Director of Public Prosecutions v Foster

[2014] VCC 312

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR -13-02196

DIRECTOR OF PUBLIC PROSECUTIONS

v

ANDREW FOSTER

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	18 March 2014
CASE MAY BE CITED AS:	DPP v Foster
MEDIUM NEUTRAL CITATION:	[2014] VCC 312

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms D. Hogan	Office of Public Prosecutions
For the Accused	Mr D. Gibson

HIS HONOUR:

1Andrew Foster, you have pleaded guilty to three counts of armed robbery, two charges of attempted armed robbery and one charge of attempted aggravated burglary.  Armed robbery carries a maximum penalty of 25 years, attempted armed robbery 20 years and attempted aggravated burglary 20 years' imprisonment.

2You are now 20 years of age.  You pleaded guilty at the earliest reasonable opportunity and must get the utilitarian benefit of that.  Insofar as remorse is concerned that is far more problematic and I may comment during the course of the plea as to how you appear to be responding to it all.  Be that as it may as Judge Gucciardo said some little time ago, I should not regard remorse as being non-existent but just a bit hard to find.

3You, at the age of 20, have a very significant criminal history.  You have, on my count, five prior convictions for armed robbery.  You have priors for robbery, dishonesty and violence.  You have been in adult custody and you have been in Youth Justice.  In that last two years you would appear to have had something in the order of four months at large and I will go through the history of that shortly.

4I will proceed to a summary of the prosecution opening and I have had the benefit, if it can be called that, of watching the offending, or most of it, on CCTV.  You had a co-offender, one Danielle Mann who is 18 years' of age.  She is charged with less than you and parity is of no significance in this sentencing process.

5On 5 June 2013, about a month after being released on parole, at 1.10 in the morning you attended a 7-Eleven service station in Hallam.  You entered the store wearing a T-shirt wrapped around your head, covered your face.  You said to the attendant "Give me the money, give me the money".  You then produced a large knife and pointed it to the attendant.  The attendant handed you approximately $400 in cash, which you placed in a bag.

6On 16 June 2013 at approximately the same time you attended a Shell service station in Narre Warren and, again, wearing a T-shirt wrapped around your head, produced a large knife and demanded the money.  You were given $200 in cash which you placed in a bag.  You said to the attendant "I'm really sorry I have to do this, just give me all your money" and you then left the store.

7On 17 August at 3.21 a.m. you attended the 7-Eleven in Clayton Road, Clayton.  Again you had a T-shirt wrapped around your head, produced a large knife and demanded money.  The attendant was frightened and ran from the counter.  You chased him down the aisle, told him to stop and put the money in the bag.  The attendant ran out the front door of the store and you chased him for a short time before returning to the store.  Once inside you attempted to remove money from the till but were unsuccessful.  That is an attempted armed robbery.

8At 4.00 a.m. on the same day you attended the Caltex service station at Koonang Road in Carnegie.  You entered the store wearing, again, a T-shirt wrapped around your head, produced a large knife and said "Give me all the money".  You were given $300. 

9On 19 August at 8.00 p.m. in the evening you attended a milk bar in Narre Warren.  You entered the store wearing a T-shirt wrapped around your head, again a large kitchen knife and demanding money.  The attendant opened the till, you leant over the counter and took hold of the till and the dropped it.  The owner of the store came out to the front of the store to confront you.  Another man ran into the store, pulled out a plastic toy gun and pointed it at you.  You dropped the knife and bag and ran from the store.  You were chased and a struggle took place.  That is a charge of attempted armed robbery.

10On 20 August at 1.10 a.m. you and your co-accused, Danielle Mann, attended a service station in Hallam Road in Hallam.  You drove to the store and she was in the passenger seat.  The car was parked at the rear of the store and you both walked to the front.  You each had T-shirts wrapped around your head that covered your faces.  This time Mann was carrying a large knife with her that she stole of a Woolworths earlier that night.

11The male attending the store saw the two of you approaching and locked the front doors to stop you from entering.  You used your hands to attempt to force open the door but were unsuccessful.  The duress alarm was activated and you both left.  That give rise to a charge of attempted aggravated burglary on your part.

12Investigations took place and you were ultimately charged and as I have indicated, arrested on 21 August 2013 and you entered a plea on 18 November.  You have been in custody ever since.

