Director of Public Prosecutions v Fountain

[2019] VCC 359

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

AT GEELONG
CRIMINAL JURISDICTION

CR 18-02321

DIRECTOR OF PUBLIC PROSECUTIONS

v

GEOFFREY FOUNTAIN

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JUDGE:	HIS HONOUR JUDGE M.P. BOURKE
WHERE HELD:	Geelong
DATE OF HEARING:
DATE OF SENTENCE:	22 March 2019
CASE MAY BE CITED AS:	DPP v Fountain
MEDIUM NEUTRAL CITATION:	[2019] VCC 359

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms S. Coombes
For the Accused	Ms A. Sharpley

HIS HONOUR:

1Geoffrey Fountain, on this indictment you are to be sentenced for one charge of arson and two charges of assault.  The respective maximum sentences are 15 years and five years' imprisonment.  You are also to be sentenced for summary offences; being two charges of possession of a controlled weapon (maximum sentence 12 month's imprisonment)and one charge of possessing a prohibited weapon (maximum sentence two years' imprisonment).

2You pleaded guilty before me yesterday, 12 March.  When interviewed by  police on the day after your offending, 31 January 2018, you made a full confession of arson but denied other matters.  There was a contested committal in November 2018.  Your defence in that focused upon the offence of false imprisonment, with which you had also then been charged.  You indicated an intention to plead guilty to arson and at the Magistrates' Court in December to the summary charges.  The charge of false imprisonment has been withdrawn.

3You receive the benefit of your plea of guilty and a high level of cooperation, both at an early stage.  You have facilitated the interests of justice and find that you are remorseful.

4At your plea hearing, also yesterday, Ms Coombes for the Crown tendered a written prosecution opening and the victim impact statements of Tiana Cooke and Jamie Jones.  Ms Sharpley for you tendered copy certificates of rehabilitation programs undergone in remand custody; negative drug screening results, also from prison; and the letters of Leesa Scanlan and Brett Harpy, of MacKillop Family Services.  This is the agency which supported you during a child protection order in your teenage.  Ms Sharpley also provided an outline of defence submissions.

5The circumstances of your offending are comprehensively described in the tendered Crown opening, which is Exhibit A.  My own summary may be short.

6In January 2018, you were living by yourself in Norlane.  This accommodation had been provided under a so called targeted care package upon your transition out of child protection care.  You were aged 18 and two months.

7At about 9 pm, on 30 January, you went to a house at 13 Pettit Street, Norlane.  This was opposite the home of people you knew, Tiana Cooke and
Jamie Jones at No.12.  The house at No.13 had been unknown to the owner, not tenanted since mid-December.  You had been there twice during that period.

8On 30 January, you had been drinking and I accept that you were intoxicated.  You broke into the house, smashing a window.  I do not find that you were then planning to burn it.  Soon after entering you caused damage to furniture and other property.  Using a cigarette lighter you then set fire to a mattress and placed another on top of that.  You left.  The fire caused extensive damage.  The total cost of that is $181,912.

9Tiana Cooke or Jamie Jones had called 000.  The assaults were committed against them.  Soon after lighting the fire you went to their home.  You admitted the arson to them, at one point saying that you wished to destroy fingerprints; given that you had stolen from the house.  The assaults are intimidation of them.  You had on your person, a subject of one of the controlled weapon charges.  You would not let them leave and behaved in a threatening way, for example, warning them not to tell the police.  They were frightened of you and the weapon.

10Ms Cooke during this sent text messages to her mother about her predicament.  She described being kept as a hostage.  This evidences her level of intimidation.  However, I bear in mind that you are not charged with, nor to be sentenced for false imprisonment. 

11You were mainly in a bedroom with them.  Paragraphs 22 to 24 of the Crown opening states as follows,

"Ms Cooke also photographed the accused and Mr Jones sitting on the bed when they were in the bedroom.

"After ten to 15 minutes in the bedroom Mr Jones agreed not to tell anyone about the accused starting the fire.  Mr Jones then told the accused that he could not smoke inside their house.  The accused agreed to go outside with them both.

