Director of Public Prosecutions v Fuller
[2024] VCC 2031
•12 December 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR 24-01119
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ALLISON FULLER |
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JUDGE: | HIS HONOUR JUDGE JOHNS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 18 November 2024 | |
DATE OF SENTENCE: | 12 December 2024 | |
CASE MAY BE CITED AS: | DPP v Fuller | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 2031 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW – Sentencing
Catchwords: Plea of guilty – Koori Court - Attempted Kidnapping – Intentionally Cause Injury – Make Threat to Kill – Make Threat to Destroy Property – Mental health crisis – Substance abuse - Verdins principles – Bugmy principles –Akoka principle - Traumatic childhood – Genuine remorse – Drug rehabilitation –Engagement with support services - General deterrence – Specific deterrence – denunciation
Legislation cited: Sentencing Act (Vic) 1991
Cases citedBugmy v The Queen [2013] HCA 37- R v Verdins [2007] VSCA 62- Akokav The Queen [2017] VSCA 214 – R v McKee [2003] VSCA 16
Sentence:Charge 1: 150 days imprisonment, Charges 2, 3 and 4: Community Corrections Order for two years
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms A. Stephanides | Office of Public Prosecutions |
| For the Accused | Ms A. McPhail | Law and Advocacy Centre for Women |
HIS HONOUR:
1 Allison Fuller, you have pleaded guilty in the Koori Court to
· Attempted Kidnapping, which carries a maximum penalty of 20 years imprisonment;
· Causing Injury Intentionally, which carries a maximum penalty of 10 years imprisonment;
· Make Threat to Kill, which carries a maximum of 10 years imprisonment; and
· Make Threat to Destroy Property, which carries a maximum of five years imprisonment.
2 You have a limited criminal record, but it does disclose relevant prior offending. The facts of the matter are set out, helpfully, in the Summary of Prosecution Opening for Plea, which is an agreed state of facts. That summary is Exhibit A on the plea, and it forms part of these reasons for sentence.
3 I will not recite the facts in the same detail, but to go straight to the point, you had developed some animosity towards some people known to you at a local establishment, in particular to the son of the shop operators who you had developed some sort of arrangement with. On 29 January 2024, due to a concern you had in relation to your son attending the store and asking for some money, which was refused - the arrangement being that you were depositing money there in some sense for your son to use - you threatened to destroy the shop by saying, 'I'm going to fuck this shop up, I'm going to blow it up, I want my fucking money'. Police attended, and you left the scene with your son.
4 Then, a few days later, things got more serious when you attended at the convenience store, and the victim, was re-stocking shelves. You attended with someone known to him, a friend of his called Jamie Dune,[1] who has also been dealt with in the Children's Court. You attended there, and demands were made. You said, 'Oi, I want to talk to you'. The victim said, 'No, get away from me'. Jamie said, ' just fucken talk to her please. Let's just take him, let's just take him'. This was after the victim was ‘bear-hugged’ from behind by Jamie.
[1] A pseudonym.
5 You said, 'Get in the fucken car, we just want to talk'. He said, 'Fuck off, get off me'. The victim was in Jamie's grip throughout this exchange. Jamie dragged him north through the reserve towards your car which was parked in Daly Street. As he was being dragged, you placed the sharp end of your keys in your hand and struck him in the jaw and face multiple times.
6 As a result, he suffered lacerations to his face and neck, and I was shown photographs of those lacerations. The assault on him continued as he continued to be dragged through the reserve. He was trying to get free. You continued to strike him. That is the basis of the injury charge.
7 Charge 3 is the threat to kill made by you during the incident. It is actually captured on CCTV footage and was played to the court. You were yelling and swearing at him, threatening to stab your victim, and repeatedly demanding that he get in the vehicle. He was calling out for help, calling out for his father, and pleading for the both of you to stop.
8 After about five minutes, he managed to break free and his family attended to assist him. You jumped in your vehicle and drove off at a fast rate of speed towards their store, you confronted the victim again, and there was a further verbal altercation.
9 You eventually got back in the car and drove off. The police arrived a short time later. You were arrested about 1.40 am the next morning and you were unfit for interview, and you were transported by ambulance to Austin Hospital under police guard.
10 It is a serious episode of offending. Objectively, it's very grave and of course completely terrifying for your victim and his family, and they are understandably concerned about whether you pose an ongoing threat to their safety and to their business.
