Director of Public Prosecutions v Ryan
[2016] VCC 1466
•3 October 2016
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
Case No. CR-16-01023
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JOHN MATTHEW RYAN |
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| JUDGE: | HIS HONOUR JUDGE MISSO |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 22 September 2016 |
| DATE OF SENTENCE: | 3 October 2016 |
| CASE MAY BE CITED AS: | Director of Public Prosecutions v Ryan |
| MEDIUM NEUTRAL CITATION: | [2016] VCC 1466 |
REASONS FOR SENTENCE
---Subject: CRIMINAL LAW
Catchwords: Aggravated burglary – intentionally cause injury – make threat to kill –contravention of a Family Violence Intervention Order – unlawful assault – relevant prior criminal history – confrontational aggravated burglary – sustained assault – relevant sentencing considerations of specific deterrence and, in particular, general deterrence
Legislation Cited: Crimes Act 1958, s18, s20, s77(1); Family Violence Protection Act 2008, s123(2); Summary Offences Act 1966, s23
Cases Cited: Filiz v R [2014] VSCA 212; Hogarth v R (2012) 37 VR 658; Director of Public Prosecutions v Myers (2014) 44 VR 486
Sentence:Total effective sentence of three years and nine months’ imprisonment with a non-parole period of two years and three months. Section 6AAA declaration: Six years’ imprisonment with a non-parole period of four years.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms G Overend | Solicitor for the Office of Public Prosecutions |
| For the Offender | Ms M O'Brien | Stary Norton Halphen Pty Ltd |
HIS HONOUR:
1John Matthew Ryan, you have pleaded guilty to the following offences on indictment.
2That on 16 January 2016, you went to the building as a trespasser with the intent to assault a person therein and at the time you knew or were reckless as to whether a person was present contrary to s77(1) of the Crimes Act 1958, carrying a maximum penalty of 25 years’ imprisonment.
3That on 16 January 2016, without lawful excuse, you intentionally caused injury to FR contrary to s18 of the Crimes Act 1958, carrying a maximum penalty of ten years’ imprisonment.
4That on 16 January 2016, without lawful excuse, you made to FR a threat to kill, intending that she would fear that the threat would be carried out or that you were reckless as to whether or not she would fear that the threat would be carried out contrary to s20 of the Crimes Act 1958, carrying a maximum penalty of ten years’ imprisonment.
5You have also pleaded guilty to the following summary offences:
6That on 16 January 2016, being a person against whom a Family Violence Intervention Order was made, did contravene that Order by assaulting FR contrary to s123(2) of the Family Violence Protection Act 2008, carrying a maximum penalty of two years’ imprisonment or 240 penalty units.
7Lastly, that on 16 January 2016, you unlawfully assaulted FR contrary to s23 of the Summary Offences Act 1966, carrying a maximum penalty of three months’ imprisonment or 15 penalty units.
Your background
8You were born in 1982. You are now 34 years of age. Your father is a retired tram driver. He lives with one of your siblings. Tragically, your mother died from leukaemia when she was 52 years of age in 2007. Her death had a dramatic impact upon you, because you regarded her not just as your mother, but as your best friend. Your mother was a primary school teacher.
9You have three siblings. The eldest is your brother, who is 42 years of age. He is in full-time employment. Your father lives with him. Your next sibling is a sister, who is 40 years of age, who is also in full-time employment. Your next sibling is a sister, who is 32 years of age, who I understand is occupied in home duties.
10It was not until recently, and it would appear after you were remanded in custody, that your were able to resume some degree of relationship with your siblings. Before that, you did not have a relationship with them because of your drug use and because of your chaotic lifestyle, which is the description used by your counsel repeatedly to describe your lifestyle. It is clear that your brother and one of your sisters are very supportive of you. Your brother intends to have you live with him temporarily and intends to financially support you until you are on your feet.
11It would appear that there was nothing particularly difficult about your upbringing. You grew up in the Frankston area. You attended a secondary school and left after completing Year 11. If you did have any difficulty, it was your intermittent resort to the use of cannabis from the age of 13 years. However, that does not appear to have prevented you from completing your schooling and then pursuing work.
