Director of Public Prosecutions v Foster (a pseudonym)
[2022] VCC 453
•4 April 2022
| IN THE COUNTY COURT OF VICTORIA | Revised Un-Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| GEORGE FOSTER (A PSEUDONYM) |
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JUDGE: | HIS HONOUR JUDGE HIGHAM | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 31 March 2022 | |
DATE OF SENTENCE: | 4 April 2022 | |
CASE MAY BE CITED AS: | DPP v Foster (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 453 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – Home Invasion – Theft – Common Assault – Obtaining Property by Deception – Commit Indictable Offence whilst on Bail – Plea of Guilty - Rehabilitation
Legislation Cited: Sentencing Act 1991 (Vic)
Cases Cited:
Sentence: Drug and Alcohol Treatment Order for 30 months
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms L. Gurry | Office of Public Prosecutions |
| For the Accused | Ms A. Dulcie | Nelson Brown Legal |
HIS HONOUR:
1George Foster[1], you have pleaded guilty to one charge of home invasion (Charge 1), for which the maximum penalty is a term of imprisonment of 25 years, one charge of theft (Charge 2), for which the maximum penalty is a terms of imprisonment of 10 years, one charge of common assault (Charge 3), for which the maximum penalty is a term of imprisonment of five years, and one charge of obtaining property by deception (Charge 4), for which the maximum penalty is a term of imprisonment of 10 years. You have also pleaded guilty to related Summary Charge 5, commit indictable offence whilst on bail, which carries a maximum penalty of 3 months imprisonment.
[1] A pseudonym.
2Tendered on the Determination Hearing as Exhibit 1 was a Summary of Prosecution Opening, which set out the agreed facts of your offending. In brief, the circumstances of your offending were as follows.
3On 10 May 2021 at approximately 6:21 am, you, along with your two co-offenders, Louise James[2] and Toby Wright[3], gained entry to an apartment building located at 422 Collins Street, Melbourne. Your initial entry, which is captured on CCTV, was gained by pressing buttons on the intercom until someone gave you access.
[2] A pseudonym.
[3] A pseudonym.
4Once inside, you proceeded to the mailbox area. Together, you looked through mailboxes, trying to find mailboxes that were unlocked. Your group stayed at this area for approximately two minutes. You then proceeded to the lift and travelled to the 11th floor, although it is not clear how you were permitted access.
5The three of you were observed walking through the corridor, attempting to open doors to various apartments. Upon trying a second time, you were able to gain access to an apartment, the home of your victim Ms Abby Monforte[4] who was then 25 years of age and unknown to you or either of your two co-accused. Once inside, members of your group began to rifle through Ms Monforte’s belongings, one specific item taken was an iPhone charger (Charge 2).
[4] A pseudonym.
6At the time of your entering her apartment, Ms Monforte was home alone listening to a podcast in her bedroom upstairs. She began to hear noises and crept down the stairs to investigate. Once downstairs, she was confronted by the three of you standing in her home. She recalls being frozen and in disbelief. You were surprised to see anyone at home and you and Mr Wright ran from the apartment.
7Ms Monforte grabbed Ms James by the arm to stop her leaving. You returned to the apartment and pushed the victim to the upper body, causing her to fall to the ground. Although shocked, she did not suffer any physical harm as a result (Charge 3). All three of you then left.
8You and your two co-accused were inside Ms Monforte’s apartment for approximately 50 seconds (Charge ).
9Once outside the apartment building, you attended the 7/11 in Southbank and purchased a couple of cigarette packs using Ms Monforte’s bankcard
(Charge 4).10At the time of this offending, you were on three undertakings of bail (Summary Charge 5).
11You were later identified as an associate of Louise James and were found to match the description of one of her co-offenders. You were arrested on the 16 May 2021 and answered questions in a recorded interview. Perhaps the only honest thing you said during that interview was that you were, at the time, “high on amphetamine and didn’t really think,” about your actions. You were charged and have remained in custody since that date.
12The matter resolved at the first committal case conference and you indicated a plea of guilty at the earliest opportunity. The matter was adjourned into the Drug and Alcohol Treatment Court on 10 January 2022 and a Determination Hearing was held on the 31 March 2022.