11 What is known about your offending now, and your circumstances, from the Court's perspective, alleviate many of those concerns. You were in what your counsel has, in my view, accurately described as a mental health and situational crisis at the time. You are vulnerable to drug use, and that is not an excuse of course, but there are varying degrees of responsibility for drug use in our community.
12 Your background, from infancy, as set out before me, places you in that circumstance, where your introduction to alcohol and illicit substances as a young child and the circumstances of your childhood, combine to explain how you have become so vulnerable to substance use, particularly in times of stress.
13 As I say, that in no way excuses the offending, as is clear from the fact that you were remanded in custody and spent some 150 days in custody, and subsequently spent a lengthy period at Odyssey House, and are now standing here to be sentenced by me, but it does put the episode in its appropriate context.
14 That being said, the objective gravity of the offending needs to be acknowledged. The maximum penalties are significant for these offences, particularly for the attempted kidnapping. You threatened to blow up the convenience store. You did so in the presence of owners, who not only work there but lived on the premises, also shoppers who were just going about their daily business and had this frightening episode unfold in front of them, and who were sufficiently alarmed to call Triple 0.
15 You also offended in that manner in the presence of your own young child. The victim, the principal victim of your offending was a child, 17 years old at the time.
16 The intentionally cause injury charge embraces a protracted assault. The threat to kill is particularly grave when you consider that it is in the context of an attempted kidnapping.
17 I received the victim impact statement made on behalf of the principal victim, but also the wider victims; the family. I am not going to summarise it in detail, but understandably it conveys to me the breadth and depth of the ongoing impacts and consequences of your offending. It has had social impacts upon your principal victim, the young boy, in terms of him now becoming isolated and not wanting to go out, not trusting friends or friendship groups.
18 The family has lived in fear of you returning to carry out your threats. As I have said, I am quite satisfied, having sat and listened during the sentencing conversation in this Court, and having read all of the materials and read the letters on your behalf, that you do not pose a danger to them. I have no difficulty accepting, that you are deeply remorseful for the impact of your crimes. You want to apologise to the family.
19 It is very clear to me that you have no intention of causing them any further fear or harm. To a significant degree, that depends, I suspect, on you maintaining abstinence and maintaining vigilance in relation to taking care of your mental health, but also treating your illicit substance abuse issues.
20 If I can turn to your personal circumstances, and these are helpfully set out in the very detailed and to-the-point submissions made on your behalf and filed by Ms McPhail, and also the extensive psychological, neuropsychological and social information and material I have before me in the way of reports.
21 There is a neuropsychological report from Anna McLaren, dated October 2024.; an historic report of Carla Lechner from 9 December 2019, but then an updated one from October of this year; psychological assessment of Bernard Healey, 11 February this year; and a letter from Leigh Minton, psychologist, October 2019
22 I had medical records to inform me and assist me, from the Northern Hospital, Mental Health Advice Response Service mental health summary, 18 March 2024;a letter from Dr Monalisa Kirkamanu and Daniel Rowan, Northern Health, February 2024; a letter from James Gibbs, child protection practitioner at the Department of Families Fairness and Housing, 18 June 2024; a letter from J. Moore, prison support case manager at Djirra dated June 2024; and an 18 June 2024 letter from Anika Wright, outreach support and advocacy worker at Flat Out.
23
I also have an updated letter from Anika Wright, dated 10 December, which sets out for me what has occurred since you exited Odyssey House on
20 November. I will come back to those matters.
24
Before I come to your personal circumstances, I do indicate that I accept
Ms McPhail's submissions in relation to the circumstances surrounding your offending, that is, the personal circumstances surrounding your offending. And these are set out at paragraphs 5-8 of Ms McPhail's outline, and I will just refer to some of them in particular.
25 I accept that you were experiencing a significant decline in your mental health at the time. You had unsuccessfully reached out for help in relation to the care for your son so that you could seek admission to hospital, in the weeks prior to the incident. You were deemed a threat to yourself when you were arrested in relation to it, and transported to hospital, and deemed unfit for interview.
26
The medical records, obtained from Northern Hospital, of your presentation, noted that you were experiencing – this is prior to the offending,
29 January 2024, note that you were experiencing active suicidal ideations and visual hallucinations, and you were noted to have stated, 'I need help, I've been asking for help for months and no one listens to me. The voices in my head, I try and block them out but they tell me to do things. Please don't discharge me, I need help', and you were discharged the following day and the offending occurred a few days later.
