Director of Public Prosecutions v Forkin
[2022] VCC 377
•23 March 2022
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 21-02312
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| LEROY FORKIN |
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JUDGE: | HIS HONOUR JUDGE JOHNS |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 18 March 2022 |
DATE OF SENTENCE: | 23 March 2022 |
CASE MAY BE CITED AS: | DPP v Forkin |
MEDIUM NEUTRAL CITATION: | [2022] VCC 377 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW - Sentence
Catchwords: Theft – Handling stolen goods – Obtaining a financial advantage by deception – Obtaining property by deception – Aggravated burglary – Common assault – Causing injury recklessly – Destroying property – Conduct endangering persons – Aggravated offence of recklessly exposing an emergency worker to risk by driving – Application of Bugmy principles – Parity – Totality
Legislation Cited: Sentencing Act 1991 (Vic)
Cases Cited:Bugmy v The Queen 249 CLR 571; R v McKee & Brooks (2003) VSCA 16
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr P. Teo | Office of Public Prosecutions |
For the Accused | Mr T. Crouch | Paul Vale Criminal Law |
HIS HONOUR:
1Leroy Forkin, you have pleaded guilty to four charges of theft, two charges of handling stolen goods, one charge of obtaining financial advantage by deception, two charges of obtaining property by deception, one charge of aggravated burglary, one charge of causing injury recklessly, one charge of criminal damage, one charge of conduct endangering persons, and one charge of aggravated offence of recklessly exposing an emergency worker to risk by driving.
2I have had regard to the applicable maximum penalties. Aggravated burglary has a maximum of 25 years imprisonment; handling stolen goods, 15 years imprisonment; theft 10 years, obtaining property by deception, 10 years; obtaining financial advantage by deception, 10 years; criminal damage 10 years; recklessly exposing an emergency worker to risk by driving, 10 years; recklessly causing injury, five years and reckless conduct endangering persons, five years.
3You have also pleaded guilty to relevant summary offences, unlicensed driving, two charges, unlawful assault, state false name, fail to stop upon direction and driving under the influence of drugs. I have had regard to the maximum penalties for these offences also.
4You have admitted prior convictions. Your criminal record is consistent with what I have been told of your background and your descent into drug abuse. You have previous convictions for armed robbery, aggravated burglary, driving vehicles recklessly, amongst other relevant prior convictions.
Circumstances of Offending
5Turning to the circumstances of the offending before me, the summary of prosecution opening sets out the facts of your offending. The summary of prosecution opening was Exhibit A on the plea and forms part of these reasons for sentence. I do not propose to recite those facts.
6CCTV footage of your driving which forms the basis of Charges 13 to 15 on the indictment was played in open court. Your offending is properly viewed as a drug-fuelled crime spree, essentially acquisitive in nature, which became violent upon detection.
7The most serious offence before me in terms of maximum penalty is the crime of aggravated burglary. You entered a residence as a trespasser with intent to steal and you were reckless as to whether a person was present. You armed yourself with a crowbar you found in the residence. You later used that weapon upon detection to flee, and you assaulted your victim during the course of evading detection and apprehension, and also caused injury to him. Once the alarm was raised, you tried to evade police in a stolen vehicle.
8As I noted on the plea, your driving was erratic and extremely dangerous. I regard the use of the vehicle by you, and the danger you placed police officers and others in as very serious. I regard it as the most serious aspect of the offending before me. Crashing the vehicle through residential fences whilst having no idea whether any person was on the other side of those fences was very dangerous behaviour.
Personal Circumstances
9I will not go through your personal history in detail. I agree with your counsel on the plea, Mr Crouch, that you have had an extremely sad and disadvantaged childhood and early adulthood. Bugmy v The Queen (‘Bugmy’) principles are well and truly enlivened in your case.[1]
[1]Bugmy v The Queen (‘Bugmy’) 249 CLR 571
10Your family history is amongst the saddest I have encountered. You were exposed to significant trauma as a young child which I will not go into, and this appears to have led to your parents arguing and separating when you were about 12.
