Director of Public Prosecutions v Fraser
[2013] VCC 1127
•9 August 2013
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT BENDIGO
CRIMINAL DIVISION CR-13-00712
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| CHASE ANTONY FRASER |
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JUDGE: | HIS HONOUR JUDGE MAIDMENT | |
WHERE HELD: | Bendigo | |
DATE OF HEARING: | 9 August 2013 | |
DATE OF SENTENCE: | 9 August 2013 | |
CASE MAY BE CITED AS: | DPP v. Fraser | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1127 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr A. Patton | |
| For the Accused | Mr J. Gullaci |
HIS HONOUR:
1 Chase Antony Fraser, you have pleaded guilty to an indictment charging you with one offence, that on 17 January of this year, without lawful excuse you intentionally caused serious injury to Andrew Leigh Carlyle. The maximum term of imprisonment for that offence is 20 years. You have also admitted to a number of prior convictions and court appearances. A number of those have been for serious offences and have resulted in terms of imprisonment being imposed upon you and you have served a term of imprisonment in an adult prison.
2 The prosecution has tendered a relied upon a summary of prosecution opening on the plea, which is Exhibit A. That was read to the court this morning and I am not going to repeat it, but I incorporate it in its entirety into these reasons for sentence. It shows that in the early hours of the morning, of 17 January of this year, you stabbed your half-sister's boyfriend four times in the chest, one of those ruptured his liver and any one of them could have ruptured a major blood vessel or some other organ which would have caused his death. If you had been up on a murder charge, there would not have been any option other than to give you a very significant sentence indeed. Using a knife in circumstances like that are calculated to cause a very high risk of death. As it is the offence of intentionally causing serious injury is a very serious offence and ordinarily would require me to impose a term of imprisonment upon you.
3 Your counsel has placed before me and relied upon a number of exhibits. I am not going to go into those in detail, they were the subject of discussion during the plea hearing. I refer to one of them, the report of Mr Jeffrey Cummins, dated 16 July of this year. That report is helpful in that it is recent. It deals in some detail with your childhood and early adult history and with your explanation of the events leading up to the offence for which you appear here today, your relationship with your girlfriend of many years now and with your young child. Again I am not going to go into detail with that. It shows that you have had a somewhat disrupted childhood and that from quite an early age you started using alcohol and then drugs of one kind or another. I have no doubt that your use of alcohol and drugs has contributed significantly to your past offending conduct.
4 With a past history, such as yours, of offending, including offences of burglary, theft, armed robbery, robbery and a further armed robbery, you could reasonably have expected a very significant term of imprisonment. It was noteworthy that your counsel accepted that that was the likely consequence of your appearance here today, and so it would have been, had it not been for two factors which seem to me to be of particular significance. One is that upon getting parole in the latter part of last year you got a job and you settled down to work and held that job and you appeared to be set upon making a new life for yourself, a decent life with your girlfriend and settling down to be a responsible father, a responsible citizen, a responsible partner and a law abiding citizen. This offence occurred on an evening when you had consumed a deal of alcohol and stupidly some Valium tablets. It can be seen perhaps as an aberration, albeit a very significant aberration in the efforts you were making to put yourself on the right road.
5 I have the impression that the period of imprisonment that you had served to that point had left you with a feeling that you did not want to go back to prison. Perhaps that is borne out by the fact that you did not tell the police the truth initially and prevailed upon your half sister and the victim to tell lies on your behalf, for fear that you would go back to prison. It did of course result in you going back to prison because you were in breach of parole and naturally enough you lost your parole at that time.
6 That would have seemed like a significant setback to you, but after you were transferred to the youth unit, Penhyn. You decided it seems to make the very best of your time in custody. That, I think, is best summarised in the evidence of Ms Hooker, who was called on your behalf. As I said immediately after, or soon after she gave evidence, I have not seen ever, in the many years that I have had to do with the criminal justice system, any Corrections Officer speak as highly of one of their charges as she did of you. What it seemed to me to demonstrate was a real intent on your part to rehabilitate yourself. Not just that, but to show leadership at the unit, to help others who were perhaps struggling more than you had been struggling and that I think is very much to your credit. As she said, and as you have said in the letter that you have written, and as your father has said, and as Mr Cummins has said, they are convinced that you are genuinely remorseful and that what you said in your letter is true. I accept that you are genuinely and deeply remorseful for your conduct on this night.
7 You have pleaded guilty at the earliest opportunity. That gives rise to further support for the proposition you are remorseful and requires me to give you a deduction, in any event, for the fact that you have saved the State the cost of a trial and have saved the witnesses having to give evidence. You are entitled therefore to a significant reduction in sentence.
8 I am required of course to consider ensuring that this court expresses its denunciation of conduct of this kind, punishes you adequately for your offending conduct and pays proper regard to deterring you from committing further offences and deterring others from committing offences of this kind. I am also required to balance that against the need to promote your rehabilitation. You are still a young man, albeit with an unenviable criminal record, 20 years old at the time you committed the offence, almost 21, and you are now 21 years of age.
9 The Court of Appeal in this State and indeed Courts of Appeal throughout Australia have recognised that it is important to place rehabilitation of young people as one of the most, if not the most significant sentencing considerations in appropriate cases. The philosophy behind that is that hopefully young people are not too entrenched in their ways that they cannot be rehabilitated and it is usually in the long term interests of the community and the protection of the community that young people be rehabilitated. That is, set on the right road, persuaded that following a criminal career is not the best way to go and ultimately ensuring, if possible, that they do not re-offend.
