Director of Public Prosecutions v Fox

[2021] VCC 1852

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

 Revised
Not Restricted
Suitable for Publication

Case No. CR-21-01076

DIRECTOR OF PUBLIC PROSECUTIONS

v

KYLE FOX

---

JUDGE:	Her Honour Judge Ellis
WHERE HELD:	Melbourne
DATE OF HEARING:	22 September and 10 November 2021
DATE OF SENTENCE:	17 November 2021
CASE MAY BE CITED AS:	DPP v Fox
MEDIUM NEUTRAL CITATION:	[2021] VCC 1852

REASONS FOR SENTENCE
---

Subject:CRIMINAL LAW

Catchwords:              Plea of guilty- one charge of aggravated burglary- one charge of intentionally cause serious injury- one charge of burglary- two charges of theft- possession of a drug of dependence- circumstances of COVID-19 pandemic -27 years old- substance use.

Legislation Cited:      Crimes Act 1958; Drugs, Poisons and Controlled Substances Act 1981, Sentencing Act 1991

Cases Cited:Bugmy v The Queen (2013) 249 CLR 571; Worboyes v R [2021] VSCA 169; R v Mills [1998] 4 VR 235; Hogarth v R (2012) 37 VR 658; Director of Public Prosecutions v Meyers (2014) 44 VR 486.

Sentence: Total effective sentence of 5 years and 6 months with a non-parole period of 3 years and 6 months. S 6AAA 7 years with a non-parole period of 5 years.

---

APPEARANCES:	Counsel	Solicitors
For the DPP	Ms. R Hamnett	Office of Public Prosecutions
For the Accused	Mr. M Stanton	Victorian Legal Aid

HER HONOUR:

1Kyle FOX, you have pleaded guilty to:

· One charge of aggravated burglary contrary to section 77 of the Crimes Act 1958, which carries a maximum penalty of 25 years imprisonment (charge 1);

· One charge of intentionally cause injury contrary to section 18 of the Crimes Act 1958, which carries a maximum penalty of 10 years imprisonment (charge 2);

· One charge of burglary contrary to section 76 of the Crimes Act 1958, which carries a maximum penalty of 10 years imprisonment (charge 4);

· Two charges of theft contrary to section 74(1) of the Crimes Act 1958, which carries a maximum penalty of 10 years imprisonment (charges 3 and 5); and

· One charge of possess drug of dependence contrary to section 73(1) of the Drugs, Poisons and Controlled Substances Act 1981, which carries a maximum penalty of 5 penalty units (charge 6).

Circumstances of offending

2The circumstances of your offending are set out in a detailed Summary of Prosecution Opening, marked Exhibit 1 on the plea. The aggravated burglary and  the act of intentionally causing injury took place at the residential home of Peter and Janice Raymond, in Mariners Retreat, Mornington. At the time, Peter Raymond was 86 years of age and Janice Raymond 82 years of age.

3At approximately 7am on Wednesday, 2 December 2020, Janice Raymond woke and observed that there were no lights visible on the radio or phone. She assumed that there had been a power outage. She got out of bed at about 7:30am and noticed that the pantry had been emptied and everything was on the kitchen floor. Mrs Raymond saw that all the rooms were in a mess and that all of their belongings had been pulled out of cupboards. She heard banging coming from the study. She then went back to the bedroom and woke her husband, telling him that they had been burgled. Mr. Raymond got out of bed and they heard further noises coming from the study. Mr Raymond went into the office and saw you. You turned to face him with a black kitchen knife in your hand.

4You came towards Mr. Raymond and started stabbing at him in an upward motion. You stabbed Peter Raymond in the left arm causing a deep wound. Mr Raymond said, “I’ve been stabbed” and he fell to the ground. During your physical altercation with the victim, he suffered multiple injuries including wounds to his right hand, right arm, right leg, left leg and neck.

5You then said to your victim, “Let me go”. Mr Raymond hit you over the head with a plastic tube but with little effect. He then moved out of the way and you ran past him into the kitchen. You pushed past Mrs Raymond and she saw you run from the property. Mrs. Raymond then attended to her husband and called 000. She observed that Mr Raymond had blood everywhere.