11You and your brothers lived with your mother and I was told she then developed a serious drug addiction and also related psychosis. You were exposed to drug use and violence from a young age, and I was told that your mother introduced you to methamphetamine at 13 years of age. Whilst living with her, you were exposed to negative influences, as were your siblings. You witnessed serious violence due to the company your mother was keeping as a child, and as I have said, you encountered drug use and your drug use persisted throughout your early teenage years.
12You left school at about the age of 15 and moved to Broome where you tried to distance yourself from the negative influences that had been visited upon you at such a young age. You worked on a prawn boat, a whale-watching boat and then an oil rig. By 19, you were working on an oil-rig and completed an Integrated Rating Certificate for that industry.
13As I have said, you had tried to move away from the dysfunctional environment you grew up in, in Perth. You still had drug issues but you tried to manage them as best you could whilst working consistently. Your work on the oil-rig was fly-in and fly-out and you kept in regular contact with your two brothers in Perth. Both of course, had struggled with the same dysfunction and negative influences that you had and all three, that is, you and your two brothers, had descended into methamphetamine use, amongst other drugs.
14In 2008, unfortunately your brother Jason died of a heroin overdose. His body was found by you and your other brother, Luke. You and your brother, Luke, both struggled with mental health and substance abuse issues, escalating from that point understandably. I was told that you began a slide into drug-related offending around that time. Not much later after that tragic discovery in 2009, your brother Luke committed suicide. Again you found his body. Those two events in the context of your life added significant trauma to what had already come before.
15You had developed a serious problem with methamphetamine and I was told your life went off the rails. I accept that to be the case. You engaged in extensive drug-related offending and two sentences of imprisonment for drug-related crime in Western Australia. During your time in custody, both your parents died on separate occasions from drug-overdose.
16Your counsel relied upon the report of psychologist, Alison Mynard. I accept the contents of Ms Mynard's report. It raises a number of matters relevant to sentence. At paragraph 58, Ms Mynard wrote that:
Mr Forkin's PTSD and the traumatic loss experienced over many years has also impacted him in terms of being hypervigilant to threat and to other people bullying him or taking advantage of him. Subsequently, he has learnt to over-compensate, by using substances to feel stronger, more confident, and numb his emotional pain.
17Your counsel submitted that the disadvantage I have referred to, and disadvantage is perhaps an inadequate label, gives proper context to your behaviour and can justify significant mitigation. It was also submitted that it could be a factual basis for the judicial exercise of mercy. I accept these propositions.
18I was also referred to the Victorian Court of Appeal's decision in The Queen v McKee & Brookes and in particular, the observation that:
Self-induced addiction in an age of rational choice establishes moral culpability for the predictable consequences of that choice. In contrast, when a person gains an addiction to drugs at a tender age, there can be a reduction of moral culpability for related offending. [2]
[2]R v McKee & Brooks [2003] VSCA 16 (February 2003), at [12].
19That clearly applies in your case. I accept that your background discloses a link between early exposure to drugs and the predictable consequences in the trajectory your life has taken, including the current offending. Your moral culpability for the offending before me is assessed in the light of the Bugmy principle including the effect of exposure to drug use and abuse at such a tender age.
Prospects of Rehabilitation
20It was submitted to me that there are reasons to be optimistic about your prospects of rehabilitation, and again the report of Ms Mynard was relied upon. I do accept that you have insight and I accept that there are useful treatments and therapies applicable to your circumstances and these are set out at paragraph 16 of Exhibit 1 which was your counsel's submissions on the plea.
21Ms Mynard writes in reference to you:
Since he has been remanded, he has discovered his faith again, and he encourages other inmates, running bible studies in the cells. He reported that his life has changed, and he reported that he has a close relationship with the chaplains.
