Director of Public Prosecutions v Ferry

[2021] VCC 2131

IN THE COUNTY COURT OF VICTORIA

AT Melbourne

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-20-01427

DIRECTOR OF PUBLIC PROSECUTIONS

v

BRYCE FERRY

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JUDGE:	Mullaly
WHERE HELD:	Melbourne
DATE OF HEARING:	10 November 2021
DATE OF SENTENCE:	15 December 2021
CASE MAY BE CITED AS:	DPP v Ferry
MEDIUM NEUTRAL CITATION:	[2021] VCC 2131

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentence

Catchwords:              Burglary – Theft – Attempted burglary – Prohibited person possessing firearm – Aggravated burglary – Possession of a drug of dependence

Legislation Cited:      Sentencing Act 1991 (Vic)

Cases Cited:Azzopardi & Ors v The Queen [2011] VSCA 372; R v Mills (1998) 4 VR 235; Worboyes v The Queen [2021] VSCA 169

Sentence:                  Total effective sentence of 5 years and 10 months’ imprisonment with a minimum non-parole period of 3 years and 6 months

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APPEARANCES:		Counsel	Solicitors
For the Director	Mr T. White		Office of Public Prosecutions
For the Accused	Mr N. Marcevski		Marcevski Lawyers

HIS HONOUR:

1

Bryce Ferry, you have pleaded guilty to 18 charges set out on

Indictment K12298805.1 and five related summary charges.

2An agreed outline of all these offences was tendered by the prosecutor on your plea.  The offences occurred in a crime spree beginning on 10 June 2019 until your arrest on 31 August 2019, though the first offence on 10 June was separated by six weeks until the second offence on 29 July 2019, all the remaining offences came in rapid succession in the four weeks up until your arrest.

3You were 23 at the time.

4Offences were in the main commercial burglaries, though concerningly there was a serious aggravated burglary on an occupied domestic home.

5I will very briefly outline what it is that you did. 

6On 10 June 2019, at 5.00 in the morning you broke into a service station in Werribee with an unknown co-accused.  Both of you wore masks.  You could not get into a safe or a cigarette cabinet but stole a tray of cigarette lighters and a slab of energy drinks.

7

On 29 July 2019, at 2.40 in the morning you and two other unknown

co-accused smashed the front window of the service station in Lancefield.  Your group had come with an angle grinder, which was used to open the cigarette cabinet and a safe.  You got cigarettes and cash.

8Later on the same morning at 4.00 am you broke into a shop in Maddingley.  You were with one unknown co-accused and you broke into the safe that was there and stole $500.

9On 15 August 2019 at 10.45, you and two others went to the rear of a domestic house in Bacchus Marsh.  You had a crowbar.  You were put off by a barking dog.  This was an attempted burglary.

10Later the same night, you and two co-offenders broke into a house in Bacchus Marsh.  You tried to get into a gun safe using the angle grinder but were unsuccessful.  You stole some jewellery.

11

On 17 August 2019, at 4.10 in the morning you and a co-accused,

Joshua Dunstan, broke into the IGA supermarket in Ballan.  You used the angle grinder to get into the cigarette safe and you there stole $25,000 worth of cigarettes.  At this supermarket you triggered the alarm and the police arrived just after you fled.  Dunstan was located and arrested.  You escaped.  The car that you had used in this and many other burglaries was located in Ballan and in it was a sawn-off shotgun.  Your DNA was on the weapon.  You were by reason of your prior terms of imprisonment a prohibited person and you have pleaded guilty to being a prohibited person possessing a firearm.  This is a serious offence.

12At 3.48 am on 19 August 2019, you and two unknown co-accused smashed your way into a pizza shop in Sydenham.  You stole $80.00 in cash and tried unsuccessfully to tow a safe out of the building.

13On 27 August 2019, you and a known co-offender, Beau McPhan and two other unknown offenders broke into a house in Maddingley.  One offender had a firearm.  McPhan had a machete.  The two occupants of the house were awoken by you and the other men smashing a door and gaining entry.  The male victim was in the sunroom where you gained entry into the premises.  The female victim hid in her wardrobe and called Triple 0.  One offender pointed the weapon at the male victim, telling him not to move.  You ultimately stole two bags of power tools and a cannabis plant but you smashed windows in the premises gratuitously as you left.  The police arrived by you escaped.  McPhan was arrested and he has been sentenced by another judge of this court some time ago.