6At approximately 8:05am, paramedics and police attended the address. Paramedics treated Mr Raymond and the police photographed his injuries. Mr Raymond was then transported by ambulance to the Frankston Hospital for medical treatment.

7Sometime the same morning you entered a shed at 14 Downward Street Mornington. You took from the shed, a pair of orange garden loppers belonging to Joshua Bergin. These were found in your possession upon your arrest along with a small glass optical device which was a measuring microscope, belonging to Peter Raymond. The same morning your wallet was found at the Adelaide Street dog park and handed into the Mornington Police Station. Inside your wallet was a plastic bag with cannabis.

8You were arrested a few hours after the aggravated burglary at 9:20am. You were not interviewed as you were heavily substance affected.

9It has been submitted on your behalf that you were heavily under the influence of ice and Xanax at the time.

Victim Impact

10No victim impact statement has been prepared, however, it is not difficult to imagine the effect this offending would have had on your victims. It must have been incredibly frightening. Janice Raymond, (in her statement that forms part of the depositions), stated that the offending had shaken her up and that she was devastated that someone had entered her house and stabbed her husband.

Procedural History

11You were charged on the day of your arrest, namely 2 December 2020. You entered a plea of guilty to these charges at the second committal mention, on 21 May 2021. A plea hearing was heard in this court on 22 September 2021 and 10 November 2021. I accept that your plea was entered at the earliest opportunity.

Prior Criminal History

12At the time of this offending you were 26 years of age. You have admitted a prior criminal history. This includes appearances in the Children’s Court in 2012. You then appeared in the Magistrates’ Court on 23 March 2019. On that occasion you were dealt with for multiple offences including stalking, using a carriage service to menace and harass, making a threat to kill, unlawful assault, threaten to destroy property and possession of weapons. These charges arose from an incident on 26 October 2018 involving your former partner and her friends. In relation to that offending, you were convicted and sentenced to 60 days imprisonment with an 18 month Community Correction Order.

13You again appeared before the Magistrates Court on 24 September 2020, charged with a number of offences including burglary, theft and possession of a controlled weapon. The burglary took place on a shed at a residence near to where your grandmother was living. The weapon in your possession was a machete, which I’m told you kept for self-protection when you were sleeping rough. On those charges, you were sentenced to 42 days imprisonment (time served) and placed on a 24 month Community Correction Order with conditions; these included the completion of 100 hours of community work, supervision, treatment and rehabilitation. Although it was intended that you attend at residential rehabilitation, there was nothing available to you, which is unfortunate, as this had the potential to be beneficial to your rehabilitation. You do not have any prior appearances for intentionally causing injury, and these charges represent an escalation in your offending.

14I note that at the time of this offending you were currently on the Community Correction Order imposed in September 2020. Accordingly, it is anticipated that you will need to return to the Magistrates Court and be dealt with in relation to that matter. The fact that this offending was committed whilst you were on a Community Correction Order is an aggravating circumstance.

Personal Circumstances

15Your counsel, Mr. Stanton has prepared comprehensive written sentencing submissions on your behalf which were supplemented in the course of the hearing during an articulate and comprehensive plea.

16You are now aged 27. You were born on 9 March 1994 in Frankston, Victoria. You were raised primarily by your mother, Ms Linda Fox until you were 8. You are an only child and have never had a relationship with your natural father. As a teenager, you made attempts to contact your father via Facebook, but did not receive any response.

17Your mother re-partnered when you were a child. Your stepfather, Glenn Sullivan was an alcoholic, who was regularly physically abusive to your mother, and was hospitalised on several occasions due to the significant injuries she sustained. Your stepfather was also physically abusive towards you. When you were a teenager, you would attempt to intervene and defend your mother from your stepfather. This would often result in you sustaining black eyes and other superficial injuries. Your stepfather later suffered a stroke, which substantially altered his demeanour. He subsequently become more placid and less violent towards you and your mother. 

