Director of Public Prosecutions v Fry

[2014] VCC 1716

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

AT LATROBE VALLEY
CRIMINAL JURISDICTION

CR 14-00845

DIRECTOR OF PUBLIC PROSECUTIONS

v

SHIRLEY FRY

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Latrobe Valley
DATE OF HEARING:
DATE OF SENTENCE:	15 October 2014
CASE MAY BE CITED AS:	DPP v Fry
MEDIUM NEUTRAL CITATION:	[2014] VCC 1716

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	Ms M. Curmi	Office of Public Prosecutions
For the Offender	Ms S. McCrickard

HIS HONOUR: 

1Shirley Fry, you have pleaded guilty to two charges of theft, one pursuant to the Victorian Crimes Act and one pursuant to the Commonwealth Criminal Code.  Each carries a maximum penalty of ten years' imprisonment and each was for roughly the same amount.

2You are 76 years' of age and very importantly have no prior convictions at all.  Your plea of guilty is accompanied by, as best you can, remorse, and there is a very distinct utilitarian benefit from it.  In this particular situation, which I have rarely encountered before, you have pleaded guilty in circumstances where the very respected forensic psychiatrist Mr Carroll has said that in his view, on the balance of probabilities, you do not meet the criteria as being fit to stand trial.  That means had you pleaded not guilty the odds are very high that you would have been found unfit to plead and in these circumstances there is no way you would have been incarcerated.  In my view that is conduct which is to be applauded and there must be a very significant benefit for it.  It indicates a preparedness to face the consequences.

3I would also put in this situation that the utilitarian benefit must be significant.  There is debate, probably, but it would have been a complicated trial to prove all these matters and you must obviously get the benefit of having saved the state the cost of that.

4The Crown opening is relatively succinct.  A Mrs Ivy Walters was in receipt of the aged pension between September 1968 and April 2013.  You are her daughter.  She became deceased in 1989.  You, at that point in time, had become the agent on her bank account for the depositing of her aged pension.  When she passed away you effectively did nothing about it and did not advise Centrelink.  Accordingly, over the next 24 years, you collected her pension.  You received, in total, obviously in much smaller amounts than this, something in the order of $280,000.

5I can understand and appreciate that you did not set this process in motion, you were a legitimate agent on that account, and your crime in the initial part was to be taking the money, being aware that your mother was deceased.  At no stage was there some great large amount which might have brought home to you the seriousness of what you were doing.  Police searched your house and not long after that you spent a month in psychiatric care and I will be coming to all that in a moment.

6The fact of the matter is that even though you did not set this process up or procure the obtaining of the money, and you never took a very large amount in one attempt, that total is a very, very, significant amount of money indeed.  The crime is carried on over a very long period of time.  It has to be regarded as serious.  General deterrence in a situation such as this is of real importance.  In your particular situation, because of a couple of the principles enunciated in Verdins, the general deterrence can be sensibly moderated.  I have no doubt that you will never do this again and the opportunity could not arise, in any event, so I think the risk of you re-offending is nil.  Accordingly specific deterrence is of no real interest in this particular sentencing proposition.

7However, in the normal course of events for offending such as this an active gaol sentence would be imposed and it would be a sentence of significant proportions.  As I have already indicated, in this circumstance I propose to give you, in effect, a suspended sentence, which is still available to me, and I will enunciate the reasons for that.

8Firstly your age.  Secondly your lack of prior criminal history and the rather extraordinary circumstances in which you have pleaded guilty.  If I were to sentence you to be imprisoned you would do so under extreme circumstances.  Tendered on your behalf were a number of reports, one from Mr Carroll, the psychiatrist; one from Mr Minton, a psychologist; and one from Mr Wright, your heart specialist.  There is discussion throughout those about the motivation for all of this and I am not going to start to make findings about any of that.  You have expressed, in varying degrees, a belief that your mother had not died.  It is not put to me that the Verdins principles here relate to moral culpability.  I look at all those circumstances in combination and I will in some detail put in what the psychiatrist and the psychologist have to say.