14I will return to aspects of parity in due course.  I will also return to the gravity of your crimes, generally but on this bare description of the aggravated burglary, plainly it is the most serious offence of all and a serious example of the crime of aggravated burglary.

15On 31 August 2019, you were observed driving a stolen motorbike particularly dangerously, first, in Werribee.  The police endeavoured to stop you but you kept going at speeds up to twice the speed limit, until you ultimately crashed in Tarneit.  This driving was charged as the summary offence of dangerous driving. You were at the time unlicensed and following blood testing it was shown that you had methylamphetamines in your system. 

16You were arrested and found on you was a knife and 4 grams of methylamphetamines. Following a search of your house what was found was knuckle dusters and other incriminating property connecting you to some of the burglaries.

17Before dealing with the gravity of your crimes I need to make clear just how frightening the aggravated burglary was to the victims.  They have made short victim impact statements, which speak of them wanting not to expand but to put all this behind them. 

18The male victim said: ‘On the night of the 27 August, I was woken up to that of a nightmare’.  He says, 'Nightmares' - and I take it to mean flashbacks – 'can regularly occur and this seems to be happening to me.  I just want to leave all this nightmare behind me and hope never experience something like it again’.

19The female victim says that she suffers from major anxiety and still jumps at any sound or noise around their house.  It was, she said, 'a terrifying experience' and she still has flashbacks.  She's hyper-vigilant in her house, checking and re-checking that things are locked.  She says, 'I just want to put this behind me'.  She's fearfully thought that she'll never really feel free from this.

20What makes these offences particularly serious example are a number of concerning features:

(a)   First, you committed these crimes in company and as the CCTV footage shows, the execution of the burglaries or most of the burglaries was professional; 

(b)   You were after the failed first burglary, an attempt therein to get into a safe and cigarette cabinet, you were then better prepared, bringing the angle grinder, again, revealing your preparation and professional approach to this criminal activity;

(c)   The planning also extended to disguises, being masks and tools to break in such as jemmy’s and crowbars.  Though on other occasions, you and the co-accused simply smashed windows or kicked in doors; and 

(d)   Further, when one offence was not so productive, for example, the attempted burglary, where you were deterred by the dog, you moved to another target on the same night.

21As already mentioned, the aggravated burglary was the most serious of your crimes.  It, too, was committed in company- this time there was four of you.  It was a violent entry in the dead of night by your gang and you confronted the male victim with weapons – there were imitation firearms and a machete.  The victims were entitled to feel safe in their home and not be subject to a terrifying ordeal.  An armed and threatening gang of men inside their house only has to be said for its terrifying nature to be exposed.

22It is to be noted that earlier in this crime spree a sawn-off shotgun was found in your car and the car that you often used in committing burglaries.  The driving on 31 August was disdainfully dangerous and while you had, that is, while you were driving, you did this while you had no right to be driving at all, as you were unlicensed and affected by drugs.

23As to your moral culpability for these crimes, nothing was put forward that might lower your moral culpability.  You are though young and I will refer to this again shortly.  But you are not a naïve first offender.  In fact, you have a troubling list of prior convictions for similar crimes. Your offending commenced in your early teenage years with many appearances in the Children's Court.  Without much interruption you moved into the adult courts and by the end of 2015, when you were 19 years old you were sentenced to terms of imprisonment, combined with a Community Corrections Order for multiple burglary, theft, weapons, driving and drug offences.

24

Less than a year later in October 2016, you received 30 months with a

non-parole period of 18 months from the County Court for robberies.  A concurrent term was imposed by the Magistrates' Court in November 2016, for further burglaries and for breaching the 2015 Community Corrections Order.

25You are not to be re-punished for past crimes.  What is revealed is the troubling propensity to commit crimes of the kind now before me.  It is hoped this is not an entrenched pattern but there are worse worrying signs.

26Your past offending does elevate the need for deterrence to you, protection of the community from you and it also creates concerns about your prospects for reform.

27As to other matters personal to you, you are now 25 and as I've said, 23 at the time of the offences.  You are still a young man.

