Director of Public Prosecutions v Foster (a Pseudonym)

[2021] VCC 2132

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

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 victim, 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:	30 September 2021 and 1 December 2021
DATE OF SENTENCE:	14 December 2021
CASE MAY BE CITED AS:	DPP v Foster (A Pseudonym)
MEDIUM NEUTRAL CITATION:	[2021] VCC 2132

REASONS FOR SENTENCE
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Subject: Criminal     

Catchwords:  plea of guilty; intentionally cause injury; contravene a family violence intervention order intending to cause harm or fear for safety; summary offence of commit indictable offence whilst on bail; summary offence of contravene intervention order; change in offender’s circumstances in having secured stable accommodation; s 6AAA declaration.
Legislation Cited: Sentencing Act 1991 (Vic); Family Violence Protection Act 2008 (Vic); Crimes Act 1958 (Vic); Bail Act 1977 (Vic).

Cases Cited: R v Verdins [2007] VSCA 102; Worboyes v The Queen [2021] VSC.

Sentence: Total Effective Sentence of 214 days’ imprisonment; and 18-month Community Corrections Order.    

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr F. Cameron on 30 September 2021; and Ms C. Foot on 1 December 2021	Office of Public Prosecutions
For the Accused	Mr G. Davis	Law and Advocacy Centre for Women

HER HONOUR:

Introduction

1Debra Foster,[2] in the very early hours of the morning of 5 October 2019, you repeatedly stabbed Max Morris,[3] someone with whom you had been in a relationship.  You did this despite the fact you were prohibited by a family violence intervention order from having any contact whatsoever with Mr Morris and despite the fact you were on bail for unrelated offending.

[2] A pseudonym.

[3] A pseudonym.

2On 30 September 2021 you pleaded guilty before me to one charge of causing injury intentionally, one charge of contravening an order intending to cause harm or fear for safety, and two related summary offences, being: commit an indictable offence whilst on bail and contravene family violence interim intervention order.

3A plea on your behalf was conducted before me on that day and on 1 December 2021 and it now falls to me to sentence you for your conduct.  Your counsel, Mr Davis, submitted that a combination sentence was appropriate and within range given the somewhat unusual circumstances of your case.  Further, he submitted that the time you had served in custody already was sufficient.

4After giving due consideration to the plea material, particularly your now stable home environment, the prosecution, who was represented by Ms Foot on 1 December 2021, agreed that a combination sentence was within range.

5In arriving at an appropriate sentence, I am required by law to have regard to a variety of factors.[4]  Some tend towards leniency and some point the other way.  No one factor automatically prevails over any other.  Rather, I must have regard to them all and give each the weight it deserves to arrive at a just sentence.

[4] Sentencing Act 1991 (Vic) s 5(2) (‘Sentencing Act’).

Circumstances of the offending

6The agreed facts upon which I sentence you are set out in the Summary of Prosecution Opening.[5]  Briefly, you and Mr Morris had known each other for about four months prior to the incident.  An interim family violence intervention order had been issued against you in favour of Mr Morris on 12 July 2019 at the Ringwood Magistrates' Court.  This order not only prohibited family violence, it prohibited all contact whatsoever.

[5] Exhibit A on the Plea.

7On 29 September 2019 you ran into Mr Morris by chance in Richmond.  You stayed together throughout the day and you then started living with him again at his address in Templestowe.

8On Thursday, 3 October 2019, in the evening, you and Mr Morris travelled to Heidelberg on the train and disembarked at the station.  You were spoken to by protective services officers who told you that you should not be in the company of one another.  Despite this, you returned that evening to Mr Morris’ address.

9On Friday, 4 October 2019, you and Mr Morris left his home and caught a bus into Richmond, arriving just before lunch time.  Earlier that morning you and Mr Morris had an argument because you believed that he was involved in you losing your drugs.

10When you got to Richmond you had Mr Morris’ mobile phone and bank cards.  The two of you then separated for the day and met up again at about 11:30 that evening.  At that stage Mr Morris wanted his mobile phone and bank cards back and an argument between the two of you ensued.