12Immediately upon leaving school, you commenced an apprenticeship as a renderer. I was told that you were earning a good income from that employment. You must have started that employment in about 2000 when you were about 18 years of age. You decided on a change and left that employment in 2008 or thereabouts and took up a horticultural apprenticeship. You worked in that employment for five years, which must have taken you up to about 2013.
13You met FR when you were 23 years of age. She is ten years older than you. You married her in 2010. At the time of your marriage, FR had two children from her previous marriage, who I understand are now adults and living independently.
14Your marriage to FR broke down irretrievably when you and FR discovered that her reversal of her tubal ligation was unsuccessful and that she could not bear further children. As a result, you considered that you could not continue in a relationship with her.
15Your counsel described the chaos in your relationship with FR as having being produced by the breakdown of your marriage, the resort which the two of you had to illicit drugs, your itinerant lifestyle, your psychiatric problems and FR’s psychiatric problems. The degree to which there was chaos was described in a setting of escalating drug use, loss of employment by you, FR’s controlling nature and in particular, the control she exerted over you, and your descent into more serious psychiatric ill health which saw you treated for a major depressive illness. I will return to the extent of that illness later in these reasons.
16You and FR purchased a caravan, intending to undertake some travelling and to try to change your lifestyle. Unfortunately, that came to an end when you drove your car and caravan in a manner which resulted in an accident. You were subsequently charged with driving in a manner dangerous, breaching an alcohol interlock condition and using an unregistered motor vehicle. You were dealt with by a court for those offences on 25 March 2015. It forms one of your prior convictions. I will return to your criminal history later in these reasons.
17Your counsel described the fact that both you and FR had a look about you which made it difficult for you to obtain rental accommodation. I understand that to mean that you looked dishevelled, as did she, and not people who impressed a prospective landlord as someone who should be trusted with a rental property.
18Your mother’s premature death was the first major problem you encountered in your life. The breakdown of your marriage became the second. Unfortunately for you, there was another – it involved your two Border Collie dogs. Your counsel described you as being extremely fond of your two dogs. They were described as your constant companions.
19In about November 2015, and for reasons and in circumstances which I do not fully understand, you and FR were evicted from a share house. It is unclear to me what then happened, except that your two dogs were taken from you and they were put down.
20I will now return to your psychiatric condition before turning to your offending.
21Your counsel tendered a bundle of medical reports and clinical notes. The report dated 5 September 2006 discloses that you first attended the Frankston Healthcare Medical Centre on 13 May 2008 for treatment of a heroin addiction. You went on the methadone program and it would appear that you continued on that methadone program from 2008 to January 2016, which was the last time you attended the Frankston Healthcare Medical Centre, according to its records.
22Medical practitioners at the Frankston Healthcare Medical Centre diagnosed you as having a Major Depressive Disorder. The evidence relied on by them was partly your recurrent attempts at self-harm such as slashing your wrists, fracturing your fingers by punching walls, attempts at hanging yourself and failing to take care of self-inflicted wounds.
23That medical report also refers to numerous suicide attempts which resulted in inpatient treatment at various times between 2013 and 2016. The medical practitioners who treated you recorded that they considered that your suicide attempts were related to homelessness, loss of employment, recurrent relationship break up and escalating substance use.
24It would appear that you have had a significant ongoing psychiatric condition requiring hospital and medical treatment since at least 2008. The recommendations made to you by those who were treating you was to abstain from the use of illicit drugs. It is something you have failed to do. Your counsel described the illicit and prescription drugs you have been taking as heroin, synthetic cocaine, methyl amphetamine, Xanax, Valium and methadone. There is no doubt in my mind that you introduced a dangerous cocktail of drugs into your system.
Your offending
25It is clear that by 16 January 2016, your relationship with FR was over; however, you harboured a serious level of anger towards her. The source of your anger was your belief that FR had engaged a sexual relationship with a mutual friend of yours. It was the cause of a confrontation between you and FR at about midnight on the day of your offending.
26FR confronted you; there was an argument between the two of you; she slapped you to the face. Your reaction was excessive. You punched her to the stomach. Fortunately, your mutual friend and passers-by intervened and prevented the confrontation from escalating. The two of you continued arguing.
27At about 8.30am the following morning, you went to the bungalow where FR was living. You knocked on the door. FR was asleep. She got out of bed and answered the door. You pushed her backwards and despite her telling you that you should not have entered the bungalow, you ignored her.
