Director of Public Prosecutions v Forshaw

[2019] VCC 746

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

AT GEELONG
CRIMINAL JURISDICTION

CR 19-00050

DIRECTOR OF PUBLIC PROSECUTIONS

v

RYAN FORSHAW

---

JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Geelong
DATE OF HEARING:	3 May 2019
DATE OF SENTENCE:	3 May 2019
CASE MAY BE CITED AS:	DPP v Forshaw
MEDIUM NEUTRAL CITATION:	[2019] VCC 746

REASONS FOR SENTENCE
---

Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A.J. Moore
For the Accused	Mr C. Pearson

HER HONOUR: 

1Ryan Forshaw, you have pleaded guilty before me to two charges of theft, one charge of handling stolen goods, one charge of aggravated burglary, and one charge of resisting arrest.  You have also pleaded guilty to the summary charges of breaching a condition of parole, unlawful assault with a weapon and unlawful assault.

2The circumstances underlying your offending are as follows.  On 4 January 2017, you were released on parole in relation to a sentence imposed by
Her Honour Judge Lawson in relation to four armed robberies for which you received a total effective sentence of six-and-a-half years with a four-and-a-half-year minimum.  On 3 April 2018, you returned a positive drug test which breached your condition of parole and which underlies one of the summary charges.  A warrant for your arrest was then issued.

3Overnight, between 3 and 4 April 2018, you went to your mother's home in Ocean Grove where you gained entry through an unlocked sliding door and stole car keys to a 2017 Toyota Prado owned by your mother's partner,
Mr McGilvray.  This value of the vehicle was estimated at $15,000.  You drove away in it.  I understand it was ultimately returned to Mr McGilvray.  That offending underlies Charge 1 on the indictment, theft of motor vehicle.

4Between 5 and 6 May 2018, police attended a property at 13 Mont Albert Road in Geelong where a burglary was committed, and located vehicle registration plates which had been stolen from Hertz Geelong.  They were analysed and your fingerprints were found on them.  Your possession of these number plates underlies Charge 2 on the indictment, handling stolen goods.

5On 20 May 2018, you were seen on CCTV footage entering Duncan's bottle shop in Newcombe at which time you were wearing a hooded jumper pulled over your head.  You walked to the counter and grabbed a victim, an employee, one Tanny Zhu, in a bear hug, wrestling with her.  Ms Zhu, with the help of a second employee, managed to overpower you after which you ran off on foot.  Those actions underlie summary Charge 14, unlawful assault.

6On 25 May at about 2am you, with an unknown co-accused, entered Thrifty Car Rental in Docklands, breaking into an after-hours key drop and removing several sets of car keys.  You were then seen on CCTV footage going into the carpark where cars were being garaged, and soon after were seen exiting the car park in a 2017 Toyota Corolla belonging to Thrifty Car Rental, the car then valued at approximately $25,000.  I was informed by your counsel that this vehicle was eventually returned.  These actions underlie Charge 3 on the indictment, theft of motor vehicle.

7On 31 May 2018, at 1.20 in the afternoon, you attended premises at 13 Mont Albert Road, Geelong in the company of your partner, Jaimee Dando, driving there in the stolen Corolla.  You got into the house by putting your hand through a smashed glass panel and unlocking the door from the inside.  You went inside the property armed with a length of rope, making your way to Mr Aspinal's bedroom.

8Mr Aspinal was woken by you, opened his bedroom door and was confronted by you standing in the hallway holding rope.  You lunged at him, threw the rope around his body and tightened it.  Mr Aspinal managed to overpower you, pushing you out the front door and onto the ground.  There, Ms Dando, who had been waiting in the stolen Corolla got out of the car and told Mr Aspinal to get off you, indicating that she had a gun.

9Mr Aspinal, seeing Ms Dando with her hands in her pockets, believed that she did have a gun, became fearful for his life and then released you. 
You apologised, saying you would make it up to him with drugs or money. 
You told Mr Aspinal you were in fact looking for his housemate who he believed to have raped Ms Dando.  You and Ms Dando then fled the premises in the Corolla.  That offending underlies Charge 4 on the indictment, aggravated burglary and summary Charge 14, assault with a weapon.