22I was provided a letter from Chris Poulios who has described your attendance at the Prison Fellowship and Gospel Group and I accept the contents in relation to that and I accept it is reflective generally of your attitude in custody and your recognition that you need to address the trauma of the past.
23Chris Poulios is the Activities and Wellbeing Supervisor, Rehabilitation and Reintegration branch at Fulham Correctional Centre. I was also provided with urine screens and certificates of achievement reflective of your positive attitude whilst on remand.
24I was told that you work in the kitchen as a general billet, you have completed courses relating to drug treatment, and personal development. Your counsel submitted that this was consistent with what you demonstrated in your early life in relation to capacity for work, and I accept that. These signs of rehabilitation and signs of progress in custody are significant given the proportion of your life in the last decade that you've spent in custody, and the obvious danger of institutionalisation.
Other Sentencing Considerations
Parity
25In terms of sentencing principles, I was referred to the principle of parity regarding the co-accused, the co-offender in respect of the property matters and the burglary who has been dealt with.
26He was dealt with for burglary simpliciter rather than aggravated burglary as the most serious charge as I understand it, and as I understand it, he did not have the driving and endangerment matters, nor the injury and assault matters that you face. He received, as I understood it, effectively a non-custodial disposition on the basis of totality and time served on other matters. I have had regard to the principle of parity in so far as it applies between you and your co-offender in respect of common matters, notwithstanding the disparity in overall circumstances.
Totality
27Totality is an important principle to consider in your case. I am sentencing you in respect of 15 charges on indictment and the six related summary offences. They are properly regarded as a connected series of offences.
28As I have said at the outset, your offending was initially acquisitive in nature, unravelling into chaotic, dangerous and irrational offending once you were detected and faced apprehension. It is essentially an episode of offending, or perhaps better characterised as a crime spree. Another aspect of totality I must consider is the cancellation of your Western Australian parole. It was common ground that your parole in Western Australia has been cancelled and you will be recalled to serve a considerable period of imprisonment.
29The issue of totality is complicated by the practical ramifications if I were to impose a head sentence and non-parole period. You travelled to Victoria from Western Australia two days before the offending before me was committed. You have no connection to this jurisdiction as I understand it, other than through the experience of prison. I also received a further submission by way of email form your counsel regarding the order of sentences and the effect of parole cancellation and I have had regard to s 11 of the Sentencing Act.[3]
[3]Sentencing Act 1991 (Vic)
30I am satisfied that you will not be paroled here in Victoria until you have served the parole owed in WA. That will result in either you being extradited to Western Australia to serve the unexpired portion of your parole at the end of a non-parole period here, if one were imposed, and then returned for parole to be considered; or alternatively, you serving the entirety of a head sentence here, then facing the period of cancelled parole in Western Australia.
31Due to this scenario, I was urged to impose a straight sentence upon you, notwithstanding that it might exceed two years, the implication being that a lenient sentence that might otherwise be considered in the vicinity of a non-parole period be imposed. The prosecution did not demur from this position as I understand it.
Leniency and mercy
32In your case, I have concluded that significant leniency and mercy should be extended to you in mitigation of the individual sentences I impose and the total effective sentence due to the extreme childhood trauma and deprivation I've referred to, and it's link with drug addiction and in turn, the offending before me.
33Prospects of rehabilitation that are emerging due to progress in custody, remorse which I accept, insight particularly as referred to in Alison Mynard's report, in combination with your efforts as a young man in Broome to be a productive member of the community there, despite the legacy of trauma that you carry.
34I have had particular regard to the contents of the report of Alison Mynard and your engagement with available therapies. I have accepted your counsel's submission that this is a turning point or watershed moment in your trajectory, that there is a risk of institutionalisation. I also, in particular, consider the effect of the cancellation of Western Australian parole, and you being domiciled in Western Australia ordinarily, and the principle of totality.
35For these reasons I have also acceded to your counsel's submission to impose a straight sentence, notwithstanding the total effective sentence exceeds two years. I have done this having regard to your past history, in particular the breach of Western Australian parole and your lack of connection to this jurisdiction. It is inappropriate, in my view, to set a non-parole period due to that history, given the practical ramifications.