11Mr Morris opened your handbag and took his phone and bank cards.  He then walked to the Commonwealth bank ATM in Victoria Street holding his card.  He placed his card in the ATM and you approached him.  A further argument occurred and you then stabbed him several times to the upper-right side of his back, shoulder, arm and right thigh.  According to Mr Morris you used a black plastic handled knife with a three- or four-inch blade.  The assault was recorded on CCTV footage and it shows your frenzied attack.

12Mr Morris ran away from you and first spoke to a security guard at a nearby hotel.  He told that guard that you had stabbed him.  He declined an ambulance at that stage.  He then walked to the Collingwood Railway Station and spoke to some protective services officers.  He falsely told them that he had been robbed by two males.  Those officers took him to the Collingwood Police Station where an ambulance was organised for him.  He was taken to the Royal Melbourne Hospital in the early hours of 5 October 2019.

13He was discharged the next morning.  He sustained a total of nine separate stab wounds.  Those wounds were repaired by either stitching or surgical glue.  Fortunately, he did not suffer any injuries to organs or bones.

14Police attended at your residence at about 3:30 in the morning of 5 October 2019 and arrested you.  You were taken to the Melbourne West Police Station and seen by a forensic medical officer.  You were then transported to the Royal Melbourne Hospital for assessment and treatment of a possible head injury.

15You were assessed by a forensic medical officer as being unfit for interview and you were not interviewed.  At about half past 12, on 5 October 2019, whilst you were at the hospital, you used a landline to telephone Mr Morris.  That action constitutes the Summary Charge 6 of contravening an intervention order.[6]

[6] Punishable by a maximum penalty of 2 years’ imprisonment pursuant to s 123(2) of the Family Violence Protection Act 2008 (Vic).

16Your stabbing of Mr Morris constitutes Charge 1 on the indictment of intentionally causing injury.[7] As you were on bail at the time of the assault, this also constitutes Summary Charge 5 of commit indictable offence whilst on bail.[8]

[7] Punishable by a maximum penalty of 10 years’ imprisonment pursuant to s 18 of the Crimes Act 1958 (Vic).

[8] Punishable by a maximum penalty of 30 penalty units or 3 months’ imprisonment pursuant to s 30B of the Bail Act 1977 (Vic).

17And Charge 2 on the indictment is constituted by you communicating with Mr Morris and being within 5 metres of him.[9]

[9] Punishable by a maximum penalty of 5 years’ imprisonment pursuant to s 123A(2) of the Family Violence Protection Act 2008 (Vic).

Your personal circumstances

18Turning to your personal circumstances.  These were outlined in Defence submissions, a 2016 report of consultant psychologist Bernard Healey, and in a more recent psychological report of Gina Cidoni.  Mr Healey saw you in person on 30 April 2016 for three hours and administered various tests.  His assessment obviously occurred prior to this offending but his report was provided to the court to outline your background.  Ms Cidoni saw you via a telehealth conference on 30 November 2021 and she also administered numerous tests.

19You are a 46-year-old Aboriginal woman.

20You grew up in Melbourne and have two brothers and five sisters.  I have been informed this morning that one of your sisters has recently died and you are attending a funeral or hoping to attend a funeral this afternoon.

21Your childhood and adolescence were difficult.  Your family suffered financial hardship and you lived in Ministry of Housing houses.  Your parents separated when you were four years old, with your father leaving the family home.  Your mother had issues with alcohol and drugs and was frequently absent.  On occasions she was violent towards you.  In the face of parental neglect, as you matured you assumed responsibility for your younger siblings, including ensuring their attendance at school.

22At age 18 you sustained two significant physical injuries:  you were first injured as a passenger in a motor vehicle accident and spent one month in hospital, and you were later stabbed in the leg, apparently randomly.

23You began smoking cannabis at age 14 during visits to your father and used 1 gram daily between the ages of 18 and 21.  At age 23 you began using heroin and injected daily for a period of 12 months.  Your use then became variable with extended periods of abstinence: you have successfully completed CISP undertakings and abstained for lengthy periods, but also relapsed.

