Director of Public Prosecutions v Fenton

[2017] VCC 472

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

AT LATROBE VALLEY
CRIMINAL JURISDICTION

CR 17-00578

DIRECTOR OF PUBLIC PROSECUTIONS

v

DAISY FENTON

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Latrobe Valley
DATE OF HEARING:
DATE OF SENTENCE:	26 April 2017
CASE MAY BE CITED AS:	DPP v Fenton
MEDIUM NEUTRAL CITATION:	[2017] VCC 472

REASONS FOR SENTENCE
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Subject:
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Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr M. Roper
For the Accused	Ms T. Theorcharous

HIS HONOUR:

1Daisy Fenton, you have pleaded guilty to two charges of theft, one charge of threat to inflict serious injury, two charges of armed robbery, and one charge of attempted armed robbery.  Those crimes carry maximum penalties of ten years, five years, 25 years, and 20 years respectively.

2You have also pleaded guilty to five uplifted matters, one of unlicensed driving, and four of commit an indictable offence on bail.  Those crimes carry maximum penalties of three months' imprisonment.

3You are still only 22 years of age, and are still a young woman.  You pleaded guilty at the earliest reasonable opportunity, and having now sat through Koori Court and hearing you talk to the elders in the respectful way in which you spoke to them, I accept that you have appropriate remorse, and you must of course get the utilitarian benefit of that plea of guilty. 

4Having pleaded guilty, it is quite clear now that I have read the victim impact statements, that this would have been a very distressing trial indeed for the victims involved in this, and you must get the benefit of that.

5You do have significant prior convictions and findings of guilt, both in relation to property offending and in relation to violence, going back all the way to the Children's Court, and I will deal with that again in a moment.

6The Crown summary is exhibited, so I do not need to go into it in great detail, just to give a brief outline, I think. 

7On 24 October 2016, you and one Adam Harrison were captured on CCTV stealing from a Salvation Army bin at the Midvalley Shopping Centre.  You received a total of around about $50 (Charge 1, theft).

8Charges 2 and 3 are threat to inflict serious injury and armed robbery.  On
4 November 2016, the 18-year-old victim was visiting a friend in Symonds Crescent in Morwell.  You went into the house where he was, and asked his name.  When he told you what his name was, you said "Are you lying?".  He said he was not lying, at which point you removed a large black-handled machete from your hoodie, and swung it into the corner of the kitchen table, and whilst pointing the knife at him, stated that he better not be lying, or you would cut his throat.  That gives rise to Charge 2 of threat to inflict serious injury.

9He assured you he was not lying, you said "Good", and offered him a handshake before leaving.  Approximately an hour later you came back into the house and started making accusations towards Mr McCoven.  You said he looked suspicious, I take into account that you had been using ice heavily at that point in time.  His phone was on the table, you picked up the phone, handed it to him and told him to unlock it and remove the passcode.  He was afraid of what might happen, so he removed the passcode.

10Whilst he was doing this, you produced the black-handled machete again and pointed it at him, making a new demand for him to empty his pockets.  He handed the phone and handed over his wallet.  You rifled through the wallet.  You then observed his tobacco pouch and told him to roll you a smoke.  He did, it fell on the floor, and you demanded that he pick it up and give it to you.  You were described in the Crown opening at this stage as "rambling".  You punched him, but caused no injury.  You left with his mobile phone and cigarette.  That gives rise to a charge of armed robbery.  The phone was worth approximately $800, and I have made a compensation order for that amount.

11Charge 4, of theft.  You went to the house of Mr Cecil and rang the doorbell.  He went out and found nobody there.  At that point, you and a Mr Peterson - I point out now that none of the co-accused have been dealt with - approached him.  You asked him if he had a spare iPad cord, because yours was broken.  He said that he did, and went inside the house to retrieve it.  As he reached the kitchen, he heard his car start.  While he had been retrieving the cord, you had obtained the car keys, which were attached to the house keys inside the door, before entering the driver's seat of the vehicle and starting the car.

12He ran to the front door and observed two dark-skinned persons, one of whom was you, one of whom was Mr Peterson, in the passenger seat, and drove away.  That gives rise to Charge 4.  As I understand it, Mr Peterson kept possession of the car and was involved in a pursuit in South Australia, where he was arrested, put into custody, and where he remains.  That gives rise to the unlicensed driving uplifted summary matter.

13You were then arrested and interviewed in regard to the theft of the vehicle, and made partial admissions.  You were released on the 14^th November at approximately 2.30 pm.  Mr Cecil was having a nap when he heard his doorbell ring.  He went to the door to find Mr Clinton Hughes, who is well-known to me, standing in the doorway.  Mr Hughes asked if he could borrow Mr Cecil's mobile phone, but he refused.  He said he did not trust anyone, because he had been robbed the week before.  Mr Hughes then walked off towards the carport and out of sight.  He opened the security door to see where he had gone, and observed you standing up against the carport wall.

