Director of Public Prosecutions v Ferrer

[2016] VCC 808

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-00310

DIRECTOR OF PUBLIC PROSECUTIONS

v

ISMAEL FERRER

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JUDGE:	HER HONOUR JUDGE CANNON
WHERE HELD:	Melbourne
DATE OF HEARING:	31 May 2016
DATE OF SENTENCE:	14 June 2016
CASE MAY BE CITED AS:	DPP v Ferrer
MEDIUM NEUTRAL CITATION:	[2016] VCC 808

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:             Sentence – Pleas of guilty – Intentionally cause serious injury with gross violence – Aggravated burglary – Theft – Serious nature of the injury to victim – Relevant criminal record – Long history of drug abuse – Issue of meaning of substantial and compelling reasons in the imposition of the mandatory minimum sentence in respect of Charge 1

Sentence:Convicted and sentenced to Total Effective Sentence of 9 years’ imprisonment with a non-parole period of 6 years’ imprisonment – 208 days imprisonment declared as already having been served – s.6 AAA Sentencing Act declaration made

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms S. Coombes (Plea) Mr M. Pitcher (Sentence)	Solicitor for Public Prosecutions
For the Accused	Mr R. Backwell	Tait Lawyers

Pages 1 - 15

 

 

HER HONOUR: 

1Just remain seated please, Mr Ferrer, for the time being. 

2Ismael Ferrer, you have pleaded guilty to one charge each of intentionally causing serious injury in circumstances of gross violence, aggravated burglary and theft.  The maximum penalty for intentionally causing serious injury in circumstances of gross violence is 20 years' imprisonment; and this species of the offence has a mandatory minimum of four years' imprisonment unless particular circumstances exist. 

3In your case, it is argued by you that there are substantial and compelling circumstances why the mandatory term ought not be invoked. 

4The maximum penalty for aggravated burglary is 25 years' imprisonment and the maximum penalty for theft is ten years' imprisonment. 

5The maximum penalties reflect the seriousness with which Parliament regards the offences.  The mandatory minimum in respect of Charge 1 reflects this also. 

6Your offending was opened as follows:  I was told that you were 44 at the time you offended and that is still your age.  Your co-offender, Ms Page, was 25 and other co-accused, Mr Pollard, was 30.  The victim in this matter, Jeffery Camilleri, was 40 at the time of the offending. 

7At that time, you and Ms Page had been in a relationship for about four years and you have a four-year-old son from that relationship.  You and Ms Page were addicted to amphetamine.  Mr Pollard was a friend of yours and of
Ms Page. 

8On 2 November 2015, you and Ms Page had an argument which escalated to violence between the two of you.  Ms Page left you temporarily to stay with a friend.  She and some acquaintances then attended the premises of the victim for an hour or so at about 6 pm. 

9Ms Page did not see you for a few days but when she returned, she told you that Mr Camilleri and another male had raped her.  Rather than report  this matter to the police, you decided to take the matter into your own hands. 

10On 8 November 2015, several days after you had been informed of Ms Page's allegation, according to what I was told in discussion at the plea hearing, you planned an attack upon the victim.  You packed a backpack with a hammer, cable ties and other items.  You wanted to torture Mr Camilleri and the other man who had allegedly raped Ms Page.  Ms Page was aware of your plan and gave you the victim's address. 

11At about 8 pm, you contacted Mr Pollard and asked him to drive you and
Ms Page to an address in Glenroy.  Mr Pollard collected you and Ms Page at about 10.30 pm and drove you to the victim's home in Reservoir. 

12When you arrived, you noticed that there was a light on in the victim's apartment.  You told Mr Pollard to do a U-turn and park the car on the opposite side of the street.  You then told Mr Pollard that Ms Page had been raped by the victim and you said that you were going to "fix him up". 

13You got out of the car and looked through the victim's apartment window then returned to the car and told the other two that the victim was in there by himself.  You all then got out of the car and you told Mr Pollard to knock on the door of the victim's apartment.  He did so.

14Mr Camilleri had just turned out the lights and had gone to bed when he heard the knock at the front security door.  He went to the door and opened it.  He saw Mr Pollard.  He did not know him.  Mr Pollard said, "Jeff, your friend Maleki sent me over." 

15The victim began to open the door but as he did this, Mr Pollard pulled the door open very quickly and you ran at Mr Camilleri, wielding the hammer towards him as he stood at the doorway.  You then struck the victim to the face with the hammer.  Mr Camilleri could immediately taste blood.  You repeatedly hit the victim to the head. 

