Director of Public Prosecutions v Fry

[2016] VCC 1690

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-01082

DIRECTOR OF PUBLIC PROSECUTIONS

v

ADRIAN FRY

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JUDGE:	HIS HONOUR JUDGE GRANT
WHERE HELD:	Melbourne
DATE OF HEARING:	3 November 2016
DATE OF SENTENCE:	11 November 2016
CASE MAY BE CITED AS:	DPP v Fry
MEDIUM NEUTRAL CITATION:	[2016] VCC 1690

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. Plummer	OPP
For the Accused	Ms C. Ratcliffe-Jones	VLA

HIS HONOUR:

1Adrian Fry, you have pleaded guilty to five charges of theft, one charge of armed robbery, two charges of prohibited person possess a firearm and three charges of possess drug of dependence.

2You have also pleaded guilty to the following related summary offences – possess ammunition; possess prohibited weapon (2 charges); fraudulent use of a number plate (2 charges); drive whilst suspended (2 charges); and assault with a weapon.

3The maximum penalty for the offences on the indictment are:  theft, 10 years' imprisonment; armed robbery, 25 years' imprisonment; prohibited person, 10 years' imprisonment; and possess drugs, which the prosecution concede was not for the purpose of trafficking, 30 penalty units or one year's imprisonment or both.

4The maximum penalties for the related summary offences are:  possess ammunition, 40 penalty units; possess prohibited weapon, 2 years' imprisonment; fraudulent use of a number plate, 2 months' imprisonment; drive whilst suspended, 240 penalty units or 2 years' imprisonment; and assault with a weapon, 2 years' imprisonment.

5The circumstances of your offending are set out in the document entitled “Summary of Prosecution Opening” which the prosecutor read in open court.  I do not intend to repeat the summary.  It is an exhibit in this hearing.

6Briefly, on 2 January 2016 a Subaru car was stolen from a rural property in Officer.  You were in possession of this car when you were arrested on 8 January 2016.

7On 3 January 2016 you stole a mobile phone from a woman who had advertised its sale through Gumtree.  You had reverse-parked in the driveway next to the victim’s property.  This enabled a quick getaway with the stolen phone.  On 4 January 2016 you committed the same offence against another woman who had advertised the sale of her iPhone through Gumtree.

8On 4 January 2016 you advertised the sale of an iPhone on Gumtree.  Mr Punjabi arranged to meet you to discuss purchasing the phone.  Again, you had reverse-parked your vehicle in a driveway.  You took $620 from the victim without handing over the phone and made your escape in the stolen vehicle after assaulting the victim with a Taser.  

9On 5 January 2016 Mr Ibatan responded to your advertisement on Gumtree offering the sale of an iPhone.  He agreed to meet you at the Berwick Railway Station.  He inspected the phone and you told him that you had forgotten the phone charger.  You invited him to travel with you and the co-accused to collect the charger.  You drove him to a dirt road in Beaconsfield.  The victim handed over the $750 for the purchase of the iPhone.  After the money was handed over you produced a handgun and the co-offender produced a shotgun.  You stole his mobile phone and a bag he was carrying.  Your co-offender struck him to the head causing a cut that required stitching.

10When you were arrested the stolen vehicle had false registration plates attached.  Another set of registration plates were found in the boot of the vehicle.  In addition, the following items were found in the car:  an Apple iPhone; a sawn-off shotgun; a homemade handgun; two Tasers; 17 shotgun cartridges and 51 x .22 calibre bullets.  You were also in possession of small quantities of methylamphetamine, MDMA/Ecstasy and GHB.  The prosecution concede the drugs were not in your possession for the purposes of trafficking.

11Mr Fry, this is serious offending.  The theft offences were all planned.  You used a stolen vehicle to commit the offences.  The offence against Mr Punjabi involved the use of a Taser to facilitate your escape from the scene.  The offences against Mr Ibatan are particularly grave.  You lured him to a remote area and you were in company with another person.  You and the co-offender each produced a firearm and the co-offender struck the victim causing an injury that required stitches.  When you were arrested you were in possession of firearms, ammunition, drugs and two Tasers. 