28You then engaged in what can only be described as a cowardly, vicious and unprovoked attack on her. You punched FR to the face, head, stomach and ribs. You accused her of not being on your side by sticking up for your mutual friend. You prevented FR from making a telephone call using her mobile telephone when she attempted to telephone for help.
29FR ended up on her stomach on the floor of the bungalow. You placed one of your knees in her back. You grabbed her by the hair, lifted her head and slammed it into the floor repeatedly. While you were doing this, she screamed at you, you screamed at her and told her that you were going to kill her. At one point, you placed your hands around her throat and strangled her, with the result that you cut off the airflow into her lungs.
30The events I have just described continued for about 30 minutes. During that time, FR attempted to break free from you and escape. Each attempt was stopped by you. At one point, you dragged her back into the bungalow and told her that she was not going anywhere.
31It was fortunate that a neighbour either heard or saw what was going on and made a call to the police. It was fortunate for both you and FR that the police arrived, because it was as a result of that event alone, that your assaults on her ceased.
32FR has not made a victim impact statement. Despite that, you accept that she suffered injury as a result of your sustained assaults on her. She suffered swelling and bruising to her left eye and cheek, lacerations and abrasions to her forehead and the bridge of her nose, and suffered pain to her right wrist. There was no evidence to suggest that she required any particular medical treatment, so I must work on the basis that she recovered from those injuries, probably without any middle to long-term consequences.
The sentence
33Initially your counsel submitted that I should sentence you to time served, which amounts to 261 days not including today, and that I should release you on a community correction order. In the course of my debate with your counsel, I indicated that I considered such a disposition to be out of keeping with the gravity of your offending. Your counsel then submitted that I should sentence you to a further term of imprisonment but then release you on a community correction order. But I consider that also to be out of keeping with the gravity of your offending. I consider that you must be sentenced to an immediate term of imprisonment.
34After your confrontation with FR earlier in the evening, you appear to have brooded over that confrontation and your assumption that she had been unfaithful to you despite the fact that you were separated, living apart. Your brooding turned to anger, because eight hours later, you went to her bungalow and confronted her again. You were not just filled with anger, according to your record of interview, but with rage. When you were asked how angry you were on a scale of one to ten, you described it as being fifteen and that you wanted to kill her.
35The events that occurred at the bungalow were not spontaneous. They appear to me to be premeditated. You pushed your way into the bungalow in a state of rage. You were clearly out of control. The assaults which were then occasioned on FR were as I described earlier, cowardly, vicious and unprovoked, and it was indeed fortuitous that they were interrupted by the arrival of the police.
36Filiz v R [2014] VSCA 212, a sentence appeal, appears to have facts which are somewhat similar to your conduct. The accused entered the bedroom occupied by his former wife and her male partner. They were both asleep. He beat the two of them with a curtain rod. He was charged with the same offences with which you have been charged except that he was not charged with a threat to kill. He was ultimately sentenced to a total effective sentence of three years and six months as a head sentence. What is noteworthy is the observation made by the Court of Appeal that a great number of women live in real and justified fear of men who are their former intimate partners.
37Filiz was decided after Hogarth v R (2012) 37 VR 658 in which the Court of Appeal considered that the sentencing practices at that time were not reflective of the gravity for these type of offences. Later, in Director of Public Prosecutions v Myers (2014) 44 VR 486, the Court of Appeal endorsed the remarks made in Filiz and added that violence of this kind occasioned on former domestic partners is “widespread and extremely harmful”. It referred to the statistics of women who are killed or seriously injured by vengeful former partners, observing that the statistics demonstrated something that was “truly shocking”.
38The conclusion I have reached is that nothing short of a stern sentence will do in your circumstances. Your prior criminal history demonstrates that you are no stranger to acts of violence. As far back as 2009, then in 2014, you were convicted of criminal damage. The chance you were given by being placed on a Community Based Order was of no consequence to you because you breached it. In 2015, you were convicted of assault with a weapon, possession and carrying a prohibited weapon and a dangerous article in a public place and assault police. Your last prior conviction in 2015 is for driving in a manner dangerous and breaching an alcohol interlock condition, which I have referred to earlier.