18You attended Langwarrin Primary School and then a number of high schools, completing Year 9. After leaving school, you commenced working full time as a process worker at factory. You held this role for a period of three years. You have also previously been employed as a labourer, working as a bricklayer, concreter and painter.  

19There seems to be a significant correlation between your substance abuse and offending. You began using cannabis at the age of 12. At the age of 16, you commenced smoking methylamphetamine (ice). Your first conviction occurred after you started using ice. You later began using ice intravenously.

20You commenced a relationship with your ex-partner, Jade Taylor in 2012 at the age of 18. Together you share two sons, who are currently aged 4 and 5. At the beginning of your relationship with Jade, your life seemed to significantly stabilise. You were able to refrain from engaging in criminal offending for a period of time.

21After the birth of your second child in 2017, the relationship between you and Jade substantially deteriorated. Jade suffered from post-natal depression, which put a strain on the relationship. At the time, you were both using ice intermittently and the relationship was characterised by frequent arguments. You and Jade separated a short time later.

22That relationship came to an end in approximately 2018. Your sons were later placed in the care of Jade’s mother, Melissa Taylor. The separation from your partner and family is said to have had crushing effect on you, and your drug use significantly increased during this period. This escalation coincides with an increase in committing criminal offences, reflected in your prior criminal history. Melissa Taylor was present during your plea hearing and is supportive of you. While in custody, you have remained in regular contact with Melissa Taylor and receive updates about your children. Ms. Taylor has prepared a reference for the court which is marked Exhibit B. She notes in her reference that you were a loving and supportive partner, and were especially supportive of Jade her during her postnatal depression. Melissa Taylor describes that your sons were your life.

23Your stepfather passed away a few years ago from cirrhosis of the liver. Following from his passing, your mother lost her public housing (as it was in Mr. Sullivan’s name) and you and your mother moved to your grandmother’s house in Langwarrin. However, following an argument with your mother in late 2019, you were asked to leave the house and found yourself homeless. You were couch surfing, and living on the streets.

24Unfortunately, your last release from jail, which ideally would have included residential rehabilitation, also left you with few options as to where you could live.

25On 3 October 2020 you were hospitalised at Frankston Hospital as a result of self-poisoning, whereby you ingested a large quantity of Xanax tablets and drank weedkiller. You were admitted to intensive care and intubated. You remained in hospital for several days. You were released into the care of your mother. However, a short time later you were asked to leave the house following a verbal altercation with your mother.

26You found yourself homeless again and within days, you were readmitted to the Frankston Hospital, having struck your head after a fall whilst you had consumed Xanax. You were discharged from hospital on 19 October 2020, but readmitted again on 23 October 2020, after you were found on the side of the road complaining of a snakebite. On that occasion you presented with auditory and visual hallucinations. You discharged yourself. There have been no psychiatric or psychological reports filed on your behalf, however the court was provided with documents as to your hospitalisations, the relevant pages tendered as an exhibit on the plea. (Exhibit D)

Childhood exposure to violence

27Your mother, Linda Fox has provided a letter of support, which is Exhibit A. Ms. Fox also gave evidence on your plea in relation to your upbringing and described the many incidences of regular violence inflicted upon her, to which you were privy. It cannot have been easy for her to relive some of this. Your mother told the court she had sustained a number of significant injuries at the hands of your stepfather, including a broken leg, repeated broken arms, broken eye sockets and broken teeth. Mr Sullivan also assaulted your grandmother. As noted, you yourself were often physically assaulted by your stepfather, every month or two, until you were about 14 years old when you were able to fight back.

28The High Court in Bugmy v The Queen[1] noted the relevance of circumstances of deprivation and abuse occurring during an offender’s formative years.

[1] (2013) 249 CLR 571.

29Your counsel has submitted that your background and exposure to extreme violence is relevant in explaining your recourse to illicit drug use, which is linked to the offending. Pursuant to principles in Bugmy, an offender’s background of deprivation is relevant because his moral culpability for the particular offence is likely to be less than the culpability of an offender whose formative years have not been marred in that way.

