Director of Public Prosecutions v Foster

[2016] VCC 350

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

AT GEELONG
CRIMINAL JURISDICTION

CR 16-00012

DIRECTOR OF PUBLIC PROSECUTIONS

v

JASON ERNEST FOSTER

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JUDGE:	HER HONOUR JUDGE LAWSON
WHERE HELD:	Geelong
DATE OF HEARING:	5 April 2016
DATE OF SENTENCE:	5 April 2016
CASE MAY BE CITED AS:	DPP v Foster
MEDIUM NEUTRAL CITATION:	[2016] VCC 350

REASONS FOR SENTENCE
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Catchwords: Criminal law- Sentencing- Armed robbery-Multiple charges- no prior criminal history-pre-existing bi-polar- Verdins principles not applied-Mental condition taken into general consideration- combined gaol with CCO to follow.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr J.B.B. Lewis	John Cain Solicitor for Public Prosecutions
For the Accused	Mr L. Richter	VLA

HER HONOUR: 

1Jason Foster, you have pleaded guilty before me to three charges of armed robbery, the first of which occurred on 22 October 2015, the second one on 24 October 2015, and the third one on 26 October 2015.

2The offence of armed robbery is a serious offence and that is reflected in the maximum penalty prescribed by Parliament, namely 25 years' imprisonment.

3I note that you have no prior criminal history.  You are aged 43 and, prior to your remand in custody, you had been living independently on a Disability Services Pension that had been granted for bipolar disorder, anxiety and depression and epilepsy.

4The circumstances of the armed robberies were outlined by the prosecutor, Mr Lewis, and I do not propose to go into a lot of detail about those armed robberies. 

5I note that the first one was on a milk bar in Detroit Crescent, and that robbery occurred at about 9.05 am.

6The attendant, Raji Korikanti, was alone, when you approached the counter and held a knife in his direction and demanded that he open the till.  He did so and provided you with approximately $260 and then you left the store.

7The next armed robbery, two days later, was at about 1.30 pm and that was on a milk bar, the McCurdy Road milk bar in Herne Hill and, on that occasion, you used the same knife. A 47 year old male attendant, Luke Wang, was present behind the counter and, on that occasion, you entered the store and demanded that he put money in the bag, you said that you were desperate; and you later said to him, "I won't hurt you", you held out the plastic bag and were waving the large knife towards him.

8He told you he was scared and told you to back off a bit, which you did, and then he took money out of the till and placed approximately $230 in the bag, then you left the store.

9On the third occasion, two days later at the same milk bar the McCurdy Road milk bar, Herne Hill, you committed an armed robbery at about 1.35 pm.  Again arming yourself with a knife, you entered the store and, on this occasion, Qiong Fang You, the wife of Mr Wang, was the attendant on that occasion and you pulled the knife from your pocket and held it towards her and demanded that she give you money.

10She was petrified, she opened the till and she placed approximately $100 in cash into a bag for you and also 15 assorted packets of cigarettes.  She was terrified and visibly upset after the incident. You left the store. Thereafter, police, following investigations, arrested you and conducted an interview with you on 27 October 2015. You did not make admissions initially.

11The interview was suspended and a warrant executed at your home and on that occasion, following the execution of the warrant, they seized the clothing that you were noted to have been wearing at the time of the incidents, and they located the knife used in the three armed robberies in your vehicle, and in the boot of your vehicle they located a black plastic bag containing cigarettes taken from the third armed robbery.

12When the interview was recommenced you made full admissions in respect to your involvement with respect to the three armed robberies.

13No victim impact statements were filed, but I accept having regard to the nature of the offending, that it would have been terrifying for each of the three individuals involved.

14By way of background, I took into account all the material that was provided to me and also the forensic report prepared by David Ball, Psychologist, dated 23 February 2016.  I will not be going into a lot of detail about that, but I have been assisted greatly by the report of your general practitioner, Dr Al-Murieb, from the Corio Bay Medical Centre, and he provided very important background information and material to the court.

15He notes that you have a history of bipolar illness, combined with an acquired brain injury that you suffered following a severe motor vehicle accident in 2004, with some cognitive and memory deficits as a result and he noted you also suffered from a learning disability.

16He notes that you are currently on injectable medication, Respiradone for your bipolar condition, as you had been non-compliant with oral medication and relapsed into hyper-mania, so you were changed to injections.

17You were taking the injections regularly till June 2015, when you missed injections several times, and you attributed that to your financial issues as you could not afford the cost.

18He also noted that you have epileptic seizures and you were referred for neurological treatment from about 2014, for which you are currently taking medications.

19He said that you need to continue on your injectable medications and have regular follow-up with medical services, otherwise you may have unpredictable behaviour, cannot think and reason clearly, and cannot make proper decisions.

20I have taken his comments into account and to a large extent, I accept that it explains this particular aberrant behaviour from a man aged 43 years who has had no prior criminal history.

21I re-read carefully the report of Mr Ball.  I am not prepared to accept that the principles of Verdins are enlivened, such that general deterrence needs to be moderated.  I do not accept that there is evidence before the court that establishes a clear link between your mental health and this offending.  

22I also have had regard to the fact that it was submitted to me by Mr Richter that the offending occurred in the context of financial stress and difficulties that Mr Foster had been experiencing at the time.

