Director of Public Prosecutions v Fisher
[2021] VCC 1653
•8 October 2021
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 21-01568
CR-21-01569
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| HAYLEY FISHER & ANOR |
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JUDGE: | HIS HONOUR JUDGE GUCCIARDO |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 22 September 2021 |
DATE OF SENTENCE: | 8 October 2021 |
CASE MAY BE CITED AS: | DPP v Fisher & Anor |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1653 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW - Sentence upon plea of Guilty
Catchwords: Aggravated burglary, False imprisonment, Causing Injury Intentionally-
Sexual Assault- Parity -Totality- borderline Personality disorder- PTSD -
Prior criminal history-
Legislation Cited: Sentencing Act 1991, Sch. 1, Part 2A.
Cases Cited:
Sentence: Total effective sentence of 5 years and 3 months imprisonment with
a non-parole period of 3 years and 3 months – Total effective sentence of
4 years and 9 months imprisonment with a non-parole period of 3 years.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms A. Dickens | Mr N. McGregor |
For the Accused Fisher | S. Wendlandt | Mr P. Lunt |
For the Accused Maloney | Mr K. McLaughlin | Ms R. Fathers |
HIS HONOUR:
1This morning I was informed or there is a clarification in relation to the prosecution opening which I have taken into account, in relation to a matter pertaining to paragraph 44 of the opening dated 21 August of this year, and I have made the appropriate correction in relation to that matter. It does not really make any difference to my sentence but I will note that. That is the opening that I am relying on in relation to this matter.
2Hayley Fisher and Melissa Maloney, each of you pleaded guilty on a joint indictment to the same four charges being; aggravated burglary, false imprisonment, causing injury intentionally and theft. In addition you, Melissa Maloney, pleaded guilty to two charges of sexual assault. Circumstances of your offending were detailed in the prosecution opening, which was exhibited upon your plea, the last version of which is dated 21 August 2021, and that is the document which I am relying on in relation to this sentence.
3I will summarise these briefly for purposes of this sentence. Hayley Fisher, in September 2020, you lived in an apartment in Box Hill. On the 23rd of that month a number of people were present there, including you Melissa Maloney. At about 10.15 in the night, you both left the apartment with an unidentified female in the lift at the apartment block. You all returned some 15 minutes later and got the lift to Level 3 where you lived.
4However, once you reached that level, instead of returning to your apartment, you went to another apartment where the victim lived. Her name was Cathy BERBERIAN.[1] BERBERIAN was known to you, Hayley Fisher. Some four days earlier you had sold her some speed. At the time she paid you what she thought was the full sum by way of a transfer but due to insufficient funds only some of the money was transferred. Over the days following the sale, you had asked her for the remainder and she was unable to pay it. The remainder did not amount to much. On one version it was between 10 and 50 dollars.
[1] A pseudonym.
5When you got to her apartment you, Fisher, knocked on the door. You, Maloney and the third person who was with you were trying to conceal your presence at that time. You, Melissa Maloney, were known to her as an associate of Fisher. Once she opened the door you, Hayley Fisher, grabbed her by the throat, pushed her back into the apartment strangling her. The third offender was following you. BERBERIAN had not given you any permission to enter. She was punched to the body and you, Maloney, headbutted her twice.
6BERBERIAN was screaming in a terrified voice which caused her to be heard by neighbours. Her two dogs were barking loudly in alarm. BERBERIAN had a housemate who resided with her and this woman, Ms Robertson[2], came out of her bedroom and saw all three of you. BERBERIAN screamed at her for help. Robertson saw you holding BERBERIAN by her hair and shoulders restraining her.
[2] A pseudonym.
7She was then thrown onto the bed in her bedroom. The unidentified offender approached her with a knife which you, Melissa Maloney, had obtained from the kitchen and said to BERBERIAN; 'I'll fucking kill you', while holding the knife to her throat. All of you continued headbutting and punching BERBERIAN to her head. You, Fisher, demanded money and gold, calling her a dog. She replied that she may have had $50 in her car.
8At that point you, Hayley Fisher, punched her to her left eye, causing a deep laceration whilst another person punched her to her jaw. She was bleeding from her head and nose which was dislocated as a result of the sustained violence. She was fearful for her life.