30Here the abuse that you witnessed and frequently experienced yourself, is said to explain and to some extent, contribute to your criminal behaviour. I accept that those principles as set out in Bugmy has application here. As the High Court said:

“The effects of such social disadvantage do not generally diminish with the passage of time, and are likely to have profound and lasting consequences.”

31Having said that, I do note that you were able to lead a law abiding life for almost 6 years, without recourse to violence or antisocial behaviour.

32Ms. Hamnett, appearing for the prosecution, did not disagree that Bugmy principles had some application, but noted that no psychological material has been provided that might provide more context around the effect your upbringing had on your current offending. I accept the prosecution submissions on this point.

33Further the prosecution submits that whilst a disadvantaged background may have the effect of reducing moral culpability it will also increase the importance of protecting the community.

34It is submitted by Ms. Hamnett that the application of the principles of Bugmy also do not reduce the need for the sentence here to vindicate the victim’s dignity or to appropriately reflect the community’s renunciation of the offending. I agree.

35However, your exposure to extreme violence during your formative years, as your mother described in her evidence, is very relevant and I take the circumstances of your upbringing into account. There must be a reduction in your moral culpability for the offending and, to some degree, a reduction in the need for any sentence to reflect the sentencing purpose of general deterrence.

Plea of guilty

36I take into account your plea of guilty. This was a plea entered at the earliest opportunity, and it is of significant utilitarian value. You have spared the community the significant expense of a trial and importantly, you have spared the witnesses and victims the ordeal of having to give evidence. Your plea demonstrates a willingness to facilitate the course of justice. It is also some evidence of remorse.

37Your plea of guilty has an additional utilitarian value given that it was entered during the Covid-19 pandemic, where the court has faced a substantial backlog of trials resulting from the suspension of jury trials. Accordingly, as the Court of Appeal articulated in Worboyes v The Queen,[2]  your guilty plea is worthy of greater weight in mitigation than a similar plea entered at a time when the community and courts are not afflicted by the pandemic’s effects. As a consequence, your plea of guilty should result in a perceptible amelioration of sentence. You are entitled to a substantial discount in sentence both for your plea of guilty itself and taking into account that this plea of guilty has occurred during the Covid 19 pandemic.

[2] [2021] VSCA 169.

Time on remand during Covid-19 pandemic

38You have been in custody since your arrest on 2 December 2020. All of your presentence detention has been served during the Covid-19 pandemic. You have been in quarantine due to prison placements and transfers, and have experienced lengthy intermittent periods of lockdown and isolation, particularly while you were  at Port Phillip Prison, including periods of total 24-hour lockdown and no telephone calls. It is submitted, and I accept, that your time in custody has been made more difficult as a result of the restrictions relating to Covid 19. You have been unable to receive visitors, and there have been few courses available to prisoners whilst in custody. Recently, there have been individuals who have tested positive in the prison system, which has no doubt added to the stressful environment. I take this into account.

39It is to your credit that whilst in custody you have been able to undertake to short courses on illicit drug use, have returned clean urinalysis screens and have worked as a food line billet whilst you were at Fulham Correctional Centre. You have indicated your interest in completing your VCE or VCAL whilst in custody. You speak with both your mother and Melissa Taylor regularly and hope to be able to be reunited with your children at some time in the future. Your positive progress whilst in custody and your goal to have a relationship with your children in the future, are also relevant when considering your prospects of rehabilitation.

Remorse

40Your mother gave evidence that after you were arrested, you told her that you had messed up and you were emotional. You said that you were not aware of the age of your victim until after your last court appearance. I accept that your comments to your mother are indicative of some degree of remorse. This is reinforced by your plea of guilty.

Youth

41Your counsel has submitted that as you are 27 years of age, you are a relatively  youthful offender for the purposes of sentencing and that as such, greater weight should be given to rehabilitation, having regard to R v Mills.[3] However, Mr. Stanton also accepts that those principles are moderated given that you fall at the upper end of the range of youthful offenders and given the circumstances of the offending. To that end, to some degree, your youth and rehabilitation has to give way to specific and general deterrence. This is particularly so given the seriousness of the offending. Nevertheless, I take into account that you are relatively young.