10On 31 May 2018, you were captured on CCTV footage placing fuel in the stolen Corolla at the United petrol station at Kororoit Creek Road in Altona.  Police approached you, identified themselves and attempted to place you under arrest, but you immediately dropped the fuel pump and fled on foot.  Detective Sergeant Frame and Detective Senior Constable Hammond then chased you, eventually apprehending you, but you aggressively resisted their attempts to place you under arrest.  Those actions underlie Charge 5 on the indictment, resisting a police officer on duty.

11You were ultimately arrested and taken to the Geelong police station, where you remained mute throughout a record of interview.

12A committal hearing was conducted on 14 January 2019 at the conclusion of which you were committed to the County Court for trial.  I was informed by your counsel however that you had always indicated a willingness to plead guilty to an appropriately-framed indictment.  After negotiations which took place before and after the committal, an indictment was settled, and at the third directions hearing, the matter was resolved and you entered a plea of guilty (the matter resolved on 2 April 2019).

13The maximum penalty for theft is 10 years' imprisonment. 
The maximum penalty for handling stolen goods is 15 years' imprisonment. 
The maximum penalty for aggravated burglary is 25 years' imprisonment. 
The maximum penalty for resisting an emergency worker on duty is five years' imprisonment.  The maximum penalty for assault with a weapon is two years' imprisonment.  The maximum penalty for breaching a condition of parole is three months' imprisonment.  The maximum penalty for unlawful assault is three months' imprisonment.

14I now turn to your personal circumstances.  You are now 34 years of age. 
You were 33 years old at the time of this offending.  You had a difficult childhood.  You never knew your biological father.  Your mother was and is a drug user.  You have two younger half-sisters, and the three of you grew up with a series of changing partners in your mother's life, many of whom were violent towards you.  Over the years, you were consistently told to leave home, at times becoming homeless or residing with your grandmother and your maternal aunt, she coming to court today to support you on this hearing.

15You had a difficult time at school.  You left early, but thereafter appeared to compile a fairly decent work history.  You have worked on-and-off in welding.  You also became quite well known at one time for organising events and DJing in the Geelong area.  You started drinking at an early age.  By your late teens, unsurprisingly, you were using drugs, starting with amphetamine and then rapidly moving to methamphetamine.

16Unsurprisingly along the way you have been before the courts on a large number of occasions, beginning in 2002 when you were dealt with for theft of a motor vehicle.  You were thereafter dealt with on charges such as dealing with property suspected of being the proceeds of crime and possessing a drug of dependence.

17In 2006, you were placed on a community corrections order for trafficking in a drug of dependence.  You breached community correction orders.  In 2012 there were a number of appearances before the court; they were generally related to fairly minor offending, apart from the trafficking which was nevertheless still dealt with in the Magistrates' Court and did not result in a term of imprisonment.

18In 2012, as I have said, you were sentenced by Her Honour Judge Lawson to six-and-a-half years' imprisonment with a minimum term of four-and-a-half years for four charges of armed robbery and one charge of theft. 
Three of those armed robberies related to armed robberies on petrol stations, which were being manned by solo employees.  But one of the armed robberies was particularly serious, involving an armed robbery on a club where you and a co-accused held up patrons at gunpoint and stole $15,000.

19Whilst in gaol, you determined that you were going to change your life, and when you were released from gaol early in 2017 you moved into accommodation organised by Ms Dando.  You took up employment and for 12 months all went well. 

20However, things came apart when late in 2017 you allowed an old friend who was homeless to move in with you.  That friend was a drug user.  You forbade him to use drugs.  He did use drugs, and unfortunately you succumbed and began using drugs too and the entire scenario thereafter collapsed.

21In that time, I was informed you also had a sister who is also a drug user move in with you.  You returned a dirty urine sample.  Your parole was breached, and basically, your counsel told me, you went on the run with Ms Dando, at first going over the border to South Australia where you remained for a couple of months before returning back, and then undertaking this spree of offending which basically took place over about a six-week period between April and May.

22You have been back in custody since your arrest in May 2018.  You are currently imprisoned at Loddon Prison, which is on the lower security end, if you like.  You are working six days a week as a billet.  You have undertaken a
40-hour Sustaining Change Program, and are now engaging in an individual drug and alcohol treatment with the Caraniche drug and alcohol services. 

