Director of Public Prosecutions v Fry

[2014] VCC 2020

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-14-01746

DIRECTOR OF PUBLIC PROSECUTIONS

v

BEAU FRY

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JUDGE:	HIS HONOUR JUDGE PARSONS
WHERE HELD:	Melbourne
DATE OF HEARING:	26 November 2014
DATE OF SENTENCE:	1 December 2014
CASE MAY BE CITED AS:	DPP v Fry
MEDIUM NEUTRAL CITATION:	[2014] VCC 2020

REASONS FOR SENTENCE
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Subject:
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Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr S. Ballek	OPP
For the Offender	Ms S. Locke	Doogue O'Brien George

HIS HONOUR:

1You, Beau Fry, have pleaded guilty before me to one count of aggravated burglary and one count of possessing a drug of dependence. 

2The circumstances of these matters are outlined in Exhibit A, which is the summary of prosecution opening, and the events with which I am concerned occurred on Sunday 29 June 2014 when you and an unknown co-offender went to some residential apartments in Flinders Street, Melbourne.  You entered the building with the co-offender, but only you were identified. 

3When inside the building, you and your co-offender proceeded to Apartment No. 513.  You were then seen to walk off to a fire escape stairwell and you began walking down the stairs.  Your co-offender was seen to take out a sawn-off shotgun from under his overcoat and discharged it at close range to the front door of the apartment. 

4

On Friday 11 July 2014 you were arrested in Prahran and had in your possession a small amount of cannabis, and that matter gives rise to

Charge 2.

5Agreed facts between the defence and the prosecution are set out at paragraphs 11 and 12, and the prosecution concedes there is no evidence that you knew at any time prior to the shot being fired that the co-offender was in possession of a firearm, and also there is no evidence that you were present with the co-offender when the shot was fired.  Further, at the time of entering the apartment you were aware that the co-offender intended to assault a person in the building.

6There is no victim impact statement in the matter. 

7As was pointed out by your counsel, there are a number of mitigating factors.  You have pleaded guilty and you are entitled to have that fact taken into account in your favour and I do so.  The community has, by your plea, been spared the time and cost of a trial and witnesses have been spared the ordeal of giving evidence upon your trial.  I can tell you the sentence I intend to impose is far less than would have been imposed had you been found guilty after a trial. 

8Further, I take into account in your favour, pursuant to the provisions of paragraph 13 of Exhibit A, that you pleaded guilty at the earliest opportunity, you were apprehended in the circumstances described and admissions were made with respect to your involvement. 

9In the circumstances, I do accept that in your case your plea indicates true remorse for your actions.

10I have been told something of your personal history and your circumstances in the report of Mr Ball, to which I will refer in a moment, which sets out these matters in a compendious way, but they are most usefully summarised by your counsel, who has very helpfully outlined your personal history in an exhibit comprising her submissions.

11You were born on 6 March 1989.  You are now 25.  You grew up in Commission housing in Prahran.  You never met your father, who died when you were four, and you were brought up by your mother and your grandmother.  You had a difficult childhood, facing the usual challenges of living in Commission housing and a mother who has been sick for a very long time.  She suffered apparently from schizophrenia, a blood disorder and, finally, a lengthy battle with cancer before she passed away on 8 May 2014.  Your grandfather has been your father figure, and you found it very difficult when he passed away.

12

You have been in a relationship with Ms Wells for nine years, who has been supporting you in court, and you have a son with her, who was born on

11 February 2014. 

13You have a long and troublesome history of substance abuse, which is set out in the submissions and, of course, more fully set out in the psychological report.

14Recently you have attended a CISP program and you were completely abstaining from alcohol, although the death of your mother was the catalyst for your returning to alcohol.  You have recently completed a six month rehabilitation program in 2009 for benzodiazepine and alcohol abuse, and you have revealed that you are capable of abstaining over a period of time. 

15Of course, you have a prior criminal history, and I accept the submissions made on your behalf that that offending is of a relatively minor nature and clearly involved drugs, and your criminal offending is clearly connected to your abuse of both alcohol and drugs.