9Firstly, if you were to be imprisoned you would do so suffering from the following physical conditions: asthma, morbid obesity, hypertension, leg swelling and fluid retention, non-insulin dependent diabetes, gout, coronary heart disease, and I will refer to that again in a moment.  You had a related minor stroke, a complete heart attack, and you have a pace maker.  You also suffer from atrial fibrillation, for which you take Warfarin.  You have osteo-arthritis in the ankles and the knees and you have a condition known as diverticulitis.  That apparently is a digestive disease which involves the formation of pouches within the bowel wall.  What the causes is for you to totally lose control of your bowels for a period of one to two days.  The first instance is impossible to predict and you had last had one a couple of nights prior to the report that had been made.  How you travel with that in gaol is anybody's guess.

10In any event, the situation is that you would be physically very uncomfortable in gaol.  There is nothing there that I would be persuaded the gaol would be incapable of treating, but it would be very difficult for you, indeed.  You have been supported in court by your husband of many years and by your son.

11The psychologist, Mr Minton, says a couple of things which are of real significance.  In this particular situation your mental difficulties, which I will refer to in a moment as described by Dr Carroll, have increased dramatically since the discovery of this offending.  I also note, however, Mr Minton talks about this, that back in the early 1980s you had symptoms which appeared to have occurred not long after your brother died.  Those symptoms, way back then, consisted of paranoia, agoraphobia, panic attacks, and irritable outbursts.  You seem to have got over that.

12What your circumstances were after the death of your mother, or whether you responded in a similar way, is not known to me.  If that was a similar set of circumstances it can be seen how the offending may have at least started, though it certainly does not justify it.  Mr Minton, the psychologist, says that you suffer osteo-arthritis, as I have indicated, and a heart attack and open heart surgery in 2003, and the stroke in 2012.  He describes cellulitis and describes the other conditions.  He confirms that you were taken to the psychiatric unit at Latrobe Regional Hospital after this offending had been discovered and you were there for some period of time.  I accept from the Bar table that this has been a drawn out process of endeavouring to get you to understand what you faced, endeavouring to deal with what may well have been a traumatic response to all this and to ultimately put in the plea, which I have already indicated I give great credit for.

13Mr Minton says, and again I think it is important:

"Mrs Fry's experienced episodes of varying degrees of intensity of the mental health disorder throughout her life."

14He said that you have experienced a "complex mental health disorder."  There is evidence of genetic markers in the family.

15I then come to Mr Carroll and I propose to read some of his opining in detail.  I am not going to go through the entirety of your family history, I just simply say what he says, and this is the circumstances under which you would have to undergo a sentence if that were to occur.

"Fry currently suffers from a depressive order of severe intensity without psychotic features.  It is evidenced by persistently lowered mood, anhedonia, fatigue, hypersomnia, persistent suicidal ideation.  In addition to this she meets the criteria for agoraphobia, with panic disorder.  She suffers with episodes of acute anxiety, with physiological over-arousal, panic attacks when exposed to situations outside of the family home, particularly when there are many other people present, such as cafes and shops.  She has developed significant avoidance behaviours and social withdrawal as a consequence of both her agoraphobia and her depression."

16I simply make the observation that to have that condition and to be in a women's prison would be a terrifying experience, I have absolutely no doubt.

"It is difficult to know quite what to make of her assertion that she continues to occasionally see the form of her dead mother and for many years she believed that her mother had not in fact passed away."

17"It is of significance", he said in Mr Minton's report,

"that she had given an account that while she knew she was dead she continued to see her around the house and conversed with her.  I also note that there was nothing in her behaviours or speech over the relevant decades, that came to clinical attention, or led her husband to believe that throughout that time she believed her mother to be living.  I also note that the only clear account that she gave to me of seeing her mother in recent times occurred shortly after she had just woken up from sleep, suggesting the likelihood of hypnogogic hallucination, which is a relatively common phenomenon, even in those without mental disorder, particularly in the setting  of bereavement.  I do not believe that Fry is suffering from a psychotic illness or that the beliefs about her mother are indicative of a delusion in the clinical sense.  A more parsimonious explanation is that following the seizure of the bank book and the charges being laid she become overwhelmed with shame.  This has led both to the onset of superior depressive illness and the development of a self-protective narrative whereby she now asserts that she believed her mother to be alive all along.  The extent to which this narrative has been constructed is a conscious and deliberate manoeuvre, but as to the extent to which it is a subconscious self-protective mechanism, it is essentially impossible to say."