16Mr Camilleri felt about ten blows to the head within the first few moments of the attack. 

17Mr Pollard was yelling at Mr Camilleri, "You fucking dog.  Get inside."  Ms Page stayed at the bottom of the stairs at the entrance to the unit whilst the assault took place. 

18Mr Pollard started pushing the victim in the chest, pushing him back into the apartment.  You were now behind the victim and were trying to pull him back inside. 

19The victim could feel that he was bleeding and was afraid as to what might happen to him if you took him inside his apartment. 

20As you continued to hit his head with a hammer, the victim reached back and grabbed you while pushing Mr Pollard forward with his other arm.  In this way, he was able to propel you both out of the apartment, then launched himself and the two of you down the stairs. 

21You continued to strike the victim's head with the hammer.  Mr Pollard could see the victim's skull was exposed.  Mr Camilleri landed at the bottom of the stairs on his knees and immediately felt his whole head ringing and was in immense pain. 

22He went for help, managing to get to a car park, which was about 20 m from his apartment , before you caught up with him. 

23You struck him to the head with a hammer a few more times.  The victim stumbled and fell to the ground against a car.  You then stomped on his head a few times. 

24Mr Camilleri got up and you swung at him with the hammer again.  In a bid to fend you off, the victim swung at you and punched you in the jaw.  Mr Camilleri then got hold of the hammer and the two of you fought for control of it. 

25Mr Pollard returned to the car and waited for you and Ms Page who had been watching on. 

26As you and the victim struggled over the hammer, Ms Page struck Mr Camilleri to the back of the head with another hammer.  She said that she told him she would be back.  Ms Page ran off and you walked away in the direction of
Mr Camilleri's apartment. 

27Mr Camilleri then set off in search of help.  He eventually obtained this from staff at a nearby hotel although he felt faint at this stage. 

28After you and Ms Page left the victim in the car park, you decided to raid his house.  You stole two mobile phones, a home phone receiver and a new TV.  The total value of the property was approximately $3000.  You then loaded the car up and returned home. 

29On the way back, you said that you were not finished with him yet, and that you were going to kill him.  You suggested that you go back and get more stuff, then said, "That was fun.  I am going to kill that fat cunt."

30When you got home, you set fire to your bloodstained clothes and the hammer you used so as to destroy any evidence against you.  You sold the stolen property, except for a mobile phone, for drugs. 

31Mr Camilleri was admitted to the Royal Melbourne Hospital at 1.20 am on
9 November.  He had sustained injuries to his skull and was treated for open wounds to the head in the left temporal, right occipital and right parietal regions.  A CT brain scan was performed which revealed a skull fracture, left squamous bone-depressed skull fracture with pneumocephalus but no underlying haemorrhage. 

32The victim underwent a craniotomy and elevation of depressed skull fragment and was given a course of antibiotics.  A number of wounds were stapled including a 17 cm S-shaped wound surrounding a 2 cm wound of the left-hand side of the head above the ear, a 5 cm stapled wound on the back of the head, and a 5 cm stapled wound on the top of the head. 

33He suffered additional lacerations, bruising and swelling to the head, face and body as a result of the attack, including abrasions to the elbows, left forearm, left and right knees, and front lower leg and right ankle. 

34I viewed some photos of some of the injuries post-operation.  They were dreadful. 

35On 19 November 2015, police arrested you and Ms Page.  You were hiding behind a door in the bathroom at your house.  You and Ms Page had been using the victim's mobile phone which was found at your place.  You were both arrested and taken to the local police station for interview. 

36At first, you denied any involvement in the offending but made admissions after police revealed that you had made inculpatory remarks to an undercover police officer in a holding cell. 

37You said the following things to that undercover operative:  That the assault occurred because men had raped your partner.  You said you started smashing him over the head with a hammer.  You had smashed the victim's head so hard that you could see his skull.  You did not wear a balaclava because you wanted the victim to see who was going to knock him and that you burnt the clothes and everything. 

38During the interview, you told police that you were going to torture Mr Camilleri and told police, "I went to the door and I started smashing him.  He just ran for it and I kept smashing him while he was running." 

39You said that you would do it all the same way if it happened again and that you destroyed the hammer and clothing in a fire that night.  You stated that you and Ms Page knew the plan and that when you were asked why you wanted the victim to die, you said, "Because dogs that do shit like that to women fucking deserve to die; and, “that fucking dog raped my girl and I am going to kill that fucking piece of shit, that is why.  He is lucky he got away." 

