Director of Public Prosecutions v Foley

[2018] VCC 2182

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-17-00044
CR-18-01270

DIRECTOR OF PUBLIC PROSECUTIONS

v

GIA FOLEY

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JUDGE:	HIS HONOUR JUDGE GUCCIARDO
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	19 December 2018
CASE MAY BE CITED AS:	DPP v Foley
MEDIUM NEUTRAL CITATION:	[2018] VCC 2182

REASONS FOR SENTENCE
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Subject:
Catchwords:
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Cases Cited:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms T. Saville
For the Accused	Mr S. Ginsbourg

HIS HONOUR:

1. Gia Foley, you pleaded guilty to one charge of false imprisonment, one charge of handling stolen goods and two charges of possessing a drug of dependence, namely cannabis and methylamphetamine.  All of these offences were committed on 11 October 2016.  You also pleaded guilty to a related summary offence of committing an indictable offence whilst on bail.  The circumstances of the offending are contained in a prosecution opening upon the plea which was exhibited for purposes of the sentences, and which I will now summarise.

1. You were 25 years old at the time of the offending and your co-offender Barrett was 26.  You and Barrett were known to each other prior to the offending, having met through a friend.  Barrett owed you various amounts of money.  This was the source of tension between the two of you, as well as Barrett's girlfriend Hazelwood-Smith. 

1. On 10 October you contacted Barrett and requested that he come to your home to discuss this debt.  Barrett arrived at your St Kilda East property.  There was a discussion between you and him in relation to the money owed by Barrett and Hazelwood-Smith and you also mentioned that you had some money stolen from you by another person and that you needed some help in recovering it. 

1. Following that discussion, it was understood that Barrett would assist you to recover the money and that Barrett's debt would in turn be reduced.  He moved your golf clubs and some kitchen knives so that the victim would not be able to see those items as weapons.  You were in communication with the victim via a dating-type website.  You had met him at previous occasion via that website and you arranged with him that he would attend your home at about 8 pm and the two of you would smoke some methamphetamine and cannabis together. 

1. At about 8.15 pm the victim attended at your home as arranged and you were waiting outside your front door, you greeted him and invited him inside.  Barrett and Hazelwood-Smith were both hiding in the back room out of sight.  You told the victim to relax, assured him there was nobody else in the unit.  He sat down on an armed chair with his back to the wall and you commenced smoking methamphetamine. 

1. The victim then realised there was another person in the unit.  Barrett exited the bedroom holding what the victim thought were two hockey sticks.  He was in fact holding a gold club shaft with the club head broken off.  He was wearing sunglasses and a high visibility shirt and black shorts.  He approached the victim and yelled, "Do you want to steal money from her?  Do you think this is funny?"  He started jamming the golf club shaft towards the victim's chest and face, not making contact, and you then produced a box cutter demanding the wallet, phone and bag from the victim.  At that time, the prosecution accepts that you generally believed that the victim had previously stolen your money. 

1. Barrett thrust a golf club into the victim's face and demanded his car keys and threatened that if he didn't give them to him he was going to belt the shit out of him.  Hazelwood-Smith told the victim to "shut the fuck up and do what he says".  The victim handed Barrett his car keys and Barrett then instructed him to take off all of his clothes so he could check him for weapons.  You then told him to kiss your feet whilst you held a golf club to the victim's head, to which he complied.  The victim was then told to put his clothes back on and stand against the wall.  The victim gave Barrett his bag containing cigarettes and wallet, which contained $50 cash and the victim's ATM card. 

1. Barrett then said to the victim, "You're fucken lucky we're not taking your car", as he asked Hazelwood-Smith to go and check the victim's vehicle to see what she could find.  She returned unable to find anything of relevance in the vehicle.  You demanded the phone while holding the box cutter.  He handed you his Samsung phone and he begged you not to take his phone as he knew his family would be attempting to contact him.  You handed the victim his car keys and said, "Get my money by 12 and you'll get your phone back".  Barrett pushed the victim out the front door telling him, "Get the fuck out of the house and return with the money you owe", and the victim then left the house.  Although he returned and knocked on the window requesting his ATM card so he could withdraw some cash, he was told to leave again without the bank card.  Barrett had gone through the victim's wallet but was unable to locate it.  Barrett again told the victim that if you got your money then he would get his phone back. 

1. The victim got into his car and after driving to a 7-Eleven service station called the police and attended the St Kilda Police Station and made a statement.  You, Barrett and Hazelwood-Smith all got into a taxi at your address and travelled to a supermarket to buy drinks before going on to the house shared by Barrett and Hazelwood-Smith where you shared some methamphetamine.  You were on bail at the time of this offending. 

