Director of Public Prosecutions v Fehring

[2021] VCC 1699

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT BENDIGO

CRIMINAL JURISDICTION

CR 21-01994

DIRECTOR OF PUBLIC PROSECUTIONS

v

TOBY FEHRING

---

JUDGE:	HIS HONOUR JUDGE DEAN
WHERE HELD:	Bendigo
DATE OF HEARING:	28 October 2021
DATE OF SENTENCE:	29 October 2021
CASE MAY BE CITED AS:	DPP v Fehring
MEDIUM NEUTRAL CITATION:	[2021] VCC

REASONS FOR SENTENCE

---

Subject: CRIMINAL LAW

Catchwords: Theft – Theft of a firearm – Burglary – Plea of guilty at committal mention – Limited criminal history – Deterrence – Mental health considerations – Intellectual impairment – Polysubstance abuse disorder

Legislation Cited: Crimes Act1958; Bail Act 1977; Sentencing Act 1991

Cases Cited: R v Verdins (2007) 16 VR 269

Sentence: Community correction order with supervision for a period of 2 years – Accused to undertake treatment and rehabilitation for drug use, alcohol abuse and mental health issues – Driver’s licences cancelled and disqualified from obtaining a licence for a period of 12 months – s 6AAA declaration – Community correction order with supervision for a period of 2 years and 6 months

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. Cordy	Office of Public Prosecutions
For the Accused	Mr R. Timms	Cahills Barristers & Solicitors

HIS HONOUR:

1Toby Fehring, you have pleaded guilty to the following charges:

i.Two charges of theft contrary to s 74 of the Crimes Act 1958.  The maximum penalty for that offence is 10 years imprisonment;

ii.Two charges of theft of a firearm contrary to s 74AA of the Crimes Act 1958.  The maximum penalty for that offence is a fine of 1800 penalty units or 15 years imprisonment; and

iii.One charge of burglary contrary to s 76 of the Crimes Act 1958.  The maximum penalty for that offence is 10 years imprisonment.

2You have also pleaded guilty to the related summary offence of failing to answer bail contrary to s 30(1) of the Bail Act 1977.  The maximum penalty for that offence is two years imprisonment.

3You pleaded guilty at committal mention.  As your plea was entered during the COVID-19 pandemic and in the context of restrictions on the operations of the criminal justice system, your plea has facilitated the course of justice and I accept that it is evidence of remorse for your offending.  I have taken your high value plea of guilty into account in your favour in mitigation of sentence.

4You have admitted a limited criminal history comprising one court appearance of significance in 2019 at the Swan Hill Magistrates' Court for which you were placed on a Community Correction Order for 12 months in relation to one charge of theft and a number of driving charges.

5A prosecution opening was read to the court and tendered in evidence and your offending may be summarised as follows –

6On 20 March 2021 and early the following day in company with your co-offender, Bradley Kennedy, you entered a piggery owned and operated by Rodney and Wendy Griffiths at Patho, a rural locality near Echuca.

7You stole a number of electrical tools and a .22 calibre rifle from a container located at the piggery.  You also stole a Holden utility and two firearms from another piggery owned by the Griffiths at McMillans about 40 kilometres away.

8At approximately 7 a.m. on 21 March 2021, an employee of the Griffiths' observed that the Patho piggery had been entered and this in turn led to the thefts from the McMillans' piggery being revealed.

9On 22 March 2021, Kennedy was arrested by investigating police and following a search of premises you shared with him on 24 March 2021, the tools were recovered but not the firearms.

10On 28 April 2021, police again attended at the premises and, following your arrest, conducted a record of interview with you in which you made full admissions in relation to your role in the offending.

11On 5 October 2021, you also made a statement to police detailing your offending and Kennedy's offending.  You indicated in that statement that you will give evidence against Kennedy if called upon to do so and you gave a sworn undertaking to this court that you will give evidence against Kennedy if required.  Nevertheless, I accept as was submitted by the prosecution that it was your knowledge of Griffiths' business that facilitated the offending in this instance.