28You were raised along with your two sisters in the Melton area.  Your violent biological father was gone by the time you were three and played no further role in your life. Your first step-father was also violent but towards you alone when you were young between the ages of 5 and 12. You mother re-partnered at around the time you were 12 and you got on relatively well with this new partner.  However, you remained in Victoria when your sisters and mother and the step-father moved to Darwin.

29You were diagnosed with ADHD as a pre-schooler but your mother's choice was not to allow medication for treatment of this condition. You found school particularly difficult, even just to remain seated in a classroom.  School ended at Year 9, when you committed some offence of violence at school and were charged and put on a probation order.

30Thereafter, you have never had any long-term employment.

31You have been troubled by drug addiction, both ice or methylamphetamines and cannabis from an early age, about 15. You explained to the medico-legal psychologist, Ms Ferrari, that you use drugs to calm down, reduce anxiety and to think clearly and focus.  It was said to be a misguided self-medication strategy for your ADHD symptoms.

32In custody on the last occasion and early on in this period of remand you have developed a view for a morphine habit, securing illicit supplies and consequentially, having positive drug screens in prison.  Of late, this is controlled and your drug screens have been negative.

33You say the longest period of abstinence from drugs while you have been in the community has barely been a few weeks.  Most of the time it seems between the ages of 19 and 22 have been in prison and that has recommenced.  When you turned 23 or when you were 23 onwards now till the age of 25, there is a fear and a need to deal with a problem that you might become institutionalised. This current and lengthy period on remand has, save for the early illicit drug use that I spoke about, seen you abstain from drug use for the longest in your life. You say that you have developed insight into how drug use is at the core of your criminality and your wasted life. 

34You wrote a letter tendered on your plea but also, unusually for pleas in this State, you gave sworn evidence.

35In your letter you wrote that this was the first time that you did write a letter because you wished to explain and express your remorse for your past life.  You said, at 25 you see a wasted youth with incarceration but more importantly the pain you've caused to the victims and the community, including those that love and care about you.

36You said this, 'This is no longer the life I want for myself.  This incarceration has challenged me via isolation of no visits because of COVID.  I no longer want my actions to isolate me from my family, girlfriend and the community'.  You speak of at this – having through this time supported your words by actions.  You have done multiple courses while you could within the prison, relating to the effects of ice, the effects of stress, depression and further drug and alcohol programs.

37You have set up resources you speak about for when you're released with psychological and mental health as to the forefront but also, endeavouring to obtain employment and settling into accommodation.

38You say this to conclude, 'whatever the outcome of my sentence is, I want the court to know I’m ready for a different life going forward'.

39I have referred to the lengthy sentence of 30 months with a non-parole period of 18 months imposed on you in 2016 by the County Court.  I was told by your counsel that you were not granted parole and were released with no supervision or steady accommodation.  You say you fell back in with old criminal associates and within weeks your drug use was escalating.  This continued until your offending and then arrest in late August.

40The partner you had just met on your release has stuck by you through your remand.  She is a more solid influence over you.  She's not a drug taker and you want to head in that direction yourself with her on your release.

41There are a number of policy considerations that operate to significantly mitigate penalty.  The first is the general approach of the law to endeavour to reclaim young offenders.  That purpose must in your case be weighed against the considerable need to deter you and others from offending of this kind.  There must also be due weight to denunciation and thus, appropriate punishment in the form of years of imprisonment.  That is simply a just consequence of the grave, numerous and escalating nature of the crimes you committed. However, given your young age there must be a role for facilitating your rehabilitation, notwithstanding your history of like offending. As your counsel said, the community has a continuing interest in you being rehabilitated or reclaimed, which if it occurs provides the surest protection to the community.

42I do not need to recite all the principles of the well-known, important cases such as Azzopardi & Ors v The Queen,[1] and R v Mills,[2] regarding sentencing of young offenders. Rather, I must in an individualised way, give practical application to those principles.  But as I've said, because of the matters mentioned, the gravity, the number and your poor history, it must be, that is, your rehabilitation must be in a measured and balanced way.

[1] [2011] VSCA 372.

[2] (1998) 4 VR 235.