23I received a report from Elizabeth Piscioneri, who is a Caraniche therapist who is overseeing the therapy you are undertaking in gaol, that taking place on a fortnightly basis.  She described you as engaging in an inconsistent way, stating that:

"His verbal engagement fluctuates from being highly communicative to alternatively being withdrawn from discussion, evident by only providing short responses, therefore required prompting."

24She stated:

"Despite this, he would engage meaningfully and honestly in sessions, evident by his ability to participate in self-reflection, thereby demonstrating insight into his behaviour."

25She talks about you working towards shifting unhelpful thought patterns by:

"accepting what he cannot control, demonstrating his ability to implement healthy coping strategies."

26You have also been working on the changes you will need to make upon your release to increase the likelihood of you refraining from drug use, and hence, offending behaviour. 

27The situation is, of course, that any sentence I impose on you must be served cumulatively; that is, on top of any unexpired portion of the parole that you are required to serve.  I am informed your earliest release date for this parole period, which was one year and eight months that you owed the Parole Board, expires on 20 February next year.

28I received a report on the plea from psychologist Dr Aaron Cunningham dated 26 April 2019.  Essentially, Dr Cunningham states what is probably fairly obvious, which is that your difficult upbringing has resulted in you lacking an internal sense of stability.  He says:

"This contributed to a pattern of impulsivity and reckless behaviour. 
He is easily overwhelmed by life's stressors and relapses into drug use as a form of escape.  His abuse of drugs significantly aggravates his impulsivity and recklessness."

29I very much accept that when you got out of gaol, back in early 2017, you were determined to turn your life around.  And indeed, it appears you managed to do this for a long time.

30I read out what I read out from Dr Cunningham's report for you to really listen to, Mr Forshaw.  Like many people, you had a completely unsatisfactory childhood.  That has left you with feelings of low self-esteem.  You are easily knocked off course emotionally, and your habit over the years of dealing with this is by using drugs.  When you use drugs, you then offend.  You become extremely reckless and impulsive.  And indeed, that spree of offending typifies this.

31For example, the aggravated burglary, which I accept is the most serious charge you are facing today, came about because of an impulsive decision to take Ms Dando to this house so she could personally confront the housemate of Mr Aspinal who supposedly raped her.  It was a stupid and impulsive decision, and I am informed that you were under the influence of drugs at the time.

32As I remarked during the plea, the only way you are going to get your life back on track - and I accept you want to get your life back on track, and indeed, at the age of 34, you are getting to the age where you have to make that decision - if you do not make a decision now about really setting up a life with a lot of safeguards around it, your life is going to be a revolving door in and out of gaol.

33It is really important that you understand why you are doing what you are doing, why you are using drugs, what lies underneath it, how you deal with what lies underneath it, and how you ensure you do not use drugs in the future.  It seems you have made a good start on that, and I am encouraged by Dr Cunningham's observation that unlike many people who appear before this court, you are a person of intelligence.  And indeed, one can see that in the work history that you have managed to carve out over the years.

34I have no doubt that if you attend to the problems I have outlined, you have the capacity to carve out that life.  But it is going to take a great deal of determination, and fundamental to that, as I have said, is you attending to your drug use, why you use, and how you deal with the feelings that come up, when they do not, when you are not using drugs.  Drug use puts you in a frame of mind where you simply go off on these offending sprees.

35And as I said, this has been a pattern of behaviour you need to recognise, and if you do not break it, it is a pattern of behaviour that is going to see you in and out of gaol for what are probably the most formative years of your life.  It is entirely a matter for you. 

36Having said this, I am encouraged by the fact that Ms Dando continues to support you, and you have informed me from the dock that she is now drug-free and working.  And I am also encouraged by the presence of your aunt in court today.  You do have support, and you do have support from people who are in a position to help you meaningfully. 

37I regard you as a person with some prospects of rehabilitation.  I have to be a bit guarded by that.  However in the end it is entirely up to you.  I take it you understand the pattern I am talking about, Mr Forshaw?  Can you stand up, sir?

38OFFENDER:  Yes, Your Honour. 

39HER HONOUR:  Do you want to tell me what you think it is?

40OFFENDER:  Well, it's a serious pattern that I just keep going to repeat.

41HER HONOUR:  Tell me what you reckon the pattern is.

42OFFENDER:  Avoidance.  Avoidance.

43HER HONOUR:  What do you mean by "avoidance"?

