Director of Public Prosecutions v Fry
[2020] VCC 312
•22 January 2020
| IN THE COUNTY COURT OF VICTORIA AT GEELONG CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-19-01594
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JAKE FRY |
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JUDGE: | HER HONOUR JUDGE DAVIS | |
WHERE HELD: | Geelong | |
DATE OF HEARING: | 22 January 2020 | |
DATE OF SENTENCE: | 22 January 2020 | |
CASE MAY BE CITED AS: | DPP v Fry | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 312 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Armed robbery – youthful offender – no prior convictions- offender known to victims – imitation handgun – drug affected – combination sentence
Legislation Cited: Sentencing Act 1991 (Vic)
Sentence: 266 days’ imprisonment and 12 month Community Correction Order
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr G Hevey | Office of Public Prosecutions |
| For the Accused | Mr J Lavery | Victoria Legal Aid |
HER HONOUR:
1 Jake Fry, you have pleaded guilty to one charge of armed robbery for which the maximum penalty is 25 years’ imprisonment.
Circumstances of offending
2 The CCTV footage of the incident was shown in court.[1] The details of your offending are set out in the agreed Summary of Prosecution Opening for Plea[2] and I sentence you on the basis of the facts set out in that document. Those facts may be briefly summarised as follows.
[1]See disc containing CCTV footage of the offending (Exhibit 2).
[2]Exhibit 1.
3 On Thursday 29 November 2018 at approximately 2:40pm, you entered a milk bar in Ocean Grove and walked to the rear of a shelved area. You remained there for a few minutes, apparently looking at various items. During this time, the first victim, who was the owner of the milk bar and knew you to be a regular customer there, approached you on two occasions and asked whether you needed assistance. You responded “no”.
4 The first victim then returned to the front counter and waited for you to make a purchase. The second victim, who was a colleague of the first victim, was also behind the front counter at the time.
5 You then walked quickly to the front counter whilst placing your hand into a black bag you were carrying and removed a black imitation handgun. You pointed this at both victims and made two demands for cash.
6 The first victim was terrified and immediately ran to the back of the store escaping through a rear door. The second victim sought safety on the ground and covered her head with her hands.
7 You attempted to open the cash register but were unsuccessful and instead entered the area behind the front counter where you removed packs of tobacco from the cigarette cabinet and placed those in your bag. You then grabbed an entire tray of cigarette packs, removed it from the cabinet and left the store on foot with the tray in hand. The value of the stolen tobacco was estimated to be between $1,500 and $2,000. This conduct was captured on CCTV.
8 Later that evening, the first victim observed a male known by her to be your father. She approached him and explained that she recognised you as the offender. He confirmed your name.
Procedural history
9 You were interviewed at the Geelong Police Station on 5 December 2018. You initially denied the allegations and claimed you were with your girlfriend at an address in Marshall at the relevant time. Inquiries made by police revealed that this was not the case. When the interview resumed, you made full admissions to the offending.
10 You pleaded guilty to armed robbery at the committal hearing on 12 August 2019 prior to any evidence being heard.
11 You have no prior convictions. You were initially granted bail on 13 December 2018 (after eight days in custody) on the basis that your bail would be supervised by Youth Justice. On 19 December 2018 in the Children’s Court you pleaded guilty to intentionally causing injury and dealing with property suspected of being proceeds of crime, and were released without conviction on a good behaviour bond. You completed a residential detoxification program between 16 and 30 January 2019; and attended 13 out of 18 supervision appointments. You were due to commence psychological counselling. However, on 11 June 2019 you were convicted and discharged by the Magistrates’ Court in respect of possession of cannabis and breaching your bail by doing so. On 21 June 2019 you were further convicted and discharged by the Magistrates’ Court for breaching a conduct condition of your bail. On 12 August 2019 you were convicted and fined in respect of burglary, theft, committing an indictable offence while on bail and contravening a conduct condition of your bail. Being charged with these offences resulted in your bail for armed robbery being revoked.
12 It is common ground that you have spent 266 days, not including today, in custody which falls to be recorded as pre-sentence detention.
Victim impact statements
13 There were no victim impact statements provided to the court.
Personal circumstances
14 The defence tendered written submissions and a psychological report from Jeffrey Cummins dated 12 December 2019.[3] That report outlines your personal circumstances.
[3]Exhibit A.
15 You are 19 years old and completed Year 10 at school. You lived with your parents, who both work and have never had any problems with the law nor any problems with drugs, alcohol or gambling. You were raised in a loving and caring family. You have two younger sisters who are at school. When attending school, you had no learning difficulties and were not taking medications. However, you began using cannabis at age 12 and experimenting with drugs at age 15. At that time, you suffered a football injury and were unable to play for 12 months. This triggered a dependency on illicit drugs. After leaving school you completed two and a half years of a four year roof tiling apprenticeship but lost your job as a result of the frequency of your court attendances. On two occasions in late 2018 and early 2019, whilst on a cocktail of drugs, you attempted to take your own life. You have had one steady relationship which broke up four months ago.