24Your drug addictions have contributed to your extensive history of offending which I will return to later in these remarks.

25You were assessed as being one of the better achievers in Grade 6 of your primary school.  You attended technical schools for Years 7 through 10.  To your credit you were motivated to complete Years 11 and 12 at Preston TAFE when you were 25.  Further, you have continued to show interest in improving your education, including requesting information from the Education Officer whilst in custody in 2016.

26You have three daughters from a relationship which started when you were 17.  You cared for the children alone after this relationship ended.  Your daughters are now in their twenties and live independently.

27You had three sons during your next relationship between 2005 and 2014.  Your second son died as an infant, aged 4 months.  You told both Mr Healey and Ms Cidoni that in fact your youngest son was conceived as a result of rape by an unknown perpetrator.  Your sons are now cared for in Out-of-Home-Care arrangements.

28You have only ever worked for short periods in cleaning roles and have otherwise received sole parent payments or unemployment benefits.  You have been receiving the Disability Support Pension for the past five years.

29You experienced domestic violence in many of your relationships, including sustaining injuries necessitating hospital treatment.  After leaving a violent relationship in 2015, you became homeless, sleeping on the streets or in the houses of friends.[10]  Your housing has remained unstable until very recently.

[10] Exhibit 6 on the Plea, Report of Gina Cidoni, [26]-[27] (‘Exhibit 6’); Exhibit 8 on the Plea, Letter from Victoria Agius, 1 (‘Exhibit 8’).

30Mr Healey concluded – and this was, as I said, in 2016 – that you suffered moderate depression, anxiety, specific anxiety, and vulnerability to substance abuse.  He assessed your full-scale IQ at 87.  Ms Cidoni opined that you are a woman who has experienced significant adversity and trauma in your life.  She concluded that you meet the diagnostic criteria for multiple mental health conditions, with those being:  major depressive disorder with psychotic episodes, Generalised Anxiety Disorder, Post-Traumatic Stress Disorder, Borderline Personality Disorder traits, and Substance Use Disorder (which was in remission when she saw you).[11]  She also noted that your assessment results showed a significant decline in working memory since the assessment performed by Mr Healey.

[11] Exhibit 6 (n 10) [75].

31There is a suggestion in the material that you have schizophrenia,[12] but there is no clear evidence of that fact.  You apparently have epilepsy and scoliosis.

[12] Ibid [41]; Exhibit 8 (n 10) 1.

32You were remanded in custody in relation to this matter between your arrest on 5 October 2019 and 31 March 2020 and then again between 8 June (the date of your committal to this court) and 12 July 2021, a total of 214 days at the date of the plea I believe.

33Since 12 July 2021 you have been provided accommodation and intensive community support by Melbourne City Mission, through their Homelessness to Homes Program.  Letters of support from Jessica Dickson, your case manager at Melbourne City Mission, and Victoria Agius, your community mental health worker have been provided.  You are engaging well and apparently have not used illicit drugs for a year.

34You have been in a relationship for the past 12 months with a woman you have known since childhood who is not a drug user.  You have also reconnected with some of your children.  Two months ago you moved into a private unit and you told Ms Cidoni that you feel safe in your new housing.  Incarceration for longer than six months will result in you losing this home.

Objective Gravity of your offending and moral culpability

35Two factors of central importance in determining any sentence are the objective gravity of the offending and the moral culpability of the offender. 

36Your offending was objectively very serious.

37You had obviously armed yourself with a knife earlier on in the day or night – there is no suggestion you did so in order to attack your victim, but carrying a knife and then using it to stab Mr Morris, who was defenceless and unprepared, was appalling behaviour.

38You stabbed him nine times – you are very lucky that the consequences are not worse.  He could easily have been seriously injured and you would have been facing a more serious charge and a more serious penalty.

39You stabbed him in a public street.  Your behaviour was brazen.