40You were asked why you used a hammer rather than something else.  You replied, "It would have been something else later on."  You said, "I had a few things with me that day.  I was going to fucking torture him, I told you that."

41I understand that Mr Pollard's matters have resolved to a charge of aggravated burglary and a charge of intentionally causing injury, and his plea is listed in this court in August. 

42Ms Page is pleading guilty to aggravated burglary and recklessly causing injury, and her plea hearing is listed for the same day as Mr Pollard's, although she will contest in the factual basis for her plea. 

43With respect to Charge 1 on the indictment, the circumstances of gross violence are that:  (a), you planned in advance to engage in conduct, and at the time of planning, you intended that the conduct would cause serious injury; (b), that you in company with Mr Pollard and Ms Page caused serious injury to
Mr Camilleri; and (c), that you planned in advance to have with you and use an offensive weapon, namely a hammer, and in fact used that hammer to inflict serious injury. 

44Mr Ferrer, your offending is most serious and deserving of strong punishment and denunciation.  Also, strong weight must be placed on general deterrence in a bid to deter others from behaving as you have. 

45I am not sentencing you as an attempted murderer, but the fact of the matter is that you could have killed the victim.  This is a most serious example of intentionally causing serious injury on any view of it. 

46I also regard the aggravated burglary as a serious example of that offence.  In this regard, I am mindful of what our Court of Appeal has said in Hogarth v The Queen (2012) 37 VR 658 in respect of the need to sentence appropriately for aggravated burglaries which involve home invasions of the kind that you engaged in.

47While it is understandable that the allegation made by Ms Page was something which made you extremely angry, taking matters into your own hands in this conniving and most violent fashion in intolerable. 

48I was told by your counsel that in all likelihood you were fuelled by methamphetamine at the time of the offending.  However, the prosecution submitted that this is not likely to have been the case.  Whether you were affected by drugs or hanging out for them is no matter really.  Neither is mitigatory, although either might help explain the ferocity of your conduct. 

49The fact remains that you behaved in a relentlessly violent manner and you seemed to be still crowing about your conduct when you were arrested.  In sentencing you, I make it very clear that I have not taken into account your utterances in respect of wanting to torture and kill Mr Camilleri, save that these assertions indicate the level of your rage. 

50In assessing your moral culpability, I factor in that you were reacting to a shocking allegation made by Ms Page rather than acting in a purely gratuitous fashion, for example.  But I stress that this in no way justifies what you did.  I also stress that it is not to the point as to whether Ms Page was telling the truth or not when she said the victim had raped her.  Clearly, you were of the view that this had occurred and reacted against it.

51I take into account the impact on the victim in this matter.  In his victim impact statement, Mr Camilleri said that he has tried to put the incident behind him; that he feels isolated and is haunted by what you did.  He said that he is very frightened when he hears any noise and lives in fear of further assaults. 

52He said that he cries and feels pain, that he cannot trust anyone and finds it stressful to go out in public.  He said that he smokes more and eats less than before the attack, that he keeps asking himself why you behaved as you did.  He said that he is emotionally scarred and feels distant from family and friends.  He does not have any income and assets.  He has not been able to afford to replace the TV that you stole.  He can no longer work or study as he had before.  He said that he is the father of three children and has two grandchildren.  His children and grandchildren are too afraid to visit him anymore.  He reflects that his life could have ended that night and he said that your offending has ruined his life. He said that it is a struggle to carry on with his life and he is in a "living hell".  He said that he has had to see a psychiatrist, a counsellor and support worker; and that while these people are okay, he is left to deal with his fears and isolation on a daily basis. 

53He said that he knows in his heart that he did nothing to deserve what happened.  He said that it was also very hard for his family and for the one friend who had stayed in touch.  He said he felt invaded, deserted, unwell and plain abused. 

54He said that he suffered mild seizures from time to time.  There was a medical report which was provided by way of additional evidence.  This indicated that a second CT scan was satisfactory.  In answer to a query of mine after the plea hearing and before today, I received further medical material which does not substantiate the victim's assertion in relation to suffering mild seizures.  In the circumstances, I will not act on the complainant's assertion in this regard, as there is no medical evidence to support it, and, in fact, the evidence that I have, contradicts it. Mr Ferrer, putting that aside, the other impacts spoken of by the victim are very real and devastating effects that your offending has had upon him.  It was no thanks to you that the victim's lasting physical injuries are not as serious as they could have been. 

