Director of Public Prosecutions v Ferry

[2016] VCC 1490

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

AT GEELONG
CRIMINAL JURISDICTION

CR-16-01239

DIRECTOR OF PUBLIC PROSECUTIONS

v

BRYCE FERRY

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JUDGE:	HER HONOUR JUDGE HAMPEL
WHERE HELD:	Geelong
DATE OF HEARING:	6 October 2016
DATE OF SENTENCE:	6 October 2016
CASE MAY BE CITED AS:	DPP v Ferry
MEDIUM NEUTRAL CITATION:	[2016] VCC 1490

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr K. J. Doyle	OPP
For the Accused	Mr M. P. Kozlowski	Papa Hughes Lawyers

HER HONOUR: 

1Bryce Ferry, you had only been out of gaol a few weeks and you were only a few weeks into a strictly conditioned two year community correction order when you went to the home of an associate of yours, a man by the name of Luke Ford at Lidgett Street in Bacchus Marsh. 

2You were accompanied by your co-offender Christopher Pickering, a man who like you, appeared to have a significant ice habit.  The two of you went to Mr Ford's house with the apparent understanding that ice could be obtained from him.  It would appear from the summary of prosecution opening provided to me that you, in fact, were labouring under some belief that you could either get ice from him or that he owed you something. 

3In any event, you and Pickering went to Mr Ford's home and obtained entry.  There were three people there.  Luke Ford, a man by the name of James Ramadge and another man by the name of Riley Bartlett-Smith.  There was an altercation between you and Mr Ford.  There was an argument concerning a person by the name of Snookie.  Whether that argument was about whether Ford was being accused of having spoken to the police about Snookie or whether it was something to do with a set-up of Snookie is really not to the point.  The fact is that there was a heated argument with most of the heat on the material before me coming from you and directed towards Mr Ford. 

4Pickering then produced a knife and demanded that Ford give him or give you all of his "shit" by which it was clear that he was referring to drugs.  Ford handed over seven one point bags of ice and you demanded more.  Ford said he did not have any more.  You told him he was lying, stood over him, punched him to the side of the head although he was on the couch curled up in a ball and saying, "Fezza, don't." 

5The force of the punch to Mr Ford's head was sufficient to knock his glasses to the ground and to cut him in the eye area.  That is, a cut from the glasses by reason of the punch. 

6You then looked around for something else of value to steal; demanded Ramadge hand over his phone and wallet and threatened him saying that if he did not he would end up like Ford.  It was clear that you meant that violence and perhaps the infliction of injury to him as a result of the violence would be perpetrated on him. 

7Ramadge handed over his phone and his wallet and you also grabbed Bartlett-Smith's phone from his lap.  You then left the property with Pickering.  Ramadge heard you say as you were leaving that Ramadge was lucky that you were not taking his car as well. 

8You were arrested just a couple of days later on 11 January 2016 and interviewed.  In the interview you gave answers which indicated you had been to Ford's house but, in effect, gave an account that was exculpatory of you.  You declined to name Pickering and gave an account that was, to some extent, exculpatory of him as well. 

9You denied punching Ford, taking the drugs from him and taking the phones and the wallets from the other two offenders. 

10Not surprisingly, given your criminal history and the fact that you had been so recently released from prison and had been so briefly and unsuccessfully on a community corrections order you were remanded in custody where you have remained ever since.  

11You were charged initially with armed robbery in respect of the taking of the drugs from Ford, by reason of the presence of the co-offender Pickering and his production of the knife at the time of the initial demand of Ford for the drugs was made, as well as robbery of the other two men. 

12After a contested committal you offered a plea of guilty to one charge of robbery and one of assault.  That offer was rejected.  It was not until the morning that the jury was due to be empanelled after a pre-trial hearing in which Pickering's preparedness to give evidence had been canvassed and a pre-trial hearing where some further evidence from the witness Ramadge had been revealed that the matter was ultimately resolved. 

13It was resolved by the Crown accepting pleas of guilty to three charges of robbery, but accepting the surrounding circumstances included the production by Pickering of the knife.  The prosecution accepted that it could not prove beyond reasonable doubt that you knew Pickering had the knife with him when he entered the house or that you were a party to any understanding with him as to the use of the knife before Pickering actually produced it at the same time as he made his initial demand for the methamphetamine to be handed to you. 

14So the charge of robbery in respect of Ford relates to your own use of violence on Ford, the punching of him to the head, rather than the acquiescence in advance to Pickering producing the knife and offering violence.  However, it is clear that at the time that you offered violence to Ford you know that he had already been assaulted or threatened with the knife by Pickering and you capitalised on that. 