13Exhibit 7 on the Determination Hearing was a Case Management Report by Chloe Reese, dated 15 March 2022, and Exhibit 8 was a Clinical Advisor Report by Adrian Papworth, dated 10 March 2022. Exhibit 3AC was a report from Gina Cidoni, psychologist, dated 28 November 2021.
14You were born in June 1985 and you are now 36 years of age. You were aged 35 at the time of this offending. You have one younger sister and you were raised in the family home in Brunswick. Your father was a violent alcoholic and as a young child you witnessed his violence against your mother. Your parents separated when you were four years of age. All meaningful contact with your father ended at this point. Your mother re-partnered with Harold Royse[5], a man with whom you had an excellent relationship and who, it seems, was a role model for you. Tragically, Mr Royse passed away when you were 14 years old. Around the same time, both your father and godfather passed away and you have never dealt with this accumulation of loss. Your relationship with your sister has always been troubled and you are currently a respondent in an Family Violence Intervention Order in which she is the applicant.
[5] A pseudonym.
15You left school in Year 9 and completed two years of a mechanical apprenticeship before working in labouring jobs for the next 18 years. In 2018, an infection caused you to lose the sight in your left eye and, since this time, you have not worked. You were in an intimate relationship for six years with Leah[6], who had her own substance issues. You have two children from this relationship, a daughter now aged five and a son aged two. When this relationship broke down two years ago and unemployed, your drug use escalated.
[6] A pseudonym.
16Ms Cidoni assessed your cognitive functioning as low. She noted symptoms consistent with an adjustment disorder and unresolved grief.
17Your forensic history commenced in 2004 and since then you have received community-based orders, which you have breached, and short terms of imprisonment for drug, dishonesty and driving offending. Whilst you do not fall to be sentenced for matters already dealt with by the Court, your prior criminal history does impact my assessment of the need for a specific deterrence, your prospects of rehabilitation, the need for community protection and, more broadly, upon the appropriateness of a Drug and Alcohol Treatment Order (DATO) in your case.
18Your criminal record confirms that you have been a functioning drug user for much of your adult life, able to work and, at least in the early years, raise a family. I accept the breakup of your relationship and your injury triggered your escalating drug use, which forms the background for the offending in front of me.
19As to your substance use, you report smoking methamphetamine daily, of amounts up to 1 and a half grams, over a period of 20 years. You also report two periods of abstinence from methamphetamine and an earlier attendance at residential detox, from which you were expelled. Prior to your remand, you would often gamble excessively when under the influence of methamphetamine. You reported that on the night of your arrest you had used methamphetamine intravenously for the first time. You were a daily user of GHB at the time of this offending, a drug on which you have twice overdosed in the past. You report your use of heroin and you are currently receiving methadone treatment whilst on remand.
20Both the reports of Ms Reese and Mr Papworth (Exhibit 8 and Exhibit 9) identified your challenges and yet concluded (albeit with some reservations) that you were a suitable candidate for a DATO. They set out the treatment pathways for your engagement and the conditions for managing you in the community whilst on such an Order. Mr Papworth identifies a probable diagnosis of stimulant use disorder that is severe in nature.
21Neither party filed a notice of intention to dispute those assessment reports and I proceed on the basis that no challenge is made to the contents or their conclusions.
22You told Ms Reese that you were tired of doing the same thing over and over when it came to substance misuse and offending behaviour. You identified your future goals as being, “to get off drugs, be a father, find a job and do what society thinks is normal.” However, you could not identify how you were going to achieve these goals.
23You told Mr Papworth that, “I have been a father but have not really been the father I should be for the kids. How much more time am I going to miss out? I missed my daughter's first day of school. Enough is enough.”
24Mr Foster, home invasion is a serious offence, as is made clear by the maximum penalty of 25 years that Parliament has seen fit to impose. Home invasion represents a violation of the home, the very domestic space where people should feel safe and secure. Ms Monforte came downstairs early in the morning to find three strangers in her living room intent on taking whatever they could find of value. Although no Victim Impact Statement has been tendered, it must have been a frightening experience and most challenging to her sense of well-being. When she tried to detain Ms James, you returned to the apartment and pushed her, causing her to fall to the floor. Fortunately for you, there was no harm resulting: had there, you would have been ineligible for a DATO.