14He said "I know you, you're the one who robbed me last time".  You then approached him and said "Give me your car keys", in an attempt to steal the new car he had received from his insurance claim.  He refused.  You continued saying "Give me your car keys, 'cause I can go get your car".  He again refused.  You then put your hand in your pocket gesturing a weapon and demanded "Give me your fucking car keys now", and lunged at him, pushing him backwards.  He pushed back, but retreated to the front door.

15While trying to get back inside, you continued to demand the car keys. 
Mr Hughes was there by now, and you then claimed to have a gun and said "I'll use it on you".  At that point, Mr Hughes pulled out a curved blade and also yelled out for him to hand over the car keys.  He had managed to get back inside, but you had also produced a knife by that stage, and waved it in his face.  He was told to hang up the phone, and you then left.  That is the attempted armed robbery.

16As I understand it, about 20 minutes later, you and Mr Hughes were at the Midvalley Shopping Centre carpark.  An 18-year-old girl was sitting in her car.  You went up and asked if she could drive you somewhere, she refused. You said "I just bashed someone, I am not afraid to bash you", and produced the black machete.  You demanded the car keys.  She handed over the car keys with a black purse with a $10 note inside it.  She exited the car, walked towards the entrance to the shopping centre, and got the police.

17A few moments later, police arrived in the car park and found you standing next to the vehicle.  You claimed to have driven to the location with Hughes and another female, and were waiting for them to return from the shops.  You were searched, and found on you were the victim's car keys and her black purse, as well as a black machete.  That gives rise to Charge 6 of armed robbery.

18The offending has got to be regarded as serious and calls for the application of general deterrence.  In your situation, I suspect specific deterrence may not be that important, and the time you have already served will be sufficient for that.  It also calls for denunciation and appropriate punishment.  A gaol sentence of relatively significant proportions is inevitable in this situation.

19Sometimes offending like this is viewed from the point of view of the perpetrator only.  In this particular matter, Mr Cecil, who is 55 years of age, and was robbed by you twice, has put in a victim impact statement.  I think it is important that people understand why people go to gaol for offending like this.  Mr Cecil says:

"I have MS.  The stress of these two events have had an impact on my MS.  I need my car to get around, I use a walking stick and get tired quickly.  I have Stage 2 MS, and not sure how long I can live in my unit.  I am on the strongest medication for my MS, and attend Latrobe Valley Hospital every three weeks for chemo.  These events have taken away much more from me than most people.  My time is precious, and I just need to be left alone, not threatened.  My glasses, which I used for driving, were taken when my car was stolen.  These glasses are very important for me, as I need special glasses.  My car taken away, I could not attend my medical appointment.  I was trapped in my unit for two months, unable to attend important appointments for my treatments.  Stress affects MS.  I have struggled.  I have no family to help me, I have become isolated."

20I know that has been read to you, Ms Fenton, but that is the consequence of what you did to a perfectly innocent, helpful man.  As I said, a gaol sentence is inevitable, and I take into account the matters that have been raised on your behalf.

21Firstly, very much your age.  You are still only 22, and I give real credence to that.  Also, your preparedness to participate in Koori Court.  You were very quiet at the start, but after your counsel had spoken to you for a little while in it, you started to talk a lot more, and I found that you made eye contact with everybody, and it gave me confidence that you are determined to rehabilitate if you can.

22In prison, you are doing courses, which is a good sign, and I have got no doubt that you are doing the best you can for your ultimate release to survive in this world. 

23Tendered on your behalf was a very detailed, and very helpful, if I may say so, psychiatric report.  I am not going to go into all the detail that is in that, the document remains on the court file, the Crown are fully aware of what is in it, as obviously is your defence counsel.

24What is clear is this, that in your very early childhood, you suffered very, very significant abuse indeed.  It would appear to have peaked, if I can put it that way, around about Grade 3.  At one stage, you were taken by DHS, and you lived with aunties up in Mildura.  It says that you lived on a mission up there, which I am assuming is the one just over the river. 

25You had a very disrupted childhood, you have been shifted from place to place.  You were expelled from primary schools on a repeated basis.  You had become angry, and you described yourself as a "naughty kid".

26At the end of that report, it describes you as having complex post-traumatic stress disorder, and again, I am not going to go into all the details of that.  But your conduct since you were very small fits completely with my understanding of that condition.

27You had difficulty at school, and became angry.  You have had an anger management problem since you were very little, and it seems clear that you are endeavouring to do something about that now.  You have, on your description, only one man in your life, effectively, who you trusted, that was an uncle.  You became very close to him, and were very close to him up until his death in the months prior to your arrest.  I understand that he died not long before this dreadful chain of events, and you have described to that psychiatrist how you only stopped crying about a month after you had been in gaol.  The grief at that point all came out.

28I accept, as I understand, the condition that it is very, very difficult for you to trust anybody.  You probably do not trust anyone at the present time, and he was one that you could.  You could go to his house and drink, and you felt relaxed and safe.  You were devastated when he had a heart attack.  It was interesting to see that you have described to the psychiatrist that you would only drink at his place, because anywhere else, if you drank you felt that you were completely unsafe.  I understand the devastation that the loss of that man must have meant to you. 

