Director of Public Prosecutions v Fischer
[2016] VCC 2057
•22 December 2016
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR-16-00541
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JAMES FISCHER |
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| JUDGE: | HIS HONOUR JUDGE MASON |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 1 & 13 December 2016 |
| DATE OF SENTENCE: | 22 December 2016 |
| CASE MAY BE CITED AS: | DPP v Fischer |
| MEDIUM NEUTRAL CITATION: | [2016] VCC 2057 |
REASONS FOR SENTENCE
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Subject:Plea – sentencing
Catchwords: False imprisonment – robbery - possessing cartridge ammunition whilst not holding valid licence
Legislation Cited: Sentencing Act 1991
Cases Cited:
Sentence: 1-year Community Correction Order
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APPEARANCES: | Counsel | Solicitors |
| For the DPP at hearing For the DPP at sentence | Ms C. Duckett Ms C. Foot | Office of Public Prosecutions |
| For the Accused at hearing For the Accused at sentence | Mr C. Pearson Mr A. Masters | James Dowsley & Associates |
Pages 1 - 14
HIS HONOUR:
1James Fischer, you have pleaded guilty to one charge of false imprisonment and one charge of robbery. In addition, you have pleaded guilty to one transferred summary charge of possessing cartridge ammunition whilst not holding a valid licence.
- False imprisonment carries a maximum penalty of 10 years' imprisonment.
- Robbery carries a maximum penalty of 15 years' imprisonment.
- Possess cartridge ammunition without a licence carries a maximum penalty of 40 penalty units.
2You are now 37, having been born on 9 February 1979. At the time of the offending last year you were aged 36.
3You have a criminal record, about which I will go into more detail shortly.
4At the time of the offending you were residing at 8A Coolibah Crescent, Bayswater with a person by the name of Wendy Ann McCabe.
5The second offender in this matter was then 27-year-old Andrew Michael Lawton. Mr Lawton entered a plea of guilty in the summary jurisdiction on 6 April 2016 to one charge of robbery and one charge of false imprisonment and was sentenced to a term of three months' imprisonment on each charge, sentence ordered to be served concurrently on the sentence he was then undergoing and then to be released on a community correction order for a period of six months.
6The third offender in this matter was then 20-year-old Saracen Brendan Paul Elkin. Mr Elkin entered a plea of guilty in the summary jurisdiction on 6 April 2016 to one charge of robbery, one charge of false imprisonment and one charge of handling stolen goods and was sentenced to be released on a community correction order for a period of six months.
7The fourth person present during the offending was then 33-year-old Wendy Ann McCabe. Ms McCabe was discharged at the committal hearing of the matter on 6 April 2016.
8The fifth person present during the offending was then 42-year-old Douglas Morton Pollock. At the time of the incidents, Mr Pollock was residing at 8 Coolibah Crescent, Bayswater. You were only known to him through being neighbours for something like 12 months. Mr Pollock was acquitted of all charges following a five-day trial before a jury on 12 December 2016.
9At the time of the offences you were living with Ms McCabe. Mr Lawton and Mr Elkin were associates of yours.
10The victim in this matter is Jitesh Singh Gill. At the time of the offences Mr Gill was 18 years of age and a student. For the preceding six months he had worked doing pizza delivery for Pizza Hut. To perform his pizza deliveries he utilised his father's black Honda Accord sedan.
11The background to the offending is as follows.
12On Friday 28 August 2015 at approximately 5 pm, Mr Gill started his shift delivering pizzas. At approximately 9 pm, Mr Pollock called Pizza Hut and ordered a pizza. He also requested that the driver bring some jumper leads so that he could attempt to start his car. The driver agreed to this request.
13At 10 pm, Mr Gill delivered the pizza and Mr Pollock took him to the vehicle and an attempt was made to start Pollock's car with the leads. The leads sparked and burned.
14Mr Pollock went to the next house, that is, number 8A, and knocked on the door. Mr Gill could hear voices. The voices sounded like they had been drinking. Two men then came out with Mr Pollock to the car. One of the men was "a big, tall guy" who was you, Mr Fischer, and the other man told Mr Gill that he was a mechanic. This man connected the leads and again tried to start the car. There were further sparks and melting of the jumper leads.
15The circumstances of your actual offending are as follows.