9You, Hayley Fisher, then went to BERBERIAN's car with Robertson to get the money, having forcefully taken BERBERIAN's car and house keys from her, which she did not wish to relinquish to you. You took the lift down to the basement garage, where her car was parked and found a $50 note in the centre console. You told Robertson you needed $180. Robertson noted you to be affected by drugs, looking as though you were about to fall asleep while searching the car.
10Two police officers came to the apartment block at that time in response to the neighbours' complaint having been made with police but somehow determined that their intervention was not required, not having met anyone or heard anything untoward. Unfortunately, they then left.
11Having taken the money and an umbrella from BERBERIAN's vehicle, you, Fisher, then returned to her apartment with Robertson. When you entered you yelled at her again and snapped the umbrella in two while continuing to demand more property. Together with the third woman you ransacked BERBERIAN's apartment looking for valuables. You put a number of items in a basket; a phone, a bag, a scarf, other items of clothing, BERBERIAN's passport and a new vacuum cleaner.
12BERBERIAN tried to escape and ran to the front door but just outside the front door you, Melissa Maloney, ran her down and grabbed her by the hair. You lost grip of her hair and grabbed her by her clothing, wrestling with her and dragging her back inside the apartment. This is shown in the CCTV footage from the apartment complex.
13A short time later, BERBERIAN, now terrified for her life again tried to escape and once again you, Maloney, stopped her by headbutting her and kicking her until she was backed down onto the couch. By this stage, BERBERIAN was in a true panic about her situation. She ran over to her balcony and put one of her legs over the railing in an attempt to jump from the third floor down.
14You, Maloney, once again grabbed her and pulled her back in. You were very angry at her attempt to escape and Fisher asked you to check her bra. BERBERIAN told you she did not have one on. You, Maloney, groped her breasts with your hands. You removed her jumper, pulling it over her head and then told her to pull her pants down. BERBERIAN complied and pulled her own jeans down. You grabbed them and pushed them further down. You then checked her underwear and grabbed her vagina with a hand. This was brief touching. You did this by reaching inside her underwear while it was on.
15BERBERIAN was so scared she pulled them down to show she was not hiding anything. While this happened you, Hayley Fisher, were present, as was the other female co-offender. You, Maloney, told the other offenders that because BERBERIAN had tried to escape, 'We need to dump her'. You, Fisher, disagreed and told BERBERIAN that she needed to swear she was not going to tell the police. You showed her her passport and said you would use it because you were really good at fraud, then grabbed her by her hair telling her, 'I really like your hair like that'. You spat on her forehead and rubbed it into her hair and head.
16At about 12.24 am, the third female took a basket of property to your apartment, Hayley Fisher, quickly followed by the two of you. You, Maloney, you were wearing BERBERIAN's jumper and scarf and carrying the bag, a gift she had received from her mother.
17A few minutes later you all left with a number of others from your apartment, Ms Fisher. After her complaint to a friend who lived in the same apartment block, police again attended at about 3.30 am. The two of you then returned about 4 am and left again about half an hour later.
18BERBERIAN was taken to hospital. During the process of giving a statement to police she became unconscious and during her admission she was drifting in and out of consciousness. Two days later, police executed a search warrant at your apartment Ms Fisher. Drugs were found, including heroin and GHB. The same day you, Ms Maloney, were arrested in the foyer of the apartment block.
19Messages from you, Hayley Fisher, to you, Melissa Maloney, found on your communication device, Ms Maloney, read; 'Don't worry, babe, I'm going to hand myself in today after I go smash her again. We've done nothing wrong, we just tried to help her'. You, Maloney, made some admission when interviewed by police and you were remanded.
20On 2 October, you, Hayley Fisher, you were arrested in Surrey Hills after trying to evade police. You made a no comment interview and you were remanded. A victim impact statement was received by the court from Cathy BERBERIAN. She writes that she thought she was going to die and that the fear she experienced was indescribable. The attack upon her was frenzied and very violent. At one point she felt her only way out was to jump over the balcony.
