Director of Public Prosecutions v Fernandez

[2013] VCC 2027

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-13-00107

DIRECTOR OF PUBLIC PROSECUTIONS

v

ROBERT FERNANDEZ

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JUDGE:	HIS HONOUR JUDGE MAIDMENT
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	16 December 2013
CASE MAY BE CITED AS:	DPP v Fernandez
MEDIUM NEUTRAL CITATION:	[2013] VCC 2027

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms C. Burnside
For the Accused	Mr G.A. Georgio, with Ms E. McKinnon

HIS HONOUR:

1.

Robert Fernandez, you can remain seated for the time being.  You have pleaded guilty to an indictment charging you with trafficking in methylamphetamine between 1 February 2011 and 27 June 2012; to an offence of possessing a drug of dependence, namely testosterone, on

27 June 2012

; an offence of assaulting Yasmine Ng on 25 April 2012; and an offence of stalking Yasmine Ng on 27 February 2013.  You have admitted court appearances and previous convictions.  The maximum term of imprisonment for the offence of trafficking in methylamphetamine is 15 years' imprisonment; for possessing testosterone, one year's imprisonment; for the offence of common assault, five years' imprisonment; and stalking, ten years' imprisonment.

2.The prosecution has tendered and relied upon a summary, which is Exhibit A.  That has been read in court this morning.  I am not going to repeat it.  Suffice to say that the offence of common assault against Yasmine Ng occurred in circumstances where you were involved in what might be regarded as a domestic argument and you over-reacted to your perception of infidelity by your then girlfriend.  The offence of common assault involved you throwing a mirror at her - apparently a relatively small mirror - which hit her.  As I understand it, that was not reported to the police at the time.  She, however, was apparently upset and concerned about the events of that day and left Australia for Hong Kong, which is apparently where her family resides.   She did so without telling you.

3.There was then a period during which you were seeking to discover where she had gone.  You approached relatives and work colleagues and discovered that she had gone to Hong Kong.  I am told today that you were in correspondence with her when she was in Hong Kong and, as a result of that, you went over there with a view, it seems, to renewing your relationship with her.  Indeed that seems to have occurred and she returned to Australia shortly before 22 June 2012.  There was then another incident in which there was argument between you - putting it neutrally - which caused her to call the police.  Following upon that, the police executed a search warrant on your home and discovered items that associated you with trafficking in methylamphetamine and also with the possession of testosterone.

4.

Those items, I think 24.5 grams of methylamphetamine at 90 per cent purity and other items found, along with the witness statement of Ms Ng, provided the basis for a charge of trafficking in methylamphetamine between

1 February and 27 June 2012, when those items were discovered.  The details of precisely what the trafficking consisted of during that period of 16 months or so, during which the trafficking occurred, is - to use your counsel's expression - attended by a degree of vagueness.  It was submitted that essentially I should approach the charge of trafficking on the basis that you were a user of methylamphetamine, or ice, and that you were trafficking essentially to support your habit, which no doubt was an expensive one.

5.Beyond that, there is not a great deal of detail provided by Ms Ng in her statement, other than to suggest that there were regular attendees at your premises who were apparently purchasing methylamphetamine from you and providing you with what seemed to her to be quite substantial sums of money for the methylamphetamine that you were supplying to them.  I do not think that I can make any more solid findings of fact as to the nature of your trafficking than that.  It seems to me that the trafficking was on a relatively modest scale, but the significant aggravating feature of the offence to which you pleaded guilty to is that it was being conducted over a period of about 16 months, although it was submitted that perhaps the more significant trafficking occurred from early 2012 onwards.

6.Nevertheless, that trafficking occurred over a substantial period of time and involved you putting into the community methylamphetamine, for which you were paid.  It is a very serious offence.  This court sees the results of methylamphetamine use and trafficking on a daily basis.  It is prevalent; it is a scourge of our community.  In my view it is an offence which should attract an appropriate level of denunciation from this court, an appropriate level of punishment and a proper adherence to the principle of general deterrence.  That is deterring others from committing offences of this kind.  Unless the court is prepared to put that message out, then it is in my view failing in its duty to the community in endeavouring to deal with this problem.

7.You were charged and were on bail.  An intervention order was obtained:  first an interim order and, secondly, as a final order made on 5 October 2012 for a period of 12 months.  That was to protect Ms Ng from your attentions.  The relevant terms of the order were that you not contact or communicate with Ms Ng.  You must not attempt to locate or follow her or keep her under surveillance.  You must not approach within five metres of her or go to or remain within 200 metres of any premises where she lives, works or attends school.

