Director of Public Prosecutions v Ryan

[2021] VCC 1268

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-21-00688

DIRECTOR OF PUBLIC PROSECUTIONS

v

GRANT RYAN

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JUDGE:	HER HONOUR JUDGE TODD
WHERE HELD:	Melbourne
DATE OF HEARING:	7 September 2021
DATE OF SENTENCE:	17 September 2021
CASE MAY BE CITED AS:	DPP v RYAN
MEDIUM NEUTRAL CITATION:	[2021] VCC 1268

REASONS FOR SENTENCE
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Subject:CRIMINAL

Catchwords:          Plea of guilty – one charge burglary – three charges theft – one charge handling stolen goods – two charges aggravated burglary – one charge possession of a drug of dependence- related summary charges of committing an indictable offence whilst on bail, failing to comply with directions of an authorised officer and dealing with property suspected of being proceeds of crim – circumstances of COVID-19 pandemic

Legislation Cited:         Crimes Act 1958 (Vic) ; Drugs, Poisons and Controlled Substances Act 1981 (Vic) ; Sentencing Act 1991 (Vic)

Cases Cited:Bugmy v R  [2013] HCA 37; DPP v Meyer [2014] VSCA 314; Hogarth v The Queen [2012] VSCA 302; Veen (1988) 164 CLR 465

Sentence:  Total effective sentence of 19 months imprisonment with a Community Correction Order of 30 months duration and fine of $200

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr M. Roper	Office of Public Prosecutions
For the Accused	Mr C. Terry	Milardovic Legal

HER HONOUR:

Introduction

Plea of guilty and maximum penalties

1Grant Ronald Ryan, you have pleaded guilty to one charge of burglary (which carries a maximum penalty of 10 years imprisonment), three charges of theft, (each charge carries a maximum penalty of 10 years imprisonment), one charge of handling stolen goods (with a maximum of 15 years imprisonment), two charges of aggravated burglary (each carrying a maximum penalty of 25 years imprisonment), and one charge of possession of a drug of dependence (which carries a maximum penalty of one year imprisonment or 30 penalty units in these circumstances).

2You have also pleaded guilty to the related summary charges of committing an indictable offence while on bail (which has a maximum of three months imprisonment or 30 penalty units), failing to comply with a direction made under the Chief Health Officer’s Directions (with a maximum penalty of 120 penalty units) and dealing with property suspected to be the proceeds of crime (which has a maximum penalty of two years imprisonment).

Circumstances of offending

3The circumstances of your offending are set out in the Summary of Prosecution Opening dated 13 August 2021; this became Exhibit A on the plea. That document forms part of and is attached to these reasons.  I will not repeat it but summarise parts of it here.

Indictable charges

4Muriel Jewell was 90 years old when on 12 February 2020, you went to her house in North Balwyn.  Ms Jewell lived there alone.  You went in through her back door into her kitchen.  She saw you and said “What are you doing?”.  You told her you were looking for your dog, then fled.  This conduct gives rise to Charge 1: Burglary.

5On 27 April 2020, you went to a JB Hi-Fi at Southland Shopping Centre.  You picked up a JBL sound bar and walked out without paying for it.  This conduct gives rise to Charge 2: Theft.

6On 27 May 2020, Peter Darwin and Mary Laughton, aged 80 and 93 respectively,  were at home in their house in Caulfield South. Ms Laughton heard a noise in her bedroom and discovered you there. You then ran out of the house, taking $60 from her purse. This conduct gives rise to Charges 4: Aggravated burglary and 5: Theft.

7On 1 August 2020, you went to a home in Bentleigh where another couple, Shirley Dennison and Kevin Orford, aged 90 and 89 respectively, lived. You went in  through the back door, stole jewellery and cash, and then left. Mr Orford saw you as you were leaving the property. This conduct gives rise to Charges 6: Aggravated burglary and 7: Theft.

8On 7 August 2020, the Police searched your home and car under warrant. They found various items including a Longines watch, which was later identified as belonging to an elderly woman, Nada Popovic. The Police also found four white tablets in a Ziploc bag later found to be Oxycodone. This conduct gives rise to Charges 3: Handling stolen goods and 8: Possessing a drug of dependence.

Summary charges

9You were granted bail on 15 October 2019 in relation to other matters. You committed the offences before this Court while on that bail. This gives rise to Summary Charge 3: Commit indictable offence whilst on bail.

10Your offending on Charges 6 and 7 occurred during the Victorian Stage 4 lockdown. During the course of your offending you were absent from your home without a valid exception, and therefore failed to comply with the Chief Health Officer’s directions. This gives rise to Summary Charge 16: Failing to comply with a direction made under the Chief Health Officer’s Directions.