16You stated to Mr Gill, "You stuffed the car up and you will have to pay for it". Another male described as being “skinny” and a female (who was Ms McCabe) then came out of the house. They were also saying that Mr Gill had "stuffed the car".
17You, Mr Fischer, and the skinny male then started to become aggressive. The skinny male was telling you that "someone was about to get bashed" and that he "wouldn't mind going back to prison". Mr Gill felt intimidated by this and rang his boss at Pizza Hut, a Mr Soni, asking him to come there quickly and told him the address. Mr Soni told Mr Gill that he would come. Mr Gill then put his phone back on the charger in the console of his car.
18You and the skinny male then started talking about taking Mr Gill's car keys from him, so he removed them from the car before you could. You both then stood in front of and behind Mr Gill. By this time Mr Gill was telling Mr Pollock that he did not feel safe.
19At this time Mr Gill became aware that a second set of leads had been located and further attempts were made to start the vehicle. These attempts were also unsuccessful.
20Mr Gill was then told that he would have to pay money and Mr Pollock said that he would be "happy to receive money to settle it". Mr Gill told them that he only had the $40 that the drivers carry for change with him. Mr Gill was told that it was not enough and he was not allowed to leave.
21Mr Gill then offered to do a bank transfer to get money to Mr Pollock, who agreed and asked for identification from him. He handed Mr Pollock his driver's licence and Mr Pollock wrote down a number of Mr Gill's personal details on an envelope he had obtained from his house.
22The skinny male then demanded that they go to an ATM and settle this now. The “mechanic” then got into the front passenger seat and Mr Pollock got into the rear seat of the car.
23The skinny male also went to get into the car but Mr Gill was worried about how aggressive he was and asked that he did not come. Mr Pollock and the “mechanic” then made Mr Gill drive to the Commonwealth Bank at the corner of Mountain Highway and Station Street. This conduct constitutes Charge 1 on the indictment - false imprisonment.
24When Mr Gill parked the car he was told that they required $250 to cover the battery and $90 for the jumper leads. He then went to the ATM and withdrew $300 from his bank account. When he returned to the car, he gave $250 to Mr Pollock and $90 to the “mechanic” (which included his float of $40). He then drove back to Coolibah Crescent. This conduct gives rise to Charge 2 on the indictment - robbery.
25When Mr Gill arrived at Coolibah Crescent or near to it, Mr Pollock asked him to pull up about two to three hundred metres away from his house. The “mechanic” got out of the car first.
26When Mr Pollock got out, Mr Gill asked for the envelope back that Mr Pollock had written his identification details upon because he did not want him to have his home address. Mr Pollock then ripped the envelope in half and gave back to Mr Gill pieces of envelope that had the original full home address details, telling him that if there were any further costs to fixing the car that Mr Gill would have to pay them.
27After Mr Gill went home that night, the police were contacted.
28On 1 September 2015 at approximately 7.40 am, the police executed a search warrant at 8 and 8A Coolibah Crescent, Bayswater. During the execution of the search warrant, police located an ammunition cartridge that was not secured. That cartridge was then seized. This gave rise to the summary charge of possessing cartridge ammunition without a valid licence.
29You, Mr Fischer, were placed under arrest and conveyed to the Knox police station. At 8.35 am a record of interview was conducted during which you elected to exercise your rights and made a “no comment” response to the allegations put to you.
30You were charged and bailed.
31A committal hearing was held in this matter on 6 April 2016.
32The matter was listed for trial by jury to commence on 28 November this year. On that day a major traffic disruption on the Westgate Bridge resulted in you not arriving at the court until after lunch. Not much by way of pre-trial discussion occurred that day.
33On the next day you indicated that you wanted to withdraw your instructions from both your counsel and your solicitors. Another solicitor and barrister were subsequently found, discussions were held and you indicated an intention to plead guilty on 1 December. You were arraigned that day. I accept that your pleas of guilty involved a reasonable concession on your part and can be taken into account as responsible and having assisted the administration of justice.
34I now turn to your personal circumstances.
35As I noted earlier, you are now aged 37, you were 36 at the time of the offending and you do have a criminal record.
36Your first court appearance was at the age of 19 in the Ringwood Magistrates' Court where you were placed on a community-based order for 12 months for damaging property. Less than one year later you appeared in the Heidelberg Magistrates' Court for unlawful assault, robbery, theft and drug charges as well as again unlawfully damaging property and breaching the community-based order. You received a six-month gaol term with four months suspended for 12 months and you were fined $450.