27 When you were assessed by Ms Lechner you recalled, 'I was really mentally unwell, and at the Fawkner police station I was begging to go to a psychiatric ward and they just released me. If they had put me in a ward this would not have happened. I was completely delusional. I thought people were out to get me, plotting against me.
28 So, just to backtrack, you were arrested on 29 January and it was noted that you were deemed a threat to yourself and transported to hospital on an unfit for interview, and then you were discharged from the hospital. And the principal offences occurred a few days later. I was told you had ceased medication in the weeks or months prior to the incident, lapsed into drug use and had not been sleeping.
29 Now, Ms McPhail's submissions go on in that respect, and I accept those matters but I will not summarise them herein.
30
You are a 29 year old Gunai/Kurnai and Walmajarri woman. You are the youngest of eight children, with five paternal half-siblings. I am not going to summarise in particular detail the disadvantage, dysfunction and trauma in your early childhood years. It is set out in the materials and it is set out in
Ms McPhail's outline. You were subject to neglect, abuse, exposure to substance use and significant trauma and harm, including sexual abuse.
31 You were removed from your mother's care around the age of 11 and you moved through the residential care system, mixing with similarly disengaged youths, abusing drugs and alcohol, and engaging in antisocial behaviours. You regularly absconded from residential care. You had been subject to sexual abuse as a younger child at the age of seven or eight, but again during residential care. You were pregnant at 14 which ended in miscarriage.
32 You were involved with your partner, Mr Rowley, who is the father of your eight year old son, Jurasia. Mr Rowley unfortunately passed away in 2017. You have been your son's primary parent and carer, and there has been involvement of course with DFFH, and you have been battling your own issues and liaising with DFFH to maintain care of your son.
33 Whilst you were in custody in Odyssey House, at some stage your son resided, as I understand it, in the care of your brother, and you are in the process of trying to obtain DFFH's approval to continue to care for your son.
34 You spent about 150 days in custody in relation to this matter and you were then bailed to Odyssey House, where you spent a further five months. And it is an onerous program, Odyssey House. You did not find it easy but you stuck at it and it was discussed during the sentencing conversation, and Ms Wright was in attendance and spoke of how well you were doing there.
35
But there does come a time to move on and it came a little bit earlier than what I had anticipated, but it does seem that since you exited the program on
20 November, based on the letter of Ms Wright – so 10 December, you have been engaging and taking your rehabilitation seriously.
36 I will just read from Ms Wright's letter. 'Since Ms Fuller's last court appearance on 18 November, Ms Fuller was exited from the Odyssey House program. On 20 November, since her exit from Odyssey House, I have worked closely with Ms Fuller, by providing material aid, outreach, transport and referrals. Mr Fuller has been engaged and responsive to all communication and has often initiated the contact.
37 “From the first day back in the community, Ms Fuller has demonstrated initiative and organisation by attending Centrelink to set up her payments, Fawkner police station to pick up her phone and belongings, arranged her utilities to be re-instated all within the first few days. She has been active in attending her appointments with DFFH, attending to business with her son, and participating in regular screenings.”
38 “I have been engaging with Ms Fuller by outreach twice a week, and via text and phone calls on the alternate days. We have been discussing and researching the best AOD program for her to attend and which one will be sustainable for Ms Fuller. I have made several referrals to explore availability and the best fit. In the meantime, Ms Fuller is linked back in with her AOD counsellor Julie Walters, from Monash Health'. And I have got a letter from Ms Walters to that effect as well.”
39 You participated in the Koori Court Sentencing Conversation fully, and the Sentencing Conversation was conducted by Aunty Yvonne Luke and Aunty Jacqui Stewart, both of whom knew you, even if you could not recall them. I think you couldn’t recall them because they, particularly Aunty Yvonne, had been a regular visitor to your house in a capacity as youth justice worker back in the late nineties when you were just a toddler. She recalls you and recalls your family circumstances, and you expanded upon that in the Sentencing Conversation and were quite clear and direct in a manner that is completely supported by the materials, but also supported by the context that Aunty Yvonne and Aunty Jacqui were able to provide, that your upbringing as a child was significantly disadvantaged.
40 There was neglect. There was inadequate nurturing and it was a dangerous environment for you, and one in which antisocial tendencies were reinforced and also alcohol and illicit substance use. You were also subjected to significant trauma there. A significant part of the Sentencing Conversation covered those matters. Indeed, Aunty Yvonne said at one stage that 'I did not know what was happening at the time' and was dealing with the appearances.
