Director of Public Prosecutions v Fox

[2014] VCC 1612

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

AT LATROBE VALLEY
CRIMINAL JURISDICTION

CR-13-01852

DIRECTOR OF PUBLIC PROSECUTIONS

v

MARTIN FOX

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Latrobe Valley
DATE OF HEARING:
DATE OF SENTENCE:	25 September 2014
CASE MAY BE CITED AS:	DPP v Fox
MEDIUM NEUTRAL CITATION:	[2014] VCC 1612

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	Mr D. O'Doherty
For the Offender	Mr R. Chaudhuri

HIS HONOUR: 

1Martin Geoffrey Fox, you have pleaded guilty to one charge of aggravated burglary, one charge of intentionally causing injury and one charge of criminal damage.  Those crimes carry maximum penalties of 25 years, ten years and ten years respectively. 

2You are 35 years of age, and having pleaded guilty to these matters you must get the benefit of that plea of guilty.  Remorse is, I suspect, somewhat problematic, but you certainly get a significant discount for the utilitarian benefit of that plea. 

3You do have very significant prior convictions, the most significant of which goes back to September 2002 when you were given a total sentence of nine years with a seven year non-parole period, essentially for kidnapping and intentionally causing serious injury.

4So far as a subsequent matter is concerned, on 13 February 2013, you were given 12 months' imprisonment, of which 187 days was declared as having been served, and six months was suspended for a period of 12 months.  That will be of significance at a later time, in the Magistrates' Court.  You have other prior convictions for violence, drug related matters, driving and the like.

5The circumstances surrounding this offending were that in May 2012, which I note is now some two and a half years ago, you went to the house of a Mr Palmer.  You had known him for about a year before the offences.  This was in Moe.  On that 31 May 2012, you knocked on the door.  You had a hammer with you, but did not show it to Mr Palmer.  Mr Palmer was at home with his then girlfriend, Ms Penfold.  He opened the door and started talking to you.  You were upset, telling him that he was supposed to be helping with a move of you to Erica, but he was not doing so.  You became aggressive.  Mr Palmer told you to leave and tried to shut the door, but you would not let him.  You followed him down the hallway and hit him on the head with the hammer.  He fell to the floor, and you said something along the lines of, "I might as well finish this off".  Fortunately, you did not, and Ms Penfold persuaded you to leave.  You did, leaving the hammer.  Shortly afterwards, your girlfriend apparently came to the house looking for the hammer, and Mr Palmer refused.  He had put it into his dishwasher.  He saw a doctor the same day, and apart from the pain of being hit on the head, he suffered a cut to his scalp which required some stitches.  That gives rise to aggravated burglary and intentionally cause injury.

6The criminal damage charge arises from a couple of days later.  You went to the house, recognised his voice and threatened him.  You broke a window next to the front door, shattering glass into the house, and you clearly frightened Mr Palmer again.  The charge is one of criminal damage, that being to the window.

7There is no victim impact statement. 

8Your explanation for the offending was that there had been an earlier incident involving Mr Palmer where you believed he had gone to your house and carried out various actions.  Whether that be true or not, Mr Palmer has a criminal history, the name Penfold is not unknown in these parts, and I suspect that there was a milieu in which all this took place.  Nevertheless, you have committed extreme violence before, and you have done it again. 

9The offending has to be regarded as serious and calls for the application of general and specific deterrence, as well as denunciation and appropriate punishment.  I think they should be moderated to a degree in this scenario because of your background, but at 35, you are fast running out of opportunities. 

10Tendered on your behalf was a report from a Mr Billick, a forensic psychologist, and I was also able to obtain the sentencing remarks of Judge Barnett from back in 2002. 

11Judge Barnett went through your background.  He said that your background was "extremely unfortunate".  Your parents separated at a young age.  Your mother formed a relationship with a stepfather and later married him.  You were a boarder, apparently, at Ivanhoe Grammar for a while, and never really had any contact with your mother, even outside school hours.  At about the age of 12, you could no longer be kept at Ivanhoe Grammar, and from then on in, you became, effectively, a street kid.  You lived at the houses, or tried to, of various people that you knew, doing what is known as couch surfing.  At that time, you appear to have been an intelligent and effective young man. 

12You began to commit offences at around about that age, but were able to get employment.  In 1994, while working at the Treasury Building in Melbourne, you received very severe injuries indeed as a result of a gas bottle exploding.  According to Judge Barnett's sentencing remarks, the burns were in the order of 95 per cent of your body. 

13I accept, as Judge Barnett did, that you have no doubt experienced an enormous amount of psychological scarring which has reflected on your subsequent life, as he said, and your perception of yourself.  He accepted, as I do, that your mother had little to do with you over the years, and one of your only stabilising contacts was with your stepfather, but in 1997, some time before the offending Judge Barnett sentenced you for, he killed himself by hanging. 