25Your actions were driven solely by your own needs and displayed a complete disregard for the welfare, rights and property of others, both of Ms Monforte and the other occupants of the building whose mailboxes you rifled through. However, your offending does sit in the lower range for offending of this kind. Your intent was to steal. You clearly did not expect someone to be present and you were in the apartment for no more than 50 seconds. While sentencing purposes of general deterrence, specific deterrence and denunciation are all relevant sentencing considerations, they can be suitably moderated in your case.
26The particular purposes of a DATO are[7]:
(a) to facilitate the rehabilitation of the offender participant by providing a judicially supervised, therapeutically oriented, integrated drug and alcohol treatment and supervision regime;
(b) to take account of the offender participant's drug or alcohol dependency;
(c) to reduce the level of criminal activity associated with drug or alcohol dependency; and
(d) to reduce the offender participant's health risks associated with drug or alcohol dependency.
[7] Sentencing Act 1991 (Vic), s 18X(1)
27Ms Dulcie, on your behalf, urged me to follow the recommendations of the Clinical Advisor and Case Manager and place you on a DATO, submitting this was an appropriate disposition having regard to your circumstances and the circumstances of your offending.
28Ms Gurry, on behalf of the Director, conceded such a course was open to the Court with appropriate conditions.
29Mr Foster, in sentencing you I must have regard to a range of different factors as set out in s 5(1) of the Sentencing Act 1991. I must give effect to the principal of general deterrence, that is I must deter others outside this Court from behaving as you did, and to specific deterrence, that is to deter you from any repeat of such offending. I must consider the need to protect the community. I must express the community's denunciation of your conduct. I must take into account the effect of your crimes upon the community and have regard to current sentencing practices and the maximum statutory penalties for the offence to which you have pleaded guilty. I must ensure, as far as possible, that you are rehabilitated and reintegrated into society. In short, I must try and balance your personal circumstances with the circumstances of your offending. I must also pass no greater sentence than is necessary in all the circumstances of the case, as I find them to be.
30These sentencing purposes are all still to be considered in your case. However, if the Court is considering making a DATO, then your rehabilitation and the protection of the community (achieved through your rehabilitation) have greater importance than those other sentencing purposes.[8]
[8] Sentencing Act 1991 (Vic), s 18X(2)
31On all the material in front of me, I am satisfied on the balance of probabilities:
· that you are dependent upon methylamphetamine;
· that your dependency contributed to the commission of the offending in front of me;
· that otherwise it would be appropriate to impose an immediate sentence of imprisonment of no more than four years; and
· that you are not charged with offending nor are you subject to any order that would make you ineligible for a DATO.
32As for my reasons, it is clear from the material in front of me that you were impacted in ways unknown to you by your early childhood exposure to family violence and substance abuse. These traumas may very well have contributed to your low level of cognitive functioning and were compounded by the unresolved loss that you experienced as an adolescent. With these overwhelming emotions left unaddressed, you disengaged and turned to drugs as a way of coping. Over the past 20 years, you have managed to work and live a relatively stable life until further loss of a relationship, employment and identity led you to surrender to the demands of your dependence.
33As an example of the offence of home invasion, this was, as the Prosecution accepted, toward the lower end of the range of offending, although it was, nonetheless, a serious offence, aggravated by the fact that you were on three separate undertakings of bail at the time. Your guilty plea, however, brings with it the practical benefit of saving the community the time and the expense of trial. Your guilty plea also has a particular value in the time of the COVID-19 pandemic.
34I accept you are remorseful, as is shown by the letter that you have written to the Court (Exhibit 4AC). I accept that you have the support of your family, noting your mother attended the Determination Hearing and I see her here again today, and that is viewed as an important step on the road to recovery.
35You are no longer a young man and you have a history of methamphetamine abuse going back 20 years. However, you have managed periods of abstinence in the past and your time on remand seems to have been well spent. As you told Mr Papworth, “I have had a year of structure in custody, something to build upon. If I don't get sorted out now, I'm nearly 40, I probably never will.' I would agree with that, Mr Foster. I am giving you an opportunity to take back the life that has, for so long, been determined and shaped by your methamphetamine dependence.