21She had been previously diagnosed with cardiomyopathy in 2020 and was having time off work. She was not a regular drug user but a recreational user to alleviate her depression. She writes that she owed you $50 out of the $100 she owed to Hayley Fisher. She felt not only frightened but violated. Her assault which included sexual touching may have been motivated by a search for money or valuables but was in any event degrading and humiliating to her. She had to endure that indignity while begging for her life.
22Post assault, hypervigilance is triggered by noises, smells, sights of blood and this has made her even more fearful. After being released from hospital, which was after over two weeks, she had to go into safe accommodation. I take this impact upon her, of which she writes, into account.
23Aggravated burglary carries a maximum penalty of imprisonment of 25 years. Each of the other offences except the bail offence carry 10 years maximum penalties. Penalty for aggravated burglary reflects the gravity of this offence in the eyes of the law. It is a particularly serious offence which causes fear and consternation for members of the community because it offends against a fundamental rights of citizens to be safe and secure in their own home. A fundamental right in a civilised society.
24In this case, not only did the two of you and your accomplice enter another person's home with intent to steal but then proceeded to actually steal, falsely imprison and cause physical injury to the victim. You, Melissa Maloney, for the purposes of accomplishing your criminal intent even resorting to sexually assaulting the victim in order to find some valuable or other.
25This took place at night and at some point a weapon was used to threaten the victim. After the money was found in the car and you had secured property to steal and placed it in a basket giving you an opportunity to desist and leave the victim, she was again assaulted and groped by each of you, after which you left the victim without a thought. I see no basis to differentiate between the two of you in terms of culpability, except for the extra charges faced by one of you as I have made clear.
26This criminal conduct may have been related primarily to a small debt owed to you, Ms Fisher, but it then developed into something well beyond that supposed pretext. It was said that you, Maloney, were present to provide muscle to the demands. I see no reason why that, if it was in fact the case, either diminished your culpability or makes you, Ms Fisher, any less culpable for what Melissa Maloney did to the victim. You were acting together for a common purpose and the culpability for this conduct is equally shared in every sense.
27I take your plea into account. In your case, Melissa Maloney, the matter resolved in a prompt manner and at a time of committal in May 2021 after two committal mentions. This is relatively early in proceedings.
28In your case, Hayley Fisher, you made application for bail and applied for summary jurisdiction, both of which were refused before your plea. However, that too was relatively early. Your plea has a utilitarian value, that is it has value because it has avoided a criminal trial and the victim and other witnesses have been spared that ordeal.
29Your plea was made at a time when the criminal justice system and the community has been impacted upon by the pandemic, and so by taking responsibility and bringing finality to these matters you have facilitated that process. The plea is also clearly made in expectation of a sentence of imprisonment at a time when the pandemic has rendered imprisonment more burdensome, so that its value must carry some clear acknowledgment by a reduction of sentence because of that fact.
30The pandemic has also imposed in the prison environment various lockdowns, quarantine periods, the unavailability of in person visits, the reduction and availability of movement and services within the prison, a limitation on educational and vocational programs, other rehabilitative programs and generally rendered the possibility of infection and illness much more real, causing understandable concern within the closed environment of a prison, as we have recently noted in New South Wales correctional facilities and in Victorian prisons .
31I take these matters into account. In relation to both your pleas, they will act to reduce your sentence. I accept that they are some evidence of remorse of themselves, and that you have expressed remorse and regret upon reflection for your offending. I take your individual circumstances into account.
32Melissa Maloney, you are 35 years old. You are an only child and did not meet your biological father until you were 16. You have not had contact for over 10 years. Your step-father committed suicide four years ago and you have scant contact with your step-siblings. Your mother died in 1994 when you were eight years of age and you were moved from home to home until the age of 15, when you became the subject of a guardianship order.
33You never married but have two sons aged 14 and six years from two different partners. The children are in the care of the mother of one of these men. The past three or so years you were in a relationship with a man who was also present in Hayley Fisher's apartment on the night in question but he did not participate in the offending conduct.
34Your early homelife was extremely disrupted, moving through a number of primary schools and secondary schools. You left school partway through Year 11. Once your step-father assumed care of the children after your mother's death, you re-partnered and family ties were severed. There were at one point 11 children in the home and there was a pervading feeling of abandonment and bullying on your part.