12The victim Punjabi and his wife have prepared a joint victim impact statement that details the emotional and psychological harm they have suffered.  Mr Ibatan has also provided a victim impact statement confirming that he suffered both physical and psychological harm.  

13In this case general deterrence, just punishment and denunciation are all highly relevant sentencing considerations.

14You have admitted a number of prior convictions.  In December 2011, you appeared at the Dandenong Magistrates' Court for offences that included traffick amphetamine and traffick cannabis.  You were placed on a community corrections order.  One of the conditions required you to undertake assessment and treatment for drug addiction.  You returned to court on two occasions charged with contravention of the order.  On 13 November 2014, you appeared at the Dandenong Drug Court for a large number of offences including:  commit indictable offence on bail, contravene a conduct condition of bail, drive whilst disqualified, theft, unlawful assault, possess controlled weapon, threat to inflict serious injury, possess prohibited weapon, traffick drug of dependence and car theft.  I was told that you had been on remand for some months prior to that court appearance.  You were sentenced to an aggregate period of 15 months' imprisonment to be served by way of a drug treatment order.  You returned to court on two occasions for breaching the order.  On both occasions, sanctions were imposed that involved relatively short periods of imprisonment. On 20 August 2015, the court issued a warrant for noncompliance with the order.  Given this history, specific deterrence and protection of the community are also relevant sentencing considerations.

15You are 25 years old.  Your childhood and adolescence were marked by difficulties in your relationship with your stepfather.  You have a strong relationship with your mother, brother and stepsister.  After finishing Year 10 at Pakenham Secondary College you commenced and completed an apprenticeship as a carpenter.  Your employment suffered when you became heavily involved in the use of drugs.

16You commenced using cannabis as a 16-year-old and you were a regular user of that drug by the age of 18.  In a report dated 3 June 2014, Dr Cunningham, a forensic psychologist, said this about your use of other drugs – “Mr Fry stated that he slowly began escalating use of methylamphetamine toward the end of 2012.  He stated that he found methylamphetamine addictive.  He stated that he was abusing half a gram of methylamphetamine per day prior to his incarceration.  He stated that he gambled when using methylamphetamine.  He was using GHB on an intermittent basis.  Mr Fry stated that methylamphetamine has destroyed his life.  He reported motivation to engage with relapse prevention in the community.”

17The report of Dr Cunningham must have been written for the hearing in November 2014.  No doubt your insight into what methylamphetamine had done to your life and your expressed desire to desist from the use of drugs in the future helped to persuade the magistrate to release you on the drug treatment order.  You did not follow through on your expressed desire to remain drug free.  

18There are a number of matters in mitigation.  I deal with each in turn. 

19You entered an early plea of guilty.  In addition, your plea has spared the victims from the trauma and stress associated with giving evidence.  The plea has also saved the expense of a criminal trial.  I am satisfied that you are remorseful.  You will be given appropriate credit for all of these matters.

20You are still a relatively young man and I recognise that the principle of rehabilitation is still a relevant sentencing principle in your case.  Although I am guarded about your prospects of rehabilitation given your inability in the past to respond to support within the community, I accept that you still have the capacity to mature and learn from your mistakes.  You have strong support from your family and friends and you have a good trade qualification.  You turned your back on these protective factors in the past.  However, you have had time to reflect on your past behaviour and your plans for the future.  Whilst you have been in custody you have done a number of courses and you have provided negative urine screens.  In her evidence your mother expressed the opinion that you have matured whilst in custody.  These are matters in your favour.  As your counsel correctly said your prospects of rehabilitation would be greatly enhanced if you were able to maintain a drug free status.   

21Mr Fry, I have already referred to the drug treatment order that was made at Dandenong in November 2014.  On 3 March 2016 you were sentenced at the Dandenong Court for breaching the order.  The order was cancelled and you were sentenced to nine months' imprisonment.  You are currently serving that sentence.  This is a relevant matter for me to take into account when determining sentence on the current matters.

