Director of Public Prosecutions v Foster

[2021] VCC 1806

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
 Suitable for Publication

Case No. CR-21-00477

DIRECTOR OF PUBLIC PROSECUTIONS

v

ANDREW RICHARD FOSTER

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JUDGE:	HIS HONOUR JUDGE WISCHUSEN
WHERE HELD:	Melbourne
DATE OF HEARING:	27 October 2021
DATE OF SENTENCE:	12 November 2021
CASE MAY BE CITED AS:	DPP v Foster
MEDIUM NEUTRAL CITATION:	[2021] VCC 1806

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms J. Fallar	Office of Public Prosecutions
For the Accused	Ms N. Freijah	Giorgianni & Liang Lawyers

HIS HONOUR:

1Andrew Richard Foster, you have pleaded guilty to one charge of causing serious injury intentionally and to two charges of causing injury intentionally.

2The maximum penalty for causing serious injury intentionally is 20 years' imprisonment, the maximum penalty for causing injury intentionally is 10 years' imprisonment.

3The circumstances in which these offences took place are set out in the amended prosecution plea opening which became Exhibit 1 on the plea.   The offending itself occupied a very short space of time and CCTV and bodycam footage of the offending was played during the prosecutor’s opening on the plea hearing.

4The circumstances are these.   Shortly stated, in July 2019 you had been in prison serving a number of sentences since August of 2013.   You were due for release, and immediate deportation in March of 2020.

5On 14 July 2019, the prison cell of which you were the sole occupant was randomly selected by prison intelligence to be searched.  Some items of contraband were found and you were summonsed to the office of the correctional supervisor.  There you became agitated, mainly at the prospect of interference with a prospective visit from your parents, and by the possibility of losing your job as a kitchen billet.  You became abusive to the supervisor and he summonsed the tactical operations group to 'lock you down' because of your show of aggression.  Prison Officers Biram (who was the TOG supervisor), and Prison Officers Little and Plonsker set about the task of locking you down.  Biram went to look for you in your cell where he had hoped to speak to you to reduce your stress at the prospect of disciplinary procedures, but found you were not there.  In the meantime Little and Plonsker located you seated at a table with other prisoners and informed you of what was to happen next.  You left the table and walked towards the supervisor’s office, making threats to hit the supervisor.  Plonsker sought to dissuade you from doing this, telling you that you should be locked down in your cell and that the supervisor would come and speak to you there.  You turned briefly and appeared to follow Plonsker and soon after hit him to the mouth and followed this up with several punches.  These blows caused blood spurt from his mouth, the loss of some teeth and the loosening of others.

6Little called a 'code blue' and Plonsker attempted to restrain you whilst you rained blows to the back of his head.  Biram ran to assist and you felled him with a right hook to the side of his head.  You then gained some space and took up a boxing stance and attempted to provoke a fight with the custody officers. 

7Biram then showed you the handcuffs and stepped forward, whereupon you swung a right hook which hit him on the right side of the head.  The scuffle with Plonsker continued, Little assisted, and in the course of this Little was repeatedly punched to the left side of his head near the temple and upper jaw causing him to feel dazed.  You overcame the efforts to subdue you and regained your feet but you surrendered when reinforcements with OC spray arrived.

8The entire exchange took only a matter of seconds and can be seen with relative clarity on the CCTV and bodycam footage that has been tendered.

9The matter was investigated and you refused to be interviewed.  Each of the three officers initially engaged suffered injury, and attended the Sunshine Hospital.  Plonsker suffered a laceration to the inside of his lower lip that required repair with sutures, and suffered dental injuries that in the result amounted to the loss of four teeth and the loosening of another.  These have required costly dental treatment, in the end with dental implants.  The injury to Plonsker in these circumstances gives rise to Charge 1, intentionally causing serious injury.

10Biram suffered a range of injuries.  A ruptured eardrum due to the force of the blow to his head, a sprain of his knee with swelling and laxity that was managed by a knee brace and crutches and physiotherapy for some months afterwards.  He also suffered rib injuries.  The assaults upon Biram give rise to Charge 2, causing injury intentionally.

