' Mr Ruthven then tried to "prove a point" by committing the armed robbery."
19 You told Ms Miles:
"…If it wasn't for the drugs I would never have done that. I wish I never did it."
20 In summary, you may have had Attention Deficit/Hyperactive Disorder as a child. You are substance-dependent and your depressive symptoms are inherently linked to your substance dependence. There was not established to any degree that you now suffer from, or suffered from at the time of your offending, a psychological condition of any kind, let alone one that may have contributed to the commission of this offence, or that could impact upon sentence in the ways set out in the R v Verdins. See R v Mune [2001] VSCA, 231 at 31.
21 Your offending was brought about by your voluntary ingestion of drugs. As you told Ms Miles:
"Mr Ruthven explains that at the time of his offending he had consumed 0.5 grams of methamphetamine, 'coming from a few days bender', as well as having two Xanax tablets the previous day. He had not slept for five days at the time of his offending. He reports having, 'tripped out bad, felt anxious'."
22 Having said that, your personal life with its dislocation and dysfunction, your use of drugs, and their deleterious effect on you and your relationship with Ms Ryan are all matters which I take into account and which provoke some sympathy for you. This history does explain how you came to commit the armed robbery and does to some extent mitigate your offending.
23 You are only twenty-four years of age. You have a strong work ethic. You have people who are prepared to support you. Upon your release from prison you have a real chance to reclaim your life. You have pleaded guilty and are entitled to the full benefit of that plea. You do have prior convictions but they serve to corroborate your history of drug abuse. However, you committed this offence whilst on a suspended sentence, and that is an aggravating feature of your offending.
24 I must balance the many competing factors that arise out of an analysis of the objective circumstances of your offending and its effects with your antecedents and person circumstances. By this sentence I must denounce your conduct. I must punish you for it and deter you and others from committing like offences. I must look to your rehabilitation.
25 I sentence you to two and a half years' imprisonment and fix a period of 15 months before you are eligible for parole.
26 I declare that you have served 161 days’ pre-sentence detention, not including today.
27 Pursuant to s.6AAA of the Sentencing Act 1991, I declare that but for your plea of guilty, I would have sentenced you to three years’ imprisonment with a non-parole period of two years.
28 In respect of the summary offence under s.124(1) of the Firearms Act 1996, I convict you and fine you $100.
29 Now there are some ancillary orders that need to be made. The first is what is known, Mr Ruthven, as a retention order that is that a sample for the purposes of your DNA was taken from you and I order that it be retained and for placement on the database. I do so on the basis of the seriousness of the circumstances for the offending, your prior convictions, that the order was consented to or certainly not opposed and the granting of the order is in the public interest.
30 Next, I make a disposal order in respect of the property that was seized by police when they executed a warrant upon your premises and that property is set out in a schedule to that order and, likewise, I make a forfeiture order in respect of the cartridge ammunition that was seized by police on the day that they executed a warrant on your premises.
31 Remove the prisoner, please.
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