39There are two sentencing principles which must figure prominently in your case. The first is specific deterrence. You need to be deterred from engaging in acts of violence which unfortunately for you is a part of your criminal history. The most dominant sentencing principle that applies to you is general deterrence. Individuals who breach family violence intervention orders and engage in a confrontational aggravated burglary of their former partner, followed by serious and sustained assaults on their intended victim, must suffer a sentence which sends the message to others that similar conduct will be dealt with most sternly.
40Your conduct must also be denounced and there must be an element of protection of the community from people who resort to violence like you did.
41I am satisfied that you have a serious addiction to drugs. Your treatment through the Frankston Healthcare Medical Centre demonstrates that to be the case. That history, together with the diagnosis made by Dr Cunningham, forensic psychologist, in his report dated 12 September 2016, demonstrate that you have a Major Depressive Disorder with cognitive functioning in the average range.
42Dr Cunningham referred to a number of factors which would be to your benefit and would reduce the likelihood of your re-offending and would increase your prospects of rehabilitation. However, when you were assessed for a community correction order, you candidly informed the assessor that you will continue to indulge in the use of illicit drugs when you are released. That hardly suggests that you have good prospects of rehabilitation.
43I am not satisfied that whatever mental impairment you were labouring under at the time when you went to the bungalow had much to do with the rage that you developed, your intention to confront FR and your offending.
44Your counsel submitted that because of your illicit drug use and your psychiatric state, that serving a sentence of imprisonment will be made all the more burdensome. I do not doubt that, but I am not persuaded that what I have read of Dr Cunningham’s recommendations that serving a sentence of imprisonment will mean that it will be significantly burdensome.
45I have paid due regard to all of the matters put to me by your counsel in her energetic plea which she made on your behalf. In particular, I accept that you are remorseful. Despite some of the things you said in your record of interview of your intention to kill FR, you also expressed serious regret for what you did. Your early plea of guilty is also a demonstration of remorse. You are deserving of a reduction in the sentence that I would have otherwise imposed for both the expressions of remorse and your early plea of guilty.
46The sentence I now impose on you is proportionate to the gravity of your offending in the light of the objective circumstances of its occurrence. Would you please stand.
47On the count of aggravated burglary, you are sentenced to two years and six months’ imprisonment. This will be the base sentence.
48On the count of intentionally cause injury, you are sentenced to 18 months’ imprisonment with nine months to be served cumulatively with the base sentence.
49On the count of make a threat to kill, you are sentenced to six months’ imprisonment with three months to be served cumulatively with the base sentence.
50On the count of contravene a family violence intervention order, you are sentenced to six months’ imprisonment with three months to be cumulatively with the base sentence.
51On the count of unlawful assault, you are sentenced to one month’s imprisonment to be served concurrently with the base sentence.
52You are therefore sentenced to three years and nine months’ imprisonment. I will set a minimum before you are eligible for parole at two years and three months.
53I order that the time you have been in custody of 261 days is to be reckoned as time served. I will have that noted in the records of the Court.
54If it had not been for your plea of guilty to these charges, I would have sentenced you to six years’ imprisonment with a minimum of four years to be served before you would become eligible for parole. You can now resume your seat.
55I will now make the order for the taking of a forensic sample and I will then give you a warning regarding the taking of such a sample. Do you have that order available for me?
56MS OVEREND: I’ll hand them up now, your Honour.
57HIS HONOUR: Mr Ryan, this is a warning I am obliged to give you. You can remain seated while I do this. This is in relation to the order sought by the prosecution for the taking of a forensic sample.
58Application was made by the prosecution for the provision of a forensic sample by taking a scraping from your mouth or a blood sample. Having regard to the seriousness of the circumstances of the offending, I find that the granting of the order is in the public interest and I note that you have consented to the making of that order in any event. I will make the order and indeed I have made it and I have signed it. I am required to warn you that if at any time you are requested to supply a sample of your DNA by scraping from the inside of your mouth under supervision by an authorised member of the police force, then the sample will be taken in that way. But if, when requested by the officer to provide the sample in that way, you either fail or refuse to provide the sample, the officer is authorised to obtain a blood sample and to use reasonable force to obtain that blood sample. Do you understand that?
59OFFENDER: Yes.
60HIS HONOUR: Anything else?
61MS O'BRIEN: No, Your Honour.
62HIS HONOUR: You can remove Mr Ryan, thank you. I will adjourn the Court until 10.30.
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