Director of Public Prosecutions v Fawkner (a pseudonym)
[2025] VCC 12
•22 January 2025
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| LEAH FAWKNER (a pseudonym) |
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JUDGE: | HIS HONOUR JUDGE MAIDMENT |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 12 November 2024 & 22 January 2025 |
DATE OF SENTENCE: | 22 January 2025 |
CASE MAY BE CITED AS: | DPP v Fawkner (a pseudonym) |
MEDIUM NEUTRAL CITATION: | [2025] VCC 12 |
REASONS FOR SENTENCE
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Subject:Plea - sentencing
Catchwords: Assault
Legislation Cited:
Cases Cited:Bugmy v The Queen [2013] HCA 37
Sentence:2 months’ imprisonment (less than time served) plus 18-month CCO
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms K. Crennan | Office of Public Prosecutions |
For the Accused | Ms K. Ottrey | Chester Metcalfe & Co. |
HIS HONOUR:
1Leah Fawkner,[1] you have pleaded guilty to an offence of assault contrary to common law, the maximum term of imprisonment for which is imprisonment for five years.
[1]A pseudonym.
2You have admitted a prior court appearance which did not lead to a conviction, but rather a non‑conviction order that you complete an approved anger management course within six months, and the matter was then adjourned to a later date.
3The prosecution has tendered and relied upon an amended summary of prosecution opening for plea dated 2 October 2024, which I understand is an agreed statement of fact. I am not going to read it out in detail but I will summarise it briefly.
4In January 2022 you moved into an address in Frankston with your victim, who was living there with her then partner and their young children. You paid for some items but were essentially staying at the property rent free. After about three months you transferred your own car, a white Ford XR Falcon with a personalised registration plate to your victim’s partner. It was transferred online and intended as a gift - a ‘thank you’ for providing you with a place to stay.
5Your victim later changed the registration of the vehicle from the personalised plate to a standard registration plate. Some months later your then partner moved into the address.
6In November 2022 your victim and her partner purchased and moved into a house at an address in Frankston. You and your then partner moved into that house with them.
7On 1 April 2023 you and your partner were locked out of the Frankston house as a consequence of conflict within the house.
8On 26 June 2023 your victim advertised for sale the personalised registration plates for the Ford Falcon vehicle that you had transferred. Later she received a message from a male wishing to discuss the sale of the registration plates. It is apparent that that contact and what occurred subsequently was an endeavour to ambush your victim and retrieve the Ford motor vehicle that you had transferred to her.
9On 27 June 2023, a discussion took place between your victim and the male who contacted her about the sale of the registration plates and an arrangement was made for her to meet with him at an IGA in Beach Street in Frankston.
10At about 7.45 pm your victim drove away from the Frankston house in the Ford Falcon with another male in the front passenger seat and along with the registration plates that were to be the subject of the discussion.
11They drove a short distance along the street. Their way was being blocked by a black SUV. You were in the driver's seat of the black SUV accompanied by two other males. You and the two males got out of the vehicle. You approached the driver's side of the vehicle and carried out an assault upon your victim, striking her multiple times on the back of the head and arms with a metal pole. She described the metal pole as ‘ruler-sized’.
12You pulled her out of the vehicle by her hair. The male in the other side of the vehicle was also removed from the vehicle by one or more of the other males who accompanied you. You then got into the vehicle and drove the Ford Falcon away, with one of the other males in the passenger seat. The second male went back to the SUV and also drove away.
13On 2 August 2023 you and your then partner, who had been with you at the time of the offending, were located by Queensland police walking to the Ford Falcon motor vehicle, the subject of the incident. It had been reported stolen in Victoria.
14You were arrested. You were extradited to Victoria on 8 August 2023 and were interviewed by police. You made extensive admissions and were generally quite frank in those admissions. You did not admit that you had used a metal pole, nor did you admit the full details of the arrangement that you had made to ambush your victim.
15The prosecution also relied on a victim impact statement from your victim, which is Exhibit C. I am not going to read that out, but your victim expresses the psychological impact as well as the physical impact of your offence upon her, and the financial impact as well as the psychological impact. She concludes by saying:
‘I loved [Leah] as if she were my own daughter and had even looked into legally adopting [Leah] and for her to do what she has done to me has destroyed my passion to want to help others. I am not the happy bubble [sic] person I used to be. I’ve lost my physical and emotional strength, my confidence, my trust. I have lost everything and don't feel like I am ever going to get it back.’
16You should appreciate that conduct such as that has a very significant impact on the victim.
17Your counsel provided me with an outline of submissions at the plea hearing and that is Exhibit 1. It is a very helpful document which outlines all of the salient features that can be gleaned from the other exhibits.
18You have two younger brothers. In your upbringing you experienced family violence and family dysfunction. You had difficulties in school and were ultimately expelled in Year 9. You commenced but did not complete a carpentry apprenticeship.
19In 2020 your parents separated following an episode of family violence which left your mother with an Acquired Brain Injury. She is now on the National Disability Insurance Scheme (‘NDIS’). You have become an informal support person for your mother, and you helped her apply for the NDIS pension.