35At aged 15 you were moved to a maternal uncle's home who was a heroin addict. DHHS, as it then was, became involved and you were taken into care residing in as many as nine residential units. By that time, on your own reporting, you were running amok and using alcohol and drugs, engaging in a range of anti-social conduct. You have little or no work history. You have a longstanding polysubstance abuse problem.
36You began smoking cannabis at 14 but you have abstained from it more recently. At aged 18 you used speed daily before taking up heroin and your son was taken from you because of your drug use and your use, although not constant, continued. After release from a prison term you used ice, GHB, ecstasy and ketamine. You are currently on methadone and on an anti-depressant.
37You began drinking alcohol aged 13 and have substituted one substance for another often. A clinical psychologist Carla Lechner completed a report for the court dated August 2021. She described your childhood as characterised by complex development trauma. You currently present with symptoms of stimulant and opioid use disorder in early remission, in the controlled environment that you have now been in for about a year and managed with a replacement program, a major depressive disorder and complex post traumatic stress disorder, featuring chronic low self esteem, poor emotional and behavioural regulation.
38You described your offending as helping Fisher to pick up money and expressed some regret and remorse. You said you were significantly drug affected by a cocktail of GHB, heroin and ice. Ms Lechner conducted an assessment. She found you to be easily overwhelmed by social and emotional factors that undermine your judgment. Your social connections are generally not in your best interests. She wrote that you are ashamed of your actions and expressed appropriate victim empathy. Whilst in custody you have focused on your rehabilitation with some strong motivation to change which will involve therapeutic engagement that you have avoided all of your adult life.
39I take this expert opinion into account. You have a very long history of criminal offending beginning in 2003 when you were 17 with dishonesty offences, including robbery and assault. Aged 18 you were again in court for burglary and theft, a second community-based order was imposed. Similar offending in breaches of community-based dispositions followed almost every year.
40In 2006 you were convicted of assault in company and other offences. In 2008 you were convicted of recklessly cause injury and dishonesty offences and having breached a suspended sentence order in 2010, you were imprisoned.
41In the following years you have numerous convictions for driving, dishonesty, drug related offences and in 2014 aged 28 you received another prison term for such offending, right up to 2017 with numerous court appearances and breaches of community orders and short prison terms. It seems that with this offending you have stepped into a higher realm of offending and at your age surely the reality is finally dawning upon you that either you decide to reform and rehabilitate or you continue to waste the best years of your life on drug use, bad company, bad behaviour and institutionalisation instead of a happy, healthy and peaceful life.
42In my view, your prospects for rehabilitation are guarded but not extinguished. Whilst in prison you obtained a white card and traffic management certificate. You said that you are keen to complete a horticulture course and you are interested in gardening. That may be a way to be productive and engage in your own rehabilitation. It is really a matter that is in your hands, Melissa Maloney.
43The sentence must take into account the primary principles of general deterrence and specific deterrence in your case, although Verdins principles it was conceded are not enlivened in your case, I accept your poor and generally dysfunctional background reduces your moral culpability which functions to moderate the application of these principles to an extent.
44Just punishment is to be imposed in retribution for this wantonly criminal behaviour and the damage done to the victim. Protection of the community is paramount in relation to any sentence for this type of offence and the court needs to denounce this conduct for that purpose and to discourage and deter others from such behaviour.
45Your rehabilitation remains relevant and hopefully your parole period post release will focus on the programs which can assist your reclamation. I accept that someone who is suffering from a major depressive disorder and complex post traumatic stress disorder will probably experience incarceration as a process more significantly burdensome by these conditions, than someone who does not have them.
46I have taken these conditions into account. So far you have spent 378 days, on my reckoning, by way of pre-sentence detention. I will declare those days as having been served towards your sentence and I will note that number in the Court's records.
47Hayley Fisher, you are 28 years old. I take your personal circumstances and background into consideration. Your counsel put during your plea that your background was marked by dysfunctional upbringing, that you were traumatised by physical, sexual and emotional abuse and neglect during your childhood and adolescence leading to a post traumatic stress disorder and a history of heroin abuse.
