Director of Public Prosecutions v Fraser

[2017] VCC 1115

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

AT LATROBE VALLEY
CRIMINAL JURISDICTION

CR-17-00116

DIRECTOR OF PUBLIC PROSECUTIONS

v

TERRY FRASER

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Latrobe Valley
DATE OF HEARING:
DATE OF SENTENCE:	15 August 2017
CASE MAY BE CITED AS:	DPP v Fraser
MEDIUM NEUTRAL CITATION:	[2017] VCC 1115

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 H. Hutton
For the Accused	Mr J. Miller

Pages 1 - 5

 

 

HIS HONOUR: 

1Terry Fraser, you have pleaded guilty to one charge of robbery, one charge of kidnapping and one charge of theft.  Those crimes carry maximum penalties of 15 years, 25 years and ten years respectively.  You are now 25 years of age.  You pleaded guilty and made offers to plead at an early stage.  Whilst remorse is probably problematic, I will give you the benefit of the doubt about that.  And you must, of course, get the utilitarian benefit of that plea of guilty. 

2You do have a long and significant history of prior offending, including one for armed robbery where you received a sentence of two and a half years with a minimum term.  In fact, when this offending took place, you had only been out of gaol a week.

3I have sentenced a number of people in relation to this matter and as I indicated previously, a Mr Bird was sentenced to 20 months with a ten-month minimum; and a Mr Jackson, I gave a community corrections order to.  Mr Jackson had no prior convictions and I indicated, I think, during the course of that sentencing that I felt somewhat hamstrung by the fact that a number of others had received CCOs with no custody in the Magistrates' Court.  Be all that as it may, I have to give some weight to all that in the process of sentencing you.  In fact, there is something like nine other accused. 

4The circumstances were that three of your co-accused had known the victim, a Mr Sanders, for a number of years.  Over the previous 12 months, that relationship had deteriorated because Mr Bird believed that the victim had broken into his house and stolen his children's Christmas presents. 

5In the early evening of Monday 13 June 2016, Bird, Dyston and Clark were at Dyston's address in Churchill.  Three children were present.  The three had a conversation about Mr Sanders in relation to how he had wronged them in the past, including the burglary.  They then decided to orchestrate a "touch up" of Mr Sanders which they would agree would occur at his house. 

6At around about 7 o'clock, Mr Bird called a Mr Jackson who was at home in Morwell.  He asked Mr Jackson to come to the Churchill address to help "roll" the victim for his drugs and money.  Jackson agreed but said his car was with you.  Mr Bird said he would call you and get you to pick them up.  He said that plan was told to the others who agreed to come along as well.  Mr Bird then contacted you and apparently told you what the plan was and asked you to pick up Jackson and the others.  That you did. 

7At approximately 8 o'clock, vehicles arrived at Mr Sanders premises and parked in the rear yard.  Upon arrival, all ten of you entered the bedroom via the bathroom as that was the only access point.  Once inside, you have planned the robbery whereby the victim was to be invited around to the house on a pretext of selling drugs to Dyston who was to be invited to the bathroom and then upon the utterance of a keyword or keywords, was going to be assaulted and robbed. 

8He was then sent a message by Dyston, asking to come around and sell her and a friend methamphetamine, ice.  He agreed and drove to the address in his blue Ford Falcon.  He was invited into the house and he sold - my understanding was that he was never charged with trafficking - but sold the drugs.  Immediately after receiving the drugs, the whole group of you came out of the bathroom - sorry, entered - and immediately entered the bathroom and immediately began assaulting him.  On the material before me, I accept that you yourself did not deliver punches, but certainly you were at least aiding and abetting what took place. 

9He was punched and kicked and received injuries.  His drugs were taken.  He was told it was about - Bird was accusing him of breaking into his house and stealing from him.  Bird then instructed others to search Mr Sanders' pockets which took place and various items were taken.  I have no knowledge as to whether that included you or not.  And Mr White then said, "Let's handcuff him and take him up the bush," and tried to put handcuffs on him.  However, they broke.

10The victim said that he thought he might be killed.  He claimed to have an eight ball of ice back at the house; and said that if they would take him there, he would give it to them in exchange for his release.  Bird agreed and directed the group to take him out to his car.  They marched out to the car down the hallway and you got into the driver's seat and drove to the house - that is the house where Sanders wanted to go. 

11As you approached the address, he was able to manipulate the lock and open the boot slightly which was where he had been put.  He peered out and when at the house, swung the boot open, jumped out and ran.  He then got to the house.  He was chased by Jackson and Bird and shouted out to the person in the house, "Get the gun, get the knives."  You obviously believed that that was a real possibility and everyone went away. 

12You were ultimately arrested and denied it all.  Your role in this, I think, when I examine the matters clearly is less than Mr Bird.  Less than that of Bird and probably on par with the others.  The problem with you, Mr Fraser, is that you did have very significant, as I have indicated, prior convictions.  I will then look at matters personal to you and I have read the victim impact statement of
Mr Sanders and taken it into account. 

13I accept that in this situation you got nothing out of it except the probability of acceptance within the group.  You do have an intellectual disability.  You have a very poor history with Community Corrections.  You have breached parole before and you have a very difficult set of circumstances. 

14You have now been in custody for two months on other matters undergoing a sentence, and it is clear that when I adjourned this last time for further information to be obtained that had I imprisoned you at that time, then I would have thought any magistrate imposing a custodial sentence would have made at least a significant portion of it concurrent with the sentence I would have imposed.  So I do take that into account that there is a lost opportunity for concurrency. 

15I have before me a very detailed and very helpful, if I might say so, client overview report from Disability Services and I do not - I direct that that remain on the court file.  It points out that you have an extensive history of contact with the legal system, that your release from prison in September of last year, you spent time living with your mother but then most of the time was spent homeless. 

16Your developmental history is marked by trauma, neglect and family breakdown and fractured interpersonal relationships.  You have been the victim of and the witness of extensive family violence.  You have been the victim of physical and sexual abuse at the hands of a number of people. 

17You are able to function, sort of, within the community but at a very low level.  You ended school in Year 9.  You had attempted to work on occasions and had short-term jobs.  You have had alcohol problems.  You had drug problems and this is where you seem to inevitably end up in a court room being sentenced. 

18I take very much into account the principles described in decisions such as Bugmy and Muldrock.  There is nothing much else I can do, Mr Fraser.  I think a community corrections order in your situation would be an exercise in futility.  You have no pre-sentence detention for this but I do take into account all those matters on your behalf and I take into account that you have realistically lost the opportunity of two months of concurrency. 

19In all those circumstances, I think that the only thing I can do is a short period of imprisonment and trust that there is sufficient in place for you upon your release to provide housing and the like.  It is really up to you to try and avail yourself of what is open to you but I have real concerns as to how you are going to be able to do that. 

20But in any event, on the three charges, I sentence you to imprisonment for an aggregate period of three months.  Pursuant to s.6AAA, but for your plea, six months.  I made a disposal order last time.  I do not think there is anything else. 

21MR MILLER:  No, Your Honour.  

22HIS HONOUR:  Yes, all right.  You can take him.  Thanks.

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