11Stuart Little was treated at Sunshine Hospital, presenting with pain at the angle of his jaw, on the forehead and some lumbar back pain together with swelling and grazing above the left eyebrow.  Two days later, he presented for treatment complaining of headache, nausea and pain over the left eye and forehead together with memory problems and a fuzzy feeling in his head.  Two weeks after the assault he was still unwell - he felt his short term memory was shocking and he was not sleeping.  Months later, investigations revealed a conductive hearing loss due to the blow to the left side of his face.  He was seen by a neurologist in September 2019, and a diagnosis of significant head injury and concussion was made and the prognosis of this was expected to be okay but was not certain.  The assault upon Little gives rise to Charge 3, causing injury intentionally.

12In the course of the plea a victim impact statement from Biram was tendered, Exhibit 2.  The effect upon him has been long-lasting.  He recounts that he initially thought he had suffered only bruising and muscle stiffness, but was alerted to a drop off in his performance in a range of functions by his work colleagues - he has noticed changes in his mental acuity, sleep, mood and tolerance, although he has not sought treatment for these symptoms, which he attributes to the after effects of concussion. 

13Custody Officer Little’s wife read to the court a lengthy and moving account of the many ways in which Little’s former life has been and continues to be all but destroyed by the consequences of the injuries suffered and their effect upon his emotional, intellectual and physical functioning.  She spoke also of the many ways in which the injuries you caused have disrupted their relationship, their marriage and her social, recreational, domestic and working life.  Little has not been able to return to work, and the couple have, and will continue to suffer considerable financial hardship due to the significant shortfall between his former earnings and weekly payments of WorkCover compensation.

14After the charges were laid you pleaded guilty at the first reasonable opportunity.

15You are now 28 years of age.  You have been on remand since your sentences ended in March of 2020 and up to today had spent 601 days, not including today, on remand in respect of these charges.

16You have a significant and highly relevant criminal record.  The gravity of your earlier offending and your criminal record is general is reflected by the fact that at age of 20 you were sentenced to a term of imprisonment in this court of six years and six months.

17Because of the provisions of the Sentencing Act, prior convictions when you were a child are nevertheless qualifying offences for the serious offender provisions, and it was not in contest that you fall to be sentenced as a serious violent offender in respect of Charge 1.

18Further, the operation of section 10AA imposes a mandatory minimum non-parole period on Charge 1 of three years in circumstances where, as here, an emergency worker, of which custody officers are a subset, are assaulted in the course of their duty.  In those circumstances general deterrence is a very important sentencing consideration.

19Andrew Richard Foster, I state to you that I have taken into account all the matters raised on your behalf in mitigation of penalty in the course of the plea during which your counsel spoke to written submissions which became Exhibit 5.

20The matters raised included:

21Your plea of guilty.  Conceded to have been entered at the first reasonable opportunity, it has saved the community the cost and the witnesses the stress of a contested committal and of a trial.  In these times of pandemic, the weight to be given in mitigation to a plea of guilty is even greater.[1]  I take your plea also to be some expression of remorse for your actions which in the course of your consultation with Mr Cummins, psychologist, (whose report was Exhibit 6) you characterised as having 'lost the plot' after many years in custody, a considerable portion of which had been spent 'slotted'.  You are entitled to have these matters taken into account in mitigation of penalty, and I have done so.

[1] Worboyes v R [2021] VSCA 169 at [35], [39]: “We therefore consider that, whilst the courts of this State continue to labour under the adverse effects of the pandemic, a sentencing court should view a plea of guilty as carrying with it a greater utilitarian benefit than at other times and in other circumstances, and, concomitantly, as attracting an augmented mitigatory effect on sentence, simply because the plea will benefit the beleaguered administration of justice. Given the unhappy state of the courts’ lists, the courts must, in an endeavour to alleviate the strain on the system, encourage those accused who are guilty to so plead. Such encouragement must come from an actual and palpable amelioration of sentence… For these reasons, we consider that — all other things being equal — a plea of guilty entered during the currency of the COVID-19 pandemic is worthy of greater weight in mitigation than a similar plea entered at a time when the community and the courts are not afflicted by the pandemic’s effects. A plea of guilty during the pandemic ordinarily should attract a more pronounced amelioration of sentence than at another time. Although a sentencing judge need not quantify the extent of any ‘discount’, he or she must ensure that the plea of guilty results in a perceptible amelioration of sentence.” See also Chenhall v R [2021] VSCA 175.