15You have, for someone who is so young, 19 at the time of the offending, 20 now, a significant criminal history.  Most of it, of course, having regard to your age was before the Children's Court but, on my count, you had 6 appearances before the Children's Court between 30 August 2010 and 16 January 2014. 

16You received dispositions from the Children's Court including release upon accountable undertakings to be of good behaviour, release on probation with a requirement to attend drug and alcohol counselling, and the “notice handbrake” program.  None of those seem to have been at all successful in dealing with your anti-social behaviour evidenced by the amassing of criminal offences and what was clearly an increasing drug habit.  So, that by the time you turned 18 you had progressed from appearances before the Children's Court to appearances before the Magistrates' Court. 

17In December 2015 you were sentenced for a large number of offences which appear to be as a result of a consolidation of many separate sets of charges to an aggregate term of imprisonment of six months together with a two year community correction order with conditions that included 300 hours of unpaid community work, supervision, treatment and rehabilitation programs in relation to drug abuse or dependency and offending behaviour. 

18Because of the amount of time that you had spent in pre-sentence detention, that resulted in your release on the day of your sentencing hearing and so, in effect, the immediate commencement of the community correction order.  Unfortunately, it would appear that you lapsed almost straight away into ice use and a return to the bad associates and anti-social behaviours that had had you before the courts on so many previous occasions. 

19The three charges of robbery to which you have pleaded guilty are offences that warrant weight being given to denunciation, to just punishment and to deterrence both general and specific.  To behave in the brutish manner, because that is what it was, that you did, by going around to the house of somebody who was, as you apparently knew, in possession of drugs, and to demand drugs with the use of force and then to steal other possessions from the other people present is simply unacceptable behaviour.  It is a behaviour of a lawless and uncivilised community rather than the behaviour we expect in this lawful and civilised community that we are privileged to live in.  The sentence must reflect those matters. 

20It is not as if you have never been before a court before.  You have had plenty of warnings and plenty of opportunities, given your youth, to understand the way that you should behave and to be given rehabilitative focused dispositions to assist you to do so.  But at the moment you seem to show no inclination to do anything to change your behaviour, your attitudes to other people's personal integrity, to their property, or to your drug use, or to what you do when under the influence of drugs.  

21It is no mitigating feature that this is drug related behaviour.  It is no excuse that you have a drug habit.  It is no excuse that you might have been impaired by drugs and it is no excuse or mitigation that the people who were in the house and who were the subject of the robberies were themselves drug users and perhaps some of them drug dealers as well. 

22It adds to the seriousness of the offending that you were just days out of gaol and days into that community correction order and that you had so obviously and in so many ways flouted its conditions. 

23Your previous convictions as well as that make it clear that the sentence must contain a significant component of punishment and a significant weight must be given to deterring you from continuing to engage in such behaviour. 

24You are young.  You are just 20 now and clearly the sentence must also balance those matters that I have identified with the need to encourage you to take advantage of the opportunities offered to you to rehabilitate yourself and to start to take more responsibility for your own behaviour so that you do rehabilitate yourself.  

25You have pleaded guilty and although you did so late, you are entitled to a reduction in the penalty otherwise appropriate.  Although you were clearly prepared, post-committal to plead to some charges, the offer that was initially made is one that, in my view, clearly did not reflect the gravity of the conduct or your role or responsibility in it.  It is hard to avoid the conclusion that you were playing a game of brinksmanship and waiting to see what witnesses would be prepared to cooperate and give truthful evidence before you made your ultimate decision to accept the inevitable and to plead guilty to charges that appropriately reflected your role in this. 

26So, your sentence will be reduced by reason of your plea of guilty.  I take it, as a plea of guilty, that has significant utilitarian value because it did save the time and cost of a trial but in the circumstances, I see, as I said to your counsel, no evidence that you are actually remorseful for your conduct.  You might be sorry for the position you now find yourself in but there is nothing that evidences any remorse for the behaviour itself.  Either your drug behaviour or your behaviour towards the three victims. 

27I take into account also in your favour the fact that you have had some difficult circumstances in your upbringing.  You have not had a significant and loving male figure in either your father or a step-father in your life.  Your parents separated when you were very young, you had no contact with your father, it would appear, for many years.  He was out of the country, and your mother's subsequent partners, from what you say, did not provide loving or kind or good role models for you. 

28You had behavioural difficulties from an early age which led to significant disruption at school and interruption to your schooling.  So, although you were offered educational opportunities you were not able to avail yourself of them or to be provided, it would appear, with the assistance that might have helped you to engage better the education system.  You left school young and poorly educated and you have had almost no employment history since then.  So you are one of these unfortunate young people who have had a history of aimlessness throughout his adolescence and teens and has not yet had the opportunity to develop habits of enjoyment of work, enjoyment of earning money legitimately, enjoyment of having a routine that is not blighted by alcohol, drugs, nothing to do, aimlessness and hopelessness.  It is to hope that you will, now that you are 20, start to think about where you want your future to be, to see it being something other than in and out of gaol as it has been since, for the last year or two.  