48David Ball, a very experienced forensic psychologist provided the court with a report dated July 2021. He wrote, based on your reporting, of your history and then conducted a psychometric assessment. I note that Mr Ball wrote that in writing his report he relied on your self-report and so , 'The possibility of exaggeration and confabulation and minimalisation could not be immediately ignored'. Also given that when being administered the Millon Clinical Multiaxial Inventory, you returned an invalid profile by your answers, causing him to discount this psychometric tool for his assessment.
49You told Mr Ball that you were not currently taking medication but until recently you were taking methadone, Risperidone and Lamotrigine. You are the youngest of three siblings in what you described is a grossly dysfunctional family, marked by substance abuse, criminality and violence. Both of your parents used heroine. You were physically abused by your brother and mother. At 15 you became pregnant, after your family moved from Adelaide leaving you at aged 14 to fend yourself. You came to Melbourne and reconnected with your mother who was ill.
50When you were 18 your parents separated. Mr Ball noted the reference in medical records of a diagnosis of complex post traumatic stress disorder, connected to childhood abuse and a history of bartering sex for food and accommodation. Your schooling was severely disrupted. You were often suspended or expelled. You completed Year 7 but have completed two certificates in IT and first aid. You have a scant employment history. Most of your relationships have been marked by violence with one partner at least being imprisoned for violence upon you.
51Before your imprisonment you had been with your current partner since 2018 in a non-abusive relationship. You have an 11-year-old daughter who is in the care of the child's paternal aunt. You hope to be able to be a presence in your child's life and future.
52You have a substantial drug and alcohol history. At age 14 you were drinking a bottle of spirits every day but have been abstinent since your pregnancy. You have smoked cannabis since age 11, adding heroin, methylamphetamine and GBH in your early 20s. You had taken a cocktail of drugs before this offending and have only vague recollections. You expressed regret and remorse to Mr Ball for your behaviour. Mr Ball noted past suicidal ideation and intents supported by medical records.
53His mental health examination found no evidence of psychosis and that your IQ falls within the (indistinct 11.35.32) normal range. As to your personality functioning, Mr Ball expressed the opinion that you suffer from a raft of dependent and borderline personality features, unmanaged mental health issues, struggling with anger with limited coping skills and high impulsivity. You tend to avoid and mismanage tension with unconstrained:
Offensive thoughts and malevolent behaviours, with a limited capacity to effectively solve problems and to act with good judgment leading to inadequacy and insecurity, passive and submissive dependent relationships which are exploitative and abusive.
54You met the criteria of severe borderline personality disorder and for post traumatic stress disorder, as well as severe stimulant and opiate use disorder and early remission while in reclusion. It appears that impulsivity, paranoid ideation and effective instability and impaired clear thinking. In my view, drug abuse and association with negative peers have underpinned your conduct on this occasion.
55While your symptoms of your personality disorder are severe, the drug taking lies as the foundation of your offending. While your underlying mental health and dysfunctional and disadvantaged background tend towards a reduction of your moral culpability, this is moderate and does not significantly displace the need for general deterrence, just punishment and denunciation to be reflected in the sentence.
56You too have a number of relevant priors which begin in 2014 when aged 21 with a series of driving and dishonesty offences. In 2015, further dishonesty drug offences resulted in community-based dispositions, which were inevitably breached. In 2017 you were convicted for possession of a weapon and drug offence as well as recklessly endangering life, as well as bail and driving, burglary and assault for which you were gaoled. Later in 2017 the longer period was imposed for breaches of a community corrections order imposed for again the same class of offences.
57These priors are relevant to engage specific deterrence and to assess your prospects of rehabilitation, which at the moment are guarded. I mention these priors in your case and in Ms Maloney's case, not because you are to be punished again for them but because they are relevant in relation to specific deterrence and prospects of rehabilitation.
58You, Ms Fisher, may have the capacity to rebuild your life but this will require extensive intensive and a structured treatment of your psychological functioning. While in custody you have completed certificate study in OH&S, textiles and construction and a seven week program on mental health, as well as a six hour program on the effects of ice. You have sought counselling assistance with a psychologist and you are hoping to study IT when that is available to you and those efforts are to your credit.