22As to the gravity of this offending, your counsel did not shy away from the fact that this is serious offending but did make the point that it all occurred in a single episode of ‘loss of control’ even though it caused significant injury to three separate victims.

23I have taken into account your background and personal circumstances.  Important amongst them is the fact that you have been continuously in prison since August of 2013. 

24Now aged 28, you were born in the United Kingdom and came to Australia with your parents and two siblings when you were about 14 years of age.  In the UK, I was informed that you did have some drug and alcohol issues, though you were still attending school.  As a 14-year-old you were greatly upset by your parents' move away from your established life in the UK and on arrival in Australia your behaviour spiralled out of control.  You were relatively soon after your arrival expelled from school.  You told Mr Cummins that brief spells in employment had come to an end because of behavioural issues.  You used cannabis and alcohol, and for a time methamphetamine and other drugs.  You have done so since an early age, although I was informed that in your own assessment alcohol has been  the main problem.  This substance abuse provided the background for your extensive history of criminal behaviour that has seen you before the Children’s Court, the County Court and the Magistrates Court on an impressive number of occasions before you had turned 20.  To Mr Cummins you made no complaints about your family life, other than being moved to another country.

25

Greater detail of your background and developmental history is set out in

Mr Cummins' report, and on the basis of his consultation and your life history he concluded that you probably meet the criteria for a diagnosis of antisocial personality disorder or borderline personality disorder.  He agreed with your own characterisation of yourself as institutionalised, and noted that your mood was stable on your current medication.[2]  He also raised the possibility that you may suffer from a mild acquired brain injury but this would need further assessment to confirm.  Although these matters have relevance to the sentencing consideration here, counsel expressly disavowed any reliance on Verdins principles.[3]

[2]  Seroquel, mirtazapine and methadone.

[3]  Brown v The Queen [2020] VSCA 212.

26Mr Cummins rated your prospects of rehabilitation as 'very guarded'.  Having regard to your history, I accept his view as to this. 

27I have had regard to the fact that your remand on these charges has been largely spent in the difficult circumstances prevailing in our prisons during the pandemic  with the interference that that has caused to privileges, liberty, work and educational programs, and to the fact that these circumstances may persist for a long time yet.

28In the time that you have been in custody, your parents' marriage has ended and your father has returned to the UK, though to Mr Cummins you did not suggest that you intended to make contact with him there.

29It was common ground on the plea that having failed in your attempts to overturn a deportation order that applies to you, your deportation upon release is inevitable,[4] and not dependent upon executive action, as this is already complete and your appeals against it have failed. As to how this works with parole, I was provided with a copy of the manual of the Adult Parole Board of Victoria (see 8.5 of that manual).

[4] As to the effect on the prospects of release on parole of the certainty of deportation, the Parole Manual of the Adult Parole Board of Victoria was provided -  see 8.5.

30On your behalf it was submitted, and counsel for the Director accepted, that considerations of totality, proportionality and the need to avoid a sentence that would in all the circumstances be crushing must be brought into account in the sentencing consideration.

31It was accepted also that although there are three victims who must be recognised in the sentencing consideration, these offences are all part of a single very brief episode of offending, and a degree of concurrency between sentences is warranted here.

32The submission that because of your inevitable deportation that I need not have regard to community protection, even for the purposes of the serious offenders provisions of the Sentencing Act, was abandoned – see Zhao v R [2018] VSCA [60] – [71].

33Submissions were made as to the complex operation and interaction between sub-section 6D, 6E and section 10AA of the Sentencing Act.  It was common ground that you fall to be sentenced as a serious violent offender in respect of Charge 1,[5] but that the cumulation provisions of section 6E do not operate in respect of the sentences imposed upon Charges 2 and 3.  It was common ground also that section 10AA required the imposition of a non-parole period of three years in respect of Charge 1, and a minimum period of six months' imprisonment in respect of each of Charge 2 and Charge 3 (section 10AA(4)).   On your behalf it was conceded that no 'special reason' within the meaning of sub-section (1) or sub-section (4) was engaged here.  It was common ground also that sub-section (5) of section 10AA was satisfied.

[5] Because you had been sentenced in July 2010 in the Children's Court and detained in the youth justice centre on charges of intentionally causing serious injury and of threat to kill which are qualifying offences bringing into effect the requirement found in section 6B that you be sentenced as a serious violent offender in respect of Charge 1.

