Director of Public Prosecutions v Foster

[2019] VCC 1102

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 19-00585

DIRECTOR OF PUBLIC PROSECUTIONS

v

CLINTON FOSTER

---

JUDGE:	HIS HONOUR JUDGE CARMODY
WHERE HELD:	Melbourne
DATE OF HEARING:	18 July 2019
DATE OF SENTENCE:	18 July 2019
CASE MAY BE CITED AS:	DPP v Foster
MEDIUM NEUTRAL CITATION:	[2019] VCC 1102

REASONS FOR SENTENCE
---

Subject:  CRIMINAL LAW – Sentencing
Catchwords:  Attempted armed robbery
Legislation Cited: s.5(4C) Sentencing Act 1991.
Cases Cited:  DPP v Boulton [2013] VCC 972.

Sentence:Total effective sentence of two years’ imprisonment with a non-parole period of one year imprisonment before being eligible for parole.

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr J. Barrington	Director of Public Prosecutions
For the Accused	Ms J. Fallar	Emma Turnbull Lawyers

HIS HONOUR: 

1Clinton Foster, on 18 July 2019,  at the County Court in Melbourne, you pleaded guilty to the following charge on Indictment No.J13362951:

Charge 1, attempted armed robbery.  This offence has a maximum penalty of 20 years' imprisonment.

2You have admitted prior convictions as follows: 

·In June 2014, at Dromana Magistrates' Court, you were dealt with for unlawful assault and criminal damage.  On that occasion, you were placed on an undertaking to be of good behaviour. 

·In November 2015, at the Sunshine Magistrates' Court, you were dealt with for theft of a motor car and other driving offences.  On that occasion, you were placed on a 14 month community corrections order (“CCO”). 

·In May 2016, at the Sunshine Magistrates' Court, you were dealt with for theft and driving whilst disqualified.  On that occasion, you were placed on an 18 months community corrections order.

·In September 2017, at the Sunshine Magistrates' Court, you were dealt with for contravention of a community corrections order and fined.

·In October 2017, at the Sunshine Magistrates' Court, you were dealt with for driving whilst disqualified and fined. 

·In December 2017, at the Sunshine Magistrates' Court, you again were dealt with for contravention of a family violence order and fined.

·In January 2018 at the Sunshine Magistrates' Court, you were dealt with for criminal damage and persistent breach of a family violence order and sentenced to the 25 days you had already served.

·In June 2018, at the Sunshine Magistrates' Court, you were dealt with for contravention of a family violence order, damaging property and unlawful assault.  On that occasion, you were sentenced to 30 days' imprisonment that you had already served.

·In August 2018, at the Sunshine Magistrates' Court, you were dealt with for contravening a family violence order, unlawful assault and driving and theft charges and on that occasion, you were sentenced to four months' imprisonment and placed on a 12 month community corrections order to follow that four months' imprisonment. As a result of that order, you were released on 31 October 2018 from prison and you were to commence your community corrections order on 01/11/18.  The offending in this case occurred on 27 December 2018.

Circumstances of your offending

3The prosecution tendered the summary of prosecution opening dated 18 June 2019.  It was Exhibit “A” on the plea.

4Mr Singh was the owner and manager of MGS Melton, a grocery store located at 8 Station Street, Melton.  Ms Chatha was working in the store at the time of your offending.  Both of your victims have declined to make victim impact statements.

5At about 3 pm on 27 December 2018, Ms Chatha was working at the front of the store at MGS Melton.  Mr Singh was also at work but in the last aisle in the opposite corner to Ms Chatha.  Ms Chatha saw you enter the store and said
'Hi, how are you?' to a man who was already in the store, who was doing some work next door.  The other man then left the store.

6You have walked to the front counter.  You have said 'Give me money' to
Ms Chatha very softly.  Ms Chatha responded 'We can't because the system isn't working.'  You have then pulled a knife from the right side pocket of your pants.  The knife was about 25 centimetres long and the width of the blade was three to four centimetres.

7You pulled the knife from your pocket, leaving the tip of the blade inside your pocket still and said 'Give me the money from the till.'  You touched the keyboard trying to open it.  You saw the key was in the cash drawer and then tried to open the drawer.  Ms Chatha screamed in Punjabi to Mr Singh saying, 'Come fast, brother.'  Mr Singh ran down the aisle to the front of the shop, you ran out of the store without taking anything.  CCTV captured the entire incident and the police were called.  

8When police arrived, Lucy Spataro informed Constable Roverts that she had seen you or a male decamp in a southerly direction towards 6 Station Road, Melton South.  Spataro then said she saw you, a male, jump over the small metal fence and enter the first house located at the property.  After receiving information from Police Communications, Detective Senior Constables Densely, Symons, Parker and Fattore attended at the address 1/6 Station Street, Melton South.  Detective Densely then observed you standing inside the locked security door and ordered that you show your hands and exit the property.  You complied with his instructions and after you left the property, you were arrested.