43As your counsel emphasised there have been steps taken by you in recent times in custody with a number of targeted programs, as well as your support networks, which means that at your young age your prospects are not forlorn. Rather, there is some basis for cautious, perhaps very cautious hope that you will reform. 

44Your letter and your evidence is important in this regard and as I perhaps have indicated, in the end it's up to you and your letter to the court and importantly in my eyes, the fact that you gave sworn evidence means that you are growing in your understanding that putting drugs behind you is the only way to break the cycle of offending then prison.

45Your counsel urged that you be given hope by fixing of a non-parole period that was not too distanced.  I will return to this matter shortly.

46Another policy aspect that is at play here in the increased value of your plea in these COVID times. The Court of Appeal in Worboyes v The Queen (‘Worboyes’),[3] has made clear that sentencing judges must respond to the crisis in the criminal justice system by giving greater or more palpable benefits to those that plead guilty in the times when jury trials are suspended.  Because of your plea of guilty it has reduced the crushing lists of pending criminal trials.

[3] [2021] VSCA 169.

47Again, my task is to ensure that my sentence gives practical application to the principles set out in Worboyes.[4]

[4] Ibid.

48Your plea of guilty came after sensible case management led in turn to a revised indictment.  The timing of the plea allows for other cases waiting for a trial to secure a more advanced trial date.  Your plea is also an expression of remorse and the taking of responsibility.

49As I have said more than once, you gave evidence on your plea, which was as I've said, a strangely rare event in Victorian Courts. Speaking frankly in court, that is, you speaking frankly in court or in the court environment, was obviously not something you were used to doing.  But in the end I see you are genuinely wanting to get a life away from crime and prisons and I accept that you have some empathy for and remorse towards the victims of the aggravated burglary and the other offences.

50It was put by you counsel and accepted by the prosecution the principle of totality had much work to do in this sentencing task. 

51Thus, I've endeavoured to ensure that the total sentence meets in a proportionate way, the totality of what you did in this condensed period of offending.  I have revisited the orders for cumulation.  Then at the end, stepped back and adjusted again the overall sentence in the non-parole period.

52As mentioned, your counsel urged that a non-parole period be fixed.  That is encouraging or gives you hope.  There is merit in what he put in his very realistic plea. Of course, whether and when you are granted parole is for others, not the court. The non-parole period that I'll fix is what in my view justice requires for you to serve in custody, no more and no less.

53I do take into account that much of your remand has been in the onerous circumstances brought about by the necessary restrictions imposed on prisoners by the Corrections authorities in the pandemic times.  There have been greater periods of lockdown, restrictions on or no visits at all, restrictions or no programs or industry.  You have, to your credit, done what you could but your long time on remand has been in a harsher prison environment do to the pandemic.  That is a matter I have taken into account.

54In terms of parity with the known co-accused, I accept the submission that for the aggravated burglary, McPhan was very much different to you with respect to his role and most importantly, that he had no prior criminal history.  He came before the court some time ago as a young first offender. The combined sentencing imposed on him is a matter I take into account but it must play a minimal role.  The sentence imposed on Dunstan for the IGA burglary has been considered, in terms of parity.

55While your counsel emphasised your youth, your growing insight, your rehabilitation prospects, as well as the value of your plea, I cannot ignore what was carefully put on behalf of the prosecution – that is, that on any measure these were serious crimes requiring a stern, deterrence sentence, that properly denounces and punishes you for your crimes.

56Thus, doing the best I can, I now announce the following sentences.  I'll endeavour to do so in a way that the practitioners and my staff and follow, so we get to the outcomes. Because of the nature of the crimes these are not aggregate terms but rather, individual sentences for each of the 18 offences and the five summary offences:

(a)   On Charge 1, 12 months;

(b)   On Charge 2, two months

(c)   Charge 3, 16 months;

(d)   Charge 4, six months;

(e)   Charge 5, 20 months;

(f)    Charge 6, eight months;

(g)   Charge 7, nine months;

(h)   Charge 8, 20 months;

(i)    Charge 9, six months;

(j)    Charge 10, 16 months;

(k)   Charge 11, 12 months;

(l)    Charge 12, 18 months;

(m)     Charge 13, 18 months;

(n)   Charge 14, six months;

(o)   Charge 15, which will be the base sentence, the aggravated burglary, 4 years and six months;

(p)   Charge 16, 12 months;

(q)   Charge 17, 12 months; and

(r)   Charge 18, two months.