12The sentence I impose must be calculated to deter others from offending in this manner and you must also be deterred from reoffending.  However, for the reasons that follow, these considerations are to be moderated in your case by reason of your mental health and intellectual impairment.  Nevertheless, the court must also protect property owners from the illegal entry to property and the theft of personal and commercial items and equipment.  I also accept, as was submitted by the prosecution, that regional communities in particular are to be protected from opportunistic offending of this nature.

13Theft of a firearm is a distinct offence, and to signify the seriousness of the crime it carries a greater maximum penalty than theft itself.  And in this instance the firearms have not been recovered.

14I now turn to your personal circumstances –

15You were born on 29 March 1977 in Echuca and are now aged 44.  You have one younger sister.  Your family resided in Litchfield and you lived at home until you were 20.  You attended Litchfield Primary School and Litchfield High School until Year 10 which you did not, however, complete.

16After leaving school, you worked in a number of piggeries including those owned by the Griffiths but, following a move to Bendigo, you were unable to find further employment and are now in receipt of a disability pension.  You have separated from your wife and you have no children.

17I have received in evidence a psychological report of Ms Gina Cidoni setting out your background and psychological history and I accept that you suffer from a range of mental health issues.  Ms Cidoni is of the opinion that you are of low intelligence and that your cognitive functioning is impaired such that you probably suffer from an intellectual disability.  Your counsel informed me that your intellectual disability is the basis of your receipt of a disability pension.

18You also suffer from polysubstance abuse disorder and regularly abuse illicit drugs and alcohol.  I have also received in evidence discharge summary notes from the Bendigo Hospital listing your admission on 12 June 2021 to the Mental Health Unit with acute anxiety and suicidal ideation.  The summary lists a number of previous admissions to the unit when you were suffering from acute depression and it also lists your current medication.

19Based on this evidence, I accept that the principles enunciated by the Court of Appeal in R v Verdins (2007) 16 VR 269 are engaged in your case and, by reason of your seriously impaired cognitive and intellectual functioning, your capacity to properly appreciate the consequences of your offending is seriously reduced.

20Furthermore, I accept that the hardship of imprisonment would be significantly increased in your case due to your mental health and it would also cause your mental health to deteriorate.

21For these reasons and for your assistance to the authorities, I had you assessed for suitability for a community correction order and you have been found to be suitable for such a disposition.  In my opinion, the delivery of services to you pursuant to a community correction order will in turn support your future rehabilitation which is dependent upon you moderating your drug and alcohol consumption and receiving regular mental health assessments and treatment.

22In the result, the sentence of the court is as follows -

23In relation to the charges on the indictment and the related summary offence, you are convicted and sentenced to serve a community correction order for a period of 2 years on the core conditions provided for in the Sentencing Act 1991 and on the further special conditions:

1.    That you undertake treatment and rehabilitation for drug use;

2.    That you undertake treatment and rehabilitation for alcohol abuse; 

3.    That you undertake treatment and rehabilitation in respect of your mental health; and,

4.    That you be under the supervision of a Corrections officer for the period of the order.

24Do you agree to entering an order on those terms, Mr Fehring?

25ACCUSED:  Yes.

26HIS HONOUR:  Thank you.

27But for your plea of guilty, I would have directed that you serve a community correction order for a period of 2 years and 6 months.

28All licences held by you are cancelled and you are disqualified from driving in the State of Victoria for a period of 12 months from today.

29Are there any further orders required, Mr Cordy?

30MR CORDY:  No, Your Honour.

31HIS HONOUR:  Thank you.  Mr Timms?

32MR TIMMS:  No, Your Honour.  Thank you.

33HIS HONOUR:  All right.  Thank you.  We will adjourn now until Monday at 2.15.

‑ ‑ ‑