44OFFENDER:  Avoidance; I don't discuss my problems because I have had a very low self-worth, and thought that my issues didn't matter, and I just pushed it to the side.

45HER HONOUR:  Well, you did not just push them to the side.  You dealt with them by using drugs.

46OFFENDER:  Yeah.

47HER HONOUR:  Alright?  The childhood you have had, I am not trying to understate the effect that it has had on you.  I am seriously not trying to do that.  But many, many, many people in this world have unsatisfactory parenting.  They always end up with low self-esteem, and it is a question of how you deal with it.

48The pattern I am talking about is:  you stop using drugs, all these feelings come up, you deal with them for a while, something comes into your life, and the whole structure falls to bits and you go back to using drugs again.  And once you use drugs, you offend.  That is quite clear.

49And you are in this terrible position now where we have a structure that if you breach parole, you have to serve as extra any time that you get for further offending.  Now that you have got four armed robberies and an aggravated burglary on your priors, no court is going to deal with you in any other way much than gaol.

50Once that happens, the whole structure yet again comes tumbling down.  The only one who can keep the structure going is you.  I think you should take encouragement from the fact that Dr Cunningham says you are an intelligent man.  You know, you are not presenting before this court with acquired brain injury, low intelligence, all those very difficult features that so many people have in their life.  You can actually do this.

51You have to understand your own patterns and you have to understand how careful you have to be about how you live your life on the outside. 
Fundamental to that is a cessation of drug use, and you need to do a lot of therapy about your self-esteem.  You do those two things and get yourself some work, and I would be confident that you can have the sort of future that I know you want.  All right, sir? 

52OFFENDER:  Yes, ma'am.

53HER HONOUR:  Thank you.  Have a seat.  Unless there are exceptional circumstances, and I am satisfied those circumstances do not exist in this case, any sentence I impose must be served cumulatively to the period of outstanding parole owed.  However, issues of totality still apply, and for that reason, I am going to impose a sentence which is perhaps less than might otherwise be the case. 

54In sentencing you, I take into account your plea of guilty.  I am satisfied you are remorseful for your offending.  I do believe you have guardedly positive prospects for rehabilitation.

55I therefore sentence you as follows.  Could you stand up, please, sir?

56On Charge 1, you are sentenced to six months' imprisonment.

57On Charge 2, you are sentenced to six months' imprisonment.

58On Charge 3, you are sentenced to one month's imprisonment.

59Sorry, I think I have got that wrong on the indictment.  Sorry.  I will start again.

60Charge 1, you are sentenced to six months' imprisonment.

61On Charge 2, you are sentenced to one month's imprisonment.

62On Charge 3, you are sentenced to six months' imprisonment.

63On Charge 4, you are sentenced to 15 months' imprisonment.

64On Charge 5, you are sentenced to three months' imprisonment.

65On the charge of breaching parole, you are sentenced to one month's imprisonment.

66On the charge of assault with a weapon, you are sentenced to one month's imprisonment

67And on the charge of unlawful assault, which I regard as nasty, involving as it did a young woman, I sentence you to six months' imprisonment.

68The base sentence will be the sentence imposed on Charge 4 on the indictment, 15 months.

69Just excuse me while I work out my maths here.  Sorry.  I am sorry.  I beg your pardon.

70On the aggravated burglary, I sentence you to 18 months' imprisonment.

71I order that two months of the sentences imposed on Charges 1 and 3, and two months of the sentence imposed on Charge 5, and three months of the sentence imposed in relation to the unlawful assault, be served cumulatively to the sentence imposed on Charge 4, and to each other.

72That should give a total effective sentence of 27 months, and I order that you serve a minimum term of 14 months before becoming eligible for parole.

73There is no PSD attached to that, is there?  Because he has been serving out the unexpired portion.

74MR PEARSON:  That's right.  That's as I see it, Your Honour, yes.

75HER HONOUR:  All right.  So as of February next year, you will have another 14 months after that.  All right?  Thank you. 

76Pursuant to s.6AAA, I declare that had you not pleaded guilty, I would have sentenced you to a term of imprisonment of three-and-a-half years, and ordered that you serve a minimum term of two-and-a-half years.

77Thank you.  Anything else that I need to attend to?

78COUNSEL:  No, Your Honour. 

79HER HONOUR:  I thank counsel for their assistance.

‑ ‑ ‑