16 You told Mr Cummins that at the time of offending, you were drug affected from a combination of drugs including ice, GHB, Valium, Oxycontin and Xanax and went to the milk bar to get money to buy more drugs. You were relieved after admitting your conduct to police.
17 You told him that after the detoxification program you undertook in early 2019, you resumed using illicit drugs, as well as prescription medications.
18 You have handled your time in custody well, being advised by your older fellow inmates to straighten out your life. You have not been receiving any medical or mental health treatment whilst on remand and have been working on the food line. Mr Cummins did not find that you suffer from any mental health conditions.
19 Mr Cummins noted that you take full responsibility for your offending and told him that you wanted to avoid returning to illicit drug use. You indicated you were motivated to undergo rehabilitation but also recognised that you need to avoid contact with your drug using associates. Mr Cummins assessed you as being at low risk of committing a further offences of violence. He noted that you do not suffer from a general anger management problem but that you require treatment focused on drug relapse prevention, and some assistance on working out what you want to do with your life.
Submissions
20 Your counsel noted the presence in court of your parents, grandparents, extended family members and your Minister of religion. Your counsel conceded the seriousness of your offending, but noted that it occurred without planning, against a local milk bar where you were known as a customer, in circumstances where you were very drug affected and trying to obtain money to buy more drugs. Your execution of that offending was poor, and you did not in fact take any money, although I have already referred to the value of the cigarettes stolen.
21 In mitigation your counsel relied primarily on the following matters: you have no prior convictions; you pleaded guilty at a very early stage; you are a young offender; and you have already spent 266 days[4] in an adult prison, when, had you been sentenced as an 18 year old, you might have been treated as suitable for a Youth Justice disposition. Given your youthfulness, rehabilitation is to be treated as more important than general deterrence because it will benefit you as well as ensuring that the community benefits from you not offending further. Finally, your counsel relied on the fact that you have been assessed by Mr Cummins as being at low risk of committing a further offence of violence. You have also abstained from drug taking in prison. In all the circumstances, your counsel sought a combination sentence.
[4]Not including today.
22 The prosecution emphasised the seriousness of your offending in that a weapon was used and the victims were clearly terrified at the time. However, given your age, the absence of prior convictions, and the time already served in adult prison, it was conceded that a combination sentence was within range.
23 You were assessed today by Corrections Victoria as being remorseful for your offending and as suitable to undergo a Community Correction Order with recommended conditions of unpaid community work, supervision, and drug treatment.
Sentence
24 You must never forget that your offending was serious and that your victims were terrified. I take into account the fact that you were drug affected at the time of the offending, your age, absence of prior convictions, early plea of guilty, the fact that you have already spent a substantial period of time in adult custody, and that you have been assessed as at low risk of reoffending in offences of violence. Due to your youth, rehabilitation must be an important consideration.
25 You come from a loving family, have been educated, and suffer from no cognitive or diagnosable psychological conditions. You are young enough but now experienced enough to take stock of what drug addiction will cost you in terms of your lifestyle and liberty in the future. It is up to you to engage in all the rehabilitative measures, including drug treatment and psychological counselling, that will enable you to remain drug free and to pursue your life goals. In this process, you are lucky to have the support of your family. The sentencing principle of protection of the community will be advanced by your rehabilitation.
26 In all the circumstances, I consider it appropriate to impose the following combination sentence. Would you please stand?
27 On the charge of armed robbery, you are convicted and sentenced to 266 days’ imprisonment and to a 12 month Community Correction Order with conditions of supervision, 100 hours of unpaid community work, and drug treatment and rehabilitation. I further direct that up 50 hours of your participation in drug treatment and rehabilitation may be credited towards, or serve as, unpaid community work. I declare that the period you have been in custody in respect of these offences, namely 266 days not including today, be reckoned as a period of imprisonment already served under this sentence and direct that it be deducted administratively.
28 In addition to the conditions that I have specifically imposed, you must also abide by the terms that apply to all Community Correction Orders. These are: that you must not commit any other offences during the period of the order being enforced - that is, 12 months from today - for which you could be imprisoned, even if a court would not choose to impose imprisonment. You must report to and receive visits from a Corrections officer. You must report to the Community Correctional Services at Geelong within two clear working days which will be 24 January 2020. You must not leave Victoria without first getting permission from a Community Corrections officer, and you must inform the Community Corrections office of any change of address, where you live or work, within 48 hours of that occurring. Finally, you must obey all lawful instructions from, and directions of, Corrections officers. Do you understand all the conditions I have imposed and the general terms that apply?
29 OFFENDER: Yes.
30 HER HONOUR: Before you consent to the making of such an order, you must understand that contravening any condition attached to the Community Correction Order, except for a contravention of a direction of the Secretary, is itself an offence punishable by three months’ imprisonment. If you contravene, or breach, this Community Correction Order it carries with it the prospect that you will be brought back before me and resentenced for the original offending. Do you consent in these circumstances to the imposition of the Community Correction Order?
31 OFFENDER: Yes.
32 HER HONOUR: Pursuant to s.6AAA of the Sentencing Act, I indicate that, but for your plea of guilty, I would have imposed a term of imprisonment of 15 months, with a non-parole period of nine months.
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