Director of Public Prosecutions v Fellows

[2022] VCC 464

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

 Revised
Not Restricted
Suitable for Publication

Case No. CR-21-02543

DIRECTOR OF PUBLIC PROSECUTIONS

v

SHANE RODNEY FELLOWS

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JUDGE:	His Honour Judge Moglia
WHERE HELD:	Melbourne
DATE OF HEARING:	23 March 2022
DATE OF SENTENCE:	25 March 2022
CASE MAY BE CITED AS:	DPP v Fellows
MEDIUM NEUTRAL CITATION:	[2022] VCC 464

REASONS FOR SENTENCE
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Subject:Criminal Law – Sentence upon plea of guilty

Catchwords:              Aggravated burglary – Admissions at police interview – Admissions as to intention – No forced entry or damage to property – No weapons, assaults, or threats – Extensive relevant criminal history – Significant history of polysubstance abuse – Diagnosis of depression and post-traumatic stress disorder – Mild acquired brain injury – Early guilty plea – Remorse – Subject of family violence and sexual abuse in formative years – Verdins – Community correction order – Combination sentence

Legislation Cited:      Crimes Act 1958 (Vic); Sentencing Act 1991 (Vic)

Cases Cited:DPP v Lim [2019] VSCA 182; R v Bugmy [2013] HCA 37; R v Verdins (2007) 16 VR 269; Adamson v The Queen (2015) 47 VR 268; AB v The Queen (1999) 198 CLR 111; Latina v The Queen [2015] VSCA 102; R v Doran [2005] VSCA 271

Sentence:                  Total effective sentence or term of imprisonment of six months. Community Correction Order for 12 months commencing upon release

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr A Grant	OPP
For the Accused	Mr T Smedley	Slades & Parsons

HIS HONOUR:

1Shane Rodney Fellows, you have pleaded guilty to one charge of Aggravated Burglary, which carries a maximum penalty of 25 years imprisonment[1] and one charge of Theft, which carries a maximum penalty of 10 years imprisonment.[2]

[1] Crimes Act 1958 (Vic) s 77.

[2] Crimes Act 1958 (Vic) s 74.

2You have admitted your prior criminal history.  I shall return to that later in these sentencing remarks.  

3The agreed basis for your guilty plea is set out in the summary of prosecution opening dated 20 February 2022 and you are to be sentenced based on those facts, which I summarise and make findings about as follows. 

4On Saturday 13 February 2021, at approximately 10 pm, you were with friends at Eastbridge Court, Nunawading, housing provided by the Department of Health and Human Services.  You were told that a man named Cameron Lamont was threatening friends of yours, and other residents of Eastbridge Court, when drug-affected.

5You were told that Mr Lamont was seen coming and going from a townhouse at 13 Eastbridge Court. Your friend was unsure whether Mr Lamont was going into the townhouse at 1/13 Eastbridge Court or to another townhouse nearby.

6At approximately 11:20 pm, after searching for Mr Lamont around that area, you pushed on or opened the unlocked back door at 1/13 Eastbridge Court. You stepped inside and saw Gheorghe Ansell, aged 14, who lived there with his brother Nathanial, aged 18. You did not know either of them, nor they you.

7You apologised to him for intruding and stated that you were looking for Cameron Lamont.  Gheorghe Ansell was shocked and said, ‘Yeah sure no worries.’ You left immediately. Mr Ansell locked the door and then realised that his sunglasses were missing from their case close by.

8Police attended and arrested you a few hours later. You had the victim’s sunglasses on your head. When interviewed, you admitted entering the property and taking the sunglasses from outside the backdoor.

9Importantly, when you told police that had you encountered Mr Lamont when you entered the townhouse you would have assaulted him, you provided the only real evidence of your intent upon entry.

10The objective gravity of your offending, as conceded by the prosecutor, was in the lower range for aggravated burglary. While you entered the townhouse at 10:30 pm and you did not know the residents, you did not force your entry or damage any property in doing so. You were not carrying any weapon and you did not assault or threaten anyone whilst there. You were only there for a very short time and left as soon as you spoke briefly with Mr Ansell.