18In this situation, bearing in mind Mr Minton's view that there has been previous mental disturbance, I would not be prepared to find here that the assertions that you make are ingenuous.  I would take the view that insofar as you are concerned they are genuine.  Whether that really was the circumstances surrounding all this I would have grave doubts.  I would just have to sentence in a vacuum, insofar as all that is concerned.  There is no evidence before me of enrichment and there is no evidence before me as to where the money went.  Whilst it was not in very large sums, which often gives rise to the purchase of motor vehicles and things like that, it is a bit difficult to see, where there is no gambling problem, just what happened to it.

19The Doctor then goes on to say:

"For the reasons outlined in paragraph 42(d), on the balance of probabilities I do not believe that she currently meets criteria for fitness to stand trial.  The possibility of her being able to adequately follow the course of any trial is slim."

20I have referred to that before.  He then said:

"It's clear that the ongoing proceedings are having a seriously deleterious effect on her mental health, as noted above.  Her current depression and anxiety disorders appear to be secondary to her arrest and subsequent feelings of shame.  Anticipatory anxiety about pending court hearings is perpetuating these difficulties."

21The submission was put by your counsel that the consequences for you of this offending have been very powerful indeed and I have no difficulty in accepting that.  Your physical circumstances obviously would appear to have preceded your arrest.  Your psychological circumstances would appear to have existed over many years but been severely exacerbated in the last year or so.  Be that as it may, the fact of the matter is that that is what you are now, and that is the lady that I am called upon to sentence.  As I said, I think the risk of you re-offending is nil.  Rehabilitation is a psychological matter, I have grave doubts that you would receive - whilst the physical matters might be looked after, I doubt that you would receive the appropriate treatment that you needed for your psychological matters in a gaol, in the current environment.

22In all the circumstances I am comfortably satisfied that this does not require a custodial sentence to be served in an active way, though it certainly does, on the face of it, warrant one.  Even if I was of the view that all these circumstances I have described warranted an active custodial sentence I think in your particular situation, bearing in mind all the factors I have outlined, and your age, I would exercise mercy in any event, and not mercy for your family, who have obviously been through this nightmare with you, simply mercy for you.

23I regard this as an exceptional set of circumstances and I simply say that I do not want it to be seen that this sets a precedent for this sort of offending, when it is of this duration, and involves these amounts.  Yours is a singular position. 

24In any event, taking all those matters in to account as best I can, on Charge 1, 12 months; on Charge 2, 12 months.  Now, because one is a state and one is a Commonwealth I do not make orders for concurrency, but I would if there were breaches.  On Charge 1 of 12 months, wholly suspended for a period of two years.  I consider it to be in the interests of justice to do so.  On Charge 2 of 12 months you are, you agree, I am sure you will, to be released forthwith on a recognisance of $500 to comply with the following condition, that is that you be of good behaviour for two years.  I do not know whether I have to say it, but that is with condition.  I am assuming that is just automatic, yes.

25So far as reparation is concerned, I order that you make reparation to the Crown.

26MS CURMI:  To the Department of Human Services, thank you, Your Honour.

27HIS HONOUR:  Department of Human Services in the sum of - I know you have told me this, Ms Curmi, I cannot remember what I have done with it.

28MS CURMI:  I have got it here if it assists Your Honour, $279,476.49.

29HIS HONOUR:  They were for reparations made, also understanding that your fortnightly pension is reduced by $100 in repayment.  Obviously that is a circumstance that on the face of it will continue for the rest of your life.  There are no other orders I need to make?

30MS CURMI:  No, Your Honour.  Just out of an abundance of caution, perhaps if you just state that both sentences commence today.