8.The offence of stalking, which occurred on 27 February of this year, involved you walking around the Southbank area where a male friend of Ms Ng's resided.  You were apparently circling in your black BMW in the area of Kavanagh Street in Southbank.  You were located in that area at 8.29 pm on that day and your vehicle was searched.  In it were items of equipment and a Jaycar receipt, which indicated that you had purchased a tracking device and equipment apparently associated with its use.  A booklet relating to the use of a surveillance tracking device was located at your address on 5 March when the police executed another search warrant.

9.

The tracking device was located on the vehicle belonging to or used by

Ms NG, secreted into the right rear of the vehicle's wheel arches.  You gave the police a false account as to why you had that equipment.  It is accepted, as I understand it, that your stalking involved you in a course of conduct that was designed to identify where Ms Ng was, or where her vehicle was, at any given time, and to enable you to keep an eye on her movements.  I am not, of course, here to punish you for an offence of breaching the intervention order, but that offence was committed whilst you were on bail for the other offences.  Pursuant to s.16(3C) of the Sentencing Act, I am required, unless I direct otherwise, to impose a sentence that is cumulative upon any other sentences that are imposed.

10.I regard this as a serious example of stalking.  It was committed in circumstances where you knew perfectly well that there was an intervention order out in order to protect Ms Ng from exactly that kind of attention from you.  You knew at that stage that the relationship was over, even though you may have drawn certain conclusions from some of her conduct involving her blogging activity and felt that you had received mixed messages from her.  If that had been the case and you had behaved in anything like a reasonable manner, you would have sought some other way of approaching her to clarify what you perceived to be the signals that you were getting from her, rather than engage in a flagrant, well considered and well planned act of stalking in which you engaged.

11.Your counsel submitted that this was reflective of an obsession which you had developed.   He drew upon the report from Mr McKinnon, forensic and consultant psychologist, dated 14 December 2013 and the opinions that he expressed to the effect that you were at that time suffering from substance abuse disorder and a mixed anxiety and depressive reaction, apparently, to the break-up of your relationship with Ms Ng.  I do not find there is any mitigation in your continued use of methylamphetamine and any impairment of your ability to reason resulting from that; however, I take into account the fact that the relationship did break up in circumstances which caused you a good deal of emotional upheaval.

12.I accept that there may have been a degree of prolongation of that emotional upheaval arising from the mixed messages that you felt that you were receiving from her conduct through Facebook and other social media, and her blogging activity, during the period after the break-up of the relationship.  I take all those matters into account.

13.

Turning to matters personal to you, your counsel helpfully provided me with a chronology and outline of submissions, which is Exhibit 1, with the report of

Mr McKinnon, to which I have already referred, which is Exhibit 2, and four written references from persons who speak highly of you, and indeed one of them from a Peter Alban, who apparently is prepared to offer you future employment:  "Should Robert require future employment, my door will always be open to Robert Fernandez."  These people speak of another side of you and those are matters that you are entitled to pray in aid in your favour.

14.You came to Australia as an infant with your parents and older brother.   You had another brother born after your arrival in Australia.  You settled in Richmond, later in Croydon and then Endeavour Hills.  You grew up with your family, who became involved in the Jehovah's Witness denomination, if that is a correct word for it.  That, it seems, caused you some considerable emotional upheaval:  firstly, as a result of you being teased at school; and that added to the teasing which you received as a person from Spanish background, from your predominantly Anglo-Australian school mates.  You grew up to resent the family participation in the Jehovah's Witness denomination. 

15.You began to play up and refused to participate in those religious activities.  That caused you problems with your family which, with the problems you were already having with your peers, would no doubt have caused you significant emotional difficulties as a teenager.  You were asked to leave home, apparently, at age 16, which you did.  But you got work and, after two years working as a process worker, you returned to live with your parents, went back to school, did year 11 and 12 at Eumemmerring College and then attended TAFE, where you obtained a Diploma in Building Design and Drafting, and you entered the industry.