40You stabbed him despite having an interim family violence intervention order against you and despite being warned by protective service officers only two days before to keep away from Mr Morris.

41Mr Morris, having been a partner of yours, was entitled to feel safe in your company.  Any assault of a domestic partner is serious, and it is no less serious just because you are a woman.

42You also did it whilst you were on bail, demonstrating a complete disregard for the law.

43Your actions were frightening and absolutely outrageous.  You have explained your behaviour on your use of drugs and the fact you were not thinking clearly.[13]  This is not a mitigating factor.  There was absolutely no justification for what you did.

[13] Exhibit 6 (n 10) [10]; Community Corrections Order Assessment Outcome Report, 2.

44Given your drug intoxication I am not satisfied that the principles of Verdins[14] are engaged to reduce your moral culpability.  I accept that your history of disadvantage, particularly your childhood disadvantage does reduce your culpability somewhat, but only in a minor way.

[14] R v Verdins [2007] VSCA 102.

Current Sentencing Practices

45One of the matters to which I must have regard in arriving at an appropriate sentence for you is current sentencing practices which may be gleaned from statistics or sentences imposed in other cases or both.[15]

[15] The rationale for doing this is to promote consistency of approach in sentencing, particularly, the application of relevant sentencing principles. 

46Sentencing statistics are of little use in your case given the wide disparity in seriousness for your particular offences and I have not been referred to any comparable cases by either counsel.

Impact of your offending

47Other matters I am required to take into account are the impact of your offending on your victims and their personal circumstances.[16]

[16] Sentencing Act (n 4) ss 5(2)(daa), (da) and (db).

48The Victim Impact Statement provided by Mr Morris outlines the impact that your actions have had on him.  I have disregarded that part of Mr Morris’ victim impact statement which outlines physical injuries and repercussions beyond those in the agreed prosecution summary.  However, his statement indicates that your offending has had a significant negative impact on his wellbeing and day-to-day life.  Such was the effect on his mental health that he stated: ‘I don't even recognize my life now compared to before the incident’.

49He explains how his feeling of personal safety has vanished and he has lost trust in people, especially women.  He is now hypervigilant and suffers nightmares.  He has lost friends and does not want to be close to women or form new relationships.

50Mr Morris noted that: ‘Every person has the right to feel safe at all times’.  His victim impact statement makes it clear that your actions have deprived him of that feeling.

Plea of Guilty, co-operation and remorse

51You are entitled to a significant discount in your sentence for the fact you have pleaded guilty.  It cannot be said that you pleaded guilty at the first opportunity, nor that you spared your victim the experience of coming to court to give evidence since he did attend at the committal proceedings and had started giving evidence when the matter resolved.

52Nevertheless, you did plead guilty at a relatively early stage.  By doing so you facilitated the course of justice and took legal responsibility for your crimes.  This is particularly valuable in the current environment where COVID-19 has placed the criminal justice system under considerable strain.  Our Court of Appeal has recently reinforced the need for sentences to reflect the high value of pleas of guilty in the current COVID-19 environment, as I said because the legal system is under considerable strain.[17]

[17] See, eg, Worboyes v The Queen [2021] VSCA 169, [39].

53You are not entitled to any greater discount for remorse as there is no real evidence that you are remorseful.  The closest you come to expressing remorse is when you told the Corrections officer who assessed you that, ‘It would have been scary for the victim’.

Your character and risk of reoffending

54There is no other way to describe your criminal history but dreadful.  Your first court appearance as an adult was when you were 18 and you have come before the courts on very many occasions since then for a range of offences including dishonesty, violence, weapons, drugs, driving, property damage and breaching court orders.  Concerningly, your crimes of violence have included causing injury, armed robbery, assault with an instrument and assault emergency workers.