31HIS HONOUR:  Well, I cannot do that.  This is what I mentioned, if there was a breach, right, I would not be ordering total concurrency.  See, they cover different periods of time.  So if there was a breach, and I restored those sentences, what I would do would be restore the state sentence and then direct that the Commonwealth sentence not commence - I am making this up, but for six months.  Which would give you an overall sentence of 18 months and I would then have to work out what I do with a non-parole period.  But if I were to start them both today, and the state sentence, because it is suspended, has not started at all, if I was to start them both today that would amount to total concurrency and that is not my intention.  There is always a problem when you have got these two charges.

32If there was a breach, one is a good behaviour bond, one is a suspended sentence, each would be breached if there was offending of this sort.  In those circumstances I would forfeit the recognisance and order that the 12 months commence and I would at that point say from when.

33MS CURMI:  Your Honour, I didn't mention this earlier, but s.6AAA applies to these offences.  So the but for, the plea of guilty, what you would have ‑ ‑ ‑

34HIS HONOUR:  I probably would have discharged her as being mentally unfit to plead.  That is what I would have done.  So this situation is so unusual that I just think the s.6AAA would be misleading.  If this had been fought out in the normal course of events, with a long drawn out trial, assuming she had been found fit to plead, I have got no idea what I would have done.  It would be - I do not know what the word is, but - I honestly have no idea what I would do.  So in those circumstances I do not make one, because they then become a statistic which someone will in three months' time say you gave this sentence, and gave a 6AAA of this, and - you know, you would not want to be convicted of this with no mental health issues after a trial.

35MS CURMI:  As Your Honour pleases.

36HIS HONOUR:  It would be a whole different ball game.  So to give a 6AAA of that nature and this penalty would be totally misleading.

37MS CURMI:  Thank you, Your Honour.

38HIS HONOUR:  I think the Crown make that, don't they?  The recognisance?

39MS CURMI:  Yes.

40

HIS HONOUR:  Yes.  All right, just have a look at that before she signs it.  Yes.  All right, if you want to just get your client to sign that for me,

Ms McCrickard, please?

41MS CURMI:  Your Honour, I am struggling with your sentence.  Would it be possible to direct that one of the sentences commences in six months.

42HIS HONOUR:  No, because it has not commenced.  See, the trouble with that is that if there is a breach within two years, each sentence comes back in toto.  So I cannot direct when a state sentence starts, anyway, because it does not start until it is imposed, there's authority on that.  So I can't do that with a state sentence.  I can't say the Commonwealth sentence starts today because if she breached in 12 months' time it would be all over, she'd have done it.  So they're just both in abeyance.  The orders as to commencement of sentence will be if an when there's a finding of a breach.

43MS CURMI:  It's just the two years to be of good behaviour, really, that's the relevant thing, isn't it.

44HIS HONOUR:  Now it is and I am making it the same as a suspended so they effectively run together, so a breach of one will breach the other.  Unless it's like for something like driving an unregistered vehicle, or something, which I'm sure she's not going to do.  Now, what I have got to do - she can stay seated for this and I'm sure family members, Ms McCrickard, I just have to go through this formally.  I have imposed a suspended sentence, which has been wholly suspended.  That means if you commit any offence punishable by imprisonment, in the next two years, then you get called back to be re-sentenced, then you would have to show exceptional circumstances.  Now, I have made it clear that the exceptional circumstances have all been eaten up today.  I am sure she is not going to offend but I have to say this as a matter of law.

45The same thing applies with the recognisance.  If there is a breach of that by offending the $500 goes, not that you have to pay that yet anyway, and also gets re-sentenced.  Now what has happened is that there is the 12 month on that, so a criminal offence would involve the potential of up to two years actual gaol.  Just so everybody understands that.  I am sure that is not going to happen, but as a matter of law I have to explain that to somebody in that situation.  All right, no other orders or anything else we need to do?

46MS CURMI:  No, thank Your Honour.

47HIS HONOUR:  Thanks ladies, for all that.  I must admit, Ms McCrickard, in these situations, having been a barrister for a very long time, I am always worried there is not a tin box somewhere that some kid will find in 50 years' time.  That is just me.

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