Director of Public Prosecutions v Fitzgerald
[2015] VCC 1811
•10 December 2015
| Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR 15-01532
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JASON FITZGERALD |
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| JUDGE: | HER HONOUR JUDGE HAMPEL |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 10 December 2015 |
| DATE OF SENTENCE: | 10 December 2015 |
| CASE MAY BE CITED AS: | DPP v Fitzgerald |
| MEDIUM NEUTRAL CITATION: | [2015] VCC 1811 |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr D Gray | OPP |
| For the Offender | Mr B Nibbs | Stary Norton Halphen |
HER HONOUR:
1Jason Fitzgerald, I sentenced you on 23 September this year for one charge of attempted armed robbery and one of armed robbery and imposed then a total effective sentence of two years' imprisonment with a non-parole period of 18 months followed by a three year community correction order. I recited your circumstances at length in my reasons for sentence then and I do not propose to repeat them here, but I adopt them into my reasons for sentence on this occasion.
2The offending that you have pleaded guilty to before me today occurred in the same period as the offences of attempted armed robbery and armed robbery that I sentenced you for in September. Again they occurred in the very short window between your time of release from custody for a sentence and the time of arrest and remand in respect of the armed robbery and attempted armed robbery.
3Your long history of offending, gaol and alcohol abuse had unfortunately been compounded by your introduction to ice at the time of your last release. It was a significant contributor to your rapid relapse into offending and those circumstances are as applicable here as they were to the last sentence.
4But what you did on this occasion was something that occurred not in the Melbourne area, which was where the the armed robbery and attempted armed robbery offences occurred, but in Gippsland, in company with two other people, one of whom has been apprehended and who is also to be sentenced by me. You broke into a house in Winter Road in Johnsonville, a property in a semi-rural setting which was occupied by a 90 year old woman.
5You and one of your co-offenders were caught by the occupant's son going through the bedroom and stealing items. When surprised in the act of the burgling of the house you and that co-offender, Mr Steet, ran out to your car. Obviously you had a considerable amount of the stolen property with you at the time. A third person was not found at the same time. He had to break his way out of a locked flywire door to join you in the car. You all then left.
6Some of the property was either thrown out of the car or stashed not far from the home. The rest of it was found in the car or on your person when you and your co-offender, Mr Steet, were shortly after that arrested by police in Metung. It would appear that all property other than one brooch which, given the information I heard about the search for it, must have had at least significant sentimental value, has been recovered.
7You have pleaded guilty to aggravated burglary, the circumstances of the burglary being entry as a trespasser with intent to steal and the circumstances of aggravation, being reckless as to the presence of any person, and to theft associated with that of the items stolen.
8It was no doubt a frightening experience for the occupant, a 90 year old woman who it would appear lived on her own at that property and who no doubt has had her sense of safety considerably violated. No doubt her sense of safety has been even more violated by the fact that she is hard of hearing and was not aware until her son came to see her that there were burglars in the house.
9Although you threatened her with no harm and offered no harm or threat of harm to her son as he chased you, it is a very frightening experience for somebody who at the age of 90 has still been able to live independently and therefore the need to condemn the behaviour, to denounce it and to ensure that the sentence properly reflects the gravity of that and that risk of violation and of sense of safety and independent living.
10For the reasons that were canvassed so comprehensively on the last plea and referred to by adoption, but with a real understanding of them on this plea, your circumstances are still such that I think the best opportunity for you and for the community is to have you serve a term of imprisonment that overall reflects the gravity of your offending, but takes into account your circumstances. That gives you a prospect for release upon parole for a staged return to the community and then gives you all the supports that can be offered by the very comprehensive CCO that I have already imposed upon you.
11As I said in discussions with Mr Nibbs, had this matter been before me at the same time, the overall total effective sentence would not have changed. There might have been a slightly different structure to the orders, but I did indeed make the sentence for the attempted armed robbery fully concurrent with the sentence on the armed robbery and so it is consistent that I make the sentence for this aggravated burglary and associated theft also fully concurrent.
