Director of Public Prosecutions v Fulton

[2025] VCC 1104

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

GENERAL LIST

CR-24-01003

DIRECTOR OF PUBLIC PROSECUTIONS

v

BRENTON FULTON

---

JUDGE:	HIS HONOUR JUDGE GEORGIOU
WHERE HELD:	Ballarat, Melbourne
DATE OF HEARING:	Trial: 26 May-2 June 2025, Plea: 21 July 2025.
DATE OF SENTENCE:	4 August 2025
CASE MAY BE CITED AS:	DPP v Fulton
MEDIUM NEUTRAL CITATION:	[2025] VCC 1104

REASONS FOR SENTENCE
---

Subject:CRIMINAL LAW

Catchwords:              Trial; armed robbery; guilty verdict; theft of meat from a supermarket; accused produced a multitool when staff asked to check his bag; diagnosis of acquired brain injury, schizophrenia, ADHD; poor prospects of rehabilitation; extensive criminal history; substance abuse; low level of seriousness.

Legislation Cited:      Sentencing Act 1991 (Vic).

Cases Cited:

Sentence:                  354 days imprisonment, reckoned as time already served.

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms C. Pezzimenti	Office of Public Prosecutions
The Accused was not represented by counsel (at plea and sentence)
For the Accused (at Trial)	Mr M. Habib	Adrian Paull Criminal Lawyers

HIS HONOUR:

1Brenton Fulton, following a trial by jury in the County Court at Ballarat, you were found guilty of an offence of armed robbery committed on 29 November 2023, at Mt Clear in Ballarat.

Circumstances of offending

2Having heard the evidence given at trial, I make the following findings of fact:

3On 29 November 2023, at about 7.45 pm, you attended the IGA supermarket at Mt Clear. 

4You were seen by staff to walk down various aisles.  When in the meat cooler aisle, you selected a tray of silverside and put it into a bag you were carrying.  Staff continued to watch you to see whether you would pay for that item at the cash register.

5You walked down other aisles before attending the register area.  At the register you paid for a Santa hat that you had also selected.  A staff member, Casey Lee[1], then asked to check inside your bag.  You refused and said, 'No, because it was full of drugs.'  Ms Lee told you she did not care what else was in your bag, she just wanted to look for their products.

[1] A pseudonym.

6You then walked off toward the front door of the store.  Another staff member, Phoebe Martin[2], also told you they did not care what else was in your bag, they just wanted what was theirs.  By this stage Ms Lee and Ms Martin were standing between you and the front door.

[2] A pseudonym.

7You again refused to open your bag. You then produced a multitool from your right pocket and said in an aggressive tone, 'move'. Because of your aggressive tone, and because you were armed with the multitool, they both stepped out of your way, and you commenced to leave the supermarket. As you were leaving Ms Martin asked you whether that was a threat.  You replied, 'No, it’s a promise'. You then left without disclosing the contents of your bag.

8Police were notified and attended the supermarket where they took statements from the two staff members. Much of your conduct inside the store was captured on CCTV cameras.

9On 30 November 2023, police attended at your residential address in Bridge Street, Sebastopol.  You were cautioned and arrested and taken to the Ballarat police station.  You participated in an interview with police with the assistance of an independent third person.

10During the interview you told police that what you pulled out of your pocket was an old set of metal pliers, silver in colour.  When asked why you pulled out the pliers you said that you were trying to get the women away from you because you had things in your bag that you did not want them to see.  Regarding the stolen meat, you told police you could not remember taking meat and did not think that you did.

Victim Impact Statements

11Tendered at the plea hearing were victim impact statements from Ms Lee and Ms Martin. Your conduct was not without consequence to the two victims who were simply performing their duties. It was distressing and frightening to both.

12Ms Lee states that as a result of the armed robbery she has suffered from a great deal of stress and anxiety and is no longer able to work late shifts. She states that she has become hypervigilant and is frightened whenever there is a call at work concerning a shoplifter. Ms Lee’s inability to work late shifts has impacted her weekly income.