22You have seen a psychiatrist in prison and been diagnosed with bipolar affective disorder and depression.  You have been prescribed, and still take, the antidepressant drug, Avanza.  I take this into account insofar as it relates to your personal circumstances.  

23In August 2016 you were assaulted and threatened whilst in prison.  As a consequence, you requested protection.  That request was granted and you are now undergoing your sentence in protective custody.  This is likely to continue during your sentence on the current matters.  I received evidence by way of affidavit that addressed the effect upon you of such a classification.  I also heard submissions from counsel on this point.  It is sufficient for me to say that I agree with the submission of the prosecutor that although your experience of protection would justify some moderation of sentence, it could only do so in a limited way.   

24Finally, in determining sentence, I take into account that this will be your first lengthy sentence of imprisonment.

25Mr Fry, your counsel submitted that an appropriate order would be a sentence of imprisonment, followed by release on a community corrections order.  I am not persuaded by the submission.  Notwithstanding the matters in mitigation, the nature of this offending requires me to impose a term of imprisonment that is commensurate with its seriousness.  Would you please stand. 

26On the charges on the indictment, you are convicted and sentenced as follows.

27Charge 1 – 15 months' imprisonment.

28Charge 2 – 9 months' imprisonment.

29Charge 3 – 9 months' imprisonment.

30Charge 4 – 12 months' imprisonment.

31Charge 5 – 12 months' imprisonment.

32Charge 6 – 36 months' imprisonment

33Charge 7 – 12 months' imprisonment.

34Charge 8 – 12 months' imprisonment.

35Charge 9 – 4 months' imprisonment.

36Charge 10 – 4 months' imprisonment.

37Charge 11 – 4 months' imprisonment.

38On the summary charges you are convicted and sentenced as follows.

39Possess ammunition – fined $2,000.

40Possess prohibited weapon x 2 – 6 months' imprisonment on each count.

41Fraudulent use of registration plate x 2 - fined $750 on each count.

42Drive whilst suspended x 2 – 2 months' imprisonment on each count.

43Assault with a weapon – 8 months' imprisonment.

44I order that two months of the sentences on Charges 1, 2, 3 and 4 on the indictment, and four months of the sentence on the related summary offence of assault with a weapon be served cumulatively upon each other and on the sentence imposed on Charge 6 of the indictment.  This makes a total effective sentence of 4 years' imprisonment.

45I fix a minimum term of 2 years and 3 months before you will be eligible for release on parole.  I declare that you have served 63 days by way of pre-sentence detention. 

46If you had pleaded not guilty and been found guilty after a trial, the total effective sentence would have been 6 years, with a minimum term of 4 and a half years before being eligible for release on parole.

47On the first charge on the indictment and on the two summary offences of drive whilst suspended, all licences are cancelled and you are disqualified from driving for a period of 12 months.

48I make the disposal and forfeiture orders sought by the prosecution.  Any other matters?

49MS RATCLIFFE-JONES:  Just in respect of the pre-sentence detention, Your Honour, it should be 55 days as Mr Fry is currently undertaking sentence and effectively the time from his remand on 8 January to the time of serving sentence when his drug treatment order was cancelled on 3 March, that's 55 days.

50HIS HONOUR:  Look, thank you for that, Ms Ratcliffe-Jones, then I will amend the order and amend my sentencing remarks accordingly to declare that Mr Fry has served 55 days by way of pre-sentence detention.

51Ms Piper, I don't have the disposal or forfeiture orders.

52MS PIPER:  There are none sought, sir.  There are co-accused in relation to the matters so that they are pursued in relation to this matter.

53HIS HONOUR:  So they're not pursued?

54MS PIPER:  No sir.

55HIS HONOUR:  So again I should amend my remarks by not making that order.

56MS PIPER:  Yes.

57HIS HONOUR:  All right, thank you.  Yes, you can remove Mr Fry, thank you.

58Thank you, Ms Ratcliffe-Jones, thank you Ms Piper.

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