16.It seems then that you were quite successful in not only obtaining but carrying out work as a draftsman.  What seemed to be a promising business that you set up in 2000 or 2001 was cut short by your involvement in a criminal offence or series of criminal offences.  There was a burglary and theft of a doctor's surgery which occurred in 1999, as I understand it, and activity involving trafficking in steroids, which you had become accustomed to using through your interest in body building and attending the gym.  In March 2001 you became involved in the kidnapping offence for which you were sentenced on 17 November 2003 by Coldrey J in the Supreme Court to a term of five years' imprisonment with a non-parole period of two and a half years.

17.The other sentences that you received for the burglary, theft and the trafficking steroids offences were passed shortly after that and resulted in concurrent sentences.  After you completed your sentence, you went back to subcontracting as a draftsman to a number of architects and then took a job with Porter Davies Homes in 2009 as a designer, where you worked for two years.  Then you moved to Botanic Homes as a senior designer in 2011 and worked there for a period of four months.

18.That sets the background to the relationship which you developed with Ms Ng, which, as I understand it, commenced in late February 2011, and indeed to the period of trafficking in methylamphetamine, which occurred or at least began shortly after your relationship with Ms Ng began.  All of that demonstrates that you are capable, particularly when drug free, of leading an honest life.  Mr McKinnon's report is also helpful in that it shows that you are a person of at least normal - perhaps above average, but certainly normal - intelligence.  You do not have any psychological problems or disorders other than those to which he spoke, which seem to be in existence during the time when the offence of 27 February 2013 was committed.

19.So subject to your being able to overcome your drug problems, and I include steroids in those problems but particularly your issues with ice, it seems to me that you have good prospects of rehabilitation.  I am cautious about saying that you have good prospects of rehabilitation because, although you may have been drug free during the period when you have been in custody, the real test will come when you are back in the community and the temptation of getting back into use of ice becomes a reality.  Therefore there must be a guarded optimism about your prospects of rehabilitation, it seems to me. 

20.Nevertheless, I am happy to accept that generally things look reasonably bright and that, with the support of your parents and your family and friends and those who are prepared to offer you work, I think that one can be, as I say, at least cautiously optimistic that you will be able to put this behind you in time and lead a decent and honest life.

21.You do have, it must be said, a previous prior conviction for trafficking, albeit in steroids.  That ought to have been a shot across your bows, a warning as to the consequences of getting caught trafficking in drugs.  It is to be regarded as a serious offence, methylamphetamine significantly more so than trafficking in steroids.  But it is not the case that this is your first venture into trafficking in illegal drugs.  There must, I think, be an element of individual deterrence.  That is that the sentence I impose must be designed in part at least to deter you from committing further offences of that kind, and indeed any further offences involving breaches of intervention orders or behaviour in the nature of stalking activity.

22.I do not regard, with due respect to Ms Burnside, the offence of kidnapping as being of the same kind as this offence of stalking.  It seems to me that the stalking has arisen in very different circumstances and it is, as your counsel put it, really reflective of an unhealthy obsession, no doubt fuelled by the effects of significant drug abuse and a distorted view of your relationship, your prospects of rekindling it. 

23.I am bound to balance the sentencing considerations about which I have spoken against the need to impose a sentence that facilitates your rehabilitation.  I propose to do that.  You have pleaded guilty to the offences and particularly you have saved Ms Ng the further stress of having to give evidence of these matters in a jury trial.  I recognise that this is a negotiated plea and it is therefore difficult to give you credit for an early plea, but on the other hand I note that there are a number of offences which are no longer on the indictment and there is a degree of credit, I think, to you in being willing to participate in that process, which is designed, amongst other things, to facilitate the administration of justice, and you are entitled to proper credit for that.

24.I note that in your discussion with Mr McKinnon, you expressed remorse.   The way Mr McKinnon puts it, "indeed in regards to his offence against Ms Ng", which I take to be largely focused on the stalking offence.  You stated, "I deeply regret it.  I realise that was not the way to handle things.  I've had ten and a half months to think about it.  It's clear the relationship with Yasmine is over.  I have no intention of contacting her again.  There's never a time when violence is a good way to handle anything.  I have to accept it was my responsibility, my actions.  I should have ignored her and not engaged in that course of conduct.  It's been a valuable lesson how not to handle things.  It's been the most painful lesson of all.  They'll stay with me."  You also indicated that you never again wanted to have anything to do with illicit substances. 

25.The expression of remorse is I think indicative of insight by you into some of the effects of your offending conduct.  We also have the benefit of Exhibit B in this case, the victim impact statement.  Although I approach some of the content of that with caution, as your counsel has invited me to, I think you would accept that this offending conduct, in particular the stalking offence, has had a significant effect on Ms Ng.  It seems you have at least begun to appreciate that.

