Director of Public Prosecutions v Foster

[2018] VCC 1463

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

AT GEELONG
CRIMINAL JURISDICTION

CR 18-00789

DIRECTOR OF PUBLIC PROSECUTIONS

v

SHANE FOSTER

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JUDGE:	HIS HONOUR JUDGE GRANT
WHERE HELD:	Geelong
DATE OF HEARING:	7 September 2018
DATE OF SENTENCE:	10 September 2018
CASE MAY BE CITED AS:	DPP v Foster
MEDIUM NEUTRAL CITATION:	[2018] VCC 1463

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr J Lewis (7/9/18) T. White (for sentence)	OPP
For the Accused	Mr J. Lavery

HIS HONOUR: 

1Shane Foster, you have pleaded guilty to one charge of conspiring with another person to steal a motor vehicle.  The maximum penalty for this offence is ten years' imprisonment.

2On 28 October 2017, your co-offender, Wol Wol, contacted you requesting your help in locating a particular model car, namely a Holden GTS that he wanted to steal.  You agreed to assist him in return for a cash payment.  Within a short time, you provided Wol with an address and a photograph of that address. 
You did so knowing it was his intention to steal a car from that place.  That is the essence of your offending.

3Subsequently, Wol was involved in an aggravated home invasion at that address.  You are not charged with any offending connected to that incident.

4Given the prevalence of car theft, general deterrence is a relevant sentencing consideration in this case.

5You have a significant criminal history for one so young.  That history includes serious offending such as aggravated burglary, robbery, affray and breach family violence orders.  You have prior convictions for car theft.  You have received good behaviour bonds, youth supervision orders, youth attendance orders and sentences of detention.  Since late 2015, you have spent significant periods of time in youth detention.

6Given these circumstances, specific deterrence is a relevant sentencing consideration.

7Your counsel told me a little about your background.  You grew up in Geelong.  You have never met your father.  Your mother is supportive and willing to have you live with her upon your release from prison.  You were apparently a troubled child who did not do well at school.  You were expelled in Year 7 and did not really engage thereafter in any further education.

8You started associating with young men who were getting into trouble and you followed their example.  Your behavioural problems were exacerbated by your drug use.  Inevitably, you commenced offending and you first appeared in the Children's Court just after your 16th birthday.

9Your counsel raised the following matters in mitigation.  First, your offending was at a relatively low level.  What you did was give information to a man who wanted to steal a particular model car, where such a car could be located. 
You were involved in that person's subsequent criminal behaviour.

10Secondly, you pleaded guilty.  You were originally charged with an offence that was more serious than the current offence.  You offered an early plea of guilty to the charge of theft.  The prosecution rejected the offer.  Subsequently, the matter resolved when you offered to plead to the charge of conspiracy to steal a motor vehicle.  In these circumstances, you should be given appropriate credit for your plea of guilty.  It is an acknowledgement of responsibility.  It has also saved the community the cost and expense associated with a criminal trial. 
You will be given credit for all of these matters.

11Thirdly, you are a young offender.  You are only 19 years of age.  You were 18 years old when you committed this offence.  Rehabilitation is generally a paramount sentencing consideration for the young offender.  However, when as in this case, a young offender has been given many opportunities to change their behaviour and has been unable to do so, the weight to be given to rehabilitation will be adjusted to ensure an appropriate balance between that principle and other relevant principles such as deterrence and protection of the community.

12Your inability to change your behaviour makes me guarded about your prospects for rehabilitation.  However, this does not mean that rehabilitation is to be disregarded.  You are still young and capable of reformation.  You are currently undergoing your first sentence of imprisonment and that may perhaps influence you to change your behaviour.  Time will tell.  Obviously your chances of rehabilitation would be greatly enhanced if you were to remain drug free after leaving prison.

13Finally, the principle of totality is highly relevant in this case.  On 23 November 2017, you were remanded in adult custody for a large number of offences.  Those offences were dealt with in the Geelong Magistrates' Court on
24 January 2018.  On that same date, you also appeared in the Geelong Children's Court for a charge of breaching a youth attendance order that had been imposed on 9 June 2017.  The breach of the order was proved and the order confirmed.

14Your appearance in the Magistrates' Court involved charges that included robbery, recklessly cause injury, traffic MDMA, four counts of burglary and four counts of car theft.  You were sentence to a total effective sentence of
14 months' imprisonment with a minimum term of seven months before you would be eligible for release on parole.  The magistrate declared 60 days' pre-sentence detention and noted custody management issues relating to your young age and the fact that the sentence was your first in adult custody.

15In normal circumstances, you would have been eligible for release on parole on or about 23 June 2018.  However, your circumstances were not usual.  Because the current matter had not been resolved, you could not be considered for parole.  This has resulted in you serving more than nine months of the 14 month sentence.  This is a relevant matter for me to take into account.

16In addition, I make some allowance for the fact that because of the late resolution of this matter, you lost the opportunity for some measure of concurrency between the minimum term imposed by the magistrate and the sentence that I am about to impose.  It is also relevant that the current offence was committed during the same time frame as the offences for which you were dealt with in the Magistrates' Court.  This requires me to consider what orders that Court would have made if this matter had been heard at that time.  I have no doubt that the sentence imposed would have been longer but not significantly longer.

17For all these reasons, I have concluded that the appropriate order in your case is a relatively short sentence to be served cumulatively upon your current sentence.

18Mr Foster, you are convicted and sentence to a term of four months' imprisonment.  This sentence to be served cumulatively upon your current sentence.

19Now my understanding of the way the law applies is that you will have the sentence that you are currently undergoing suspended while you serve my four month term. You will then recommence the original sentence. Because part of that other sentence has a parole period, you may be released on parole but that will be a matter for the Parole Board, not for me.  Do you understand?

20OFFENDER:  Yes, sir.

21HIS HONOUR:  Is there anything more, gentlemen?

22MR WHITE:  No, Your Honour.

23MR LAVERY:  No, Your Honour.

24HIS HONOUR:   Thank you both.

25MR WHITE:  As Your Honour pleases.

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