Director of Public Prosecutions v Fisher

[2021] VCC 817

IN THE COUNTY COURT OF VICTORIA Revised
(Not) Restricted
Suitable for publication

AT MELBOURNE

CRIMINAL DIVISION

CR-19-00321

DIRECTOR OF PUBLIC PROSECUTIONS

v

GLENN FISHER

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	17 June 2021
CASE MAY BE CITED AS:	DPP v Fisher
MEDIUM NEUTRAL CITATION:	[2021] VCC 817

REASONS FOR SENTENCE

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Catchwords:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms M. Enright
For the Accused	Ms I. Skaburskis

HER HONOUR:

1Glenn Fisher, you have pleaded guilty before me to one charge of affray and one charge of common law assault.  The facts underlying your offending are as follows.

2It arose in the context of a dispute between you and another couple with whom you were residing with your then partner.  The other couple were Dillon Bontoft and his partner Michelle Cohen.  They were living at an address in Odessa Avenue, Keilor Downs with their three children aged eight, one and 10 days old.  Your partner's name was Rhianna Ploughman.  She was friends with the other couple.  In fact, you sounded as if you were very close, and you were in fact godfather to their eldest child.  You went to live with this couple in late April 2018 as you had nowhere else to live.  You were only going to stay for a couple of nights but you ended up living there for a couple of months, during which time Ms Ploughman began paying Ms Cohen $100 a week for board and your share of the bills. 

3In late May 2018, Ms Cohen borrow $100 from Ms Ploughman, saying that she would pay her back out of the tax refund she was expecting.  In mid-July 2018, at which stage you had been living at the Odessa Avenue address for 77 days, you and Ms Ploughman suddenly moved out after an argument arose between the couples, at which time there was no mention of the $100 which was still owing.  You had given Ms Cohen your telephone number, which she had in her phone under the name 'Glenn' and you and Ms Ploughman began communicating with the other couple about collecting your property and the return of the $100 owed.  There were a number of text messages between the two sets of couple between 10 July and 5 August 2018.  A number of them were repeated in the prosecution opening which is annexed as an exhibit to the sentencing remarks.  They became more angry as time went on, for example, on 3 August there was a text to Ms Cohen's phone from your phone, 'So where's the money you said you would pay back?  I had enough of these lies and your bullshit.'  On the same day again, 'Don't try to justify your bullshit, pay what you fucken borrow,' and so forth. 

4On 5 August just after 9 am, you and the co-accused in this matter Mark McDonald, went to Odessa Place in a car which an unknown female was driving.  On arrival and while parked in the street, you contacted Ms Cohen five times in the next two minutes.  Those calls were not answered by Ms Cohen.  A couple of minutes later, you and McDonald went to the front door which you knocked, along with windows, yelling, 'Pay up.'  At this stage, Ms Cohen, Mr Bontoft and their three children were present in the house.  They had been asleep but Ms Cohen woke Mr Bontoft and told him what was happening.  In the meantime, you and Mr McDonald climbed the side fence into the rear yard. 

5

Mr Bontoft went to the kitchen and grabbed a broken wooden chair leg, went out into the back yard to scare you out.  He saw the two of you walking toward the back fence and yelled at the two of you, 'What are youse doing in the back yard?'  The two of you then turned back towards Mr Bontoft who, apparently, you believe was going to attack you and advanced on him and he started swinging the chair leg, striking the two of you in the head.  Even though he had struck you, the two of you kept advancing on him, stopping him from swinging the chair leg again. 

Mr Bontoft tried to throw punches but the two of you overpowered him by punching, grabbing and forcing him backwards into the house through the laundry door. 

6In the laundry, the two of you continued to punch Mr Bontoft in the head and body and you managed to grab the chair leg from him and you struck him on the head with it.  At some stage, a knife which was about three to four inches long was produced, at which stage Ms Cohen entered the laundry and began struggling with McDonald over the knife.  He pushed Ms Cohen, forcing her backwards into the hallway up against the bathroom door, then forced the knife towards her throat, telling her to let go of that knife.  Ms Cohen then saw her son Cooper in the hallway.  He went to punch Mr McDonald so Ms Cohen let go of the knife and pushed him back and told him to go next door and get the neighbours to ring police, which Cooper did. 