9You were then conveyed to the Melton police station for interview.  You made full admissions to the police during the interview.  All of this occurred in a very short space of time. 

10You have been in custody for 203 days.  

Personal Circumstances

11You are nearly 38 years old.  You have no contact with your immediate family, meaning your mother, father and siblings.  It was submitted on your behalf that you had been sexually and physically abused by your father between the ages of six and 15 years old.  In your record of interview, you told police that you were raped as a kid.  That is Exhibit “9” at Questions 128-130.

12Your estranged wife, Ms Ryan, gave evidence that you told her in approximately 2015-16 that your father had abused you in a sexual way.  It was submitted on your behalf that you had made a formal statement to police about your father's sexual offending against you.  The police statement was not tendered in your plea and you have not, at this stage, attended upon the SOCIT unit that you were directed to.  Ms Ryan confirmed these matters in her evidence.

13You completed Year 11 at Strathmore Secondary College.  You then worked as a forklift driver, furniture maker and in the transport industry.  You even had a stint as a body piercer at “Off Ya Tree” just near the Victoria Market.

14You have an 18 year old son from your first relationship.  In 2001, you commenced your relationship with Ms Ryan.  You have three children from the relationship aged 15, 12 and two years old.  The older two children have health conditions which make your separation from them more difficult for them.

15In 2011, you had an industrial accident which resulted in a left elbow injury.  This injury required surgery.  You commenced taking marked quantities of pain relief medication after that injury.  This was the commencement of your drug taking spiral that evolved to an ice addiction now.  You were in the grip of that ice addiction at the time of the offending.

16Nevertheless, you were able to get back to work in 2013, and you injured your right elbow in an industrial accident.  You remained in employment until 2015, and were unable to continue working due to your levels of pain, bullying from your fellow workers and your developing drug addiction.

17From 2015, your criminal record clearly shows that your life was out of control and your frequency of offending increased throughout 2018.  This offence occurred within two months of your release from prison.  You were on a community corrections order at the time of this offence.

18You were remanded in custody for this offence on 27 December 2018.  Whilst in custody, you have been assaulted on three occasions, being 15 February 2019, 20 March 2019 and 3 July 2019.  The last occasion resulted in you being placed in protection, which means you spent 23 hours a day in your cell.

19You have had consistent work whilst in custody.  You have also obtained certificates in vocational pathways, engineering, kitchen operations, first aid, technology, general education for adults and adapt and relationship programs.  You have also completed Campbell's Help Course.

20You have not engaged in specific drug rehabilitation programs and I refer to Exhibit “5”.  You have been found to be suitable for an inpatient treatment at Odyssey House.  This residential placement is available to you after all the court and custodial matters are completed.  That is Exhibit “4” on your plea.

21The fact that you are willing to attend Odyssey House treatment programs shows you have some insight into the main trigger for your criminality.  You have been treated by Dr Rowan McIntosh, psychiatrist, since September 2012.  Dr McIntosh last saw you in October 2017.  Dr McIntosh treated you for the psychiatric conditions arising from your industrial accident in 2011 and beyond.  Dr McIntosh does not mention any sexual offending by your father as part of the history obtained from you in the course of his treatment.  He prescribed medications to treat depression and anxiety as outlined in Exhibit “2” on the plea.

22You have had a long term general practitioner in Dr J.P. Nettleton.  His reports were Exhibit “3” on the plea.  He has treated you for injuries and psychosocial issues up to the time of your remand for these offences.  His last prescription for you was on 17 December 2018, just 10 days before this offence. 
That prescription was for Valium.  He referred you to Dr Monheit for drug addiction.  He described you as a “difficult customer”.

23Whilst in custody, you are presently prescribed Olanzapine, Lexapro, Panadol, Prazosin and pain relief for migraines.

Sentencing Considerations

24The basic purpose for which a court may impose a sentence are just punishment, deterrence both specific and general, rehabilitation and the denunciation of your actions and the protection of the community.  In sentencing you, I must have regard to a range of factors such as the seriousness of your offending, your culpability for it and your personal circumstances.

25I am required to balance the interests of the community in denouncing your criminal conduct with the interests of the community in seeking to ensure as far as possible that you, as an offender, are rehabilitated and reintegrated into society.  I am also required to take into account the current sentencing practices in fixing your sentence.  That enquiry is directly particularly but not exclusively to the kinds of sentences imposed in comparable cases and the statistics for those sentences at the time.  I have considered the statistics and the current sentencing practices mindful that each case must be considered in the light of its own particular circumstances and many of the cases would be distinguishable from your case as indeed they are from one another.