10 As the Community Correction Assessment report points out, your prospects of re-offending are moderately risky at this stage. I think it is probably too early to be more optimistic than that. But you have demonstrated, I think, very clearly that you are a good candidate for rehabilitation in the sense that you have done, I think, as much as you reasonably could have done in the last several months to show that you want to find the right path.
11 I am also impressed by the fact that your girlfriend, her mother and father and other family members have attended court today. You will need support, emotional support, encouragement and I think you will need the support of the Department of Corrections for a period of time through drug, alcohol rehabilitation and treatment programs. I think you have to, as Mr Cummins points out, regard yourself as having an alcohol problem. It may be that you have been able to curb your drinking habits significantly, but nevertheless you have been, I think, abusing alcohol over many years from quite a young age and you, I think, will be vulnerable for a while at least and will need some help with that.
12 You seem to be a person, as Mr Cummins says, of moderate intelligence and I suspect you have qualities that will enable you to succeed. I think that anybody that has persuaded a pretty hardened and long serving Community Corrections Officer such as Ms Hooker that you have all the qualities that she has spoken of today, has those qualities. Given that you have those qualities, those talents and the ability, leadership qualities, go out and use them. There is no reason why you should not be a resounding success. But you will not be if you hang around with your old mates, and you will not be if you take drugs, and you will not be if you abuse alcohol. Anyway that is enough of a lecture from me. All in all I am persuaded that your rehabilitation is going to be in the long term interests of the general public and the public will be better protected if you are rehabilitated and that will best be achieved through a community corrections order.
13 There are a number of core conditions to a community corrections order. I will just read those out to you so that you should be left in no doubt at all and others who will be around to support you will hear then as well, so everybody is clear on what is involved. You must not commit, whether in Victoria or outside Victoria, during the period of the order an offence punishable by imprisonment. You must comply with any obligation or requirement prescribed by the regulations. I am not going to read the regulations to you, but that is one of the conditions. The offender must report to and receive visits from the Secretary of the Department of Corrections or his or her delegate. The offender must report to the Community Corrections Centre specified in the order and that will 46-50 Walker Street, Dandenong, Victoria, within two clear working days after the order comes into force. It comes into force today, so I think you will have to report by 4 pm on Tuesday, I think. You must notify the Secretary of the Department of Corrections or his or her delegate of any change of address or employment within two clear working days after the change. You must not leave Victoria except with the permission, either generally or in relation to a particular case of the Secretary or his or her delegate. You must comply with any direction given by the Secretary that is necessary for the Secretary to give to ensure that you comply with the order.
14 The order I made will also require you to perform 250 hours of unpaid community work. The order will last for two years, so that work will have to be performed obviously within the two year period. There will be a treatment and rehabilitation drug and alcohol condition. A condition that you receive such treatment or rehabilitation in relation to mental health as directed and that you engage in programs to reduce re-offending as directed. You will also be under supervision, so there will be requirements for you to report and you will have to comply with all of those conditions.
15 If you breach any of those conditions, in particular if you commit another offence punishable by imprisonment, but if you breach any of the other conditions then you render yourself liable to be brought back to this court for the breach. You could be sentenced to up to three months' imprisonment and also you would be liable to be re-sentenced for this offence. If you had to be re-sentenced for this offence, then you could expect a sentence of four to five years with a non-parole period of at least two and a half years.
16 As your counsel readily agreed today, the range put forward as appropriate by the prosecution was a reasonable one. Their assessment of the facts of this case has been entirely reasonable and indeed understanding of the facts in a way that was favourable to you. So the very least you could expect if you are in breach is a sentence of that order. I hope that is very clear to you and that that will serve as an added incentive for you to stay out of trouble and comply with the order. It is not going to be all that easy to comply with the terms of the order. You will not necessarily find it particularly easy. When you get outside, it will be very different, because of course temptation will be put in your way, people will be in your ear suggesting this or that. I think you have the capacity to resist that, am I right?
17 OFFENDER: Yes.
18 HIS HONOUR: All right. Ms Hooker told me that she thought I could trust you. Do not let me down. Do not let her down. Most importantly, do not let your family down, do not let your girlfriend down and do not let yourself down.
19 OFFENDER: Thank you, Your Honour.
20 HIS HONOUR: The order that I make is that for the offence of intentionally causing serious injury, I convict you and sentence you to a community corrections order for a period of two years in the terms that I have outlined. That order will be drawn up, if it has not been already. I will allow Mr Gullaci to approach you and ensure that you understand what you are signing. Once you have signed that order and I have signed it then the order will be made and you will be free.
21 MR PATTON: Your Honour, there is just the disposal order.
22 HIS HONOUR: I am sorry about that. Do you have the draft?
23 MR PATTON: No, it has not been drafted, Your Honour. I understand my instructor will forward it via email, if that is acceptable to Your Honour.
24 HIS HONOUR: Yes. I will also make the disposal order, was it not?
25 MR PATTON: Yes.
26 HIS HONOUR: Yes, the disposal order in relation to the matters, or the items that are listed in the summary of prosecution opening, which are a sealed paper bag containing a white coloured singlet, green coloured knife and a maroon coloured towel. Those are the items?
27 MR PATTON: Those are the items, Your Honour.
28 HIS HONOUR: Yes, well I will make a disposal order in relation to those items. Any other orders?
29 MR PATTON: That is all the order sought, Your Honour.
30 HIS HONOUR: Yes. But for your plea of guilty, I would have sentenced you to five years' imprisonment with a non-parole period of three and a half years.
31 MR GULLACI: Your Honour, may I approach with Your Honour's associate?
32 HIS HONOUR: Yes.
33 (Community corrections order signed and acknowledged.)
34 (Disposal order signed and acknowledged.)
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