Director of Public Prosecutions v Forster

[2014] VCC 2333

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

AT BALLARAT
CRIMINAL JURISDICTION

CR 14 01029

DIRECTOR OF PUBLIC PROSECUTIONS

v

CHRISTOPHER FORSTER

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JUDGE:	HIS HONOUR JUDGE GUCCIARDO
WHERE HELD:	Ballarat
DATE OF HEARING:
DATE OF SENTENCE:	2 September 2014
CASE MAY BE CITED AS:	DPP v Forster
MEDIUM NEUTRAL CITATION:	[2014] VCC 2333

REASONS FOR SENTENCE
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Subject:
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Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P. Bourke
For the Accused	Mr M. Langlois

HIS HONOUR: 

1In this matter, Christopher Mark Forster has pleaded guilty to an aggravated burglary and a theft.  The theft proceeds from the aggravated burglary and pertains to a television screen, play screen TV.  The more important and serious charge is that of aggravated burglary.  That is a charge that the law indicates is a serious offence by its maximum period of imprisonment which is 25 years. 

2The circumstances of this aggravated burglary which was committed together with the co-accused and other persons are outlined in the Crown summary of prosecution, Exhibit A, and I will not repeat it; the details can be found therein and I will append this exhibit to my sentence and it will be retained on the file.  But, briefly stated, Mr Forster, together with one Newman and other individuals, entered the residence of a man looking for another man who had previously injured one of the people entering with Forster, one Newman.  Both Newman and Forster entered with the intention of assaulting that other man if he was present.  Newman was armed with a knife, but the Crown acknowledges that Forster did not know that Newman was carrying a knife.  He then produced that knife and injured a man inside the property.  Having stolen a number of items, they then left the residence.

3When he was interviewed, Forster admitted entering the victim's residence on the night of the offending with the intention of finding and assaulting the person, Kasna, admitted being with Newman on the night; told police out of some misguided loyalty that it was he who had injured the man inside the property and denied the thefts over and above the television, which he then returned upon attending on the police a few days later.

4I have received submissions on behalf of Mr Forster, which was also tendered on the plea and essentially those matters relied on his early plea as evidence of remorse and having a benefit for the community which I accept, his lack of prior criminal history; his background generally, which to some extent has been of some disadvantage, both encompassing a low level of achievement in an educational sense and also a difficult family background with little family support, which has seen him self-reliant and living independently since the age of 16.  It is noted that he has a history of behavioural difficulties and evidence of depressive disorder and anxiety and a troubled relationship with alcohol and drugs.

5I have also read the report of Warren Simmons, a psychologist, which is of 15 July and is comprehensive about his history and includes some testing and an opinion.  Whether or not I accept that his moral culpability is reduced because his role is subordinate, and I tend to not agree with that particular proposition, in terms of his culpability being essentially one that is founded on a joint enterprise or rather a common purpose on this day with Mr Newman and others, despite the fact that it was not he who did the assaulting.  The most important factor in this situation is his youth.  He is a youthful offender and the sentencing principles and the law have long recognised that I should consider that as the primary consideration in this sentence.  In that sense he is fortunate because that opens up avenues of different dispositions than otherwise if he was older and if he had some prior criminal history, because the offending is no doubt quite serious. 

6The court has to be seen in some way to be denouncing this behaviour as totally unacceptable and to be conscious of the fact that general deterrence must always be borne in mind when sentencing for aggravated burglary.  However, the primacy of his youth is paramount and in my view the purposes of the denouncement as well as deterrence and punishment can be achieved by a community corrections disposition for which I sought a report.  I received such a report from the Community Corrections services and they find Mr Forster to be suitable.  He appears to have understood and consented to the conditions and requirements of the order. 

7I intend to impose such an order for a period of 12 months.  I have noted the comments that I wish to impose conditions of supervision and then treatment and rehabilitation conditions relating to mental health, alcohol and drugs. 

8I noted during the course of the plea that Mr Forster is currently working full-time and his limited free time may be of some concern, but I think that there should be some element within the Community Corrections Order which requires him to go over and above what is essentially conditions to assist him and I will require him to do 50 hours of community work during that 12 month period. 

9It is clear that he has issues with alcohol and in particular with cannabis and I am imposing this order, (1) in the hope that his good prospects of rehabilitation can be assisted and achieved in some way, and (2) that he gets assistance to understand and deal with the fact that if he keeps abusing and using those substances, he is just going to, sooner or later, come back to court for something just as serious, and then he can kiss his work and his future prospects goodbye. 

10Mr Forster, stand up.  The next time you come to court having smoked cannabis in the morning, or smoking cannabis at lunchtime before being seen by Correctional Services for a report which was designed hopefully to help you, I am going to throw the key away on you; do you understand me?

11PRISONER:  Yes I do.

12HIS HONOUR:  You are not going to be going home, you are going to be going into a police cell the next time; do you understand me?

13PRISONER:  Yes I do.