16As I say, evidence was led on your behalf in the form of the reports that were tendered, and I think it is appropriate to read briefly from the report of Mr Ball of 24 November, noting also, of course, there is Exhibit 3, the CISP report. 

17It was Mr Ball's diagnosis that you do satisfy the diagnostic criteria for severe alcohol use disorder and severe benzodiazepine use disorder in early remission in a controlled environment.  You do not satisfy any diagnostic criteria for frank mental illness, personality disorder, mood disorder or other clinical syndromes or psychopathology.

18Mr Ball did find that you were suitable for and did invite you to participate in the Best Chance Program under the auspices of his practice immediately on your release from prison, and if you avail yourself of that opportunity, he will provide you with a consultation and appropriate referral for ongoing treatment.  I think it is appropriate to reflect upon his recommendation that, in the circumstances, you would require ongoing intensive drug treatment coupled with monitoring, supervision and support in the community, and in those circumstances your prognosis is likely to be favourable in the long term.

19I am, on balance, satisfied in view of the material put before the court in Mr Ball's report and the CISP report, and indeed the community corrections order assessment outcome report, which is also an exhibit before me, that the chances of your rehabilitation are reasonably good if you continue on your current path.  With respect to your role, I accept what the prosecution has to say with respect to your role and the agreed facts set out in Exhibit A.

20Of course, as well as those matters personal to you to which I have referred, including the question of rehabilitation, I must take into account such matters as deterrence, especially general deterrence, which is always of importance in a case such as this, involving, as it does, the discharge of a firearm, although, of course, one readily concedes that you did not know of that fact at the time.  Specific deterrence is of some modest importance given your list of prior convictions.  I must also consider the question of the protection of members of the community from you and bear in mind the likelihood of your reoffending, which I find to be always problematic given your prior addiction to drugs and alcohol and the difficulties they have caused in your life.

21Application was made for an intimate forensic sample to be taken from you, and you have not objected to this through your counsel, and I am satisfied it is in the interests of the justice having regard to your prior convictions and, in particular, the seriousness of your offending that I make such an order, and I order that an intimate forensic sample, namely saliva, be taken from you.  I must tell you that that saliva is taken by wiping a swab inside your mouth, and although you have consented, if you change your mind, I must tell you that the police may use reasonable force to enable that procedure to take place.

22I also make the disposal order sought by the prosecution and not opposed by counsel on your behalf.

23Yes, thank you, Mr Fry, if you would stand.

24The offence of aggravated burglary is always a most serious offence, and in all the circumstances I have no alternative to the imposition of a custodial sentence, and you will be convicted and sentenced to a term of three months' imprisonment.  That term will begin today.  I am grateful for the indication of the prosecution, Mr Ballek, in the circumstances, that I am able to order and do, in the circumstances, order that the sentence of that three months' imprisonment begin today. 

25In addition to that, there will be a community corrections order, and that order will be with conviction.  It will be for a period of two years.  There will be an order for 150 hours of community service work, and all the other recommended conditions of that report will also be employed.

26With respect to Charge 2, the offence relating to possession of marijuana, there will be $100 fine and there will be no order as to time to pay that.

27Also I should say that, as prescribed by s.18(4) of the Sentencing Act, I declare that the period of time you have already spent in custody is - how many days is there?

28MR BALLEK:  Fifty-six, Your Honour.

29HIS HONOUR:  Fifty-six days.  Thank you.  I direct that such be noted in the records of the court.  Had you not pleaded guilty with respect to this matter, pursuant to the provisions of s.6AAA, there would have been a total effective sentence of 12 months' imprisonment.

30Have a seat, Mr Fry.  I think that completes that matter.  Thank you.  Yes, if you would sign that document, please, which is being provided to you.  I rather think, although, in the circumstances you will - that that three months will mean that you will be out in January when the other sentence expires, but Ms Locke will let you know that.

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