20You were unfortunately the subject of a very serious sexual assault in January 2022 and it was following that that you were taken in by your victim. You take the view that she effectively saved your life and you had a close relationship with her at that time. You then got into a relationship with one of the people who accompanied you in the car on the night of the offending. That lasted from 2022 until 2024. He moved in with you at the home of your victim and her then partner.
21You were locked out of the house on 1 April 2023 and there was some issue about returning your belongings. You eventually got some of them back, and you and your partner were then homeless. You initially slept in your car in Victoria and then went up to Queensland and did the same there.
22After your arrest you were kept in custody for a while and upon being released on bail you went to live with the parents of your then partner. They have provided me with a letter of reference dated 7 January 2025. It is a very well expressed sympathetic letter, and it is quite apparent that they have a very high regard for you, appreciate the difficulties that you have had in the past and recognise your continuing progress towards rehabilitation. They regard you as a person with a lot of good in you and with a good deal of potential and talent. That letter speaks volumes in your favour.
23You are now in a relationship with your fiancé and that is continuing?
24OFFENDER: Yes, Your Honour.
25HIS HONOUR: He seems to be a positive and supportive influence upon you. You got into serious substance abuse at the age of 13 when you were experiencing the traumas in your home life.
26In June of 2015, to your credit, after you were admitted as a voluntary patient at the Northern Hospital and were diagnosed with adjustment disorder and mental and behaviour disorder due to stimulant dependence syndrome, you completed a residential rehabilitation program supported by The Bridge Youth Service. You remained drug free for several years after that intervention.
27That is not an easy thing for a young person to do and it is commendable that you were able to achieve that. Unfortunately, you relapsed into drug use and were using methylamphetamine and GHB at the time of the offending. No doubt that was a contributor to your offending conduct. However, since your release from custody you have been attending Narcotics Anonymous and continue to do so.
28The psychological reports, the first being Exhibit 2, that of Ms Rebecca Fakhri dated 22 July 2024, and the more recent report of neuropsychologist Dr Loretta Evans dated 8 November 2024, support the contention that you have suffered from various psychological and physical conditions which have impacted on your life. No doubt they have contributed to your tendency towards substance abuse, and underlie the attitudes which led to your offending conduct.
29You meet the criteria for Complex Post Traumatic Stress Disorder, a major depressive disorder, a stimulant use disorder in early remission, an attention deficit hyperactive disorder, and you may meet the criteria for bipolar disorder.
30It is not disputed that Verdins principles 5 and 6 are to be applied in the sentencing exercise in your case, as well as the principles arising from the well-known case of Bugmy v The Queen[2] and subsequent authorities which support the principles arising from that case.
[2][2013] HCA 37.
31And whilst the Bugmy principles undoubtedly tend to reduce moral culpability, there is a need to recognise that the application of the principles also need the court to consider the need for public protection because of vulnerability to reoffending that those underlying factors produce.
32You have pleaded guilty. There has been some delay in the matter coming before the court today. During that delay you have used the time very wisely in seeking to rehabilitate yourself. You are in a good relationship which is supportive of you and makes it more likely that you will avoid further relapse into drug abuse.
33Your plea of guilty has considerable utilitarian benefit as well as being consistent with remorse. It is very much to your credit that you completed 43 weeks of the Court Integrated Services Program as described in Exhibit 3. You made very considerable progress in that program, as well as the efforts at rehabilitation going back to 2015, when you were endeavouring to deal with your heavy drug use.
34All of that shows that you are capable of rehabilitation. The order that I shall be seeking to make will assist you in your continued progress to rehabilitation and reduce the risks of you relapsing into drug use and reoffending.
35During your period in custody you completed a number of courses, supported by certificates which are Exhibit 6 on the plea hearing. I was provided with documents related to your mental health, Exhibit 4, a medical certificate in relation to medical conditions dated 25 August 2022 and various letters of support, which are Exhibit 7, from the remand program facilitator at Dame Phyllis Frost Centre and the senior support worker of Prison Network. They are all supportive of your capacity and progress towards rehabilitation.
36Your counsel submitted that you having already served 107 days pre-sentence detention, and it was not necessary for me to impose a term of imprisonment because the crime did not merit that punishment. In the alternative, it was submitted that a term of imprisonment which was less than the 107 days that you have already served would be appropriate with a community correction order.
37Looking at the way in which this offending developed, your part in it wielding the weapon and the injuries you caused to the victim, a prison sentence is required. It is a serious incident of its kind and one that deserves not just serious punishment, but punishment that has the capacity to deter others from committing offences and taking the law into their own hands in the way that you did.
38This was planned by you. You involved others in it. You carried out a quite vicious assault on a person who had showed you considerable kindness, albeit that you may have felt upset by having been ejected from the house you shared with her and her partner.
39As I indicated at the beginning of these proceedings today, I propose to sentence you to a term of imprisonment and to impose a community correction order. The term of imprisonment will not require you to go back to prison and the community correction order would be for a period of 18 months.