34Against the matters to be taken account in mitigation of penalty must be balanced the fact that the specific sentencing provisions already referred to, and the second reading speech made when the Emergency Workers Act 2014 was introduced, show that offences against emergency workers in the course of their duty are regarded as serious offences and these are, in my view, serious examples of them – wholly unprovoked as they were.  The assaults that give rise to the causing injury charges were committed in the knowledge that a further sentence would inevitably follow, and were on your own account just a venting of frustration, and were carried out in full view of other officers and many prison inmates.  These actions - causing injury to persons who are simply carrying out their jobs - serve to undermine prison discipline.  The injuries sustained were in one case serious and in another have had lasting and devastating consequences for your victim and his family.  The immediate aftermath of your offending is plain to be seen in the photographs contained in the depositions at pages 72 to 82.  Any doubt that the custody officers were terrified by your attack upon them evaporates when the footage of the actual offending is watched.

35Counsel for the Director conceded that in your particular circumstances there is a significant tension between the objectives of sentencing for serious offending against emergency workers in the course of their duty, and the need here, having regard to the principles of totality and the fact that you have been incarcerated since 2013, to avoid the imposition of a sentence which is crushing.

36Although parliament has fixed a non-parole period for Charge 1, and in that circumstance other provisions of the Act operate to make three years and six months the minimum term that can be imposed in respect of Charge 1, the Act says nothing about what is required in setting a single non-parole period across a number of charges of which one requires a non-parole period of three years.

37In further written submissions, counsel for the Director referred me to Esmaili v R and Mammoliti v R and, on instructions submitted that in sentencing on an indictment containing a charge with a mandatory minimum non-parole period, and also charges with a mandatory minimum sentence of imprisonment, ordinary principles of cumulation and concurrency applied.  It was also submitted that the minimum non-parole period applicable to Charge 1 should not influence the head sentence,[6] though noticing that Mammoliti considered that it should provide a sentencing guidepost.   Reading those two decisions of the Court of Appeal makes clear how difficult these provisions make the application of ordinary sentencing principles.[7]

[6]  As to this, the discussion at [29] in Mammioliti allows that in a multiple charge case, a sentence of less that the minimum non parole period might be permissible so long as the non parole period across all of the charges was 3 years or more.

[7]  Mammioliti [26]-[29].  Later, the Court noted that on a single charge indictment the minimum non parole period and the operation of s11(3) combined to produce an effective minimum head sentence, though this is not necessarily the result, and the Court, in a single charge case, accepted the analysis set out earlier in [25] as part of the applicant’s submissions.   In a postscript in Esmaili, such a provision was noticed to have two undesirable consequences, one of principle, in inverting the conventional method, the other practical in that it produced an unacceptably short NPP [62]-[63]

38Andrew Richard Foster, I state to you that I have taken into account all the matters raised on your behalf in the course of the plea and all other relevant facts and sentencing principles in arriving at the sentence I am about to impose.

39On Charge 1, causing serious injury intentionally, you are convicted and sentenced to a term of imprisonment of three years and six months.  I direct that the fact that you were sentenced on Charge 1 as a serious violent offender be entered in the records of the court. 

40On Charge 2, you are convicted and sentenced to a term of imprisonment of 12 months.

41On Charge 3, you are convicted and sentenced to a term of imprisonment of one year and six months. 

42Taking the sentence on Charge 1 as base, I direct that four months of the sentence imposed upon Charge 3 and two months of the sentence imposed upon Charge 2 be served cumulatively upon each other and upon the sentence imposed upon Charge 1.  That makes a total effective sentence of four years.

43I fix a non-parole period of three years.

44I declare that the time you have spent in custody on remand in respect of these charges, 601 days not including today, is to be reckoned as time served under the sentence I have imposed and I direct that this fact be entered in the records of the court

45Pursuant to section 6AAA, I state that had you been found guilty of these charges after a trial I would have sentenced you to total effective sentence of six years and six months with a non-parole period of four years and six months.

46Are there any other matters that I have overlooked and is the arithmetic correct?

47MS FALLAR:  No, Your Honour.  As the court pleases.

48MS FREIJAH:  No, Your Honour.

49HIS HONOUR:  Would you adjourn the court, please.

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