"As they left the house Ms Cooke and Mr Jones observed police in the street.  The accused shook Mr Jones hand and left the scene via an alleyway in Blair Court".

12Ms Cooke approached a police officer in the street and told her what had happened.  At about 9.30 am, on 31 January, police attended your home and arrested you.

13The other two weapon charges relate to possession of a hunting knife and what is termed a "small double-edged throwing knife".  These were found by police at your home.

14Unsurprisingly, the tendered victim impact statements describe in a number of ways fear, loss of a sense of security; and impact at home, socially and otherwise of your offending upon Tiarna Cooke and Jamie Jones.  This impact must be taken into account in my sentence of you.

15You are now aged 19 and four months.  You have served 415 days of remand, mainly at Ravenhall Correctional Centre, placed in the youth and Koori unit.

16You have experienced a difficult and, I would find, damaging early life.  That was mainly in the Geelong area.  You are the second of two boys and also have two younger half-sisters and half-brother.  You parents separated when you were very young.  Your father seems to have been a long-term drug user.  You struggled at school and there was a period in a Year 5  alternative program, because of behavioural and learning difficulties.  At secondary school you did not complete Year 9.  You were asked to leave.  Just prior to this offending and remand you had started a job in waste management.

17You began using drugs, including methamphetamine, when very young.  I was told you began using at nine, at times with your father.  You fell out badly with your mother and stepfather in teenage and became subject to a child protection care order.  You were placed in residential care.  Brett Harpy was your key worker over about two years.

18In 2016 you began to live with your father and his partner.  In December of that year, supported by your then pro-social partner, you stopped using methamphetamine.  However, your father, still it seems using drugs,  committed suicide in early 2017.   Despite being the apparent beneficiary of a targeted care package to transition out of care,  there were then six to eight months of homelessness.  In August, assisted by MacKillop Family Services you obtained an office of housing property at the house in Norlane.  The targeted care package has lapsed during your remand and that property is lost to you.

19However, contact with and support by Bret Harpy has continued.  You have rebuilt your relationship with your family.  Several members were in court to support you.  When you leave prison you are able to live with your mother, stepfather and the two youngest children, aged 15 and 16.  That will be in the Lexton area,  near Ballarat.

20In the time leading to the offending you essentially kept away from drug use, but began drinking.  There was a clearly a very difficult personal context for that.

21Your criminal record states two Children's Court appearances in March 2016, aged 16,  and November 2017.  There are multiple offences, including criminal damage charges and charges of causing injury in 2016.  There is a position of controlled weapon charge in 2017.  Other offences then were of dishonesty.  On both occasions before the court you received good behaviour undertakings without conviction.  Your record has some relevance, but I also bear in mind your age, that appearances were in the Children's Court and that there were no convictions.

22Arson, particularly, is a very serious, dangerous and damaging offence.  Also, Tiana Cooke and Jamie Jones were intimidated and frightened in their own home.  The circumstances here make relevant sentencing considerations of deterrence (that is,  both general and specific deterrence), moral culpability, the need to sentence in a way to condemn the offending and to properly punish it.  It is conceded that there must be a sentence at least containing an element of imprisonment or detention.

23Ms Sharpley submitted that I should impose a combined sentence of imprisonment, not far beyond the 14 months you have served,  and a community corrections order.  Ms Coombes did not argue against a combined sentence.  I have decided that it is the right sentence.

24The particular factors which moderate your sentence and persuade me to that form of it are as follows.    

25(1). Your plea of guilty and cooperation  

26(2).  Your personal history and circumstances.  As I have said your early life was hard and damaging to you.  Its circumstances go a long way to explain your extremely early introduction and decline into drug use.  Your later alcohol abuse leading to the offending is also explicable.  Your youth in these circumstances give some credence to a merciful or generous consideration of your intoxication at the time of offending.

27(3).  Your youth.  This is a particularly important consideration and is exemplified by the fact that you were only two months beyond the
Children's Court jurisdiction when you offended.