11Aggravated burglary is a serious offence attracting a high maximum penalty. As is to be expected for such an offence, your sentence must provide for general deterrence, specific deterrence, just punishment, denunciation and protection of the community.[3] It is also an offence that encompasses a wide range of possible conduct and ‘depending on the circumstances of the offending, merciful and flexible sentences are appropriate in certain cases’.[4]

[3] Sentencing Act 1991, s 5.

[4] DPP v Lim [2019] VSCA 182 at [42] (Croucher J).

12Your personal circumstances are that you are now 60, being born on 22 August 1961.  You are one of nine children.  Your father was an alcoholic who physically abused you and your brothers frequently. You enjoy a good ongoing relationship with your mother and your parents are still together.

13You completed school to Year 7 at around which time you ran away from home. You were then made a ward of the state at age 12. Whilst in care, you were subjected to both physical and sexual abuse.  Aged 15, you commenced using cannabis, and by 17, you were experimenting with heroin. You have had a significant history of polysubstance abuse since that time.

14You have had three long term relationships in your adult life and have three adult children from two of those partnerships. You have some ongoing contact with one daughter, but you have not spoken to your other daughter or your son for many years.

15You have worked in multiple unskilled manual labour roles, your longest time in employment being about 11 months. You last worked in 2004, as a plasterer’s labourer.

16In 2005, you were diagnosed with a mild acquired brain injury arising from a motorcycle accident in 1992. Further, you have been diagnosed with depression; bipolar disorder; borderline personality disorder; post-traumatic stress disorder; and substance use disorder.

17Your physical health over the years has also been very burdensome. You were diagnosed with throat cancer in 2017, which is currently in remission. You have also suffered from seizures, epilepsy, asthma, bronchiectasis, a frontal lobe arachnoid cyst, chronic back pain and hepatitis C.

18In her report dated 11 March 2022, psychologist Gina Cidoni stated that you engaged properly in testing and that valid results were obtained. While she noted ‘signs of personality disturbance with some antisocial, melancholic and borderline traits [you] did not meet diagnostic criteria for a personality disorder.’ This provides some comfort when assessing you prospects.

19Having confirmed your diagnoses of Post-Traumatic Stress Disorder and Substance Use Disorder, Ms Cidoni summarised that, ‘These conditions create disturbing thoughts, reexperiencing effects, severe mental and physical distress, with major aberrations in the way he thinks and feels. He experiences difficulties in regulating emotional responses and recognising the full impact of his behaviours on others, especially in interpersonal relationships.’

20‘Past and present offending may be at least in part is linked to his ABI, where known symptoms are problems with irritability, aggression, low frustration tolerance, lack of social judgement, impulsivity, lack of motivation, inflexibility, and/or emotional lability. Further, anger and irritability are hyperarousal symptoms of PTSD and are easily triggered by high-stress situations.’

21You have an extensive criminal history, involving over 55 previous court appearances for relevant offending at least from 1981 (see Exhibit 1). This offending occurred 10 days after you were released from prison upon completing a short sentence on 3 February 2021 for assault.

22Mr Smedley who appeared on your behalf, submitted that the following factors should operate to mitigate your sentence, with which Mr Grant for the Crown agreed: your early guilty plea; that it was entered during the COVID-19 pandemic; the impact of COVID-19 on the time you have served; your social deprivation during your formative years; [5] and your remorse. I accept those submissions and have taken those matters into account.

[5]  R v Bugmy [2013] HCA 37.

23Mr Smedley further submitted that the totality principle applies to both offences, occurring as they did in closely related circumstances and that your ABI operates to reduce your moral culpability and therefore the need for general deterrence according to Verdins principles.[6] I accept that the totality principle applies but that the discreet nature of the offences should lead to separate sentences and a moderate degree of cumulation.

[6]  R v Verdins (2007) 16 VR 269.

24I do not accept that your ABI played such a role in your offending such that the principles in Verdins requires a reduction in reliance on general deterrence. However, I do accept that in combination with your PTSD your condition predisposed you to overreacting to the situation involving Mr Lamont as you perceived it on the night. I will assess your moral culpability and moderate, to a small degree, the weight to be given to general deterrence on that basis.

25Mr Grant submitted that your criminal history was relevant and significant, which I accept. Nevertheless, he conceded that the imposition of a term of imprisonment with a Community Correction Order would be an appropriate disposition. He further conceded that it would not be an error to effectively set the prison term as time served.