1. The following day the three of you shared a taxi to Prahran.  You went on alone in a taxi to the Centrelink office in Prahran and whilst there you saw police arrive.  You were cautioned and arrested before being placed into a police vehicle.  You were in possession of the victim's ATM card, which you voluntarily handed to police and stated you had just been hanging onto it and not used it.  You were also in possession of the victim's mobile phone, a silver box cutter, a yellow and blue Stanley knife, some clothing, and 11 assorted cards not in your name, the basis for the second charge of handling stolen goods, together with three Seroquel tablets.  Later that day a search of you was conducted at the Melbourne Custody Centre by custody officers revealing that you had four receivable bags containing methylamphetamine and cannabis and 14 Diazepam tablets on you. 

1. You then participated in a record of interview where you stated that the victim had stolen a thousand dollars from you; that you didn't think there was much point reporting it to the police; that when Barrett suggested that he was going to do the victim over that you didn't say yes or no but didn't disagree and that he had taken money from you in the first place so he deserved it; that the blue box cutter was yours and had in case you got in danger; that the cards located on you did not belong to you and were from when you were last done for fraud and the police didn't find them; and that you had used ice in the last couple of days amongst a number of other answers.

1. This offending is made serious particularly by the false imprisonment of the victim.  Though the handling charge carries a higher penalty, in fact that charge and that relating to drugs and the summary offence are relatively low ranking example of these offences.  False imprisonment is a serious criminal offence which strikes out a fundamental right to be at liberty with that interference.  You enlisted the help of two others to recover a debt within incentives offered to them.  You enticed the victim to your home at a time when your accomplice would be hiding and able to take the victim by surprise.  You produced a
   knife-like tool with which you threatened the victim.  You humiliated him by having him remove his clothes and have him kiss your feet in obedience to instructions.  Money and an ATM card was stolen from him.  This was a continuing offence and the period of the false imprisonment may not been protracted but the vulnerable victim was imprisoned in affect for some time unlawfully.

1. There was no victim impact statement tendered to the court but I can reasonably infer from the circumstances that the victim would have been scared and upset by his treatment with these events having likely an impact upon his state. 

1. I take your plea of guilty into account.  You were arrested and remanded in October 2016 and bailed the next day.  In January 2017 at a committal case conference you pleaded guilty to armed robbery but in April 2017 the possibility of a contested plea was raised, and having reconsidered your earlier plea, the matter was listed for trial in August 2017.  In September 17 your accomplice Barrett was sentenced by His Honour Judge Bourke to a community corrections order for three years and 350 hours of unpaid work.  A final directions hearing was not reached till June 2018 and in July at a mention the matter resolved and listed for plea.  The plea was not made to the charges at the earliest opportunity but, nevertheless, an intention to plead to a more serious charge of armed robbery was made and facilitated the course of justice as significant utilitarian value, which I take into account. 

1. I note that in being sentenced, Barrett gave an undertaking of future assistance in the case against you.  In contested trial His Honour considered this to have been important evidence.  His Honour found Barrett's moral culpability to be high in the context of serious offending and I respectfully agree with
   His Honour's conclusions and reasons and I reach a similar view about your offending.  I note that the victim was, in effect, released without physical harm. 

1. I take into account your personal circumstances.  You are 27 years of age and you have had a disadvantaged background.  You were born a biological male that had to deal with gender dysphoria, a condition of feeling one's emotional and psychological identity as male or female to be the opposite of one's biological sex, a condition which is distressing and which causes profound discomfort and this has marred your life.  You experienced not only victimisation by peers in childhood, but rejection and abuse by your father.  You have used drugs since you early to mid-teens, beginning with alcohol and cannabis and quickly moving on to amphetamines.  You supported this habit through prostitution, drug trafficking and dishonesty offending and behaviour.  You have sought social and sexual companionship in circumstances and with people who have exacerbated your poor lifestyle choices. 

1. I accept the concession made by the prosecution in relation to the offending, particularly that you believed you are entitled to demand property as a means of recovery, what you though the victim had stolen, and this means that, in your mind, you had a legitimate grievance.  You agree, however, that it did not entitle you to enlist Barrett to recover such property and to commit false imprisonment to do so. 