55You have also received a range of sentences, including multiple terms of imprisonment, some suspended, and corrections orders.  You were first sentenced to prison in 1998 and your longest sentence, of four years with a non-parole period of two years, was imposed in this court in 2000 for armed robbery, attempted armed robbery and related offences.  Your most recent corrections order was imposed in 2017 in conjunction with a three-month prison sentence.  It was entirely rehabilitative in nature, but unfortunately you breached it.  Prior to that order, in 2012, you were given the opportunity to participate in rehabilitative court programs of credit bail (which was the precursor to CISP) and Koori Court supervision.  Your last prison sentence of 215 days was imposed on 14 March 2019 and because of time served you were released on or about that day.

56None of your previous sentences have deterred you, nor rehabilitated you.  Only six and half months after you were released from prison in March you committed the instant serious offences.

57I accept your criminal history is consistent with your history of disadvantage and drug use, but it cannot be ignored.  You are well aware that unless you alter those things that are in your control, particularly your drug use, your future prospects will be poor.

58That said, for the first time in a long time you have stable housing.  The importance of this cannot be overstated.  You are also drug free.  Although you have breached corrections orders in the past, the Office of Corrections have assessed you as suitable to be placed on another order because of your attitude and current situation.  They consider you to be at high risk of general re-offending but are, in effect, willing to give you another chance to prove yourself.

The burden of imprisonment

59In determining the appropriate sentence, I must consider how a term of imprisonment would be likely to impact you.

60I am not persuaded on the material that a term of imprisonment would be harder for you than the ordinary prisoner, nor that it is likely that your mental health will deteriorate in prison.  Although Ms Cidoni asserted the first proposition her reasoning was not apparent.  As to the second proposition Ms Cidoni only said that it ‘may’ be the case.[18]

[18] Exhibit 6 (n 10) [86].

61I do however, take into account the fact that you are being sentenced during the COVID-19 pandemic.  I accept that a term of imprisonment during the pandemic is generally harder than at other times.  Whilst the worry of contracting the virus in prison may have abated with time, the curtailment of various activities and programs, the reduction or suspension of personal visits and the occasional lockdowns are all additional burdens.

Purposes of Sentencing

62Under the Sentencing Act 1991 (Vic) the only purposes, for which a sentence may be imposed are just punishment, deterrence, rehabilitation, denunciation, and protection of the community. I am obliged not to impose a more severe sentence than is necessary to achieve those sentencing purposes. A custodial sentence must only be imposed as a last resort and then must be the absolute minimum required.

63For crimes of family violence, denunciation and general deterrence are paramount sentencing considerations.  In your case specific deterrence and community protection are also important.  That said, community protection is best achieved by rehabilitation and you appear to be in a situation now with your abstinence from drugs, stable housing, and steady relationship to turn your life around.

Community Corrections Order

64I have had you assessed for a Community Corrections Order and you have been found suitable and indicated your consent.

65I have already set out in full the matters in your favour and against, in the course of these reasons.  There is no need to repeat them.  After weighing these competing considerations, I have concluded that all the relevant sentencing purposes can be met in your case by the imposition of a Community Corrections Order combined with a term of imprisonment.

66It is clear that a Community Corrections Order has a punitive element and that it can, in appropriate cases, achieve all the sentencing purposes, including denunciation and general deterrence whilst promoting rehabilitation.  Even Community Corrections Orders which are rehabilitative in nature are onerous and therefore punitive.

67Notwithstanding 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.

68Further, these sentencing remarks will be available to anyone who sentences you in the future and they will see that because of your situation, with your stable hosing, abstinence from drugs and steady relationship that I have considered that you do have reasonable prospects of rehabilitation.

69If 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?

70OFFENDER:  Yes, I do.

Sentence

71HER HONOUR:  On Charges 1 and 2, I convict and sentence you to an aggregate of 214 days in prison.  I impose an aggregate sentence as both offences are founded essentially on the same facts and circumstances.

72On the related summary offence of committing an indictable offence whilst on bail, being Charge 5, I convict and sentence you to one month imprisonment, which is to be concurrent.  On the related summary offence of contravening a family violence intervention order, Charge 6, I convict and sentence you to 14 days imprisonment, also concurrent.  So the total term of imprisonment is 214 days.