29I also take into account in your favour the fact that you appear to have limited direct family support although it is heartening to see a family friend who has come to court and who is here to support you.  So, it means you should have contact to look forward to whilst you complete your sentence and people around you who have known you since childhood and who are prepared to offer you some love and perhaps guidance upon your release. 

30So far as the difficulties in your adolescence and growing up, it is often hard at this stage to work out what the cause and what the effect is, how much your behaviour led to your leaving home at 14, how much it was the lack of proper support and guidance that led to that but clearly you have not had the benefit of a stable family upbringing, of good role modelling within the family, and of feeling that you have got a family on whom you can fall back and who can provide you with support and guidance.  That is a significant deficit for one so young and you clearly should not be held as accountable or responsible as people who have had the support of stable loving parents and good role modelling all around them.  So you have not had the same advantages in life that others do. 

31But, at the age of 20 you are facing your own adulthood and your own future and I hope you start to think about how you would like to shape it and see what you can do to make of it something better than what will otherwise be sadly a revolving cycle of drugs and gaol and an increasing criminal history.  That is not in your interests, it is not in anybody's interests. 

32So, I am going to structure the sentence in order to give you opportunity to demonstrate to the Corrections authorities that you are deserving of parole.  You have made some good steps in that direction already.  The presentation of a clean urine analysis from a random test is a very good start because it is obvious that drugs are available in prison and people who have had a history of using drugs are much more likely to keep on doing so.  So, the fact that you have managed to keep free of drugs and to return that clean screen is good. 

33You have also availed yourself of what I accept are the limited educational opportunities available to people on remand and particularly in this difficult post-riot time.  So, I take into account too that the time you have spent on remand to date is more onerous than the time is for a person who has been sentenced, processed and sent to another gaol and able to have full access to the range of educational and self-help opportunities that are available to sentence prisoners.  So the sentence is structured to allow you to take advantage of the courses that will be available to you in prison so that you can help demonstrate to yourself and to the parole authorities that you are deserving of a chance on parole. 

34As I said to your counsel I consider that the prospect of parole is a much more realistic one for you than releasing you on a community correction order.  There is a much greater flexibility built into the parole supervision system so if things start to go wrong they can pull you back or adjust your conditions but without having to issue you with breach proceedings and bring you back before the court and perpetuate the sentencing cycle. 

35So, I have left a considerable gap between the head sentence and the non-parole period so as to also allow you, once the parole authorities see it appropriate to release you on parole, a significant incentive to work towards release.  Parole can provide you with supports and protections around you once you are released to help you make the transition to independent living without court compulsion or parole board compulsion over your head at a time when you will be ready for it and much better able to remain drug free and offence free.  So that is the thinking behind the sentencing.  Could you now please stand? 

36On the three charges of robbery to which you have pleaded guilty, you are convicted.  On Charge 1, you are sentenced to be imprisoned for a period of two years and six months and I make that the base sentence. 

37On Charge 2 you are sentenced to be imprisoned for a period of one year and six months and on Charge 3 to be imprisoned for a period of one year and six months.  I direct that three months of the sentence on Charge 2 and three months of the sentence on Charge 3 be served cumulatively upon each other and upon the base sentence. 

38That makes a total effective sentence of three years and I direct that you serve a period of 18 months before being eligible for parole.  I declare that you have spent 269 days in pre-sentence detention and direct that that be counted and reckoned as part of the sentence already served. 

39Pursuant to s.6AAA of the Sentencing Act, I declare that but for your pleas of guilty I would have sentenced you to a total effective sentence of four years with a non-parole period of two years.

40I have been asked to make a disposal order in respect of the knife.  That is not opposed and I have made that.  I have also been asked to make an order in relation to the provision of a forensic sample and having regard to the seriousness of the circumstances of the offending and your prior convictions, I consider it appropriate to make such an order.  I am making that order for the provision of a buccal sample, that is a mouth swab.  You must rub something like a cotton bud on the inside of your mouth until a sufficient sample has been obtained.  I must warn you that if you do not co-operate in the provision of that sample, then the police are authorised to use reasonable force and they may well use the more invasive means of obtaining a sample; that is the taking of a blood sample.  Do you understand that? 

41OFFENDER:  Yes.  

42HER HONOUR:  Do the orders I have pronounced reflect what I said I intended to do? 

43MR DOYLE:  Yes, Your Honour. 

44HER HONOUR:  Any further orders to be made? 

45MR DOYLE:  No, Your Honour. 

46HER HONOUR:  Thank you.  Could you remove Mr Ferry please? 

47(Offender removed.) 

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