55In your letter to me, you acknowledged the wrongfulness of your actions but still maintained your belief that the victim raped Ms Page.  Your most articulate letter mainly deals with the difficulties that you have created for yourself and your aspirations rather than showing a great deal of concern for the harm you have inflicted on the victim. 

56However, I accept that you are remorseful for what you have done in the context of your belief about the victim's culpability.  You clearly acknowledged that you should not have taken matters into your own hands, which shows a level of insight.

57I take into account your criminal history which dates back to 1993 and records three prior offences for violence in 2009, 2011 and 2014.  As your counsel submitted, these previous offences are not of the magnitude or character as the offences before me.  However, they are still relevant in my assessment of your prospects of rehabilitation, protection of the community and specific deterrence.

58I also note that you have prior convictions for burglary theft.  You have a number of prior convictions for driving offences including driving whilst disqualified or suspended.  In February 2014, you were also dealt with for possessing methylamphetamine and alprazolam. 

59In considering your criminal history, I factor in that there are gaps of time where you have not offended. 

60I allow for a significant discount in the sentence you would have otherwise received because of your early plea of guilty.  In taking this course, you have saved the witnesses, especially the victim, the time and trouble of giving evidence at committal and trial; and you have saved the community the time and expense of contested proceedings. I also accept that it is indicative of a level of remorse and insight into your offending. 

61It appears that you have been able to more clearly reflect about the wrongfulness of your actions now that you are off drugs. 

62I also take into account that you have experienced harsh conditions of incarceration following your arrest.  It took five days to get you to the remand centre and once there, you had been subjected to lockdown conditions on a
23-hour basis, and from March of this year, a 22-hour basis. On the day before the plea hearing, the conditions were further relaxed to allow you five hours out of the cells each day.  Once you are sentenced, these conditions ought lift, as you will no longer be subject to the remand regime.       

63However, you have spent over six months in these harsh conditions which I factor in when sentencing you.  I also allow for the fact that your time in gaol has been and will continue to be fairly isolated, in circumstances where your parents, who are taking care of your three and a half-year-old child, will not visit you and you will receive no visits from any other family or friends.  While you do speak to your mother and your son over the phone, this is the extent of family contact.  Further, before this offending, you had regular access with your children from your previous marriage.  However, you no longer have any contact with them.  While it could well be said that you were not an ideal role model for any of your children at the time you committed these offences, you have now come out of the haze of your drug abuse to realise how important they are to you and that you want to be a good parent to them. 

64Imprisonment, which is warranted in your case, will mean that you will be deprived of the chance to see your children grow up.  I accept that your sense of isolation and concern for your children and your elderly parents who are taking care of your young son will make time in gaol more difficult than would otherwise be the case.

65I was told that you were not an inherently violent person.  However, in your letter to me, you acknowledge that you have a volatile temperament.  This seems to be something that you have struggled with, although I accept that one would expect to see a greater number of offences for violence if your anger was something that was utterly uncontrollable.

66Your offending is tied up with your drug abuse and temperament.  If you are to stop offending, you must cease drug use one and for all.  This is something that you have been able to do in the past but you have returned to. 

67I take into account your background:  According to the report of Mr Healey, psychologist, you grew up in a caring, supportive family who have suffered a good deal because of your drug use and offending.  You have a reasonably good relationship with your parents and your younger brother. 

68You commenced drug use at the age of 16, using cannabis, amphetamine, ice, ecstasy and Xanax.  When you were 19, you were attacked by a group of youths, suffering facial injuries and spent a week in hospital. 

69In 2006, you lost consciousness and suffered multiple fractures after being involved in a serious motorbike accident.  In 2007, you suffered a facial fracture in an assault. 

70In September 2008, you underwent a detoxification program at Galiamble, exiting this in July of 2009.  You abstained from drugs for 18 months after this but drifted back into ice use and cannabis, although not as heavily as before. 

71You completed Year 12, then embarked upon a spray painting apprenticeship.  However, you gave this up after two years, as it was affecting your breathing.  You then worked in unskilled positions and you were largely employed until the motor vehicle collision in 2006. 

72After you left Galiamble in 2009, you worked for a steel company for three years. 

73You turned again to drugs in the context of your relationship with Ms Page.  You discovered that she was using heroin and she also had mental health issues which created difficulties in your relationship. She became pregnant very soon after you commenced the relationship.  The child is now in your parents' care and they are in their 70s. 

74According to Mr Healey's assessment of you, you have average intelligence and you have no impairment of mental function but you are vulnerable to substance abuse.  Mr Healey said that there is an undercurrent of distress and difficulty which requires significant support. 