26.I am less willing to accept that you have shown any real remorse for your trafficking of methylamphetamine or any insight into potential harm that that conduct will have done to the community, any real insight into the kind of effect that it may have had on those to whom you have sold or to people who have come in contact with those people when they are high on methylamphetamine.  It has not been put forward by your counsel, I think, that you have demonstrated any real insight or remorse in relation to that conduct; rather, it has been put that that is to be treated as a relatively low-level trafficking because you were simply seeking to finance your own habit.  I certainly cannot find any evidence of any remorse for that offending conduct.

27.Doing the best I can to balance all of those considerations and noting that your family is very much sticking by you, that the parents have been visiting you regularly in prison, that you have apparently been drug free whilst you have been in prison and that you have had at least some opportunity of reflecting upon your drug use as well as your relationship with Ms Ng whilst you have been in custody, I am ready to impose sentence upon you.  Would you stand, please.

28.For the offence of trafficking in the drug of dependence, namely methylamphetamine, I sentence you to imprisonment for a period of three years and six months.  For the offence of possessing testosterone, I sentence you to imprisonment for one month.  For common assault upon Yasmine Ng, I sentence you to imprisonment for a period of one month.  For the offence of stalking Yasmine Ng, I sentence you to imprisonment for a period of 20 months.  I convict you in relation to each of those four offences.

29.The offence, subject of Charge 1, is to be regarded as the base sentence.  As I have already indicated, in relation to the sentence on Charge 4 of 20 months, ordinarily I would be required to order that that be served cumulatively, but having regard to the totality principle - that is imposing a sentence that is overall to be regarded as a just sentence having regard to the totality of your criminal conduct - I do not propose to impose that sentence wholly cumulatively.  But I do order that ten months of that sentence be served cumulatively upon the period of three years and six months that I impose for the trafficking offence.

30.That makes a total effective sentence of four years and four months imprisonment.  I order that you serve a period of two years and ten months before you become eligible for parole.  But for your plea of guilty, I would have sentenced you to a total effective sentence of five years and six months' imprisonment with a non-parole period of three years and eight months.  I declare that 327 days of pre-sentence detention is to be reckoned as time served on the sentence that I have imposed upon you and deducted administratively from that sentence.  I order that those facts be noted in the records of the court.

31.I make the order for the retention of the forensic sample that I have been asked to make, and which is made without any opposition from you.  There is also, I think, a forfeiture order in relation to the tracking device, which has not yet been drafted.  Is that right?

32.MS BURNSIDE:  Yes, Your Honour.

33.HIS HONOUR:  Yes.

34.MS BURNSIDE:  With regards to the tracking device and the other equipment, if at all possible, Your Honour, we will reach an agreement as to which of those items will be the subject of a forfeiture order.

35.HIS HONOUR:  Yes.

36.MS BURNSIDE:  I have a disposal order which has been the subject of agreement - not as yet?  All right.  Well, Your Honour, would it be all right, once we strike an agreement insofar the forfeiture and disposal is concerned, if we provide this to Your Honour's associate?

37.

HIS HONOUR:  Yes, certainly, and I'll make the order either by consent or, if there's an issue, then either party can bring it back on for mention before

me - - -

38.MS BURNSIDE:  Yes, Your Honour.

39.HIS HONOUR:  - - - at short notice and I'll make the order if and when it is either agreed or - -  -

40.MS BURNSIDE:  Otherwise.

41.HIS HONOUR:  - - - litigated before me.

42.MS BURNSIDE:  If Your Honour pleases.

43.HIS HONOUR:  Any other orders that I need to make?

44.MS BURNSIDE:  No other orders sought at this stage, Your Honour.

45.HIS HONOUR:  Yes.

46.MR GEORGIO:  Your Honour, may I clarify.  It's either unnecessary to state or it's implicit in Your Honour's order, but the two counts, Count 2 and 3, possess testosterone and common assault - - -

47.HIS HONOUR:  Concurrent.

48.MR GEORGIO:  - - - they too are concurrent? 

49.HIS HONOUR:  Correct.

50.MR GEORGIO:  Thank you.

51.HIS HONOUR:  Yes.  I have signed the s.464ZFB(1) orders.

52.MS BURNSIDE:  Yes, Your Honour.

53.HIS HONOUR:  Thank you.

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