28(4).  Related to that, I should sentence in a way to assist your rehabilitation.  You have shown signs, for eg. your behaviour and reunification with your family, of being capable of that. 

29You are found suitable for a community corrections order.

30Stand up please.

31I sentence you as follows on all charges;  that is the three charges on indictment J10296435.1 and the three summary matters, I impose an aggregate sentence of 16 months' imprisonment.  I declare 415 of pre-sentence detention already served.

32I convict and impose - this is also in all matters.  I convict and impose a community corrections order of two years duration.  The usual terms apply.  The additional conditions are that you be under supervision, that there be assessment and treatment for alcohol abuse and that there be assessment and treatment for drug abuse or dependence, that you attend as directed programs to reduce re-offending, that there be judicial monitoring.

33Now, just excuse me for a moment whilst that is being printed out.  Take a seat, please.

34MS COOMBES:  Is it Geelong or Ballarat Corrections Centre?

35HIS HONOUR:  Ballarat is the office.

36MS COOMBES:  Thank you.

37HIS HONOUR:  I was asked to authorise the placing of that sentence already stated on the so called media portal.  I'm told I can do it retrospectively.  There's no reason why.  Is there any reason why I can't or shouldn't do that?

38MS SHARPLEY:  Sorry, Your Honour, what did Your Honour ‑ ‑ ‑

39HIS HONOUR:  The system these days is to assist and enhance accurate recording of sentencing reasons upon request, which seems to be done for most or every sentence.  The audio goes off to the media.  I can't control that, what the media does with it.

40MS SHARPLEY:  No, I ‑ ‑ ‑

41HIS HONOUR:  And there's no particular reason that shouldn't happen?

42MS SHARPLEY:  No, Your Honour.

43HIS HONOUR:  Unless you want to put something to me ‑ ‑ ‑

44MS SHARPLEY:  I've got nothing to put to Your Honour.

45HIS HONOUR:  ‑ ‑ ‑ in terms of his age.  I don't think you can.

46MS SHARPLEY:  No, I don't think I can either, Your Honour.

47HIS HONOUR:  I suspect it won't get much coverage.

48MS SHARPLEY:  I don't think it would either.

49HIS HONOUR:  There's really nothing - the relevant principles really don't assist to persuade that I couldn't or shouldn't.

50MS SHARPLEY:  No.  No, I agree, Your Honour.

51HIS HONOUR:  You don't want to say anything about it?

52MS COOMBES:  No, Your Honour.

53HIS HONOUR:  Yes, all right.

54Had you not pleaded guilty I would have imposed a sentence of three years, with a minimum term of two years.

55All right, now, we'll just get the ‑ ‑ ‑

56ASSOCIATE:  Can we have a J end date.

57HIS HONOUR:  Yes, we'll just - you need that now, do you?

58ASSOCIATE:  Yes, please.

59HIS HONOUR:  I'd want to see him about two months after his release.  So that's four months from now.

60MS COOMBES:  As Your Honour pleases.

61ASSOCIATE:  Friday, 19 July.

62HIS HONOUR:  Is that right?  Well, I won't be here.  No, I won't be here.

63ASSOCIATE:  No, we'll - 28 June.

64HIS HONOUR:  When am I returning?

65ASSOCIATE:  Not until ‑ ‑ ‑

66HIS HONOUR:  It's mid-August, I think.

67ASSOCIATE:  Yes, August.

68HIS HONOUR:  How long is mid-August after his release.  His release will be in two months' time.  What's that?

69ASSOCIATE:  No, you don't return ‑ ‑ ‑

70HIS HONOUR:  That takes us to May.  That takes us to May, doesn't it?

71ASSOCIATE:  You don't return till 13 September.

72HIS HONOUR:  Yes, I know.  Am I right about that arithmetic?

73MS COOMBES:  May is around ‑ ‑ ‑

74HIS HONOUR:  So he'll be - and May, and then June, July.  And mid-August is about ‑ ‑ ‑

75MS COOMBES:  Yes, three months, I think.

76HIS HONOUR:  Three months.