73To the extent necessary I otherwise direct under s 16(3C) of the Sentencing Act1991 (Vic) in order to give effect to my orders.

Community Corrections Order

74On Charges 1 and 2 on the indictment, I impose a single Community Corrections Order.  The order will last for 18 months.

75You are to report to the Reservoir Community Correctional Centre within two working days.

76As well as the mandatory conditions, and those mandatory conditions include that you not commit another offence, as well as various other things such as: you must not leave Victoria without first getting permission to do so, you must obey all lawful instructions from and directions of the Secretary, and there are many other mandatory conditions.  But as well as those, I have imposed some special conditions and they are as follows:

·        You are to be under the supervision of a Corrections officer for the duration of the order;

·        You are to undergo assessment and treatment, including testing, for drug abuse and dependency;

·        You are to undergo medical assessment and treatment as directed;

·        You are to undergo mental health assessment and treatment as directed;

·        You are to undertake other treatment and rehabilitative programs to reduce reoffending as directed;

·        And there is one other general treatment and rehabilitation condition: s 48D(3)(g) treatment and rehabilitation – ‘other’.  That is to allow for the Office of Corrections determining throughout your engagement with them that there may be other needs that need to be addressed.  And so whilst I do not fix any particular program or condition, it's a flexible condition that allows the order to accommodate your needs that are identified during the term of the order;

·        You are also to participate in judicial monitoring and are to appear for your first judicial monitoring on 11 March 2022 at 9:30 AM.

77So just to explain what that is, have you been on judicial monitoring before?

78OFFENDER:  I think so.

79HER HONOUR:  It is where you appear before me.  You do not need a barrister or solicitor to appear for you.  You just come back.  Most likely it will be remote but just see how COVID develops.  It may be that you need to come in sometimes but we, or the Office of Corrections, will notify you.  And it is where I assess how you are going and how the Office of Corrections is going in administering your order.  So you know that this is coming up and you have to be conscious of the fact that you have got to be doing well because you know you will be appearing before me every so often. The first one is, as I say, 11 March 2022, at 9:30 AM.

80Mr Davis will explain that order in more detail and my associates will obtain some instructions as to where to send that order so that you can sign it.

81But you must make sure you comply with it because breach of the order is an offence in itself and in addition you are liable to be re-sentenced for the original offences.  The Corrections order I have imposed is a relatively long order.  That is because of the seriousness of your offending, which would ordinarily call for a longer term of imprisonment than you have already served and also because I think having you supervised for that length of time is the best way of ensuring that you maintain your abstinence.  As I have already said, you should realise that imposing the Community Corrections Order means I am giving you an opportunity to avoid further prison time.  And if you breach the order re-sentencing you on the original offences is a real option and in that event you are likely to face another prison term.

Presentence Detention

82I declare that you have already served a total of 214 days pre-sentence detention, not including today, in respect of this sentence and order that this declaration be entered in the records of the court and that the period be deducted administratively.

Section 6AAA

83If you had not pleaded guilty to these charges and been found guilty by a jury, I would have sentenced you to a total effective sentence of imprisonment of two years with a non-parole period of one year and six months.

Ancillary orders

84Now are there any other orders that I need to make?

85MS FOOT:  Your Honour, there was just a forfeiture order in relation to a number of items that were seized.  I understand that a draft was lodged some time ago.

86HER HONOUR:  Let me just see if I can see it.  There is no opposition to that order Mr Davis?

87MR DAVIS:  No, Your Honour, silver multitool, black sweatpants and black jacket.

88HER HONOUR:  All right, I will make that forfeiture order.

89MS FOOT:  If Your Honour pleases.

90HER HONOUR:  All right, so can I just ask – I will leave the Bench if Ms Foster and Mr Davis could remain on? It is up to you, Ms Foot, whether you do.  But just to find how we are going to get this Corrections Order to you for you to sign, Ms Foster.

91MR DAVIS:  Thank you, Your Honour.

92OFFENDER:  Okay, thank you.

93HER HONOUR:  All right.

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