7While Mr McDonald and Ms Cohen were outside the laundry in the hallway, you were still wrestling with Mr Bontoft, but on the arrival of Cooper and after Ms Cohen let go of the knife, Mr McDonald left Mc Cohen in the doorway and returned to the laundry, shutting the door behind him.  By this stage Mr Bontoft had wrestled you up against the wall and when Mr McDonald came back in he re-joined the struggle, at which stage Mr Bontoft dropped and was sitting on a stool, at which stage the demands for money were made.  Mr Bontoft yelled back, 'We haven't got any fucken money.'  The two of you then left the laundry and jumped over the side fence back into Odessa Avenue and walked to the green car and drove away. 

8Police and ambulance attended soon after and Mr Bontoft was taken to the Sunshine Hospital where he was treated for a number of injuries, receiving three stitches to his right hand and four staples to his scalp. 

9

Ms Cohen received a call later that day from an unknown number from

Mr McDonald who was pretending to be a friend of Mr Bontoft's to find out what had happened.  McDonald then rang back, saying she had that night to pay or the kids were next. 

10On 9 August 2018, you were arrested by police and then interviewed at the Sunshine Police Station and you showed the investigators a minor laceration to the rear of your right hand, saying you had a lump on the back of your head.  You confirmed that you and Plowman had previously lived at Odessa Avenue.  You admitted attending the premises.  You said that Bontoft told you to jump the side fence before approaching you with a knife and a chair leg.  You said you had disarmed Bontoft and placed him in a headlock before dragging him into the laundry at which time you were unaware where McDonald was. 

11The maximum penalty for affray and common law assault are each five years' imprisonment.  There are no victim impact statements.  Plea negotiations commenced in November 2020 and settled on 3 December 2020.  A committal was held in these proceedings. 

12I now turn to your personal circumstances.  You are now 36 years of age.  You were born Perth.  You grew up in Eltham.  You are the youngest of five boys born to your parents.  Your father managed a Mitre 10 shop and your mother worked in aged care before her retirement.  You completed year 10.  You commenced an apprenticeship in mechanics and then you worked as a mechanic at Doncaster Holding for 14 years between 2003 and 2017 and then briefly worked at Sun Tyre in Sunbury in 2017.  Between 2018 and 2020 you were homeless.  You were in a relationship with your girlfriend Rhianna Ploughman and you were living in motels, stayed at people's houses and living in caravan parks.  The two of you are no longer together.  The difficulties arose essentially because of an alcohol addiction which has been ongoing for many years.  You have used methamphetamine in the past. 

13You have very little in the way of prior convictions.  You were found guilty of criminal damage in 2007 and that incident related to you and your brother breaking a window on the way home from the pub.  You were placed on a non-conviction disposition.  Since this incident, you have been dealt with for drink driving and theft of alcohol, both related to your alcohol difficulties.  In relation to the circumstances of this offending, I was informed by your counsel that there had been discussions between you and Ms Cohen and Mr Bontoft about you coming to their property to retrieve your own property that had been left behind.  In fact, you were told that if you did not come and get it, they were going to put it out on the pavement or that it would be thrown out. 

14

There had also been some apprehension by you that Mr Bontoft was going to be violent when you attended the house.  There were messages sent by Mr Bontoft saying that, in relation to the money owing, that he might assault you when you attended.  For example, saying, 'As you want my fists when you come, knock on my door, I won't hold back.  Final warning, you pissed me off now.  Now I'll smash you if I see you.  What you don't understand, you're not getting anything but smashed goose.'  You have not threatened violence in any of the text messages that you sent and I agree, as was submitted on your behalf, that you are of a slight build and that you had no intention of committing violence when you attended the premises.  You had met Mr McDonald, apparently, the evening before and he offered to come with you and essentially you took him with you as protection.  You met Mr McDonald at a pub where you were discussing your situation and

Mr McDonald volunteered to attend and, as I have said, you accepted that offer because of your fear of violence Mr Bontoft when you attended. 

15It is clear on the summary, and given the charges faced by Mr McDonald which were more extensive than your own, that much of what Mr McDonald did, particularly in relation to Ms Cohen, was done without your knowledge or your consent.  You were not aware, for example, that Mr McDonald was carrying a knife when you went into the property and it was clear from the witness statement that it was Mr McDonald who was yielding the knife.  You did strike Mr Bontoft one time with the chair leg and you did then retreat. 