59Your parents, although separated, are apparently supportive of you. They have been facilitating video calls to your daughter through the family engagement sentences. However, so far you have been unsuccessful in accessing residential rehabilitation.
60I received a letter dated January 2021 from Amanda Brown at Lamberti Associates who interviewed you in January of this year and conducted an alcohol and other drug assessment, with a view to a bail application which however was not successful. A further letter was received from Dr Victoria Jackson who is a forensic psychiatrist and who has treated you at the Dame Phyllis Frost Centre since November 2020.
61A letter dated 14 December 2020 was her last review of you and she writes of your complex post traumatic stress disorder, your self-medication by drugs, of your mental health issues which have arisen from your early life trauma. You record abstinence and Ms Jackson recommends psychological and psychiatric treatment to address these issues post release, to assist you in your rehabilitation and recovery. I was told you would return to your mother's house upon release.
62In this sentence two principles come into operation. The first is totality and I have turned my mind to this issue in order to achieve an appropriate and proportionate sentence which is not crushing and which properly reflects the criminality in question. In my view, the charges that proceed inside the apartment after the illegal entry should carry a portion of cumulation to reflect the actual commission of distinct criminal offences.
63In this sense, a total effective sentence is to be reached with a non-parole period which will act as a reasonable point at which you will both be able to access the potential of parole.
64In sentencing each of you I have given anxious consideration, not only to issues of totality but also of parity. Parity takes into account the role each of you played in the offending which I have stated before appears to me to be on a par with each other, but also your personal circumstances.
65The extra assaults perpetrated by you, Melissa Maloney, are one basis in which this individual offending adds to your criminality. Also, your priors are more substantial than yours Hayley Fisher. In my view these factors allow for some different outcomes in view of these relevant differences. Co-offenders are seldom identically placed in every respect and this is a qualitative judgment in your case as to matters which do not carry a fixed weight.
66Melissa Maloney and Hayley Fisher, in relation to your common charges on aggravated burglary, you are convicted and sentenced to four years' imprisonment. On false imprisonment you are convicted and sentenced to two years' imprisonment. On intentionally cause injury, you are convicted and sentenced to two years' imprisonment and on theft you are convicted and sentenced to nine months' imprisonment.
67You, Melissa Maloney, on the sexual assault charges 5 and 6 are convicted and sentenced to two years on each of those and each of you on committing an indictable offence on bail are convicted and sentenced to one month concurrent.
68Melissa Maloney, I order that in relation to your sentence four months on Charge 2, four months on Charge 3, one month on Charge 4 and three months on each of Charges 5 and 6 be cumulative on Charge 1, making a total effective sentence of five years and three months. I order a non-parole period of three years and three months. I declare that you have served 378 days on pre‑sentence detention.
69In sentencing you for Charges 5 and 6 I sentence you, Melissa Maloney, as a serious sexual offender. Sexual assault being for an offence to which Schedule 1 of the Sentencing Act applies and I have regard to the provisions of part 2A of the Act. I will enter this status in the court's record in respect of these offences. But for your plea, I would have sentenced you to six and a half years' imprisonment with four years and three months non-parole period.
70Hayley Fisher, I order that in relation to your sentence four months on Charge 2, four months on Charge 3 and one month on Charge 4 be cumulative on Charge 1, making a total effective sentence of four years and nine months. I order a non-parole period of three years. I declare that you have served 371 days, excluding today, by way of pre-sentence detention and I will have that number noted in the records of the court. But for your plea I would have sentenced you to six years' imprisonment with a four year non-parole period.
71Is the sentence clear in its effect, Ms Dickens and Mr McLaughlin and Mr Lunt?
72MS DICKENS: Yes, Your Honour.
73MR McLAUGHLIN: Yes, Your Honour.
74HIS HONOUR: Thank you. I'll adjourn sine die. Thank you for your availability. If any of you wish to avail yourselves of the link to either Ms Fisher or Ms Maloney, I'm content for you to do so in the minutes that remain.
75MS DICKENS: As Your Honour pleases.
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