11When the Police searched your home on 7 August 2020, they found and seized various items, which are set out in paragraph 13 of the Prosecution Opening, and which were reasonably suspected of being proceeds of crime. This gives rise to Summary Charge 20: Dealing with property suspected of being proceeds of crime.

Arrest, Interview and Chronology

12You were arrested at home on 3 August 2020. When interviewed by the Police, you admitted to the theft from JB Hi-Fi, but exercised your rights in relation to the other offending.

13Your case was first mentioned in the Moorabbin Magistrates’ Court but then was uplifted to the committal stream. Your case was listed for committal but ultimately no witnesses were cross-examined.  On 6 April 2021, the day of the committal,  your case resolved to these pleas of guilty.

Nature and gravity of the offending

14I am obliged to assess the nature and gravity of the offending.  Aggravated burglary is a particularly serious offence, reflected in the maximum penalty of 25 years imprisonment imposed by Parliament.  In relation to the aggravated burglaries, yours are particularised on the basis of you knowing or being reckless as to the fact that persons were present in the home that you entered and with an intent to steal. 

15All other things being equal, entry with intent to steal may be less serious than entry with intent to assault, and this proposition is recognised by reference to the Criminal Procedure Act s28(I)(a) and cl 4.7 of Schedule 2. This is the only type of aggravated burglary that can be determined in the Magistrates’ Court, where your case commenced. It is not surprising given your history that the case was uplifted, however I take into account in assessing the gravity of those two offences that the confrontations that did occur while you were in the houses were not intended by you but were the by-product of your entry with the intent to steal. It also appears that when the confrontations did occur, they were minor and brief and you quickly removed yourself.

16Having said that, it is an extremely unpleasant feature of these aggravated burglaries that each of the residents of the houses was very elderly. Your counsel conceded that this modus operandi, that is of selecting homes occupied by elderly people, is evident in your conduct.  Presumably you select the homes of elderly people to reduce the possibility of risk to yourself.  This introduces an aspect of your offending that is calculated and extremely unpleasant. I note also that the burglary on Charge 1 was committed on the home of another very elderly victim.

17But for the feature of your selection of homes lived in by old people, I would regard these as examples of aggravated burglary at the lowest end of the spectrum. That feature however, does elevate the gravity of your offending. The violation of any person's privacy and security by entering their home without their permission is always a terrible thing, but so much more so when that person is elderly and deserving of the community’s respect and protection.

Victim Impact

18I am obliged to have regard to the impact on your victims.  Ms Laughton and Mr Denison both wrote victim impact statements, whose restraint amplified their impact.  Ms Laughton writes that she lived in her home happily for 80 years.  She says meeting you in her house gave her the fright of her life.  She says she gets worried easily now and any sound makes her scared.  She feels her independence has been taken from her.  Her partner Mr Denison is legally blind and wrote that the event ‘really did get to [him]’.  He said that he is wary now to check and double check that all the doors are locked, he carries the keys with him all the time and the process of checking the locks is difficult, because of his sight problems,  and  it takes a lot of time out of the day. This means he has less time to do things that he loves, like gardening, because he feels he has to check the doors all the time.

19I understand the other victims were also given the opportunity to make similar statements but chose not to do so.  I am confident to assume that the experience for them was similarly rattling and unpleasant.

20I add that I have only taken into account the parts of the victim impact statements that are relevant to the crimes on this Indictment.

Criminal Record

21You have a breathtakingly lengthy criminal record for the crime of burglary and attempted burglary and, to a lesser degree, aggravated burglary commencing around 1995. I stopped counting at 80 burglaries, or attempted burglaries. It is a relentless record of interfering with people’s homes for the purposes of funding your raging heroin addiction for the last approximately 20 years. You have been sentenced multiple times in the Magistrates' Court and on two separate occasions in the County Court.

22I take into account your past criminal record. It is relevant in my assessment of the need for specific deterrence and the protection of the community in your case. It also illuminates your moral culpability. I am careful however not to impose punishment for this offending that involves, in effect, fresh punishment for your past offending.[1]

[1]Veen (1988) 164 CLR 465, 477.

Personal Circumstances

23You are now 43 years old. You were aged 42 at the time of your offending.

24You have five siblings.  Your parents are still married.  Your father suffered from alcohol issues but has been able to defeat this problem more recently.  He was a sales rep and a bookkeeper.  Your mother worked by caring for the six children. You were afraid of your father when you were small, he was violent towards you. Finally you ran away from home at about 14 years old and lived on the streets or wherever you could find shelter.

25You had learning problems at school.  You were placed in a special school during Grade 6.  In high school you went to Christian Brothers College.  You ran away from that school in the first year and went to another.  You were failing in your key subjects and struggling to get along with others.  You felt you were an outcast.