26I am mindful of provisions of the Sentencing Act, in particular s.5(4C) which directs the sentencing court to consider whether a community corrections order can achieve the purpose for which this sentence is to be imposed.

27I have reviewed the case of Boulton in considering if a community corrections order would be appropriate in your case. 

28Your counsel submitted that a combination sentence of a term of imprisonment followed by a community corrections order was the appropriate sentence. I note that in 2018, you had three short periods of imprisonment.  In particular, you were released from Beechworth Prison on 31 October 2018, and commenced a 12 month CCO on 1 November 2018. 

29The offence before this court was committed on 27 December 2018, which is within two months of your release from prison and a sixth of the way through your CCO.

30You have had your chances on a CCO in the past.  You successfully completed one CCO and breached two subsequent CCOs by further offending. 
The full breach is yet to be determined in respect of the last CCO.  A sentencing disposition which encompasses a CCO does not fulfil the purposes for which a sentence for this instant offence is to be imposed.

31You have pleaded guilty to this charge.  Your plea of guilty was indicated at an early stage.  Your plea does have the utilitarian value of allowing for the orderly and effective administration of justice.  There is a certainty of outcome and a resolution of the substantive issues raised by your offending.  Your plea allows for the preservation of court and police resources to deal with other matters and your plea vindicates the public confidence in the legal process set up to protect the community.

32Your plea is also a clear acknowledgement by you that you accept responsibility for your criminal behaviour on this occasion.  Your plea also recognises you are willing to facilitate the course of justice in the community and I accept that your plea of guilty to these charges indicates and demonstrates some remorse on your behalf.

33Your plea of guilty also spares your victims of the trauma of giving evidence against you in a trial here or indeed at a committal. 

34The offence of attempted armed robbery is a serious offence.  The maximum penalty of 20 years is a clear indication of Parliament's view of the seriousness of such an offence.  The indicators of the level of your offending in this case are:

(1) you had a knife with you at the time of the offence;

(2) you showed your victim that you had a knife in a threatening manner.  By that, I mean you have pulled it out from your position of hiding it;

(3) you attempted to open the till on the counter;

(4) you decamped the scene as soon as your initial victim screamed out;

(5) the planning for this offence was minimal;

(6) you did not try and disguise your identity;

(7) you retreated to the premises next door to the scene of the robbery.

35This offending was inept and at the lower end of the range for this type of offence.  The victims have chosen not to submit victim impact statements. 
The time of the offending was very short.

36Your prospects of rehabilitation are closely tied to your ability to beat your addiction to drugs.  To that end, you have the offer of a residential placement at Odyssey House upon completion of any sentence.  Your addiction to drugs has been longstanding.  You have had extended periods of homelessness. 
In effect, you were homeless at the time of this offending.  You told police in the record of interview conducted with them on that day that you offended because you wanted money for a motel and food.

37I assess your prospects of rehabilitation as guarded.  Drug addiction is hard to overcome and it will require a Herculean effort from you to achieve it. 
Your main motivation should be the chance of re-engagement in the lives of your young children.

38The principles of general and specific deterrence, denunciation of your conduct and the protection of the community dictate that the only just sentence is a term of imprisonment. 

39I have fixed a non-parole period, which will give you an incentive to earn parole whilst in custody.  In the event that you are granted parole by the Adult Parole Board, it can impose and supervise conditions on your parole to best enhance your rehabilitation in respect of drug rehabilitation and to deal with your homelessness upon your release from prison.

40Would you stand please?

41On Charge 1, you are convicted and sentenced to two years' imprisonment. 
I fix a non-parole period of one year imprisonment. 

42I declare that you have served 203 days' pre-sentence detention in respect of this sentence. 

43But for your plea of guilty, pursuant to s.6AAA, I would have sentenced you to a period of three years' imprisonment with a non-parole period of two years' imprisonment and I have signed the disposal order.

44MS FALLAR:  As the court pleases.

45MR BARINGTON:  As the court pleases.

46HIS HONOUR:  Is there anything else I need to deal with?

47MR BARINGTON:  No, Your Honour.

48MS FALLAR:  No, Your Honour.

49HIS HONOUR:  No, thank you.

50MS FALLAR:  Will Your Honour give me the opportunity to speak with him when Your Honour leaves the Bench before he's taken down?

51HIS HONOUR:  I will let you speak to him here but I will remain because he is in my court.

52MS FALLAR:  Thank you, Your Honour.  Thank you, Your Honour, I just explained essentially the sentence a bit more.  Thanks.

53HIS HONOUR:  Thanks.  Thanks, Officers, you can remove the prisoner, thank you. Thanks counsel for your assistance in this matter.

‑ ‑ ‑