Director of Public Prosecutions v Foster (a pseudonym)

[2022] VCC 1969

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

DEBRA FOSTER (a pseudonym)[1]

[1] To ensure there is no identification of a victim of a family violence offence, these published reasons for sentence have been anonymised by the adoption of pseudonyms in place of the names of the offender and the removal of all identifying information. A Schedule of Substitutions will be retained by the Court for future reference.

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JUDGE:	HER HONOUR JUDGE CARLIN
WHERE HELD:	Melbourne
DATE OF HEARING:	21 October 2022
DATE OF SENTENCE:	21 October 2022
CASE MAY BE CITED AS:	DPP v Foster (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2022] VCC 1969

REASONS FOR SENTENCE

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Subject:  Criminal

Catchwords:  contravene Corrections order; cancellation Corrections order

Legislation Cited:

Cases Cited:

Sentence:  Total Effective Sentence of 22 months’ imprisonment

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P. Atkinson	Office of Public Prosecutions
For the Accused	Mr T. McCulloch	Law & Advocacy Centre for Women

HER HONOUR:

1Ms Foster,[2] I do remember you well, Ms Foster, because obviously I sentenced you in the first place and then I had judicial monitoring and your matter has come before me several times. 

[2] A pseudonym.

2What happened when we first had the plea of the matter is the prosecution originally were submitting that you needed to do more time for what was serious offending.  I understand completely why they were saying that, because when you look at the offending and also your history, more time certainly was warranted.  However, in an adjournment when more evidence was given to the court and to the prosecution about your rehabilitation prospects - the fact you had got that accommodation, you were in a stable relationship - the prosecution changed their submission and accepted that a corrections order, in combination with the term that you had already served, was within range.  And I also came to that view.

3Why I am telling you that history is just to remind you that at that time everyone, including me, was optimistic about your future and although your offending really warranted more time in custody in terms of its seriousness, because your prospects for rehabilitation  really seemed at that point very good and your circumstances were very different from what they had been before, I was prepared to give you a chance and the attitude of everyone in court was the same.

4So I can only say that it is disappointing that it did not work out.  I want to remind you of what I said during my sentencing remarks.  I said this:

'Notwithstanding the seriousness of your offending, having regard to the desirability of continuing your rehabilitation I have, as I said, concluded that all the relevant sentencing purposes can be met by the imposition of a combination sentence, with the term of imprisonment not exceeding that which you have already served.  Ms Foster, I do not want you to misunderstand the situation.  I am giving you a chance to avoid further prison time for what is very serious offending.  If you do not take advantage of this chance you face the very real prospect that you will have to serve more time for these offences'.

5Then I indicated that my sentencing remarks would be available to anyone who was to resentence you, and as it happens it is me:

'And they will see [I said] because of your situation with your stable housing, abstinence from drugs and steady relationship, that I have considered that you do have reasonable prospects of rehabilitation'. 

6And then I said to you this:

'If you breach the order that I am about to impose anyone who sentences you in the future, I would suspect would think that you are not worthy of such a chance again.  Do you understand?' [and you said] 'Yes, I do'.

7So we have got to that situation.  I do take into account, as I have already said in court here, that just before I sentenced you your sister died and that was extremely upsetting, and then in April this year your brother died and that was also upsetting.  And I have also read in the Corrections report that another friend of yours died, as well.  So as I say, a lot was going on.

8But unfortunately, you relapsed into heroin and that has been your main problem in terms of offending.  So I am in the situation now where I do have to sentence you again for the original offences, because what I am going to do is cancel the Corrections Order. There is no point, and the submission was not made to me, of giving you another chance on a Corrections order, and it is simply not possible whilst you are in remand anyway.

9So I am cancelling the Corrections order and I am resentencing you on Charges 1 and 2 on the original indictment.  They are charges of causing injury intentionally and contravening a family violence order intending to cause harm or fear for safety.

10Now I originally imposed an aggregate sentence, and it still seems to me that that is appropriate.  That means one sentence to cover both of those offences.

11I am convicting and sentencing you to an aggregate in respect of those two offences of 22 months imprisonment.

12On the contravene Corrections order, I am convicting and sentencing you to one months' imprisonment and I am making that concurrent.  So the total effective sentence is 22 months.

13In respect of that sentence, I declare that you have already served 258 days of pre-sentence detention and I am not setting any minimum term.  So that is a straight sentence.  I am not setting a minimum term because you are in custody on other matters.  So I have adjusted the term that I might have otherwise imposed if I was in a position to set a non-parole period as well.  In other words, there would have been a higher maximum term.

14Now I think that covers everything, does it?

15MR ATKINSON:  Yes, it does, Your Honour.

16HER HONOUR:  Yes.

17MR McCULLOCH:  Yes, Your Honour.

18HER HONOUR:  Ms Foster, do you understand that sentence?  All right.  All right, thank you.  Adjourn the court.

19MR ATKINSON:  Your Honour pleases.

20MR McCULLOCH:  The court pleases.

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