R v Rutty

[2002] QCA 358

[2002] QCA 358

COURT OF APPEAL

DAVIES JA
JERRARD JA
HELMAN J

CA No 195 of 2002

THE QUEEN

v. 

JASON ANDREW RAYMOND RUTTY                 Applicant

BRISBANE

..DATE  16/09/2002

JUDGMENT

JERRARD JA:  Jason Andrew Raymond Rutty, you have pleaded guilty on 25th May 2000 to offences of entering premises with intent to commit an indictable offence, to unlawfully depriving another person of personal liberty, to armed robbery in company and to wilful and unlawful damage.  Those offences were committed on 26th February 1998 when he and others broke into a Red Rooster store on the Gold Coast, tied up two staff members and robbed one of them of her money and engagement ring and in addition stole $800 from a safe on the premises.

On his plea of guilty he was sentenced to six years imprisonment with a recommendation that he be considered for release on parole after he had served 12 months of that term.  By an application filed on 20th June 2002 Mr Rutty asks for an extension of time within which to apply for leave to appeal against that sentence imposed two years and one month earlier.

The reason he was sentenced in May 2000 for offences committed in February 1998 was that, soon after committing those offences he left Queensland for Western Australia and was apprehended in that state on or about 13th March 1998 when he was arrested on offences committed in that state and around that same day.  Those offences included armed robbery in company, two charges of stealing motor vehicles and at least one other offence of dishonesty.  He and his co-offender, in the armed robbery committed in Western Australia, stole $4,000 in cash and drugs from the premises robbed.

The other offence of stealing involved taking at least $3,000 worth of property.  He and that co-offender in Western Australia, whom I assume was his brother Michael, were sentenced for those Western Australian offences on 12th June 1998.  Jason Rutty was sentenced to five years' imprisonment.  He served approximately 23 months of that term and was then extradited to Queensland.  It appears he was classified as a high security prisoner throughout that 23 months and by reason of the extradition warrant outstanding throughout that period would have been unable to obtain a lower security classification.

One of the grounds upon which he seeks the extension and leave is that his period of imprisonment has been more arduous by reason of that continuing high security classification.  That classification continued in the Queensland correctional system and after the sentences imposed on 25 May 2000.  He was assessed as a medium security risk on 8 February 2002 and the relevance of this classification is that on 8 May 2001 the Queensland Community Corrections Board advised that it did not approve his application for release on parole at that time.

The Community Corrections Board's correspondence with Mr Rutty referred to his previous history of behaviour when on parole, described by the Board as a totally unsatisfactory response to being released into the community, to the nature of his most recent offences and to the Board's requirement that he first demonstrate a significant degree of trustworthiness before it would consider him for post-prison community based release. 
He was advised to demonstrate that by a substantial period of successful residence in a Correction Centre for open security classification prisoners together with successful participation in a leave of absence program.

Mr Rutty complains to this Court that the reality of prison management is that whenever he achieves an open security classification it will take at least a further three to five months after his change to that classification has been verified before he would be transferred to an open security "farm" and he would then be expected to wait for a substantial period, perhaps six months, before applying for parole and it would take at least three months for that application to be processed.  Accordingly he is unlikely to be released on parole until at least 15 months have passed after he has actually achieved that open security classification. 

His argument is that the resulting position effectively contravenes the requirements imposed by the judgments of the High Court in Mill v. The Queen (1988-89) 166 CLR 59. Those requirements were that the "totality" principle be adhered to when sentencing in one State an offender who has served a term of imprisonment in another State including, but not limited, to circumstances where the offences in both jurisdictions were committed at or around the same time. The sentencing Court in the second State is required to have regard to the totality of the sentences which a prisoner is required to undergo and to determine whether that aggregate of sentences imposed is "just and appropriate" with the gravity as a whole of the proven criminal conduct of the person being sentenced in the second State after serving the earlier term in the first.

When one considers Mr Rutty's position, he offended in similar ways in February and March of 1998.  The offences committed involved violence, threatened with weapons by men acting in company.  The offenders terrified their victims and stole all they could.  Jason Rutty had a quite significant criminal history, his Court appearances having begun in the Children's Court in April 1988 when he was 14.  He appears to have been first sentenced to prison in November 1991 and in February 1994 was sentenced to a four year term by a Court in Perth for offences which included burglary, the possession of housebreaking implements, threatening to kill and stealing a motor vehicle.  He had been out of custody since mid-December 1997 and only since date, before he committed the offences in Queensland in February 1998 and he was on parole at that time.  He had actually been released in May 1995 in respect of those February 1994 sentences, but had re-offended.  He was returned to custody in Western Australia in October 1995 and next released as described in December 1997.

The sentences actually imposed at Western Australia in June 1998 and in Queensland in May 2000 result in an effective eight year sentence from mid-June 1998 with the opportunity available for release on parole after having served three years of that term.  Such a sentence would be in no way excessive let alone manifestly excessive for an offender with his record committing those offences in February and March 1998.  The fact that the Community Corrections Board in this State has not supported his release into the community does not necessarily demonstrate anything other than that Board is carrying out the public duty imposed on it.  To date Mr Rutty has served at least 4.25 years of the maximum effective eight year term imposed, but that fact may be a consequence of his own conduct over time. 

If he has ground upon which to complain about the manner in which his sentence is being administered, this Court is not the appropriate Court to hear that complaint.  I do not think that the complaint that he may make about the sentence management imposed upon him renders the sentence imposed in May 2000 manifestly excessive in the circumstances, as indeed Mr Rutty himself recognises, nor do I think that it shows that the result of the sentences which were actually imposed upon him is a breach of the totality principle.

As the application for leave to appeal against the sentence should be dismissed, I would dismiss the application for an extension of time.

DAVIES JA:  I agree.

HELMAN J:  I agree.

DAVIES JA:  The orders are as indicated by Justice Jerrard.

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