13Ms Martin also states that the armed robbery has affected her in her day-to-day work, particularly as she is responsible for the safety of staff and customers.  She is often required to check bags, and it is constantly on her mind that she may again be confronted in the way you confronted her.  She, too, has had to give up night-time work directly as a result of what you did and has also suffered a reduction in her weekly income.

Background and personal circumstances

14You were represented at trial by counsel and instructing solicitor, however, you chose to represent yourself at the plea hearing.

15Although you were reluctant to provide much by way of information concerning your background, relevant information is set out in your former solicitor’s outline of submissions dated 12 February 2025, prepared for a sentence indication hearing; a psychiatric report of Associate Professor Rajan Darjee; and a character reference dated 11 February 2025 from your brother, Kye Fulton.

16You are an Aboriginal man born in February 1987. You are now 38 years of age.

17Your parents separated when you were approximately 12 months old.  You remained living with your mother and a brother while your older sister went to live with your father.  You report that there were frequent arguments between your parents concerning custody and care arrangements.  You stated during the plea hearing that you would see your father every second weekend.

18Your father worked as a house re-stumper, but due to a back injury requiring surgery and ongoing medication, can no longer work.  Your mother, you said, buys and sells properties, does volunteer work with a local RSL and also assists homeless persons with meals.  Your brother has his own concreting business.

19At the age of three you suffered meningococcal septicaemia for which you were treated.  You subsequently experienced learning difficulties and behavioural problems.  You completed Year 7 at Ballarat Secondary College and left school at the age of 14.

20You were diagnosed in early childhood with attention deficit hyperactivity disorder for which you were prescribed dexamphetamine between the ages of five and 14.  You stopped taking that medication at the age of 14 and instead resorted to cannabis use as a form of self-medication.  Since that time, you have had significant substance use issues, particularly with alcohol and cannabis.  You  have also used methylamphetamine.

21You have a limited work history.  Since leaving school you have worked at a car- wreckers, in panel beating and spray painting for between one to two years, and with your brother in his concreting business.  More recently, when you were released on bail for this offence, you worked two to three days a week as a labourer in your brother’s business.  Your brother noted that during that time your confidence and self-worth had noticeably improved.  Your brother states that you are a valued member of the family and have been deeply missed by all members of your family.

22Prior to your being remanded following a breach of bail, you were on the disability support pension and also a recipient of services under the National Disability Insurance Scheme.

23You informed me that you are in a relationship with a woman you met shortly before you were remanded. It is your hope upon your release to renew that relationship, settle down and start a family.

24Your bail was revoked when you failed to appear for your court hearing on 10 April 2025. 

25During the plea hearing you told me that you suffer from an acquired brain injury and schizophrenia.  You said you suffer from paranoia, and you were on medication in relation to it.

26With regard to the offending, you stated you had drunk a cask of wine in the period leading up to the offence.

Psychiatric report

27As stated, I have been provided with a psychiatric report prepared by Dr Darjee dated 21 January 2025.  Dr Darjee interviewed you on 6 December 2024, at a time when you were on bail.  He was also provided with a number of documents, including the summary of prosecution opening, video recordings of your offending, your recorded interview with police, a National Disability Insurance Scheme plan and a neuropsychological report prepared by Susan Carey dated 27 March 2016. 

28Although you were reluctant to discuss your personal history with Dr Darjee, you did tell him that you grew up too quickly trying to help your mother.  You reported behavioural issues at school and that you struggled with reading and writing.  You reported some short-term work but that you had been in receipt of the disability support pension for over 20 years.