77MS COOMBES:  Yes.

78HIS HONOUR:  I think that's satisfactory.  What's my first day back?

79ASSOCIATE:  13 September.

80HIS HONOUR:  13 September.

81ASSOCIATE:  Yes.

82HIS HONOUR:  That's four months.  Well, I'll make it - what's my first day back?

83ASSOCIATE:  Monday, 16 December.

84HIS HONOUR:  The 16th, I'll list it on Monday, 16 September.  Judicial monitoring.  If you're behaving yourself you can just go to the Ballarat office and we'll do it by video link.  I'll get a report about how you're going and if there are problems you'll have to come to court, all right?

85All right, so that's been printed out now.

86MS COOMBES:  Yes.  Your Honour, there were those ancillary orders for forensic.

87HIS HONOUR:  Yes, what are they?

88MS COOMBES:  The forensic sample, Your Honour, and disposal, I think, of the knives.

89HIS HONOUR:  Yes.

90MS COOMBES:  I've got the schedule there, my ‑ ‑ ‑

91HIS HONOUR:  I'll sign those now.

92MS COOMBES:  Yes, thank you, Your Honour.

93HIS HONOUR:  These were discussed yesterday, what ‑ ‑ ‑

94MS SHARPLEY:  There's no objections to any of those orders, Your Honour.

95HIS HONOUR:  Yes.  How many disposal orders, just one?

96MS COOMBES:  Yes, Your Honour, there is.  I believe so.  My instructor just needs ‑ ‑ ‑

97HIS HONOUR:  Well that's - all right, we'll just ‑ ‑ ‑

98MS COOMBES:  ‑ ‑ ‑ to check one matter.

99HIS HONOUR:  If you can hand those up I'll ‑ ‑ ‑

100MS COOMBES:  Thank you.

101HIS HONOUR:  He didn't provide a sample at time of interview?  Did you give a sample of your saliva when you were interviewed by the police?

102OFFENDER:  No.

103HIS HONOUR:  No, thank you.

104MS COOMBES:  Your Honour, the usual warning should be given in relation to that sample.

105HIS HONOUR:  Yes, yes.

106MS COOMBES:  Yes, thank you.

107HIS HONOUR:  All right.  I'll do the community corrections order first.  Just stand up, please.  I need to explain to you the community corrections order, what it is.  When you finish your term of imprisonment in two months' time you'll be released and you'll go onto to this, a community corrections order.

108The usual terms are these:  that you don't commit another offence for which you could be imprisoned during the two years.  If you did you'd come back before me and I'd have to look at all of this again.

109You must not attend an appointment or program affected by alcohol or drugs, or in possession of illegal drugs.

110You must report to or receive visits from Community Corrections.  You must report to the Ballarat community correctional offices in Mair Street, Ballarat, within two days of your release from prison.  They will make contact with you.

111You must let Community Corrections known within two days of a change of address or job.  You must not leave Victoria without getting permission from them to do so.  You must obey all of their lawful directions.

112The additional terms here are:  that you be under supervision; that you undergo assessment and treatment for alcohol use; that you undergo assessment and treatment for drug use.

113Did I omit to say mental health, did I?

114ASSOCIATE:  Do you want me to (indistinct words.)

115HIS HONOUR:  Yes, that was the discussion.  So that should be included that - we'll just get that amended.  Now, just before we do, what do you say about the mental health assessment and treatment.  On the ground it means they've got to go on to their doctor and get a mental health plan, all that sort of stuff.

116MS SHARPLEY:  Usually the way it works is they're directed to go to their GP.  If the GP says you don't - or does a mental healthcare plan and doesn't recommend ongoing treatment then that condition is satisfied.  If they're directed to go ‑ ‑ ‑

117HIS HONOUR:  What's the basis of it, I mean, he's - there's no diagnosis before me.

118MS SHARPLEY:  There's no diagnosis, no.

119HIS HONOUR:  There's no doubt that he's suffered a damaging early life.

120MS SHARPLEY:  That's right.