29Again, I am not going to go through all the details of that.  It is clear that you understand and now have insight into anger management problems.  You would be happy to try medication if you could.  You have had a certain degree of difficulty in gaol, possibly because of your - I can’t quite describe this, your preparedness to look after yourself when under threat is what I suspect occurs, and it is clear that your intravenous use of ice, even though you had been using it since around about the age of 18, did not start until very, very shortly after your uncle, who you were so close to, passed.  After that, you were using every day, and I have no doubt that part of this behaviour - it does certainly not excuse it, but part of this behaviour was due to the effects of substances upon you.

30When you were younger, you sniffed petrol until you knocked yourself out.  You have never completed a rehabilitation program.  You have tried to detox, but relapsed.  You did well for a period of time when you were dealing with
Ms Atkinson with the Koori Women's Diversion Program, and you seem to have, in that, been making a real effort. 

31The psychiatrist describes you as having a chaotic life, and I think that is the only way to properly describe it.  You describe to her, and again, one of the dreadfully sad consequences of post-traumatic stress, that she said:

"She also had a perplexed quality to her effect when she reflected on her inability to feel, or lack of emotions in situations where she felt she ought to have been responding emotionally."

32When people suffering with this disorder feel like that, they often act out in a physically violent way. 

33She then goes on to say, and this is very encouraging, that you now describe feelings that you must keep yourself safe from what you understandably perceive as a hostile and dangerous world. 

"In the months prior to incarceration, the death of the only man she felt safe with, her uncle, led to a downward spiral of intravenous ice abuse and offending to sustain her habit.  Ms Fenton suffers from complex
post-traumatic stress disorder."

34Stress disorders do not cause crime, but they certainly cause a vulnerability.  They lead frequently to a lack of self-worth, to drug addiction, and these courts far too often have to deal with the consequences of what was initially the offending of another person.

35In any event, yours is a background which I take very much into account in a Bugmy sense in terms of it being disadvantaged.  Yours is a background which, understanding the condition that you have and how it came about, is the sort of situation which I think would cause any judge to feel that mercy is warranted in your particular situation, and I do so regard it in that way.

36The offending is serious though, and a significant gaol sentence is the only option that could possibly be given in this situation.  What I have done is, having heard the submissions from counsel, is I am going to give you the opportunity for parole at a significantly earlier time than would otherwise have been the case.  Whether you get parole or not is entirely a matter for you.  I do not know what is happening within the women's prisons, but in the male prisons, Koori prisoners are often telling each other not to apply for parole, because they cannot do it, and they will not get through it, and everything else.  It is really important, Ms Fenton, that when your parole period comes up, that you apply for and get it, it is crucial. 

37You are going to need assistance.  You are now seeing a counsellor for the first time in your life, and you are going to need assistance from psychiatrists initially, I would have thought, and then psychologists to give you strategies to deal with the things which have caused you so much pain over such a long part of your still very young life.

38Prospects for your rehabilitation are, as was pointed out, up to you.  The risk of you reoffending if you start using again is going to have to be high.  If you can not use, you should do all right.

39Pursuant to s.464ZF of the Crimes Act, I make an order that you provide a saliva sample for DNA purposes.  That order having been made, I must advise you that should you refuse to provide such a sample, police may use reasonable force to take it from you.  And that order is made and handed down.

40The normal situation is,  because this offending occurred on bail, it is deemed to be cumulative, unless otherwise ordered.  I am not going to go through that process.  I just say those words so it is clear that I understand.  I am not going to be giving privy little pieces of cumulation in this situation.

41Accordingly on Charge 1, seven days concurrent; Charge 2, six months; Charge 3, 24 months; Charge 4, three months concurrent, and any licence to drive a motor vehicle is suspended for a period of three months; Charge 5, 18 months; Charge 6, 24 months.

42Each one of the summary matters will be seven days' imprisonment concurrent, each one to be served concurrently. 

43I direct that:  two months of the sentence imposed on Charge 2; four months of the sentence imposed on Charge 5, and; six months of the sentence imposed on Charge 6 be served cumulatively upon each other, and upon the sentence imposed upon Charge 3.  That gives an effective head sentence of three years.  I direct that you serve a minimum term of 14 months before becoming eligible for parole, and I direct that 163 days be reckoned as having been served under this sentence.

44Just so you fully understand the significance of your having pleaded guilty, but for your plea of guilty I would have sentenced you to be imprisonment for a period of four and a half years, with a minimum term of three years, all right?  Just so you understand the benefit you got from putting your hand up. 

45Are there any other orders I have to make, Mr Roper?

46MR ROPER:  I believe Your Honour has already made the ancillary orders.

47HIS HONOUR:  I have made all the orders, did I not? 

48MR ROPER:  Yes.

49HIS HONOUR:  All right, do you want to hold her here for a minute?  I will just leave and let you talk to her.  All right.

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