75I take into account the report of Mr Healey in sentencing you.  I understand that when you were released from gaol in December 2014, you had lost your rental accommodation as well as a number of personal items.  You did not get to serve any period in the community on parole so there was no assistance or supervision from the parole board. This is most unfortunate, to say the least.  You couch-surfed and at one stage, you slept in a camper van.  Predictably, you returned to drug use.

76In assessing your prospects of rehabilitation, I am concerned that you tend to turn to drugs in times of stress, although you have also shown an ability to abstain from them for a significant period.

77I also note that since being on remand, you have undergone a number of courses and you have supplied a drug screen which shows that you were clear of drugs as at 15 May this year. 

78I note that some of the programs you have completed concern drug use and well-being issues. 

79As with any person in your position, your rehabilitation is largely dependent on effective drug treatment, stable accommodation and employment.  I note that in the past you have been able to reside with your parents who have always been there for you. 

80Mr Backwell told me that you are motivated to cease drug use for good and you are clear in your letter that you wish to become a responsible parent for your three children. 

81In view of the offending on the occasion before me, your struggles with drug abuse over a number of years and your criminal history, but also factoring in your ability to overcome drugs in the past and at present, your resolutions in this regard and your firm family support, I regard your prospects of rehabilitation as guardedly fair. 

82I do hope that you can finally overcome your difficulties with drugs and lead a productive life, as you have been able to do in the past. 

83Mr Backwell submitted that a gaol term was warranted but there was substantial and compelling reasons why I ought not apply the mandatory minimum gaol term which applies to Charge 1.  That mandatory minimum is a starting point rather than a set minimum sentence. 

84Mr Backwell submitted that, in combination, the following amounted to substantial and compelling reasons so as not to impose the mandatory minimum:

a.    The particular circumstances which led you to the offending on this occasion,

b.    Your early plea of guilty,

c.    Your isolation in custody,

d.     Your loss of contact with your children,

e.    Your completion of courses and work whilst in gaol,

f.    Your long-standing addiction to methamphetamine,

g.     Your three prior convictions for violence, which were quite different in nature to the present offending. 

85Insofar as the mandatory minimum is concerned relating to Charge 1, I note that the relevant provision relates to a non-parole period involving a minimum of four years.  In circumstances where I must not give individual non-parole periods for each offence you have committed, it is hard to see how this provision could apply. 

86As to the meaning of "substantial and compelling reasons", this is yet to be interpreted by our Court of Appeal, although I understand that a case will be heard later this year which may provide some guidance in this regard. However, some assistance can be gleaned from the specific reasons set out in the relevant provision as to the level of mitigatory conduct countenanced by the Parliament if the mandatory minimum is to be avoided. Some guidance can also be gleaned from the second reading speech in relation to this provision and I have considered this.  On any view of the meaning of the phrase, I would not consider that you have demonstrated substantial and compelling circumstances so as to avoid the mandatory minimum sentence for Charge 1 for intentionally causing serious injury in circumstances of gross violence. 

87However, I do not need to be dictated to by Parliament in this regard in the circumstances of your case, even if there were not a mandatory minimum which could be applied.  I am afraid that your offending is so serious that a sentence which exceeds the minimum would be warranted in any case. 

88In sentencing you, I have had regard to current sentencing practice insofar as I can, and I have considered the cases provided to me which predate the particular species of intentionally causing serious injury with which you have been charged. 

89After placing appropriate weight on all relevant sentencing matters and bearing in mind the principle of totality, I propose to impose the following terms of imprisonment. 

90Would you please stand up.

91In relation to each of the charges, you are convicted and I sentence you to the following terms of imprisonment: 

92Charge 1: eight years;

93Charge 2: six years;

94Charge 3: one year.

95I direct that ten months of the sentence on Charge 2 and two months of the sentence on Charge 3 be served cumulatively with each other and with the sentence on Charge 1, producing a total effective sentence of nine years. 

96I direct that you serve six years before becoming eligible for parole. 

97If not for your pleas of guilty, I would have sentenced you to a total effective sentence of 12 years with a non-parole period of nine years six months. 

98I declare that you have already served 208 days by way of pre-sentence detention. 

99Take a seat for a moment, please, sir. 

100Is there anything arising? 

101COUNSEL:  No, Your Honour.

102HER HONOUR:  All right.  Yes, thank you.  If you could remove Mr Ferrer.  We will now adjourn. 

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