23I also noted in Mr Ball's report that he, himself, says, "Mr Foster had a clear recollection of the incident and was unaffected by any substances at the time.  He explained that he had a gambling habit.  He said, 'I don't know what was going on in my mind.  I might have had a manic episode, I still don't know why I done it.'  He expressed simplistic remorse and regret over his behaviour.  Her said, 'I'm very sorry for what I did'."

24So there is no clear evidence that your mental condition was operative at the time of the offending, that would then enliven the principles of Verdins, but, nonetheless, I have taken into account the fact that there has been non-compliance with the medication in the past and that does affect his behaviour and judgment somewhat.

25I have had regard to the submissions made by
Mr Richter.  He accepted that armed robbery is an inherently serious offence, that the offending was against soft targets, small businesses with one employee on duty on each occasion, and also the fact that charges 2 and 3 were committed against the same milk bar.

26I do accept that these are not the most serious examples of this sort of offence and there was an absence of aggravating features that are sometimes otherwise present.

27There was no attempt to disguise yourself, there was no actual harm or violence caused to any of the complainants, it was opportunistic offending, not very sophisticated or planned well, and I have had regard to those matters.

28In terms of the factors put in mitigation, I accept that the plea of guilty was entered at the earliest practical time, at the first committal mention, and you will get full discount for your plea of guilty.  The Crown concedes that it was entered at the earliest stage.  You have been remanded since your arrest.  You made full admissions in the record of interview once the warrant was executed.

29I accept that the plea of guilty is a demonstration of remorse on your behalf.  That is further confirmed by your acknowledgment in the record of interview that the complainants would have been fearful and also your expression of remorse to Mr Ball, to which I have already earlier referred. I accept that you now have some insight into your offending and that you accept what you did was wrong.

30I consider you do have good prospects of rehabilitation, provided you remain compliant with your medication and your mental health condition continues to be well-managed.

31So far as the future is concerned, I do think you do have good prospects of rehabilitation, but I do consider that it is important that you have ongoing support upon your release into the community.

32Overall, I have considered the submissions made by Mr Lewis, who submitted that time served to date, followed by a CCO, was not appropriate, although he did accept that a combination of a gaol term with a CCO was within a range of sentencing options available to the court in this instance.

33Mr Richter submitted that time served to follow a Community Correction Order was most appropriate, but I do not consider that that takes into account the sentencing principles that I must apply.

34Mr Foster, in sentencing you, I must impose just punishment.  General deterrence is of utmost importance.  Specific deterrence is not so great in your case given your expressed views that you acknowledge what you have done is wrong.  So, in all the circumstances, I consider that a term of imprisonment to follow a CCO is the most appropriate order. I have had regard to the guideline judgment in Boulton v The Queen and I consider that this is a case where a Community Correction Order to be followed by a term of imprisonment is the most appropriate punishment in respect to your offending.

35I have explained to you the nature of the Community Correction Order that I am about to impose and you have acknowledged to me that you understand all the terms of the Community Correction Order, its effect and conditions, and you also have been explained the consequences of a breach of a Community Correction Order.

36So I will now sentence you as follows.  Could you please stand, Mr Foster.

37In respect to the three charges of armed robbery, I will convict you and I impose an aggregate sentence of 18 months' imprisonment to follow a Community Correction Order for a period of three years, with special conditions of supervision and treatment and rehabilitation.

38I declare 161 days pre-sentence detention and direct that it be entered into the records of the court. 

39I make a s.6AAA statement, but for your plea of guilty I would have imposed a term of four years' imprisonment with a non-parole period of two years' and six months'. 

40I make the forensic sample order sought pursuant to s.464ZF(2) of the Crimes Act 1958, and I make the disposal order and the compensation order sought.

41Are those ancillary orders in court?  Thank you.  I will prepare the order for the Community Correction Order.  I have signed that order in the terms that I have proposed. 

42Could you please go down, Mr Richter, and go through that?

43MR RICHTER:  I was about to seek leave to do so, Your Honour.

44HER HONOUR:  Mr Foster, the only other thing I need to tell you is that because I have made the order for the taking of a forensic sample, at some stage whilst you are in custody you will be asked to provide the authorities with a cotton bud sample from a scraping from your mouth.  They will give you a cotton bud, you will put it in your mouth and you will brush it against your cheek.

45OFFENDER:  Yeah.

46HER HONOUR:  And then you hand it back.  Provided you do that, then there is no necessity for any force to be used to enable that procedure to be conducted.  If you do not co-operate, they are entitled to use some reasonable force, but hopefully that will not be an issue with you.

47OFFENDER:  No, (indistinct).

48HER HONOUR:  The other orders I made in respect to compensation, it means that you have got to pay the people that you robbed, the money, they say was taken as a consequence, or the property. 

49So, for Ms Qiong Fang You, that is $555.  For
Mr Wang, it is $230, and for Mr Korkanti, it is $260, and the disposal order that I have made relates to the knife, the cigarettes and sunglasses, and the clothing that you were wearing, all right?  I think that covers everything.

50MR LEWIS:  Yes, Your Honour.

51MR RICHTER:  Yes, Your Honour.

52HER HONOUR:  I have signed all those orders.  I will give you those orders. 

53(Offender released.)

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