13I have before me victim impact statements in relation to two of the matters which in very short compass describe the fear that offending of this nature causes.  One does not need a victim impact statement to be aware of the ongoing psychological impact of such offending.  People are terrified and it is common that the effects of that terror lasts for an indefinite period of time.

14The offending is clearly serious, it calls for the application of general and specific deterrence as well as appropriate punishment.  In your situation it seems clear to me that there must also be a significant element of community protection.  On the other hand you are still only 20 years' of age and as I will indicate in a moment may well have to do this sentence in fairly stringent conditions.  A significant custodial sentence is inevitable.

15A number of documents were tendered on your behalf including a report from Psychologist, Mr David Ball.  The report points out that in your own personal circumstances you were brought to Australia when you were approximately 14 years of age by your parents and within months of arriving here, apparently as you sensibly described, went out of control.  You disappeared for a period of time and were then found.  You had been addicted to substances for some years and substance addiction underlies the offending that I have already described.

16You are, as I have said, in custody.  The matters that can be described in relation to that can be done fairly simply.  You have been diagnosed with attention deficit hyperactivity disorder and an oppositional defiant disorder.  Your IQ falls at the lower end of the dull-normal range.  Mr Ball, who is well experienced in this area, said:

"Mr Foster impressed me as an immature, anti-social, defiant, oppositional and low functioning individual prone to very poor judgment, aggressive acting out, rapid relapse into substance abuse, impulsivity and the failure to learn from previous mistakes.  He lacks the capacity to plan and execute positive and self-sustaining behaviour.  He expressed no insight into his offending behaviour and minimal insight into his general and psychological functioning".

17That gives any sentencing judge cause to regard your prospects of rehabilitation as somewhat problematic.  I then turn to the realities of your particular situation.

18You have the ADHD as I have already described and you have the oppositional defiance disorder which I have already described.  You, in all probability, will be deported but I cannot act upon that.  I simply sentence on the basis that you will be undergoing an extensive sentence with the concern of deportation hanging over your head.

19You are now estranged from your family and I do not need to go into all that.  You have no visitors.  At the present time, and you now have been for in excess of a month, you are in 22 hour lockdown or isolation, whatever the expression may be.  You have breached a Youth Parole Order and on my calculations still owe them something in excess of 18 months.  You have not been reclaimed under that order and accordingly I can not take it into account.  If they do reclaim you then this may have to be looked at again at some later time.

20You are in grave danger of being institutionalised and that has been referred to in earlier reports.  Unfortunately, whilst I am extremely concerned about that aspect of it, I can only take it into account insofar as totality is concerned.  As I have indicated you have a very significant number of prior convictions.

21On 13 April 2012 you went into adult custody for a series of armed robberies.  On 12 August 2012 you were involved in a riot at the gaol to which you subsequently pleaded guilty.  On 24 September 2012 you were sentenced in this court to a period of three years Youth Justice in respect of those matters for which you had been custody.  I note that at that point in time the victim impact statements were read out in court and undoubtedly you heard them.

22On 27 November 2012 you received a further 18 months Youth Justice.  I have not been through the detail of all that but that three year Youth Justice Order, which would then have an extra two months because of the November sentencing, was after you had served 154 days in adult custody with some 40 days in isolation.

23You apparently survived in the Youth Justice system and were paroled on 5 May 2013.  You re-offended with an armed robbery on 5 June 2013 and were then at large for some two and a half months whilst this other offending occurred until 21 August 2013.  Accordingly you were only out for a month before the offending started again.

24On 17 February 2014 you were sentenced to be imprisonment for a period of seven months by Judge Gucciardo in relation to the riot.  No pre-sentence detention was declared at that time.  It then falls to me to impose a sentence.  The prospects of your rehabilitation have to be guarded and the risk of you re-offending, on any calculation, would have to be regarded as high. 

25The matters that concern me most in your situation are the lack of insight described by Mr Ball and the fact that you are still only 20 years' of age.  As indicated during the course of the plea and I am sure you heard me, I have acted for many young people in your situation and the risk of institutionalisation is a great one.  If you are deported at the end of all this, so be it, that has got, at this point in time at least, nothing to do with me.