41 It did come through very clearly in the Sentencing Conversation that you are genuinely remorseful for your actions and the impacts of them. You were asked what your thoughts were when the victim impact statement was read, and you were very clear about that. And you harkened back to the suicidal ideation you had at the time and what you were going through, but you indicated quite clearly that you wanted to apologise. You would ‘really like to apologise to that family,’ to use your words.
42 You spoke about your goals. Getting your son back is a primary goal, but also work. You expressed interest in spray painting, panel beating but also traffic control work, and these are all within your capabilities.
43 And your family was discussed, brothers that were known to Aunty Jacqui and Aunty Yvonne, and paintings they had done. A painting of one of your brothers is at Preston DFFH, and they were positive things for you to discuss during the sentencing conversation.
44 As I have noted, Anika Wright was present at the conversation and talked about the incredible work you had been doing at Odyssey and the challenges of it, and the ongoing support that Flat Out could provide, and clearly they are providing that ongoing support. You have got housing available to you. There are supports now in place for you, which with the further support of the Community Corrections Order, will be adequate to provide you with the supports to maintain a period of abstinence and work on those goals that you have, provided you are continually going to engage. If you do not, as you know, there will be consequences in relation to that.
45 It was conceded on your behalf that normally for this type of offending, if you are looking at it objectively, a head sentence and non-parole period would be the appropriate outcome, but there are significant mitigatory factors which operate in your case.
46 Some of them are wrapped up, in my view, with the circumstances of the offending. Because as I have said, they are objectively very grave but the effect of the application of the Bugmy[2] principle in your case, also Verdins[3], and also the allied principles to Bugmy, I suppose, of R v McKee[4] in relation to drug use, and particularly drug use where a person such as yourself has become vulnerable to that use as a 10 or 11 year old and its connection with the offending, mitigate sentence.
[2]Bugmy v The Queen [2013] HCA 37 (Bugmy)
[3]R v Verdins [2007] VSCA 62 (Verdins)
[4]R v McKee [2003] VSCA 16
47
Each of those recognised matters of personal mitigation feed into what
Ms McPhail has described as the mental health and situational crisis at the time. None of these factors can be sheared off and considered in isolation. It is the impact of the whole rather than the sum of the parts. It is the inter-relation between those factors, but also factors relating to your son and your family history and your concern in that regard, your battles with mental health and the help you were trying to seek.
48 So, it is conceded by the prosecution after careful consideration and thorough analysis that the Verdins principles[5] have application not just in relation to hardship in custody but in relation to whether you are an appropriate vehicle for general deterrence and whether there is a reduction in moral culpability.
[5]Verdins
49 I do not need to summarise all of that in detail. Ms McPhail put in detailed submissions are to why those principles apply. I accept that and as I have indicated, I also accept the application of the Bugmy[6] principle's full effect, in particular in an explanatory sense. And again, I am not going to descend into the minutiae of the detail of your early life through to teenage years and out of home care, and the intersection with criminogenic factors and antisocial tendencies.
[6]Bugmy
50 You are working on yourself and you are working on the consequences of those forces that were not within your control, which shaped you up to your teenage years and early adulthood, and that is a continual work in progress for which you are now getting appropriate supports.
51 It is of concern that even though it is a limited criminal record, the record and the matters before me indicate someone who in times of stress and particularly when affected by substances and mental health challenges, decompensates towards expressions of violence. That is something you are going to have to continue to work on. And the way to work on it, of course, is to work on illicit substance use, work on behavioural change, work on getting stability in your life, and therefore that confluence of factors which lead you to this sort of behaviour will not arise to begin with.
52 The learned behaviours that stem from a disadvantaged and dysfunctional childhood can be unlearned and worked on but you need assistance. So, you will get that and what is expected is that you will engage.
53 You have shown in the past that you can go through periods of abstinence. So, I do hold out reasonable prospects for your rehabilitation, particularly with the motivating factor of maintaining care of your son, obtaining and maintaining care of your son, and working towards a position where you can be engaged in productive work and follow the pursuits and your goals that you want to.