14You underwent that very long sentence and you were able to get through a two year parole period, which is to your credit, and gives me some confidence, though not a lot, as to your prospects for rehabilitation. 

15Your circumstances at the moment are precarious.  You have undergone a sentence in more recent times, as I have indicated, for six months, and I take that into account in a Renzella way, in terms of lost opportunity for concurrency.  You, I am told from the Bar table, have a family environment to go to upon your ultimate release. 

16The report from Mr Billick, the psychologist, was clearly obtained in regard to matters which are pending in the Magistrates' Court.  I am not here to sentence you for those matters, but I want to make it very clear that the sentence I impose here is not in any way, shape or form designed towards influencing what any magistrate may do in the future, and I expressly point out that these sentencing remarks will be revised and available, and that my sentence is not to be used for that purpose.  I go into that because the report goes into some detail as to what you are facing. 

17You, in the Magistrates' Court, at some stage in the relatively near future, will face charges of unlawful assault, assault with a weapon, contravention of that six month suspended sentence, drive whilst suspended, reckless conduct endangering serious injury, theft and a significant number of family violence intervention order breaches.  I am told that there may be a statement of no complaint, but I daresay the policeman who was placed in risk in the reckless endangerment will not be agreeing to that, so far as his matters are concerned. 

18Accordingly, I am at a little bit of a loss to know what a magistrate will do, but it seems to me to be important that your sentence commence, so that a magistrate at least has the opportunity of giving you concurrency. 

19There was some discussion with your counsel, because of what is in Mr Billick's report, about a psychiatric report being obtained, but the timeframes around that and the potential benefit from it are such as not to warrant it in your given situation.  I would have had to remand you for six months in any event. 

20That report indicates a number of matters.  It goes through your history which I do not need to go again, and refers to the "138 code type" as it is described.  He says in that report that persons with that code type, which you clearly are, are often or usually diagnosed with schizophrenic disorder.  However, it is also clear that you were using ice leading up to this offending, and would appear on the report to have been continuing the use of ice afterwards for some extended period of time.  That sort of diagnosis can also be regarded as the consequence of substance abuse when it indicates the presence of psychotic phenomena. 

21You indicated depressive episodes, and previously, suicidal ideation, and all sorts of personal difficulties which are consistent with schizophrenia or a paranoid personality disorder.  As I have said, it seems in this scenario that you face before me, that there would be no benefit for you in obtaining any further psychiatric opinion. 

22Clearly any prospects of your rehabilitation are in your hands.  The risk of you reoffending has to be regarded as relatively high, I would have thought.  I cannot do anything about what a magistrate might do.  All I can do is simply sentence you for what you have done in this given situation, and, bearing in mind that you have effectively done it before. 

23Taking into account all those matters, on the charge of aggravated burglary, two years; on intentional injury, one year; criminal damage, three months.  Six months of the one year cumulative on the two years, giving an effective head sentence of two and a half. 

24I direct that you serve 15 months before becoming eligible for parole, I note that you have successfully achieved parole before, and I direct that 227 days be reckoned as having been served under this sentence. 

25So that you understand the benefit of having pleaded guilty to the charge of aggravated burglary in particular, I say that pursuant to s.6AAA, but for your plea of guilty, I would have sentenced you to be imprisoned for a period of three and a half years with a minimum term of two years and three months. 

26Can I just ask this, in assessing that sentence I have assumed he is not in protection?

27MR CHAUDHURI:  He is not?

28HIS HONOUR:  In protection.

29MR CHAUDHURI:  I may need to get some instructions about that, Your Honour. 

30HIS HONOUR:  It is not going to make any difference, but I worked on that basis.  But he is clearly going to have to deal with the Magistrates' Court anyway. 

31MR CHAUDHURI:  No, Your Honour, he is not.

32HIS HONOUR:  No.  Thank you for that. 

33All right.  There is no other orders I need to make.  I have made the disposal order. 

34What I will do, bearing in mind the circumstances of this, and bearing in mind what he faces in the future and some other things that have happened down here in more recent times, those sentencing remarks or these sentencing remarks, what I said about what happens in the Magistrates' Court, will be made available to the Crown, and should be made available to the police prosecutors as well.  I say that, and this is not anything about Mr Chaudhuri, but I was verballed recently in circumstances where I was not happy.  All right? 

35MR CHAUDHURI:  All right.

36HIS HONOUR:  Anything else? 

37MR CHAUDHURI:  Nothing, sir.

38HIS HONOUR:  All right.  Yes, thank you, Mr Fox can go now.  I will just talk to Mr Nash and Mr O'Doherty for a second.  Yes, thank you, Mr Chaudhuri.

39MR CHAUDHURI:  Thank you, Your Honour. 

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