14HIS HONOUR:  Because if you think that a smoke will settle you down or somehow help you, you are really kidding yourself, because I could tell this morning that you were doped up. 

15PRISONER:  I wasn't doped up this morning. 

16HIS HONOUR:  Well, you sure looked it.

17PRISONER:  No, I (Indistinct).  I promise you  a hundred per cent I wasn't doped up this morning.

18HIS HONOUR:  You smoked at lunchtime, didn't you?

19PRISONER:  Yeah, a couple of joints.

20HIS HONOUR:  Well, whether you realise it or not, and maybe you do not, I am giving you the best chance that anyone has given you throughout your life.  You take it with both hands and it is up to you.  If you stuff it up, I will see you back here.

21PRISONER:  Yeah.

22HIS HONOUR:  Now please do not think for one moment that a Community Corrections Order is a "get out of gaol" card, because it is not, because by the order that I am making, you are going to have to have a lot of obligations to fulfil in order to keep that for the next year.  If you reach this order by not turning up, by not going to the work that you are asked to do, by not turning up at appointments, by not turning up to the drug and alcohol rehabilitation or following a mental health plan, all of which you need, you are going to be back before me and you are not going to give me much of a choice.  So, if you want to spend months and months of the best years of your life in gaol, you go ahead and breach this order.

23I am putting you on this order to avoid sending you to gaol; do you understand?

24PRISONER:  Yes I do.

25HIS HONOUR:  Because I do not want to sent you to gaol, but if you breach this order, I do not reckon I am going to have much of a choice; do you understand what I am saying?

26PRISONER:  Yes I do.

27HIS HONOUR:  By signing this piece of paper, you are promising me that you are going to give it a go. 

28PRISONER:  Yeah, give it a go.

29HIS HONOUR:  All right, come out of the dock and come and sit behind your barrister and then when the papers are ready you can sign it. 

30The Community Corrections Order will be a sentence that will cover both the thefts and the aggravated burglary and I will sign the disposal and the compensation order.

31I order that Christopher Mark Forster pay to Alan Fikowski of 34 Grant Street, Ballarat, compensation in the sum of $1050.  I will order a stay of two months.

32In relation to Mr Forster, I am in my view prepared to make an order pursuant to s.464ZF.  In my view the seriousness of the offence warrants this order and it is in the public interest. 

33Mr Forster, a request will be made of you to take a sample from you, a biological sample, that will be done by the taking of a mouth scraping.  That is not a procedure that hurts or is painful or anything like that.  If, when you get asked to do that, you do not consent, then an authorised member of the police force will be able to use reasonable force to take a blood sample from you; do you understand?

34PRISONER:  Yes.

35HIS HONOUR:  You are going to report to the officer in charge of the Ballarat police station within a period of a month from today; do you understand?

36PRISONER:  Yes. 

37HIS HONOUR:  And in relation to the Corrections Order, you will report to Ballarat Community Corrections at Main Street office in Ballarat before 4pm on 4 September.  Today is the first, so you go there before the fourth.

38PRISONER:  Today is the second.

39HIS HONOUR:  Today is the second; you are ahead of me.  Well, you have got two days.

40Are there any other orders, Mr Bourke?

41MR BOURKE:  No, Your Honour.

42HIS HONOUR:  Thank you.

43MR BOURKE:  Is that with or without conviction, Your Honour?

44HIS HONOUR:  That is with conviction.

45MR BOURKE:  If Your Honour pleases.

46HIS HONOUR:  Mr Langlois, you will get a copy of this order and some others; if you could go through them with your client just to explain again the obligations and - - -

47MR LANGLOIS:  Certainly, Your Honour.

48HIS HONOUR:  - - - and explain to him perhaps the timeframes involved and the obligations that it involves, and in particular that if he decides not to turn up for supervision appointments or other appointments made, it is going to get very difficult because - I know that he is working full time, but he is just going to have to make do.

49MR LANGLOIS:  Certainly, Your Honour.

50HIS HONOUR:  Mr Forster, I know you are working full time Monday to Saturday, I do not know what hours you work; what hours do you work?

51PRISONER:  If we're working in Melbourne, we start at 20 past five and we don't get back until, what, four thirty, or if we work in Ballarat, it's from 7.30 until what, 4.30.

52HIS HONOUR:  OK, well that still gives you a little bit of time.  If you have trouble with appointments or things like that, the thing to do is to ring and tell them that you are going to be late or that you cannot turn up and then they will ask you for a paper or some report or some letter or some reference.  Do not just not turn up.

53PRISONER:  Yes, Your Honour.

54HIS HONOUR:  The thing to do is to stay in contact with Community corrections so that they know what is happing with you; do you understand?

55PRISONER:  Yes.

56HIS HONOUR:  The other orders that have to do with drug and alcohol rehab and assessment, they are all there to try and help you.

57PRISONER:  Yes.

58HIS HONOUR:  Do you understand that?

59PRISONER:  Yeah, I do.

60HIS HONOUR:  Right.  Thank you, Mr Bourke.  We will adjourn until 10.30 tomorrow.

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