[3] [1998] 4 VR 235.

42Given your relative youth, your counsel submits that you have reasonable prospects of rehabilitation, but accepts that you need further supervision and treatment to facilitate your rehabilitation. The fact that you have a number of prior criminal matters is of course relevant in assessing your prospects of rehabilitation. Likewise, your history of substance abuse. The fact that you committed these offences whilst significantly substance affected and that you committed these offences whilst you were supposedly under the supervision and guidance offered by a Community Correction Order does not bode well for your prospects of rehabilitation.

43However, your ability to lead a law-abiding life for a period of six years between 2012 and 2018, whilst you were with your former partner, does indicate that you have the capacity to be rehabilitated. With the right supports in place it seems that you would have reasonable prospects of rehabilitation, though this will be contingent upon you remaining abstinent from drug use. The reality is that it comes down to you and your desire to change. There could perhaps not be any greater motivator to rehabilitate, than to again become a part of your young children’s lives.

Nature and gravity of the offending

44Mr. Fox, this is objectively very serious offending. By its very nature, aggravated burglary is a serious charge, and this is reflected in the maximum penalty that Parliament has set down. You entered the Raymonds’ home, in the early hours of the morning intending to steal and knowing or being reckless as to whether the occupants would be at home. I note that you carried out the aggravated burglary alone, and you did not know the victims. This is relevant in assessing the gravity of your offending on charge 1. The manner in which you entered is not known with any certainty.  The power had been switched off outside the premises, and it would not seem a stretch to conclude that you had done so in order to be able to gain entry without risking detection.

45Aggravated burglary is a serious violation of the sanctity of the home, and crimes such as these strike directly at the heart of people’s sense of security and their capacity to feel safe in their homes.  The occupants of the home were elderly and vulnerable and had been asleep. You left their home in a mess; you had pulled the Raymonds’ belongings from cupboards, no doubt in your quest to find items of value. In doing so, you showed little regard for their home. However, you are not to be sentenced in relation to your conduct after entry, with respect to the aggravated burglary charge.

46You have pleaded guilty to a separate charge of theft in relation to the microscope and for intentionally causing injury. However, having regard to your other conduct whilst inside the home, the overall offending is very serious.

47Once inside, you saw fit to obtain a knife from the Raymonds’ kitchen, which you took with you into the study. Perhaps you did so having regard to the very real possibility that you might be confronted by the occupants of the home. You have no recollection as to your conduct on this day. But when Peter Raymond entered the study, you turned to face him, with the knife in your hand, before stabbing him. As the prosecution points out, upon being discovered, you could have acted differently. Instead, choosing to use the knife you had acquired after entry, you engaged in a gratuitous act of violence towards an elderly gentleman, which resulted in him sustaining a number of injuries. It is fortunate that he was not more seriously injured. You left Mr. Raymond bleeding on the floor of the study before running out. That you attacked Mr. Raymond with a bladed weapon, a knife, makes the offending all the more serious.

48Notwithstanding this, I accept that your violence towards Mr. Raymond was unplanned and appears to have been a relatively spontaneous act, whilst you were heavily substance affected. Nevertheless, I view your overall offending as very serious and denounce your conduct. To have a stranger enter your own home, while you are asleep, create the mess you made, and to then be stabbed by that intruder in the sanctity of that home must have been terribly frightening for both Mr. Raymond and also for his wife, who witnessed her husband bleeding on the ground.

49The burglary charge was committed on a shed. It is not the most serious example of a burglary, but given that you have a prior conviction for burglary of a shed, the sentence imposed needs to have some deterrent value.

Proportionality and Totality

50Your conduct on this occasion Mr. Fox was reprehensible. As I have noted, with respect to the aggravated burglary, you are to be sentenced on the basis of your intention and conduct as you entered the premises. You did not enter intending a confrontation, but ultimately this is what occurred. Your conduct after your entry is the subject of charge 2, and your counsel accepts that there should be some moderate cumulation for the intentionally causing injury offence. However, your counsel also submits that the offending occurred as part of a single episode and there should be a degree a concurrency.