37On appeal of this sentence to the County Court, you were ordered to serve the six months' imprisonment by way of an intensive correction order. Some six months later, on the breach of that order, you were ordered to serve the unexpired portion of 82 days.
38On your return to the Heidelberg Magistrates' Court a month later on theft and shoplifting charges you were given a one-month prison term to be served concurrently with your other sentence.
39A gap of four years preceded your next court appearance in December 2004 at Ringwood, when you received a 12-month community-based order for unlawful assault.
40Less than three months later you reappeared at the same court, this time on a charge of recklessly causing injury, for which you received yet another 12-month community-based order. The records show that you were in court for the breach of that order in January 2006 and that the order was varied.
41In May 2006 you received an 18-month aggregate prison term for reckless conduct endangering serious injury and driving offences, with a non-parole period of three months. In October of that year, on a charge of extortion with a threat to kill, you received a wholly suspended four-month prison term and for breaching your community-based orders you were put on another one, again for 12 months. You reappeared less than four weeks later for breaching the suspended sentence and were ordered to serve the four months.
42One month later in December 2009, you were given a six-month gaol term for numerous driving offences and failing to answer bail as well as a seven-year driving disqualification and a $750 fine. On appeal of this sentence to the County Court in March of the following year the only thing that changed was that your driving disqualification period was reduced to five years.
43The last prior conviction for the purposes of this sentence was in May 2010 when in the Melbourne Magistrates' Court you received a two-month gaol term for obtaining a financial advantage from a Commonwealth entity.
44You are an only child raised within circumstances of domestic violence where your mother's partner was a violent alcoholic. You never knew your biological father.
45As a teenager you were diagnosed with Scheuermann's disease, a debilitating spinal condition resulting in the early onset of osteoarthritis. You were also diagnosed with obsessive compulsive disorder. You were medicated with tranquilisers and anti-anxiety medication.
46Your mother suffered mental health problems. When you were ten she had a breakdown and you cared for her.
47You were schooled to Year 10 level at Box Hill High School. You were academically a low achiever, though reasonable at manual subjects.
48Since teenage years you have been a polysubstance abuser - mostly alcohol and cannabis in your early teenage years, heroin from about the age of 17 and more recently, methylamphetamine.
49You have led a difficult and troubled life, often on the streets. You have been assaulted on numerous occasions and you have sustained a series of head injuries as a consequence of both assaults and motor vehicle accidents.
50You were married and have two children, now aged 12 and 8. The marriage has broken down. Your children live with your ex-wife in rural Victoria and you have no contact with them.
51A more recent relationship which lasted a little over a year has now ceased.
52Prior to your incarceration on 27 April 2016 you had been on a disability pension as a result of suspected brain injury.
53All of your past offending has been committed whilst under the influence of alcohol and/or drugs. You have little recall of the precise details of those background circumstances and you are currently on a methadone program.
54I note in particular that since 2006 your offending has been limited to driving offences and obtaining welfare benefits on one occasion to which you were not entitled. There have been breaks in your offending. You have been out of trouble from 2000 to 2004, and from 2006 to 2009.
55You were remanded in custody on 27 April 2016 in relation to another matter on charges including attempted robbery and assault. You still remain in custody on those matters.
56On 6 December 2016, you were sentenced at Ringwood Magistrates' Court to 12 months' imprisonment as an aggregate sentence where a minimum term was set at six months. Pre-sentence detention was declared at 224 days making you immediately eligible to apply for release on parole.
57As to the circumstances of the current offending, you claim to have been very drunk on the day of offending and your recollection of the precise sequence of events is accordingly compromised.
58Your jumper leads were damaged and you became angry. You agree that you were loud, obnoxious and overbearing. Your victim was obviously frightened.
59I accept that you played no active role in the trip to the ATM. You received no money from either the victim, Mr Pollock or anybody else. Your role was to join with Elkin and Lawton in demanding that Mr Gill pay for the damaged jumper leads and Mr Pollock's battery. You, with your co-accused, created a frightening situation for the victim and also for Mr Pollock, the hapless and emotionally vulnerable neighbour who was also caught up in this confrontation.
60In mitigation I take into account your counsel's submissions, including:
· your plea of guilty, both for its utilitarian benefit as well as some expression of remorse;
· your early dysfunctional childhood;
· your physical condition with its attendant pain and history of traumatic head injury;
· your long history of alcohol and drug abuse;
· the length of time since the last offending and other periods in recent times where you have managed to keep out of trouble; and
· your continuing close relationship with your mother and the support that this provides.