12I am not going to impose a CCO on you in respect of this offending because I think it is sufficient that it is attached to the sentences for the attempted armed robbery and armed robbery and I am satisfied that a sentence of 15 months' imprisonment, which is what I intend to impose, is sufficient on its own to mark the objective gravity of the offending and taking into account your personal circumstances.
13I accept too, as Mr Nibbs said, that this is in practical terms a plea of guilty entered at the earliest reasonable opportunity, having regard to the contested issues in relation to the presence of a knife and the initial framing of the charge of aggravated burglary, being an entry of the premises armed with a weapon. I accept on the material put before me that the knife, described as a letter opener, that was with you was a house-breaking implement rather than a weapon.
14So it seems to me that it would be wrong in the circumstances to interfere with the structure that was so carefully thought through and canvassed on the last time to deal with a matter that but for the contested factual issues which have been resolved in your favour would have meant it could have been dealt with at the same time and given you the certainty.
15It is still going to be a long and rocky road for you, Mr Fitzgerald. You have still got to finish your term of imprisonment. You have still got to make your case to the parole board to see whether they will give you that opportunity of a staged transition from custody to liberty on a CCO, particularly having regard to your need to find housing and to have some form of stability around you so as you are best placed to be able to comply with what are going to be the onerous conditions of a CCO. But for the reasons that were so powerful and moving last time, and they are the same now, I am not going to interfere with that. You have got that opportunity and I want to see and make sure you have got the means to be able to avail yourself of it.
16So could you now please stand. On the two charges to which you have pleaded guilty, of aggravated burglary and theft, you are convicted. You are sentenced to imprisoned to an aggregate term of imprisonment of 15 months on those two charges and that sentence is to be served concurrently with the sentences you are currently undergoing.
17I make no declaration in respect of pre-sentence detention, which means your sentence for these offences starts today and it is my understanding that that means that these sentences will run along with and will not interfere with your eligibility for parole. Nor will they interfere with the community correction order which is part of the sentence for the other matters.
18I declare that but for your pleas of guilty to these two charges I would have sentenced you to an aggregate term of imprisonment of two years and I would have fixed a period of 12 months as the time that you had to serve before being eligible for parole.
19MR NIBBS: Yes.
20HER HONOUR: So Mr Fitzgerald, I still look forward to seeing you for your first judicial monitoring three months after the expiration of the sentence imposed back in September this year.
21OFFENDER: Things have changed, things will change.
22HER HONOUR: You are looking, I must say, a lot better than you were when you were before me in September. You look as if you have been working out in the open air.
23OFFENDER: Eating, yes.
24HER HONOUR: Yes. You have put on a bit of condition.
25OFFENDER: Yeah.
26HER HONOUR: And you are just looking a bit more confident about life.
27OFFENDER: Yep. Thank you.
28HER HONOUR: So I look forward to hearing good reports of you when you come before me, Mr Fitzgerald, and I look forward to you being able to tell the parole authorities that you think you should get parole so that you can have your best chance at it and I look forward to you dealing with the disappointment if they decide not to give you parole, but keep on advocating for your right to make a better life for yourself and for everybody else.
29OFFENDER: Thank you.
30HER HONOUR: Sorry, I forgot to mark the exhibits.
31#EXHIBIT Fitzgerald 1 - Outline of submissions.
32#EXHIBIT Fitzgerald 2 - Certificate of completion of the Better Mental Health introductory program.
33#EXHIBIT Fitzgerald 3 - Other certificates of completion of courses.
34#EXHIBIT Fitzgerald 4 - Report of Mr Cummins dated 19/08/15.
35#EXHIBIT Fitzgerald 5 - Two reports of Ian Joblin dated 30/01/92 and 19/11/92.
36I think that is all I need to do now. No further orders?
37COUNSEL: No, Your Honour.
38HER HONOUR: All right. Thank you Mr Fitzgerald, that is it, you are free to go and I will see you in a couple of years.
39OFFENDER: Thank you, Your Honour.
40HER HONOUR: Thank you. Thank you Mr Nibbs and Mr Gray.
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