57The summary offence for the dangerous driving, 8 months, unlicensed driving, one month, for the drugs in the system while driving you are convicted and fined $500.00.  For the controlled weapon, two months and the possession of the knuckle dusters, one month.

58The base sentence, obviously, is the aggravated burglary, which is 4 years and six months.

59

I make the following orders for cumulation. One month cumulative on

Charge 1.  Two months is cumulative on Charges 3, 5, 8 and 13.  Three months on Charge 12, the prohibited person and two months on the summary charge of dangerous driving.

60All other sentences are to be concurrent.  That gives on my calculations a total effective sentence of 70 months or five years and 10 months and I fix a minimum non-parole period of three years and six months.

61

On my calculations and please correct me if this is inaccurate, you have served 838 days on remand.  This figure having been reckoned will now - I now declare it's part of the sentence that I've just imposed.  You have done

27 months or thereabouts.

62I will ensure that this declaration is entered into the records of the court, so the prison authorities are left in no doubt that you have done 838 days on remand.  There may be other calculations they take into account for lockdowns.

63Had you pleaded not guilty to these offences and been found guilty of them I would have imposed a sentence of eight years and six months with a minimum term of six years and six months.

64What can be seen from that is the practical application of Worboyes and the provisions of the Sentencing Act 1991 (Vic) in respect of sentencing discount for pleas of guilty. That impacts most particularly and as it should on both the head sentence and most particularly the minimum non-parole period.

65

Your licence must be affected by reason of your driving and I make an order that any licence you hold is cancelled and disqualified from driving for

18 months.  There were four forfeiture orders and I will sign the orders forfeiting the property that's listed schedules to those orders.

66HIS HONOUR:  Mr White, Mr Marcevski, is the 838 days agreed as correct?  It's just on mute, Mr White?  Mr White, you can't be heard by me anyway.

67MR WHITE:  Sorry, Your Honour.  I had 875 but I'm just doing a recalculation at the moment.

68HIS HONOUR:  Mr Marcevski, what did you have?

69MR MARCEVSKI:  Your Honour, I did have 835 days, not including today but I'll also do a recalculation just to be certain.

70HIS HONOUR:  I just asked my staff.  They sent me a message about it yesterday and I may have misread it, 838 was what I thought I got.

71MR WHITE:  Your Honour, I've just done a recalculation based on the arrest being at 31 August to today, not including today 837.

72HIS HONOUR:  So, 837, yes, all right.  We probably counted today.  So, 837.  I'll readjust that as today, Mr Ferry but that is the proper calculation and the way it should work.  So, the figure that's reckoned - that's the word in the Act, is 837 days and I'll declare that that figure is part of the sentence I have just imposed.  Is there any other orders required?

73MR WHITE:  No, Your Honour.  That's everything in from my perspective.  The arithmetic all adds up in terms of the cumulation.

74HIS HONOUR:  Yes.

75MR WHITE:  There was just one matter from the sentence that I wished to raise if I might?

76HIS HONOUR:  Yes, of course.

77MR WHITE:  In Your Honour's description of the Ballan IGA burglary, you referred to it being DNA on the weapon.  It was, in fact, a fingerprint.

78HIS HONOUR:  Thank you.  I don't know where I got that from but maybe I - in error it makes in the end forensically, not a lot of difference, fingerprint on the gun.  So, with that I might on the revised sentence just note that in the revised sentence.

79MR WHITE:  Yes, Your Honour.

80HIS HONOUR:  Is there anything from your perspective, Mr Marcevski?

81MR MARCEVSKI:  No, Your Honour.

82HIS HONOUR:  All right.  Now, I can allow you to speak to your client if you need to.  It's difficult to get to Margoneet and so on and so forth, if you need some time with him.

83MR MARCEVSKI:  I do.  Yes.  Thank you, Your Honour.

84HIS HONOUR:  All right.  I'll leave and thank counsel and Mr Terry and Ms Jones, regarding this matter.  Thank you.  I'll now leave.

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