1. You have prior criminal history from 2013 when, on two occasions, you faced the Magistrates' Court in January of the year for two unlawful assaults, recklessly cause injury and two contraventions of family violence intervention orders.  You were convicted and placed on a community correction order for nine months.  And then later in August 2013 when that community correction order was breached, it was varied without conviction. 

1. The court was also properly told of relevant subsequent matters.  In November 2017 you were sentenced at a consolidated plea hearing for 88 charges committed both before and after the index offence year.  Those charges included recklessly cause injury, trafficking in methylamphetamines and numerous other drug and dishonesty offences.  You were at one point placed on the SISP, a court integrated service program, but then remanded in custody for further offences.  You received a sentence of some 35 days, effectively time served with a new 12 month CCO to commence immediately.  However, on
   4 December 2017 you were again remanded for further offences and released on bail only in April 2018, again on the SISP program until you were exited for unsatisfactory compliance in September 2018. 

1. On the plea in this matter I was told that your next listed hearing was yesterday,
   18 December in fact, but that matter will now be dealt with after this particular sentence. 

1. Priors and subsequent matters are of concern and are relevant to your prospects.  Without doubt drug use is central to your offending but resort to violence has surfaced from time to time and the combination of these factors together with any future sexual reassignment effort to be undertaken with all its attended fragility and trauma renders, in my view, your rehabilitation matter to be viewed cautiously.

1. The court received a report from Associate Professor Andrew Carroll, a consultant forensic psychiatrist, dated 9 December 2016, as well as the SISP assessment report and the SISP final progress report dated 19 April and
   11 September 2018.  I have taken into account these reports and their contents, particularly the very portion of the social functioning and symptoms as of the date of the report in December 2016 relevant to this offending, as well as your psychiatric history.  Professor Carroll diagnosed a borderline personality disorder predisposing you to a range of difficulties.  He noted that your day to day functioning appears relatively good but your motivation to change your high risk lifestyle appears to be limited.  The daily use of stimulant methamphetamine placed your mental state on quite something of a knife edge where psychological treatment could, at that time, have achieved little. 

1. The plea essentially sought to emphasise the burden of imprisonment upon you, to demonstrate the likely difficulty and "tough nature" in order to ameliorate its length, given that it is conceded that it is inevitable in this case.  The background was said to be the context of this offending and the background was said to be an unhappy relationship history arising from your "affliction" which precipitated the pervasive collapse of self-identify, self-esteem, ingrained self-destructive habits and harmful, risky behaviour.  You felt angry by another betrayal because you believed you had been the object of a theft.  Your drug use and immaturity are not excuses but said to be elements of all coalescing to bad decision making.  I accept this background, not as an excuse, but as providing some explanation.  You have remained offence free and drug free during the SISP program it would appear and that capacity may well be a positive indicator in assessing your prospects. 

1. It was then said that the location of your reclusion would be crucial to aspects of rehabilitation and also to the component of punishment in your imprisonment.  Your dysphoria is being treated by daily hormone treatment and some anxiety medication, as well as Suboxone to prevent drug relapse.  However, you've not yet undergone surgery for sexual reassignment.  The decision to not proceed with such surgery has apparently been reinforced by a relationship which formed when you met a prisoner named ‘Scott’ at the Hopkins Correctional Centre when you were remanded there in 2017.  This was your second period on remand.  During the first you were apparently placed in a mainstream male prison and it was submitted that you experienced some victimisation, sexual assaults there.  However, when you met ‘Scott’ you found that he accepted you as you are and you remain in daily phone contact with him and are happy to continue your relationship with him as your partner once you are able to do so.  ‘Scott’ has been sentenced to a lengthy term of imprisonment, apparently for offences against a former female partner and will not be eligible for parole for at least another 18 months. 

1. The issue as to your place of imprisonment and the effect on you of that detention, the impact of that and the sentence to be imposed was central concern during the plea.  It was said that you were hopeful of being reunited with ‘Scott’ in prison, as that was the preference you expressed to the correctional authorities.  In this context I was provided with a document authored by the Commissioner of Corrections in Victoria in relation to the management of prisoners who are transgender, gender diverse or intersex, dated 2017, which in part deals with some guiding principles to be applied in that management. 

1. At the first plea hearing it was said that the way such policy had been applied to you was unclear, given that you had previously been placed at the MAP high security male prison for some 35 days.  This, it was said, caused real concern about the burden of your imprisonment and as a result of some correspondence and further inquiries, I received a detailed affidavit from Assistant Commissioner Brendan Money, assistant commissioner to the Sentence Management Division of Corrections Victoria.  The affidavit exhibited again the Commissioner's requirement as to the management of certain prisoners I mentioned above, as well as the operating procedure for the management of transgender prisoners at the Hopkins Correctional Centre.  I asked Mr Money to make himself available for evidence, which he kindly did, and he was cross-examined by defence counsel on the second plea hearing on 11 December, today being the 19th of that month. 