26While living away from home when you were very young the Police picked you up for shop stealing and you were put into an adolescent youth services unit in Moorabbin. Later you were put into foster accommodation in Rosebud, a hostel in Warrnambool and you also had periods of detention in the Melbourne juvenile justice centres at Turana and Malmsbury.

27In terms of employment you did a pre-apprenticeship in bricklaying and have worked as a labourer on building sites.  All your work has been short term.

28You endured sexual  abuse in your childhood.  This was brought to light and dealt with in 2016 via a civil case which I am told, and the prosecution confirmed, involved three separate institutional respondents.  Details of the facts giving rise to that claim were not given on your plea but were accepted by the Prosecution as facts underlying your personal circumstances.

29You developed a drug addiction around the age of 16 and, except for short periods of abstinence since then, this addiction has gripped you fairly consistently since that time.  Your counsel submitted that the course of your adult life has been set, indirectly, by that problem. Almost every criminal offence you have committed has been in service of that addiction.

30You have had little by way of long-term treatment in the community.  You are currently on methadone. You were on Suboxone when you were are last in the community and committed these offences. You have tried buprenorphine without success.  Your plan is to get a naltrexone implant once you are in the community again.

Matters in mitigation

Plea of guilty

31I accept that your plea of guilty was an early one and one that avoided cross-examination of the witnesses in this case, most, or all, of whom were quite elderly.

32Moreover, you have pleaded guilty at a time when the Victorian court system is congested and when it is still unclear when the enormous delays to criminal  trials will be really addressed.  I will deliver a sentence in this case that, in addition to the normal discount for a plea of guilty, conveys to you and to other people the particular and palpable value of a plea at this time. I make it very clear that this will mean that your sentence will be lower, and significantly so, than it would otherwise be on a plea of guilty in normal times.

Prospects of rehabilitation

33At first glance, your prospects of rehabilitation appear, quite frankly, to be dire.  I have read what was said to you on one previous sentence in this court.  I have already described your previous history as relentless. It is constructed of increasingly long custodial sentences, breaches of parole and other indicia of hopelessness.

34However, for whatever reason, something happened to you on your most recent release from prison.  You completed a period on parole for the first time in your life.  I note that was only six months but it was your first success in this regard.  Moreover, you spent two years in the community without offending.  You obtained full-time work.  A letter from your employer, John Gellie, was tendered.  He writes that he got to know you over a 12 month period and testifies to your good work ethic. He apparently understands your long-term struggle with addiction and despite all of it he has said that you have employment with him again when you are released.

35When you were last arrested, your partner Ma Fatema Imalay was eight months pregnant. She remains supportive and trusts that you will be a better version of yourself again.  Your daughter will be one year old this month and, but for four occasions when you have held her in custody, you have missed out nearly on her entire first year of life.

36On your Plea you gave evidence about what happened when the progress you had made unravelled. You gave evidence, that was not challenged by Prosecution, that although you found your life was better when you had a regimented schedule, that the addiction still sneaks up on you and your thinking was that you deserved small rewards for making it through a period of consistent work and did not think the addiction would escalate again.  You have said that you want the naltrexone implant to support you the next time you are in the community.

37It was submitted that you are capable still of feeling genuine remorse about the harm that you have done the victims of your offending.  How can this proposition survive such a relentless history of reoffending? I accept that your feelings of remorse are genuinely held.  They are simply not powerful enough at this stage to confront the more powerful demands of your entrenched addiction when you are gripped by it.  

38It was also accepted that during the time in custody the Informant contacted you  asking you for assistance for the return of some items of sentimental value to the victims of your offending and you facilitated that.  When you have the capacity to coolly reflect, it seems to me that you can behave in ways that are decent and responsible.  Those impulses get drained away when your addiction is in the ascendant.

39I note that, but for short periods on parole, you have not actually had any long-term sustained rehabilitative treatment for what is a long-term and powerful addiction to heroin.  I expect that if you can manage that problem you will stop offending.  It is probably as simple and as difficult as that.  It is a problem that requires more than full-time work and an affectionate family.  It needs high level sustained professional assistance. Your progress on the last occasion you were released from custody, despite the relapse, suggests that you might now be ready to receive that assistance.

Hardship of imprisonment

40It is widely accepted that imprisonment at this time of the pandemic is a more onerous proposition for prisoners in Victoria.  There was one brief period when visits were resumed when you could hold your new daughter, but for now she will grow up without you. I accept that this increases the already difficult period of imprisonment that you are enduring.

Bugmy considerations

41As a very young person you were cared for in institutions when your family, for whatever reason, was unable to care for you securely.  You emerged from those institutions with, amongst other things, legal rights to obtain compensation for what happened to you there.

42I accept that the principles of Bugmy v R apply here.[2]  You were deprived of safety and security as a very young person and this made you vulnerable to, and has been compounded by, a shocking addiction to drugs ever since.