121HIS HONOUR:  I just wonder whether or not - just hold off on that.  I just wonder whether or not it is necessary.

122MS SHARPLEY:  Your Honour ‑ ‑ ‑

123HIS HONOUR:  His problem is the drugs and alcohol.

124MS SHARPLEY:  Yes.

125HIS HONOUR:  Yes, I won't include.  So, look, I will resume this.  You must participate in programs or courses that address factors related to this offending.  You must also attend for review, it says here, at the Ballarat County Court, but it will be at the Melbourne County Court.  I'm not going to be Ballarat ‑ ‑ ‑

126ASSOCIATE:  No, I just didn't know whether you wanted Melbourne or Ballarat.

127HIS HONOUR:  Well, no.  Can we change it to Melbourne?

128ASSOCIATE:  Okay, I can change that.

129HIS HONOUR:  Yes.  I think I said to you before if it's going well you can just go into the office at Ballarat and I'll see you on the television screen.  Now, you understand all that?

130OFFENDER:  Yes, Your Honour.

131HIS HONOUR:  You agree to it?

132OFFENDER:  Yes.

133HIS HONOUR:  I'll get you to sign it, then.

134MS SHARPLEY:  Your Honour, could I approach the dock and assist him with the signing?

135HIS HONOUR:  All right.  Now, I need to sign that, do I?  Thank you.  Now, do we have the other orders?

136MS COOMBES:  Your Honour, there's only - well, there's a application for the 464ZF.

137HIS HONOUR:  There's the CCO.  Sorry?

138MS COOMBES:  The application for the forensic sample order.  Draft orders have been handed up to Your Honour's associate.  In relation to the other orders sought, that is disposal, my instructor needs to just make an amendment to the draft orders.  There's a ‑ ‑ ‑

139HIS HONOUR:  That's happening now, is it?

140MS COOMBES:  Well, it is, yes.  So, we'll endeavour to ‑ ‑ ‑

141HIS HONOUR:  I can sign it in chambers later.

142MS COOMBES:  Yes, I was going to ask Your Honour if Your Honour could do that, thank you.

143HIS HONOUR:  It's inevitable that such an order would be made.

144MS COOMBES:  Yes, as Your Honour pleases.

145HIS HONOUR:  But I'll do the - thank you.  The other thing that I'm ordering is that you give a - stand up.  That you give a sample of your saliva.  It will be arranged at Ravenhall.  What you've got to do by using a cotton swab you supply a sample of your saliva.  It doesn't sound very hard to me, but I've never seen it.  If you cooperate in that, that's the end of.  If you don't cooperate in that a sample of blood can be taken by injection and reasonable force used.

146The reason why I have made this order is because of the seriousness and type of offence you committed.  DNA sampling can often be a very important tool in identifying people who commit offences of this type.  In fact, one of the things you said to your friends indicates that you were even aware of that.

147All right, so I'm going to now sign the order.  It's not opposed.  All right, is there anything else that I need to do except for sign the other order later?

148MS COOMBES:  No, Your Honour.

149MS SHARPLEY:  No, Your Honour.

150HIS HONOUR:  All right.  Look, this is going to be very important for you.  If you get through this two years when you're released, I should imagine you'll be well placed, you might have a job, you'll have a good relationship with the people who support you and you could really make something of yourself.  But if you don't make it work the other side of the picture's a pretty dark one.

151Now, I meant it when I said you're capable of doing this.  There will be difficulties, you'll be in a new place, you'll be living at home after many years of not living at home.  My advice to you is if you are having problems you let the people at Community Corrections know that you're having problems.  Trust them to help you and that will help you get through it.  All right, now I truly wish you the best of luck with this.  I really do hope that you get through this, make something of your life.  Now, you can briefly speak - the people can briefly speak to him before he gets taken away.  Must be very short.

152MS SHARPLEY:  As Your Honour pleases.

153HIS HONOUR:  You're going.  Yes, thank you.  There's the file of Fountain. 
Mr Fountain needs to be taken into custody now, thank you.

154MS SHARPLEY:  Thank you.

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