61As to parity:
- Andrew Lawton was sentenced to a community correction order for six months following a term of imprisonment of three months;
- Saracen Elkin was sentenced to a community correction order for six months.
62Your counsel submitted that your role is more akin to that of Elkin than that of Lawton.
63It is difficult to determine which of the other two co-accused committed which acts. One of them, designated the “skinny” man, was the more aggressive and the other, the “mechanic”, arguably played a marginally lesser role in the original confrontation. The “mechanic” did, however, accompany the victim with Pollock to the ATM and ensured the robbery took place. You were all acting with complicity and the differences are marginal. I note that you are older than Lawton by approximately 9 and a half years and than Elkin by a little over 14 years.
64Your and Lawton's criminal histories are strongly distinguishable from that of Elkin, and Lawton has been more recently engaged in offences, in serious offences including violence and robbery, than have you. Lawton had only just recently completed a prison term when the offending occurred. Your last prison terms were imposed five years prior to the current offending and in the interim you have been placed on a methadone program which appears to be having a moderating effect on your behaviour. I consider that your criminal history can be distinguished from that of Lawton. I also accept that your particular role in the offending was most likely less aggressive than that of Lawton.
65You have been in custody since 27 April 2016 (some seven and a half months) on other matters and are now able to apply for release on parole. If you are not successful in your application for parole, you will be released in late April 2017.
66Balancing as best I can all the circumstances of this case, I have determined that a sentence of imprisonment remains a serious consideration to achieve the purposes for which the sentence is imposed. The issue which has concerned me is whether some time in immediate custody is necessary. In my view the sentences imposed upon each of your co-accused were very merciful. I do accept however that, by comparison with other robberies and unlawful detention, the offending was within the lower range and parity with your co-offenders is an important consideration.
67On the basis of the distinction I have drawn between you and Lawton as to recent offending and role in offending, I consider that a sentence involving more time in actual custody on the charges before me is not warranted and the various purposes of sentencing can be achieved by the imposition of a community correction order. In my view however, the purposes of such an order cannot be achieved by an order of only six months' duration.
68You have been assessed positively for suitability for a community correction order and that is the sentence I intend to impose.
69Mr Fischer, could you please now stand.
70On Charge 1 of false imprisonment and Charge 2 of robbery, you are convicted and ordered to serve a community correction order for a period of 12 months.
71The community correction order commences at the end of any imprisonment term or parole period which you may have to serve and ends 12 months after that date.
72The Corrections Centre you will attend is the Ringwood Community Corrections Service at 2 Bond Street, Ringwood, and you must attend there within two clear working days after the commencement of the order which, as I have noted, is at the end of any imprisonment term or parole period which you may have to serve. Do you understand that?
73OFFENDER: Yes, Your Honour.
74HIS HONOUR: All the mandatory terms of a community correction order apply and the additional conditions I impose are that:
· you be under the supervision of a community corrections officer;
· you perform 100 hours unpaid community work as directed by the regional manager;
· you undergo assessment and treatment (including testing) for alcohol abuse or dependency as directed by the regional manager;
· you undergo assessment and treatment (including testing) for drug abuse or dependency as directed by the regional manager;
· you undergo mental health assessment and treatment including (but not limited to) mental health, psychological, neuropsychological and psychiatric, if necessary in a hospital or residential facility, as directed by the regional manager; and
· you undergo programs or courses aimed at addressing factors relating to your offending as directed by the regional manager.
75You already know what the mandatory terms of the community correction orders are. They would be on your forms; you have had them read to you many times before, I am sure you are familiar with them but it is necessary I repeat them now so it is quite clear that you understand what they are in case circumstances are that you have breached your order.
76The mandatory terms are that;
· you must not commit another offence for which you could be imprisoned during the time that that order is in force;
· you must comply with the requirements of Regulation 17 of the Sentencing Regulations 2011 which essentially set out your obligations to attend at the community corrections centre, that is, such things as not attending drug-affected or alcohol-affected;
· you must report to and receive visits from community corrections officers;
· you must report to the Community Corrections Centre - that is the Ringwood centre - within two clear working days after the order starting, and as I have already indicated, that is at the end of any imprisonment term or parole period that you may have to serve;
· you must notify a community corrections officer of any change of address or employment within two clear working days after the change;
· you must not leave Victoria without first getting permission to do so from a community corrections officer; and
· you must obey all lawful instructions from and directions of community corrections officers - such directions may be given orally or in writing.