1. While long in detail, his evidence essentially revealed that you have classified to Hopkins the previous day.  However today I'm told you're not there yet and you are still at the MAP.  Mr Money gave evidence that a medical clearance and psychiatric clearance was required and, subject to bed availability, you would go to that prison.  The classification process have, by the 11th, taken some 12 days from MAP which may be said to be unsuitable as opposed to Hopkins, where Mr Money agreed much effort and focus and training had been directed to be the place that principally houses transgender prisoners, although not the only prison that does so.

1. The upshot is that you are likely to go Hopkins where, although there is no discrete unit for transgender prisoners, all options are available to properly house such prisoners, including being housed with the man ‘Scott’ and whom you consider your current partner.  I do take into account that your time on remand in these matters has largely been at prison, which is not of your preference and which even in general policy consideration is not necessarily preferable for transgender prisoners.  However, it is also the case that generally such prisoners are brought through MAP unless they go to Dame Phyllis Frost, and according to the evidence which I heard, eventually are hopefully reclassified to appropriate places of detention. 

1. You wish to stay in the male prison system and in particular at Hopkins, so it appears that and your history of being housed in male remand locations, may have had some impact on your place detention up to today.  If your preference changes, it appears Corrections would evaluate that provision by full assessment.  It appears that at Hopkins there are various support groups and people especially trained to deal adequately and appropriately with the issues of transgender prisoners and on the evidence that I heard I expressed the opinion that it is probably appropriately that you be housed there.  It may also be that, if your partner is moved in the future, that you may not be the subject to further movement yourself but to further proper assessment. 

1. All in all, there are not, in my view, matters that pertain to my function in sentencing.  The location of your reclusion is a matter for Corrections and their policies.  It was submitted that I should ameliorate the sentence by the potential for further time in a male environment but not at Hopkins where potentially you could be with or in the vicinity of your partner. 

1. In my view, I should proceed from an understanding that Corrections will appropriately assign you to a particular prison suitable to your needs and identify a need of security and protection.  I accept that the time spent in remand environment may have been harsher on you because of your status in a male environment, which is perhaps not as well equipped as Hopkins to deal with transgender prisoners and I will take this into account and express hope that your preference will be given appropriate weight and consideration; but I do not sentence on the basis that it is likely that you will be prisoned in an unsuitable prison either in the short term or for the duration of the sentence. 

1. I was told you had recently lived in transitional public housing and that if you are absent from it for more than three months you will lose that accommodation and you remain anxious about that.  I accept that your imprisonment may well have consequences for your future.  Although you have not had employment since your late teens, you have completed TAFE qualifications in hairdressing and retail.  You have a close relationship with your mother and younger brother, which are protected factors for your future. 

1. As is properly conceded, it might be a general deterrence and specific deterrence must be primary considerations in this sentence.  The court must announce and punish such vigilantism, even if merely misguided.  I accept the drug possession was for personal reasons and small quantity respectively and the summary offence bares limited penalty of three months or 30 penalty units and I will impose what I consider to be a merciful sentence in the circumstances. 

1. I have considered the issues of parody but consider that, although Barrett pleaded to armed robbery, an offence which carries a higher maximum and had some priors, his sentence is difficult to be considered comparable given his cooperation and undertaking given to the court which would have entitled him to a significant amelioration of sentence. 

1. Please stand Ms Foley.  On the charge of false imprisonment you are convicted and sentenced to 12 months' imprisonment.  On the handling stolen goods you are convicted and sentenced to six months' imprisonment.  On possession charges you are convicted and sentenced to two months' imprisonment on each and on the summary offence you are convicted and sentenced to one month's imprisonment. 

1. I order the two months on the handling stolen good charge be cumulative on Charge 1, the base sentence, and all other charges run concurrent.  This makes a total effective sentence of 14 months. I order a non-parole period of eight months.  But for your plea I would have sentenced you to 18 months' imprisonment with a 12 month non-parole period.  I will note for the court's records and declare that you have served 20 days by way of pre-sentence detention.  I have signed forfeiture and disposal orders sought.  Are there any other matters?

MS SAVILLE:  No, Your Honour.

HIS HONOUR:  Yes, thank you both.  Sine die. 

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