54 You have pleaded guilty. Without specifically noting it, I also take into account your participation in the Koori Court sentencing conversation. General deterrence is always important for matters such as this, but it is moderated somewhat due to the Verdins[7] factors and what I have observed in relation to the circumstances, the personal circumstances of your offending. But it still remains, as do just denunciation and specific deterrence. I have not made specific mention, I will now, of the Akoka principle.[8] Five months in a residential rehabilitation facility such as Odyssey House is particularly onerous and it is of course restrictive of your liberty, and I take that into account.
[7]Verdins
[8]Akokav The Queen [2017] VSCA 214
55 Balancing all these factors as best I can, and particularly considering that it would not be in the community's interests, or in the interests of justice, nor would it serve any of the sentencing factors that I must have regard to, to reincarcerate you after the five month period of Odyssey House now you are obtaining some stability in the community, a Community Corrections Order is appropriate in your case.
56 I had you assessed for a Community Corrections Order and it came back as favourable. You expressed again during that assessment, your remorse, which I assessed as genuine during the Sentencing Conversation. But you expressed it again and I refer to that passage. 'Ms Fuller became emotional when asked how she felt about the impact of her offending and of her victims, stating that she is very regretful and wanted to write a letter of apology to the victims but could not as there is a non-contact intervention order in place'. That was also a matter that was discussed at the Sentencing Conversation.
57 There are recommended conditions, and I am going to follow those recommended conditions of the corrections order. Balancing all these factors as best I am able, I sentence you as follows.
58 Ms Fuller, on the charge of - can I just pause for a moment? Is it 150 days or 151 days pre-sentence detention?
59 MS STEPHANIDES: A hundred and fifty, Your Honour, because the one day was the day between - - -
60
HIS HONOUR: Yes. All right, 150 days. Thank you, Ms Stephanides. On the charge of Charge 1, charge of attempted kidnapping, you are sentenced to
150 days imprisonment. On Charges 2, 3 and 4 you are sentenced to a two year Community Corrections Order, with conditions of supervision, 75 hours unpaid community work, assessment for drug and alcohol treatment as directed, mental health assessment and treatment as directed, offence specific programs addressing offending behaviours as directed, 40 hours of treatment programs can be credited towards those work hours.
61 I declare that you have served 150 days as pre-sentence detention pursuant to s18 of the Sentencing Act.
62 Pursuant to s6AAA, were it not for your plea of guilty I would have sentenced you to a period of two and half years imprisonment with a non-parole period of 18 months.
63 There was a disposal order, was there not?
64 MS STEPHANIDES: It was withdrawn, Your Honour.
65 HIS HONOUR: Withdrawn.
66 MS STEPHANIDES: It was her clothing and items, so and I understand they've been returned.
67 HIS HONOUR: All right. Thanks, Ms Stephanides. I did not make specific mention of parity, given that Mr Dune was dealt with in the Children's Court. Now, any other orders?
68 MS STEPHANIDES: No.
69 HIS HONOUR: All right. Do you consent to that corrections order, Ms Fuller? Do you agree to go on the corrections order?
70 OFFENDER: Yes, Your Honour.
71
HIS HONOUR: Yes. Well, it is going to be prepared, printed out and then you will be asked for your signature. I will sign it. Within two days of today - so probably better to either today or tomorrow rather than leave it till Monday. Within two days of today you are to go to the Office of Corrections and
Ms McPhail can reinforce that for you. And then you know, you continue to have the support from Flat Out and other organisations if you need help with anything, if you feel like your things are unravelling a bit, you have got people to talk to. But you also have corrections worker and obligations with Corrections but that's all designed to help support you, give you stability.
72 It will be easier than Odyssey House but it will still be demanding and challenging and it is an order of the court. It is your sentence, so you have got to do it. You have got to comply with it. You have got to keep appointments. You have got to do the community work when you are asked to and you have got to engage in all the counselling you are asked to do. If you do not do what is asked of you, you might be breached or it is called a contravention. And then you could be brought back before me and I have got to re-sentence you again or consider what we do. So, keep all that in mind. This is not the end. This is just the start of your sentence in the community.
73 All right. Do you need some time? We will print that off now. And just to be clear, there is still an intervention order. So, remember what I said last time when your bail was changed. There should only be one way when you come out your front door, you walk one way and not the other.
74 All right. I have signed that. Ms McPhail can have a quick look at it and can go down with my associate and you will be asked to sign it and we will get copies of it for you.
75 All right. Thank you, Ms Fuller, we will get some copies made of that and thanks, everyone. Thank you and yes, good luck, Ms Fuller.
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