16Your situation now is, as I have said, you have separated from Mr Plowman, you are back at home living with your parents.  You have obtained full-time work making bricks and I was informed by your counsel that you are no longer using methamphetamine and, indeed, it appears that that has not been an issue for you.  Given your prior convictions which, as I have said, are extremely limited, given the particular set of circumstances surrounding this offending, the fact that you very unwisely decided to take Mr McDonald, a man with a much more extensive prior criminal history than you, along as protection, I accept that you had a more limited role.  Given that you have pleaded guilty, and I accept that this is a genuine plea, I also accept that this sort of offending is out of character for you and it was very much situational. 

17I accept that you were in a very low period of your life, that you had previously been a man who was employed, had stayed out of trouble and was managing is alcohol addiction to the point where you were not engaging in any criminal behaviour, I am satisfied that it is not necessary that I proceed to deal with you by way of a custodial disposition.  I have had you assessed for a Community Corrections Order.  You have been found appropriate to be placed on this order and it is noted that, on assessment, you are a low risk of re-offending.  Therefore, in all the circumstances, I propose placing you on a Community Corrections Order in relation to both charges as an aggregate disposition, the two charges having arisen from the same incident. 

18Before I can place you on a community corrections order, Mr Fisher, I do have to obtain your consent.  Would you mind standing up please, sir, while I explain the conditions to you.  They are that:

·     You must report to the Community Corrections Order within two days of the making of this order, that is, by Monday of this week.

·     

Whilst on the order you must not commit another offence punishable by imprisonment.  I am going to place you on an Order for a period of

12 months.  In the next 12 months, if you do commit another offence, you do not have to be gaoled for it, you just have to commit an offence for which you could be gaoled.  If you do, you will be brought back in front of me on a breach of the Order and I will re-sentence you on the original offending.

·     You must report any change of address or employment to the Office of Corrections within 48 hours of the making of that change.

·     You may not leave Victoria whilst you are on this order without the permission of the Corrections Office.

·     You must not attend upon the Community Corrections Office under the influence of drugs or alcohol. 

·     You must report to and receive visits from the Community Corrections Office.

·     You must obey all lawful directions of the Community Corrections Office.

19I am going to order that you undertake 100 hours of unpaid community work and I am going to order that you attend for assessment and treatment for alcohol abuse.  Do you consent being placed on this order?

20OFFENDER:  Yes.

21Thank you very much.  As I said, the order will last for a 12-month period. 

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HER HONOUR:  Thank you, we'll just prepare the documentation.  Thank you, have a seat.  Yes.

MS SKABURSKIS:  Your Honour, at the plea a submission was made for Your Honour to turn your mind towards whether or not to impose a conviction in the circumstances.

HER HONOUR:  Yes, that's right.  Look, in my view, this has been a particular set

of - counsel, I don't know - you weren't present at the last - - -

MS ENRIGHT:  No, Your Honour. 

HER HONOUR:  I'm sure it would be objected to  but, look, given the very limited priors - given this man's previous good history, he's now employed, I've found that it has arisen in a particular set of circumstances.  I'm prepared to give

Mr Fisher that opportunity so I'm not going to be - it will be a non-conviction order.

MS SKABURSKIS:  As Your Honour pleases.

MS ENRIGHT:  As Your Honour pleases.

HER HONOUR:  Thank you.  Don't waste the opportunity, Mr Fisher, all right?  I've got a bit above and beyond giving you a non-conviction but, as I've said, you have been in a - at your age and given that you've been struggling with an addiction, really, almost it sounds like many years, you've managed your life well so I'm prepared to give you that opportunity, all right?  Thank you.  I'm not required in the circumstances to make a s.6AAA declaration.  We've got two copies here.  I'll get Mr Fisher to sign both so he can take one away with him, all right? 

ASSOCIATE:  All done Your Honour.

HER HONOUR:  It's all done?

ASSOCIATE:  Yes, Your Honour. 

HER HONOUR:  Thank you very much.  We'll stand down to 10.30.  I thank counsel for their assistance in this matter. 

MS SKABURSKIS:  Thank you, Your Honour.

HER HONOUR:  Yes, thank you.

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