[2] [2013] HCA 37.

Sentencing principles

43You must be punished for what you did to those people whose houses you went into. This sentence has to denounce your offending and, as far as possible, deter others from doing similar things. Your history suggests that specific deterrence is an important feature of this sentence, however I also note that imprisonment over approximately 20 years has essentially failed to deter you.  However loudly those sentences have spoken to you, the drug addiction you labour under is louder.

Current sentencing practices

44I have had regard to other sentences in the landscape of sentencing for aggravated burglary in particular.  I have had regard to the authorities of DPP v Meyer[3] and Hogarth,[4] and other cases.  No case is particularly like yours but I sentence you in that general landscape.

[3] [2014] VSCA 314.

[4] [2012] VSCA 302.

45The Prosecutor submitted that the only realistic sentence in all the circumstances is a head sentence with a non-parole period.

46Your barrister submitted that I should consider further imprisonment with a Community Correction Order for you to give you some certainty and to hope that you can return to your employment and your family at a time when you are still motivated to change the way you are living your life.  

47With some hesitation, I have decided to accept this submission and impose a period of imprisonment in combination with a Community Correction Order, though not one that secures your immediate release.  You will need to serve some further time.

Totality and concurrency

48I have also had regard to the principle of totality and moderated the sentences, more particularly the orders for cumulation, accordingly.

Disposition

49Mr Ryan, now is the part of the sentence when I tell you the actual numbers for the sentence.

50On Charge 1: Burglary, you are convicted and sentenced to eight months imprisonment.

51On Charge 2: Theft, you are convicted and sentenced to four months imprisonment.

52On Charge 3: Handling stolen goods, you are convicted and sentenced to three months imprisonment.

53On Charge 4: Aggravated burglary, you are convicted and sentenced to 14 months imprisonment and a Community Correction Order of 30 months.

54On Charge 5: Theft, you are convicted and sentenced to four months imprisonment.

55On Charge 6: Aggravated burglary, you are convicted  and sentenced to 14 months imprisonment and a Community Correction Order of 30 months.

56On Charge 7: Theft, you are convicted and sentenced to five months imprisonment.

57On Charge 8: Possessing a drug of dependence, you are convicted and sentenced to one month imprisonment.

58On the related summary offence 3 of committing an indictable offence while on bail, you are convicted and sentenced to one month imprisonment.

59On the related summary offence charge of 16 failing to comply with the order of the Chief Health Officer, you are convicted and fined $200.

60On related summary charge 20: dealing with property suspected to be proceeds of crime, you are convicted and sentenced to two months imprisonment.

61I direct that one month of the sentence on Charge 1 and four months of the sentence on Charge 4 are to be served cumulatively upon one another and upon the sentence on Charge 6 resulting in a total effective sentence of 19 months imprisonment with the addition of a Community Corrections Order of 30 months duration.

Pre-sentence detention

62Pursuant to s18 of the Sentencing Act I declare that 410 days of this sentence are already served and are to be deducted administratively.

s6AAA reduction

63Pursuant to s6AAA of the Sentencing Act I declare that had you not pleaded guilty but been found guilty by a jury, I would have imposed a period of imprisonment of four years and a non-parole period of two years and seven months.

Ancillary orders

64I will make the orders for forfeiture of the property and disposal of the drugs as sought.

CCO Conditions Explained

65You will be first subject to the standard conditions of a Community Corrections Order.  That means, importantly, that you must not commit any other offences that are punishable by imprisonment during the entire 30 month period.  Let me be clear about this:  if you do, you will be brought back to court before me and you will be resentenced for these offences as well as whatever else it is that you have done.  Absent very powerful reasons, you should expect that that will involve your immediate imprisonment. 

66You must report to the Moorabbin  Community Corrections Service within two days of your release from custody.  Depending on the circumstances at the time, that may be by telephone  but you must report either in person or by phone within two days of your release.

67You are required to advise your supervisor in the Corrections office of any change of address where you are living or working and you must do so within two clear working days.

68It is a term of all Community Corrections Orders that you must submit to visits as directed and you must obey all of the instructions and directions of a Community Corrections Officer.  You are not able to leave the State of Victoria without their prior permission; that is for the entire 30 months.

Special conditions

69You must report for supervision with your case manager as directed.

70You will be required to complete programs to further address your drug use, including random urinalysis testing.  

71You must submit to assessment and treatment for your drug dependence. 

72You are also required to submit to mental health assessment and treatment.

73I require you to perform 60 hours of unpaid community work over the term of this order, but pursuant to s48CA of the Sentencing Act I direct that time spent in treatment and rehabilitation programs be credited towards those hours.

74I will also require you to participate in judicial monitoring.  That means you have to come back to court at regular intervals and appear before me and I will get a report which tells me how you are going. 

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