77Do you understand and agree with those conditions, Mr Fischer?
78OFFENDER: Yes, Your Honour.
79HIS HONOUR: If you are ill or if there are exceptional circumstances, the order may be suspended for a period of time, and if your circumstances materially alter you may apply for a variation or cancellation of the order. In either case you must notify the Ringwood Community Corrections Centre and I recommend that you obtain legal advice if any of these things happen. The point about that is to maintain communication with the service.
80However I must warn you that if you breach any condition of this order you will be brought back to court and that will be before me. One of the options open for me is to cancel the community correction order and resentence you on the original charges. I may also deal with you for the breach itself, which is an offence which carries a maximum penalty of three months' imprisonment.
81So do you understand the consequences of breaching your community correction order?
82OFFENDER: Yes, Your Honour.
83HIS HONOUR: All right, I will ask you to sign the community correction order shortly and have it passed to you through your counsel.
84On the transferred summary Charge 7 of possessing cartridge ammunition, you are convicted and fined $200.
85At the plea hearing the Crown sought an order to which you have consented for the taking of a forensic sample and I have made that order today for the reasons noted on the order, namely, the seriousness of the circumstances of the offending warrants the making of the order, your prior convictions warrant the making of the order, the order is by consent and the granting of the order is in the public interest.
86I must inform you that if at the time of the request you do not consent to the taking of a mouth scraping under the supervision of an authorised member of the police force, then the sample to be taken will be a blood sample and police may use reasonable force to enable that procedure to be conducted. Do you understand that?
87OFFENDER: Yes, Your Honour.
88HIS HONOUR: The Crown also sought forfeiture and disposal orders to which you consented and I have also made those orders today. If there are no other matters from either counsel, I have the community correction order to pass to Mr Fischer. Is there anything that you wanted to raise?
89MS FOOT: Just the 6AAA declaration, Your Honour.
90HIS HONOUR: He hasn't been sentenced to a sentence of imprisonment so it's not required.
91MS FOOT: Thank you, Your Honour.
92(Community corrections order signed and acknowledged.)
93HIS HONOUR: Thanks. All right, Mr Fischer, a lot of people regard this as a very lenient sentence. The reason it is what it is is for the reasons that I have just set out in the sentence. The parity issue was a big matter because of what occurred in the Magistrates' Court with your co-accused. I have accepted that the nature of the false imprisonment, the robbery, is at the lower end. But you have been given a lot of opportunities through corrections orders in the past and you have breached quite a few of them. You are getting on a bit now; how old are you now?
94OFFENDER: Thirty-seven.
95HIS HONOUR: Thirty-seven. There has been a significant break in your offending until you got into trouble for that sentence you are now in. I believe you are on a methadone program and I think you told me last time that you have reduced it from - quite a significant amount. What's it from?
96OFFENDER: Originally 110 down to 35.
97HIS HONOUR: Are you still on it now?
98OFFENDER: 35 mls, yes.
99HIS HONOUR: Are you coping all right on that?
100OFFENDER: I'm okay.
101HIS HONOUR: All right. Well hopefully that's the means of addressing your issues it seems to me, so you've got to stick with that. I've given you the 12 months because I think it's appropriate to the offences and also you're going to benefit more from that than having something for six months that will go too fast and you won't get the benefits that you're entitled to, nor would you have the opportunity for rehabilitation that you otherwise get. But in light of the past, if you breach that and you come back before me, there's not a lot of hope that you're not going to get resentenced and to a significant term of imprisonment.
102It's not an idle threat; I'm just letting you know, you've got to understand that in terms of your history.
103The reason I've given it to you, I believe you can carry it out. So if you apply yourself, you will get through this and it's not unheard of for people with your sort of background to get in on a program like you have got onto, and committing themselves to these things can start to move themselves away from the sort of record that they've had in their younger years. So it's to your advantage to do that.
104OFFENDER: Yes, Your Honour, yeah.
105HIS HONOUR: All right? So you've got a chance.
106OFFENDER: Thank you.
107HIS HONOUR: All right. Unless there's anything else, I've signed the order and that winds it up. All right, thanks.
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