36Having regard to all of the above matters, I am satisfied that in all the circumstances of your case it is appropriate to place you on a DATO.
37On Charges 1, 2, 3 and 4 and Summary Charge 5, you are convicted and placed upon a Drug and Alcohol Treatment Order.
38I want to explain what a Drug and Alcohol Treatment Order actually entails. It has two parts.
39PART A: The treatment and supervision part which itself subdivides into two components.
40The core conditions which are that:
(a) you not commit an offence, either in or outside of Victoria, punishable by conviction and imprisonment;
(b) you must attend Drug Court when required to do so;
(c) you must report to Melbourne Drug Court House within two clear working days;
(d) you must report to and accept visits from members of the Drug Court;
(e) you must undergo treatment for alcohol and drug dependency as specified;
(f) you must give notice of any change of address at least two clear working days before the change, to the Drug Court Team;
(g) you are not to leave Victoria without the permission of the Drug Court; and
(h) you are to obey all lawful instructions in the Drug Court Team;
41Those core conditions are going to remain in force for 30 months or until further order.
42There are also going to be the following program conditions:
(a) you must submit for drug and alcohol testing, as directed;
(b) you must submit to detox or other treatments specified, as directed;
(c) you must attend vocational educational or employment programs, as directed;
(d) you must submit to medical, psychiatric and psychological treatments, as directed;
(e) you are not to associate with Louise James and Toby Wright;
(f) you are to reside at a place directed by the Drug and Alcohol Treatment Court until further order;
(g) you are to comply with a curfew and that is, you remain at the place directed by the Drug and Alcohol Treatment Court between the hours of 9:00 pm and 6:00 am. That curfew will remain in force until further order;
(h) you are not to use a drug of dependence without lawful authorisation;
(i) you are to abstain from alcohol;
(j) you are not to attend gaming venues;
(k) you are not to gamble online;
(l) you must comply with the condition of the Family Violence Intervention Order that is currently enforced until 7 July 2022;
(m) you must abide by any directions of the Court as to access and contact with your children;
(n) you are to do or not do anything else that the Drug Court considers necessary or appropriate concerning, firstly, your drug and alcohol dependency and, secondly, the personal factors that the Drug Court considers contributed to your criminal behaviour.
43Those program conditions last for two years, or until further order.
44Part B: There is also a custodial part of the Order and that is a term of imprisonment for 30 months, which is the term of imprisonment that I would have imposed if I had not placed you on a Drug and Alcohol Treatment Order. I am now going to identify for you how that custodial part is comprised:
· On Charge 1, I sentence you to a term of imprisonment of 27 months;
· On Charge 2, I sentence you to a term of imprisonment of three months;
· On Charge 3, I sentence you to a term of imprisonment of four months;
· On Charge 4, I sentence you to a term of imprisonment of two months; and
· On Summary Charge 5, I sentence you to a term of imprisonment of one month.
45I order that one month of the sentence on Charge 2 and two months of the sentence on Charge 3 are cumulative to each other and to the sentence on Charge 1, which brings the Total Effective Sentence (TES) to 30 months, that two years and six months.
46The custodial part of the Order, that is the term of imprisonment of 30 months, is not to be served unless further ordered.
47I also must ask you about the document you are about to sign, which includes a waiver on your part to all rights of confidentiality or communications between, on the one hand, Drug Court and those who work for it, including its servants or agents, and, on the hand, all treatment providers, government agencies, authorities and departments. Do you understand that?
48OFFENDER: Yeah
49I declare that you have served 233 days or Pre-Sentence Detention.
50HIS HONOUR: Pursuant to s 6AAA of the Sentencing Act, had you not pleaded guilty, you would have been sentenced to a TES of three years and six months, with a non-parole period of two years and six months. The way that that would work is, should you have your Order cancelled for non-compliance, for example, there will then be a hearing which would determine how much of the 30 months’ imprisonment you would have to serve. At that point the Pre-Sentence Detention would be deducted.
51OFFENDER: Okay.
52HIS HONOUR: Do you consent to being placed on the Order?
53OFFENDER: I do.
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