Director of Public Prosecutions v Fenton

[2018] VCC 2088

IN THE COUNTY COURT OF VICTORIA  Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-01803

DIRECTOR OF PUBLIC PROSECUTIONS

v

SARAH FENTON

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JUDGE:	HER HONOUR JUDGE DAWES
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	10 December 2018
CASE MAY BE CITED AS:	DPP v Fenton
MEDIUM NEUTRAL CITATION:	[2018] VCC 2088

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms P. Thorp
For the Accused	Ms C. Blackeney

HER HONOUR: 

1Sarah Fenton, you have pleaded guilty to one charge of armed robbery and to one charge of recklessly causing injury arising from an incident at the StayINN Motel, Coburg North on 20 May 2018.  Alfie Austin has also pleaded guilty to one charge of armed robbery and to one charge of intentionally causing injury arising from the same facts.  He was sentenced on 2 November 2018. 

2Prior to 20 May 2018, both you and Mr Austin had been staying at the StayINN Motel.  The victim in the matter, Raymond McAliney, was also a resident at the motel, the owner agreeing to subsidise his rent in return for doing work there.  Two days before the incident, Mr McAliney was asked to pack up your room.  Mr McAliney did this, taking a pair of shoes and a mobile phone that did not belong to him. 

3The next day, Mr Austin had an altercation with Mr McAliney and the shoes were returned.  The following day at around 3.15 pm, you both went into
Mr McAliney's room, ostensibly to apologise.  Mr Austin asked for a coffee and the kettle was boiled.  Mr Austin then grabbed a kettle, held it over Mr McAliney who was seated on the bed and said, "Give me everything you've got or you're going to cop this." 

4A scuffle then ensued where Mr Austin eventually punched Mr McAliney twice to the face.  At the same time, you grabbed a nine-inch stainless steel knife, handing it to Mr Austin who held it close to the victim's throat, repeatedly threatening him and saying, "Give me your shit."  The victim continually tried to push Mr Austin away from him but at one stage felt the knife touch his stomach.  At the same time, you grabbed the PlayStation 4, a Westpac MasterCard, a ZTE mobile phone and charger and put them into your backpack.  People in the next room heard the commotion.  Eventually, the owner of the motel attended and forced the front door open with a screwdriver.  He was confronted with the sight of you holding Mr McAliney on the ground. 

5There was blood coming from the back of the victim's head running past his ear and Mr Austin was standing over him, holding a glass jar full of pasta sauce.  As Mr McAliney got up, Mr Austin chased him and hit him on the back of his head with the jar, causing his head to be cut open and to further bleed. 

6Both of you then left the room and walked out of the motel onto Sydney Road.  The victim and approximately four to five other males chased you, trying to recover the backpack.  As this occurred, Mr Austin ripped a paling from the front of a house and chased the victim down the road.  You then both ran from the scene.  You were in possession of the stolen items. 

7When you were arrested by police a short time later, you were still in possession of the backpack.  You were conveyed to the Moonee Ponds police station and spoken to by police.  You refused to answer questions in your record of interview.  Mr Austin made full and frank admissions in his record of interview. 

8No victim impact statement has been made and there is no information about any residual injury to Mr McAliney. 

9The offence of armed robbery is a serious one.  Whilst this was not a sophisticated nor planned offence, the criminal conduct escalated very quickly.  The use of the kettle and then of the knife in the context of the utterances made by Mr Austin created a situation where the victim must have been frightened and very concerned for his safety.  Your role and that of Mr Austin in the commission of the armed robbery are comparable and equal.  In relation to the injury charge, Mr Austin pleaded guilty to intentionally causing injury.  You have pleaded guilty to the charge of recklessly causing injury relating to the incident of the assault with the glass jar. 

10Ms Fenton, you are an aboriginal woman and you are now aged 25 years.  Your childhood was marked by exposure to extensive trauma.  At the request of your instructing solicitor, a report dated 6 September 2018 was prepared for court by Gina Cidoni, consultant psychologist.  Your difficult circumstances including your history of sexual abuse and physical violence as well as the loss of your father in tragic circumstances are described in that report.  These circumstances result in a traumatic and unstable childhood.  You were placed in foster care from the age of six , also being placed in a residential care setting as an older child.  You have been the victim of intimate partner violence as an adult as well.