40I am going to move to sentence you but I understand that you consent to a community correction order, is that correct?
41OFFENDER: Yes, Your Honour.
42HIS HONOUR: All right.
43Leah Fawkner, for the offence of assault contrary to common law, you are convicted and sentenced to imprisonment for two months. I declare 107 days of pre-sentence detention as time to be reckoned as served on the sentence that I have imposed. You will not be required to go back to gaol.
44In addition, I propose to impose a community correction order for a period of 18 months. I will go through the full terms and conditions with you in a minute, but it will involve a requirement that you perform unpaid community work of 150 hours.
45There will be conditions requiring you to undergo supervision and rehabilitative courses, but you can offset 75 hours of completed rehabilitation against the 150 hours of unpaid community work. So there is a punitive element to the order but the order is also designed to assist you with your rehabilitation and to provide you with support, and clearly one of those rehabilitative conditions will be relating to drug abuse and the endeavour to keep you on the straight and narrow in terms of your resistance to any temptation that you might have to resume your drug abuse.
46Also a condition relating to your mental health to assist you with psychological and psychiatric issues. And a condition that relates to reducing your risk of reoffending.
47I am going to read to you in a moment all of the conditions of the community correction order so that you are well informed as to what it will entail.
48The order will commence immediately and you will be required to report to the Community Corrections Centre at South Morang Community Correction Services, 4A/545 McDonalds Road, South Morang within two clear working days after the commencement of the order. This order, in common with all other community correction orders, contains terms that must be obeyed, namely that:
- you must not commit another offence for which you could be imprisoned during the time that the order is in force;
- you must comply with any obligation or requirement prescribed by Regulation 15 of the Sentencing Regulations - that means not turning up to supervision appointments influenced by drugs or alcohol, that kind of thing;
- you must report to and receive visits from the Secretary of the Department of Justice or his or her delegate;
- you must report to Community Corrections Centre within two clear working days of the order starting;
- you must let a Community Corrections officer know within two clear working days of you changing your address or job;
- you must not leave Victoria without first getting permission to do so from the Secretary of the Department of Justice or his or her delegate; and
- you must obey all lawful instructions from and directions of the Secretary of the Department of Justice or his or her delegate.
49I stress the need to avoid committing any further offending during the period of the community correction order because if you do, you will be up for potentially up to three months' imprisonment just for breaching the order. In addition, you will be brought back before this court and likely receive further punishment, which could include a term of imprisonment and so that is something to clearly be avoided.
50In addition to those conditions, you are to perform 150 hours of unpaid community work over a period of 18 months as directed by the Regional Manager.
51I order that 75 hours of treatment and rehabilitation satisfactorily undertaken are to be counted as hours of unpaid community work for the purposes of the unpaid community work condition.
52If you fail to comply with that order, the Secretary of the Department of Justice or his or her delegate may give you a direction to perform additional hours of unpaid community work in accordance with the Sentencing Act1991 (Vic) (‘Sentencing Act’).
53You must also be under the supervision of a Community Corrections officer for the period of the order and that will require keeping appointments either in person or by electronic communication, as required by the Community Corrections officer.
54You must undergo assessment and treatment including testing for drug abuse or dependency as directed by the Regional Manager.
55You must undergo any mental health assessment and treatment that may include psychological, neuropsychological, psychiatric or treatment in a hospital or residential facility as directed by the Regional Manager.
56You must participate in programs and/or courses that address factors relating to the offending as directed by the Regional Manager, and I suggest that that should include anger management, which is something that clearly has been an issue for you as reflected not just in this incident, but in the previous court appearance to which I have already referred.
57Do you understand what I have just read out to you and understand the terms of the order?
58OFFENDER: Yes, Your Honour.
59HIS HONOUR: And the requirements upon you during the course of the order?
60OFFENDER: Yes, I do.
61HIS HONOUR: Ms Ottrey, do you want to have a chat with your client to make sure that she understands or are you quite happy that she does understand?
62MS OTTREY: I am content that she understands, Your Honour.
63HIS HONOUR: Before I ask you to sign the order, I indicate that pursuant to s 6AAA of the Sentencing Act, but for your plea of guilty to this charge I would have sentenced you to imprisonment for nine months.
64If you wouldn't mind accompanying my associate, Ms Ottrey, to your client, so that she knows what she is signing and you can be satisfied that everything is in order.
65MS OTTREY: Of course.
66HIS HONOUR: I am going to countersign that and when I do, you will be free to leave the dock.
67OFFENDER: Thank you, Your Honour.
68HIS HONOUR: Yes, you may leave the dock, thank you.
69OFFENDER: Thank you, Your Honour.
70HIS HONOUR: Anything else, counsel?
71MS CRENNAN: No, Your Honour.
72MS OTTREY: Nothing further, Your Honour.
73HIS HONOUR: Ms Fawkner, I wish you luck. Keep on the straight and narrow and stick to your art and other activities that will help you keep on that straight and narrow, and I hope that your present relationship remains fulfilling.
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