36Another reason for imposing a straight sentence is to reflect the serious nature of the offending and the principles of general deterrence, specific deterrence and denunciation in the context of the application of totality due to the practical ramifications I have referred to and in the context of the leniency and mercy I am extending to you.
37I have taken into account in mitigation your early pleas of guilty. I have also taken into account the experience in custody during the pandemic, referred to at paragraphs 24 to 26 of Exhibit 1, your counsel's submission. I have also had regard to s 163D of the Sentencing Act which requires cumulation of the sentence imposed on Charge 15 with other sentences unless otherwise directed by this court. I will make such a direction in this case for the reasons set out herein, but in particular with regard to the principle of totality.
Sentence
38I will sentence you as follows:
39Mr Forkin, in relation to Charge 1, theft of a motor vehicle, you are sentenced to four months' imprisonment and licence disqualified for three months from today's date.
40In relation to theft, Charge 2, a sentence of two months' imprisonment.
41Charge 3, you are sentenced to two months' imprisonment.
42In relation to Charge 4, you are sentenced to one month imprisonment.
43In relation to Charge 5, you are sentenced to one month imprisonment.
44In relation to Charge 6, obtaining property by deception, you are sentenced to one month imprisonment. In relation to Charge 6, obtaining property by deception, you are sentenced to one month imprisonment.
45In relation to Charge 7, aggravated burglary, you are sentenced to 18 months' imprisonment.
46In relation to Charge 8, common assault, you are sentenced to six months' imprisonment.
47In relation to Charge 9, you are sentenced to three months' imprisonment.
48In relation to Charge 10, recklessly causing injury, you are sentenced to 12 months' imprisonment.
49In relation to Charge 11, you are sentenced to one month imprisonment.
50In relation to Charge 12, you are sentenced to six months' imprisonment and your licence is cancelled and disqualified for three months' from today's date.
51In relation to Charge 13, you are sentenced to six months' imprisonment.
52In relation to Charge 14, you are sentenced to 18 months' imprisonment.
53In relation to Charge 15, you are sentenced to 18 months' imprisonment and also disqualified from obtaining a driving licence for two years from today's date.
54The sentence on Charge 15 is the base sentence. In relation to failing to stop upon direction you are sentenced to two months' imprisonment and your licence is cancelled and disqualified for six months' from today.
55In relation to unlicensed driving, you are fined $800 and licence disqualified for three months' from today.
56In relation to driving under the influence of drugs you are sentenced to one month imprisonment and disqualified for a period of two years from today's date. In relation to common assault you are sentenced to 14 days' imprisonment.
57In relation to stating a false name I sentence you to a part fine of $300.
58I make the following orders for cumulation.
59Four months' of the sentence imposed on Charge 7, and two months' of the sentence imposed on Charge 10 and four months' of the sentence imposed on Charge 14, will be served cumulatively upon the sentence imposed on Charge 15 and upon each other. All sentences are otherwise to be served concurrently.
60That makes a total effective sentence of two years and four months. For the reasons I have set out and referred to herein, I have determined not to set a non-parole period.
61Pursuant to s 6AAA were it not for your pleas of guilty, you would be sentenced to a total effective sentence of five years with a non-parole period of three years and nine months.
62I declare that you have served 445 days of pre-sentence detention. I make the forfeiture order that is sought.
63Are there any other orders that are required Mr Teo?
64MR TEO: I don't believe so, Your Honour.
65HIS HONOUR: All right. Anything else ‑ ‑ ‑
66MR CROUCH: No other matters Your Honour.
67HIS HONOUR: ‑ ‑ ‑ that needs to be brought to my attention?
68MR CROUCH: No. May it please the court.
69HIS HONOUR: All right.
70OFFENDER: Thank you, Your Honour.
71HIS HONOUR: All right. Yes, we'll adjourn the court.
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