11Ms Cidoni conducted psychological testing indicating that you have an extremely low capacity with a full scale IQ of 63.  It is suspected that this capacity is congenital in origin, perhaps explaining the difficulties that you experienced as you struggled to engage at school.  In her opinion, Ms Cidoni found that you have a considerably lowered capacity to think clearly, consider consequences and difficulty exercising restraint.  You also have problems with logic, foresight planning and understanding consequences. 

12Your drug and alcohol use commenced at the age of ten years.  Your abuse of heroin and methamphetamine escalated after the birth of your daughter five years ago, until the time you were remanded in custody.  You explained that you had been abstinent from drug use when pregnant.  Soon after your daughter's birth, she was removed from your care and this resulted in you succumbing to your drug addiction. 

13Ms Cidoni indicated that you appear to have an intellectual disability and this has been confirmed by the Department of Health and Human Services.  An assessment was undertaken and in a letter to the court from Rana Hales dated 19 November 2018, the Department confirmed that you meet the criteria for an intellectual disability.  Accordingly, you are able to participate in a justice plan as part of community corrections order if that were an appropriate disposition in this case. 

14In an extended pre-sentence report prepared on 29 October 2018, Corrections have recommended that you be placed on a community corrections order with conditions including a justice plan.  It is anticipated that you would be allocated an advanced aboriginal case manager to support your transition from imprisonment back into the community. 

15Your criminal history is surprisingly limited given your personal circumstances.  You have not been involved with the Office of Corrections before.  In light of your assessment as being high risk with a number of factors contributing to likely future contact with the criminal justice system, the supervision of the Office of Corrections would be of benefit both to you and to the community upon your release. 

16I accept that appropriate professional and cultural intervention is a necessary element of your successful rehabilitation.  Engagement with culturally appropriate programs arranged by Corrections, in combination with the receipt of services catering for your intellectual disability will encourage positive reintegration into the community.  In light of your background, your traumatic childhood, your history of suffering both physical and sexual violence and your cognitive impairment, I accept that your moral culpability is reduced and that the principles of general and specific deterrence should be moderated.

17Ms Fenton, you are entitled to a benefit for your plea of guilty which was indicated at the earliest opportunity.  There is a significant utilitarian benefit in your plea, sparing the witnesses from giving evidence at trial and facilitating the efficient administration of justice.  It is also consistent with remorse.

18I take into account that you have been in custody on remand for 149 days.  The prosecution's position on sentence is that a combination sentence being a term of imprisonment and a community corrections order is within range.  Your barrister, Ms Blackeney, has also submitted that a combination sentence is the appropriate disposition in this case. 

19In all the circumstances, I am satisfied that a term of imprisonment that has been served in combination with a community corrections order with a justice plan condition and other conditions is appropriate.  Ms Fenton, you can stay seated.

20For the charge of armed robbery (Charge 3), you are convicted and sentenced to four months' imprisonment.  I enter in the records of the court that 149 days have been served in that sentence. 

21Charges 2 and 3, recklessly causing injury and armed robbery, you are to be released on a community corrections order with conviction for a period of 12 months.  That Corrections order will have conditions including supervision, judicial monitoring (where I direct that you attend court at
10 o'clock on 14 February 2019) treatment and rehabilitation for drug use, treatment and rehabilitation for mental health issues, offence specific programs and a justice condition which commences today. 

22Ms Fenton,  you must attend at the Morwell Office of Corrections by 4 o'clock on Wednesday 12 December. 

23The order that I make under s.6AA is that had the matter proceeded as a plea of not guilty, the sentence I would have imposed would have been a period of imprisonment of eight months and then a community corrections order. 

24So Ms Fenton, do you understand the orders that I have made?  All right. 

25I will adjourn the court.  Thank you both very much.

26MS BLACKENEY:  As Your Honour pleases.

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