51The prosecution agrees that some concurrency is appropriate to satisfy the principle of totality. The principle of totality is important and I must ensure that the totality of the sentences imposed for these closely connected yet separate crimes, is met with a total and proportionate sentence.

52Ultimately, in my view there needs to be some degree of cumulation for your offending with respect to the charge of intentionally causing injury, though again, I accept, it occurred during the one period of conduct.

53The burglary and theft carried out on the shed, whilst also serious, took place on the same morning as the other offending. I have not been urged by the prosecution to cumulate the sentence to be imposed for this offending.

Relevant sentencing factors

54The basic purposes for which a court may impose a sentence are just punishment, deterrence, both specific and general, rehabilitation, denunciation and protection of the community. I am required, pursuant to the Sentencing Act 1991, to take into account various factors when formulating an appropriate sentence in your case. These include the seriousness of the offences, your culpability for them, the effect of your offending on the victim and your personal circumstances.

55The sentence I pass must balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that, as far as possible, you are rehabilitated and reintegrated into society.

56I am to have regard to principles of parsimony, and I do so.

General and specific deterrence

57General deterrence is an important sentencing consideration in sentencing you for these offences. Other members of the community must understand that serious criminal offending such as aggravated burglary and intentionally causing injury, particularly of those whose sense of security in their own home has just been violated, will attract significant punishment.

58In your case, specific deterrence and protection of the community are also required to be given some weight, given your prior criminal history, and given that this offending occurred in the context of you being high on drugs. As the prosecution notes, the community should not have to tolerate violent and anti-social behaviour of people who are highly substance affected. There is a need to protect the community from those who carry out the sort of offences for which you have pleaded guilty.

59Just punishment and denunciation must also be given primary consideration in my instinctive synthesis.

Current Sentencing Practices

60Although this is but one of the factors for consideration, I am required, and have taken into account, current sentencing practices as part of my instinctive synthesis. Your counsel has highlighted the Sentencing Advisory Council’s SACStat with respect to aggravated burglary sentences.  The prosecution have cited the decision of Hogarth v The Queen[4] and provided a number of cases involving aggravated burglary. Each of these matters are of course different in terms of their factual make up. There is something of a distinction here between your offending and that in Hogarth, in that whilst ultimately your behaviour once inside the premises involved a confrontation with your victim, as I have said, you did not enter the premises with the aim of any such confrontation. I have had regard to the principles as set out in Hogarth and reiterated in DPP v Meyers. [5] 

[4] (2012) 37 VR 658.

[5] (2014) 44 VR 486

Sentence

61Balancing all of these considerations, as I must, I sentence you as follows:

62On charge 1, aggravated burglary, you are sentenced to 4 years and 3 months imprisonment.

63On charge 2, intentionally causing injury, you are sentenced to 2 years and 3 months imprisonment.

64On charge 3, theft, you are sentenced to 2 months imprisonment.

65On charge 4, burglary you are sentenced to 4 months imprisonment.

66On charge 5, theft, you are sentenced to 1 month imprisonment.

67On charge 6, possession of cannabis, the charge is found proven and dismissed pursuant to s76 Sentencing Act 1991.

68Charge 1 will be the base sentence. 15 months of the sentence imposed on charge 2 will be cumulative on the sentence for charge 1.

69The sentences imposed on charges 3, 4 and 5 will be concurrent with the sentence imposed on charges 1 and 2

70That makes a total effective sentence of 5 years and 6 months imprisonment.

71I fix a non-parole period of 3 and a half years imprisonment.

Pre-sentence detention

72Pursuant to s18 of the Sentencing Act 1991, I declare 350 days' pre-sentence detention as time already served to be deducted from the sentence that I have imposed.

s6AAA

73Pursuant to s6AAA of the Sentencing Act 1991,  had you proceeded to trial and been found guilty, I would have imposed a total effective sentence of 7 years imprisonment with non-parole period of 5 years.

Ancillary orders

74I make the orders sought with respect to disposal of various items seized during the investigation as set out, which is by consent.