26A question arose about whether it may have been difficult to prove the requisite intention for charge 1 absent the candid admission you made to police about your intention upon entry into the Ansells’ home. As the prosecutor fairly conceded, but for that confession, it may have been difficult to prove. You are entitled to ‘considerable leniency because of your confession’.[7] That confession is also a matter in your favour when assessing your remorse and prospects of rehabilitation.  

[7] Adamson v The Queen (2015) 47 VR 268 at [77]; AB v The Queen (1999) 198 CLR 111 at 126; Latina v The Queen [2015] VSCA 102; R v Doran [2005] VSCA 271

27Accordingly, I sentence you as follows:  On Charge 1; aggravated burglary – 5 months. On Charge 2; theft – 2 months.  One month of the sentence on Charge 2 is to be served cumulatively on the sentence on Charge 1 making a total effective sentence or term of imprisonment of six months.  On both Charges 1 and 2 I further impose a Community Correction Order for 12 months commencing upon your release and with the following conditions as well as the core conditions:

1.You be supervised.

2.Treatment and rehabilitation to support your mental health.

3.Treatment and rehabilitation in relation to drug use; and

4.Judicial monitoring.

28I declare that you have served 185 days of presentence detention and I reckon that as having already been served.  On your release you will then be subject to the Community Correction Order. 

29The section 6AAA declaration is that, but for the guilty plea, I would have imposed an overall sentence of 12 months imprisonment and imposed a CCO upon your release.

30Putting aside setting a date for judicial monitoring gentlemen, any questions, clarifications about the sentence?

31MR SMEDLEY:  No, thank you, Your Honour.

32MR GRANT:  Nothing further Your Honour.

33HIS HONOUR:  All right, I am considering Friday 8 April - that is two weeks today.  Is that a suitable date or do you suggest otherwise?

34MR SMEDLEY:  I take no issue with that Your Honour.

35MR GRANT:  The only issue could be perhaps Your Honour is that that's two days after the plea hearing in the Magistrates' Court.  So, Mr Fellows will only have been, if he is released on that day which is obviously Your Honour's expectation, he will only have been out of custody probably for two days.

36HIS HONOUR:  Thanks Mr Grant that's good thinking.  I had thought that the summary matters were on the 28th but that is not right.  Look I am concerned about getting into the Easter period.  What about Wednesday the 13th.  It is the following week.  It gives about a week for Mr Fellows to get back home settle a bit, have seen Corrections and hopefully to have engaged in at least the referral process for any assessment.  I am concerned particularly that the transition between prison and the community is difficult and it is the high risk time and I don't want Mr Fellows absent some kind of supervision.  Even if it is by me for extended periods.  Wednesday the 13th.  I don't expect you to be present Mr Grant.  Of course you are welcome.  It is a judicial monitoring.  Mr Smedley I think it would be good if you could be there and update me as to what happened in the Magistrate’s matters.

37MR SMEDLEY:  Thank you Your Honour.  I take no issue with the date just I will flag for Your Honour that I will be on leave on that date but I will make sure that someone from my office will appear for that.

38HIS HONOUR:  All right, well as long as they are up to speed with what has happened today and what will happen in the Magistrates Court.

39MR GRANT:  Thank you Your Honour.

40HIS HONOUR:  Mr Fellows do you understand the effect of the sentence?

41OFFENDER:   Thank you sir, yes.

42HIS HONOUR:  All right you are going to be released it would seem at least on these matters almost immediately but you have still got the Magistrate’s remand to run and I expect to see you on 13 April and I would like to hear from you on that day about what's happened since you were released – how it is going, even some discussion about how you are managing risks and the transition, all right?

43OFFENDER:  Sure.

44HIS HONOUR:  All right.  I will adjourn now but I will leave the link open gentlemen so that you can have a discussion about any details, particularly Mr Fellows and Mr Smedley.  Anything further?

45MR GRANT:  No thank you Your Honour.

46MR SMEDLEY:  Nothing further Your Honour.  As Your Honour pleases.

ADJOURNED UNTIL MONDAY 28 MARCH 2022 AT 2.15 PM