Director of Public Prosecutions v Fry
[2018] VCC 1021
•4 July 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL JURISDICTION | Revised (Not) Restricted Suitable for Publication |
GENERAL LIST
CR-18-00178
Indictment No. H12417562
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| IAN FRY |
---
| JUDGE: | HER HONOUR JUDGE CONDON |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 8 June 2018 |
| DATE OF SENTENCE: | 4 July 2018 |
| CASE MAY BE CITED AS: | DPP v Fry |
| MEDIUM NEUTRAL CITATION: | [2018] VCC 1021 |
REASONS FOR SENTENCE
---Subject: CRIMINAL LAW
Catchwords: Sentence – extortion with threat to inflict injury - plea of
guilty
Legislation Cited: Crimes Act 1958 (Vic), s27
Sentence: Total effective sentence of eight months’ imprisonment with
a Community Correction Order for a period of 12 months.
Section 6AAA declaration: three years’ imprisonment with
a non-parole period of 18 months---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms J Fallar | Solicitor for the Office of Public Prosecutions |
| For the Accused | Ms M Carroll | Emma Turnbull Lawyers |
HER HONOUR:
1 Ian Fry, you have pleaded guilty before me to:
· one charge of burglary;
· one charge of criminal damage;
· one charge of extortion with a threat to inflict injury.
2 You have also agreed to have two summary charges dealt with by me, being:
· one charge of assault with a weapon, and
· one charge of contravene family violence intervention order.
3 You were 23 years old at the time of these offences, and you are now 24.
4 Exhibit A was tendered on the plea, which contained a detailed summary of the facts and circumstances of your offending. However, I will briefly summarise the offences that bring you before the court.
5 At the time of the commission of these offences you had ended a two-year relationship with your then partner and the victim in these matters, Ashley Hubbard.[1] You have a daughter together, who is now two years old. In the course of your relationship with Ms Hubbard, she had an affair with another victim in this matter, Mr Louis Vennix. Mr Vennix is the partner of Tessa Poidevin.
[1] Ashley Hubbard is a pseudonym.
6 On 3 May 2017 an intervention order was made at the Magistrates’ Court in favour of Ms Hubbard as the affected family member.
7 On Saturday 4 August 2017, you attended at Ms Hubbard’s home and perpetrated extensive damage to the house, smashing windows and kicking in the front door. You also wrote on one of the walls of the house, "This is what
I told you would happen. Get the same k*** you have been having an affair with to fix it k". Police subsequently attended, and the damage was estimated to cost $3,020.00 in repairs. This conduct relates to Charges 1 and 2 on the Plea Indictment.
8 After committing the burglary and criminal damage at the victim's house, you then drove back to Melbourne. You sent a number of text messages to Tessa Poidevin regarding the affair that Ms Hubbard had with Louis Vennix.
A number of these messages were directed via Poidevin's phone to Louis Vennix himself. The thrust of the messages involved various threats, one of which was to "smash him", and a demand by you for Vennix to pay you three hundred dollars by four o'clock on that day. Ultimately, Ms Poidevin transferred two hundred dollars into your bank account and sent a photograph to your phone of the successful bank transfer. This conduct relates to Charge 3, extortion with threat to inflict injury.
9 On 12 August 2017, around a week later, Louis Vennix was at home in Sunbury. He heard knocking at the front door, and opened it to find you with three other men. You retrieved a can of oleoresin capsicum ("OC spray") from your hooded jumper, and said to him "I'm going to mace you". You were also wearing some knuckle-dusters on your left hand. You lunged at Vennix, who backed away into his house and closed the door. This conduct relates to Summary Charge 3, assault with a weapon.
10 Some 13 days later, on 25 August 2017, you attended at Ms Hubbard’s mother's home. You parked your car on the street and walked to the front door, requesting to see your then one-year-old daughter. This conduct refers to Summary Charge 9, contravene family violence intervention order.