26What concerns me greatly here is that I have read the sentencing remarks, a couple of times, of Judge Gucciardo back in February.  One of your co-accused in relation to the riot had been, effectively, on 23 hour and then 22 hour lockdown for something approaching two years.  You, yourself, are now in lockdown, having been in lockdown under a previous sentence and had been there for a month.  I am told from the Bar table, and have no reason not to accept, that that lockdown will continue for the foreseeable future.

27When a judge is sentencing a 20 year old to imprisonment one would normally expect that that 20 year old would be doing courses, would be doing a trade, would have a trade within a gaol.  That does not happen with you.  You are not even allowed to hold tools.  I can only sentence on the basis that this lockdown is going to continue and there is nothing I can do about that.  I make it clear that I do not, and have no desire, to be involved in the actual management of a gaol. 

28As Judge Gucciardo said back in February, that to have people of your age being incarcerated under those circumstances, whether it be because of your own behaviour, because of gaol overcrowding, whatever it might be, is an extremely unfortunate situation.  I do not know what the community thinks it is going to produce by having young people incarcerated in such a way and for such an extended period of time but I must admit in the ultimate I fear the worst.

29That, of course, cannot mean and does not mean a ridiculously lenient sentence but what it does mean is that I have to sentence taking all of those matters into account and do so in the following way.

30The question of totality has played a large part in this and the accumulation must be imposed, because there is separate victims in each occasion, is less than what it otherwise might have been.  In any event the sentence is as follows.

31Charge 1, four years.  Charge 2, four years.  Charge 3, three years.  Charge 4, four years.  Charge 5, three years.  Charge 6, two years. 

32I direct that nine months of the sentence imposed on Charge 2, five months of the sentence imposed on Charge 3, nine months of the sentence imposed on Charge 4, five months of the sentence imposed on Charge 5 and two months of the sentence imposed on Charge 6 be served cumulatively upon each other and upon the sentence imposed on Charge 1.  That gives an effective head sentence of six and a half years.

33In all the circumstances, whilst I have little faith that you will even be paroled because of your age and because of those other matters I direct that you serve a minimum term of four years and three months before becoming eligible for parole.  I direct that 184 days be reckoned as having being served under this sentence.

34Pursuant to s.6AAA of the Sentencing Act I say that but for your plea of guilty you would have been sentencing to be imprisoned for a period of nine years with a minimum term of six.  Are there any other orders I have to make?

35MS HOGAN:  A disposal order's already ‑ ‑ ‑ 

36HIS HONOUR:  Already made that.

37MS HOGAN: ‑ ‑ ‑ been made, Your Honour.

38HIS HONOUR:  Yes, yes.  All right.  I simply say that I trust that there is a proper effort made for this young person, which he still is to be given some chance in the world.

39(Short adjournment.).

40MS HOGAN:  I apologise, Your Honour, I should have picked it up while Your Honour's still on the Bench.

41HIS HONOUR:  Yes.

42MS HOGAN:  My calculation was 180 days ‑ ‑ ‑ 

43HIS HONOUR:  That was last week though.

44MS HOGAN:  ‑ ‑ ‑ PSD.

45HIS HONOUR:  He's done four days since then.

46MS HOGAN:  He's still undergoing sentence.  So that's not calculated as part ‑ ‑ ‑ 

47HIS HONOUR:  Of course he is, yes.

48MS HOGAN:  ‑ ‑ ‑ of his PSD.  So ‑ ‑ ‑ 

49HIS HONOUR:  Right.  No that's ‑ ‑ ‑ 

50MS HOGAN:  ‑ ‑ ‑ in my opening I've set it out as he was arrested ‑ ‑ ‑ 

51HIS HONOUR:  No, no, I'm not being critical.  I've misunderstood that.  It's just the note I've taken and I've just added it instinctively as I would.

52MS HOGAN:  Yes.

53HIS HONOUR:  So it's four days on. 

54MS HOGAN:  Yes, yes.

55HIS HONOUR:  All right PSD - there's a provision just to correct that.  So that'll be 180 days.  The other thing which I meant to do is that, for reasons of totality, this sentence will be served concurrently with any sentence being presently undergone.  All right.  Last chance, there's nothing else?

56MS HOGAN:  Yes, Your Honour.

57HIS HONOUR:  All right.

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