11 On 28 August you attended at Melton Police Station upon request and were subsequently arrested. In the course of a recorded interview conducted that day you made full and frank admissions to each of the matters on the Plea Indictment. As to Summary Charge 3, you asserted that you attended at Vennix's house alone. In relation to Summary Charge 9, you explained your presence at Ms Hubbard’s mother's home as driven by a desire to see your daughter before your inevitable remand into custody.
12 You were indeed remanded in custody on 28 August 2017 and have remained so ever since. On 21 November of that year you indicated your intention to plead guilty to the current charges. In the circumstances, I find that your pleas of guilty have been entered at the first available opportunity and are consistent with a desire to facilitate the administration of justice.
13 You admitted a prior criminal history before me. Indeed, at the time of these offences you were on a Community Correction Order (CCO), which constitutes a factor in aggravation. On 21 April 2016 you received a CCO regarding a range of offences, some of which involved the possession of a weapon. That CCO was breached, and on 8 March 2017 you received another CCO. On the 26 September 2017 you appeared in the Melbourne Magistrates’ Court in relation to a Breach of the CCO imposed in March. On that day, you received an aggregate sentence of imprisonment of 42 days.
14 Whilst your criminal record is not overly lengthy, I am concerned about recurrent offending relating to the possession of weapons, a feature of your offending here. However, I do note that your prior history does not involve any allegations of violence in the context of a domestic relationship.
15 You have also previously shown a somewhat contemptuous attitude to therapeutic dispositions made in your favour. Despite your chequered history with Corrections, you have been assessed as suitable for another order and you have indicated to them that you will treat a CCO as your main priority. You are now well aware of the consequences, should you fail to live up to your words.
16 While the more serious offending[2] here spans a little over a week, the catalyst for your conduct stemmed from the same source. Your retributive acts, fuelled by your rage, were triggered as a consequence of the revelation of an affair between your ex‑partner and Louis Vennix. Your counsel characterised your behaviour as an immature response. Immaturity does not explain or mitigate, in any way, violence and threats of violence in the context of any domestic scenario.
[2] See Plea Indictment Charges 1-3, and Summary Charge 3
17 However, when you committed these offences you were at a low ebb in your life. At the time, you were living an itinerant lifestyle and your family had effectively turned their back on you. You were using ice heavily at the time of these offences, and as I have already observed, failed to take advantage of two previous occasions upon which therapeutic orders were made by the Court in your favour.
18 You have now spent close to nine months in gaol. Initially you were housed at the Metropolitan Remand Centre, then moved to Port Phillip Prison and then to Marngoneet Prison whilst serving the 42 days as a sentenced prisoner. This is your first experience of incarceration and I am told you have found it a frightening one.
19 Evidence was placed before me on the plea which indicates that you have taken advantage of rehabilitative programs whilst in prison. Furthermore, a number of urine tests were tendered on the plea from January, February and April of this year, all of which indicate that you have remained drug-free whilst in custody.
20 This evidence, combined with your expressions of remorse as reflected in your pleas of guilty and to members of your family, gives me some confidence that your prospects of rehabilitation are reasonable. Intrinsic to that assessment is the fact that your family support was evident on the plea. Your sister, brother and father were all present in court. Upon release from custody you will have a strong family unit to fall back on and will live with your brother. I note that this support was absent in the context of your offending here, precipitated, as it was, by the breakdown of your relationship with Ms Hubbard.
21 Your sister provided a letter of support of you.[3] She indicates that the death of your mother in November 2013 and the subsequent breakdown of your relationship with Ms Hubbard in June 2016 added to the downward spiral that led you to this serious offending. She also says that, as a consequence of her regular visits with you on remand, she believes you are remorseful and are enthusiastically embracing programs whilst in custody in order to stabilise and ground yourself upon release from gaol.
[3] Exhibit 4
22 I turn now to your personal circumstances. As already stated, you are now
24 years of age. You were born in Broadmeadows and raised there and in Melton. You experienced some instability while growing up in your family constellation and bore witness to your father assaulting your mother. You finished Year 10 and have worked in labouring, most recently as a concreter. You are close to your sister Lisa and brother Chris, both of whom were present on the plea to show their support of you.
23 Family violence will not be tolerated by the community, and the courts must send a clear message to deter others from such reprehensible conduct.
The basic purposes for which a court may impose a sentence are punishment, deterrence (both specific and general), rehabilitation, denunciation and protection of the community. In sentencing you, I must have regard to a range of matters such as the seriousness of the offending, your culpability for it, your personal circumstances and those of the victims, if any.
24 After careful consideration here, I am of the view that the following factors in mitigation enable me to impose a disposition incorporating both imprisonment and your release on a CCO:
· You are remorseful and have expressed some insight into your offending;
· You have pleaded guilty at the earliest possible opportunity;
· You do not have an extensive criminal record and are still relatively young;
· You will have the benefit of a stable family network upon release from custody;
· You have not squandered your time in prison, having exploited the opportunities available to you, as evidenced by the completion of various courses;
· Upon your release from custody you will have employment available to you at Quality Home Plastering, as revealed by a letter from Mr Carl Zander.[4]
[4] Exhibit 7
25 Please stand, Mr Fry. I propose to sentence you as follows:
26 In relation to Charge 1, I sentence you to a period of six (6) months' imprisonment.
27 In relation to Charge 2, I sentence you to six (6) months' imprisonment. I order that the sentence imposed on Charge 2 be served concurrently with the sentence imposed on Charge 1.
28 In relation to Charge 3, I sentence you to eight (8) months' imprisonment. I order that this sentence be served concurrently with the sentences imposed on Charges 1 and 2.
29 In relation to Summary Charges 3 and 9, I impose a Community Correction Order for a period of 12 months. I order that the following conditions be imposed on that order:
· That you be under the supervision of a Community Corrections Officer for a period of 12 months;
· That you undergo assessment and treatment (including testing) for drug abuse or dependency;
· That you participate in programs and/or courses that address factors relating to your offending; and
· That you must re-appear at this Court for a review of your compliance with this Order. Your first Judicial Monitoring date will be the 25 October 2018 at 9:30am before me.
30 Pursuant to s18(4) of the Sentencing Act 1991 (Vic), I declare that you have served a total of 268 days pre-sentence detention, and I order such declaration to be noted in the records of the court.
31 Pursuant to s6AAA of the Sentencing Act 1991 (Vic), were it not for your pleas of guilty in this matter I would have imposed a sentence of three (3) years' imprisonment with a non-parole period of 18 months.
32 I make an order for the application under s464ZF(2) of the Crimes Act 1958 (Vic) for an intimate forensic sample.
33 You may be seated, Mr Fry. Now, Mr Fry, before the Community Correction Order is produced by Madam Associate for you to sign, I have to talk to you about two things.
34 Firstly, you appreciate, because you have in fact been subject to a Community Correction Order in the past on at least two occasions, you appreciate the consequences of a breach of that Order, do you not?
35 OFFENDER: Yep.
36 HER HONOUR: So, if you were to breach that order you can be brought back before me and you will be re-sentenced on the matters that I have imposed the order for. Now, given that, do you consent to being made subject to the Order?
37 OFFENDER: Yes.
38 HER HONOUR: All right, in those circumstances you can sign the Order. Ms Marthick will bring over the Order and you can sign it.
39 All right, is there anything else, counsel?
40 MS FALLAR: Your Honour, can I just clarify. Your Honour did not declare but the total effective sentence ‑ ‑ ‑
41 HER HONOUR: Eight months.
42 MS FALLAR: ‑ ‑ ‑ is eight months ‑ ‑ ‑
43 HER HONOUR: Yes.
44 MS FALLAR: ‑ ‑ ‑ for Charges 1, 2 and 3.
45 HER HONOUR: Yes because I've declared each of them to be - they're all to be served concurrently with one another.
46 MS FALLAR: That's right and the fact that Your Honour's declared 268 days ‑ ‑ ‑
47 HER HONOUR: That's in accordance with your submissions.
48 MS FALLAR: That's so. He is therefore eligible to be released today.
49 HER HONOUR: He indeed is.
50 MS FALLAR: Yes.
51 HER HONOUR: You can be seated, Mr Fry. All right, yes we will adjourn now until 12 o'clock.
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