29Dr Darjee noted a psychological assessment prepared in 2010 which assessed your IQ at 56. Dr Darjee stated that the IQ measure then used was outdated.  He noted that in 2016 Ms Carey estimated your premorbid intellectual functioning in the borderline range with your IQ falling in the 70s.  Ms Carey’s findings were supportive of a diagnosis of a substance-related brain injury of mild severity.  She noted that without access to relevant contemporary medical records regarding your childhood illnesses and head injuries, it was difficult to know how they affected your cognitive development and functioning. Ms Carey reported that your cognitive impairments are largely permanent in nature with some potential for mild improvement with appropriate treatment and abstinence from alcohol and substance use. 

30Ms Carey also reported that you demonstrated difficulties with impulse control, difficulty thinking in a clear and rational manner when under time pressure or in stressful situations, and that those difficulties may affect your ability to make calm reasoned decisions and appropriate judgments in high-stress situations.

31Dr Darjee noted that you have a history of drinking alcohol to excess and that you have misused cannabis since you were a teenager.  You told Dr Darjee that being in prison over recent years had messed up your life and it was through imprisonment that you were introduced to heroin and methylamphetamine.

32You informed Dr Darjee that you are treated with the antipsychotic medication Seroquel and buprenorphine, administered by way of injection. You also take metformin for your Type 2 diabetes.

33Regarding the armed robbery, you told Dr Darjee that at the time you were living on the streets.  You had moved out of your brother’s place as you thought your brother had been talking about you.  You attributed this to your psychosis.  You said you were drinking four litres of wine each day and also smoking cannabis.  You said you were blind drunk at the time of the offending and did not believe you were carrying a multitool, but rather a pair of pliers.

34You reported to Dr Darjee that while on bail you felt back to your normal self.  You had met your girlfriend shortly after your release from prison and did not have any issues with paranoia.  You also stated that after spending so much of your adult life in gaol you did not want to return to that environment but wanted to work and receive appropriate treatment through your general practitioner.

35You described to Dr Darjee a history of psychotic symptoms, including hearing voices and delusions of reference and persecution.  Dr Darjee stated it was unclear if such symptoms were primarily due to substance misuse or due to an underlying psychotic disorder such as schizophrenia.  Regardless of the cause of those symptoms, Dr Darjee stated that when he saw you your mental state was stable, and you had not had any psychotic symptoms over the recent months.  You have, however, long-term problems with substance misuse and dependence, particularly alcohol, but also cannabis and methylamphetamine. Dr Darjee considered that the most important factor in your offending was the significant intoxication with alcohol.  Your offending was not driven or caused by symptoms of mental illness or cognitive impairment according to Dr Darjee.

Criminal record

36You have an extensive criminal record that dates back to 2004, when for a number of dishonesty offences, you were placed on a community-based order for 12 months.  You have since then been in court on some 15 separate occasions to 22 March 2023.

37Significantly, you have a prior conviction for armed robbery when, on 6 October 2020, for that offence and offences of unlawful assault and committing an indictable offence while on bail, you were sentenced to an aggregate term of imprisonment of three years with a non-parole period of 15 months.

38I also note that on 14 May 2024, you were convicted and sentenced in the Ballarat Magistrates Court on charges of wilful damage and criminal damage to a total effective sentence of three months’ imprisonment.  That offending occurred approximately one week before the offence for which I am now to sentence you.

39Your prior convictions are relevant to my consideration of the need to deter you from further offending, the protection of the community, and your prospects of rehabilitation.

Sentencing considerations

40The offence of armed robbery is an inherently serious offence.  The seriousness of this offence is clear from the maximum penalty of 20 years’ imprisonment that may be imposed.

41I accept, and it was not really disputed, that your offending in this instance falls at the lower end of the spectrum of seriousness for offences of armed robbery. This finding is not to take away from the fact that for the victims of your offence it was a terrifying experience.

42While you may have planned, albeit in a relatively unsophisticated way, the stealing of the meat, the offence of armed robbery I consider occurred on the spur of the moment when you were confronted by the two staff members who had asked to inspect your bag.  It was only as you sought to leave the store that you produced the multitool, no doubt to prevent them from inspecting your bag and to enable you to get away with the stolen silverside. As stated, your conduct was captured on CCTV cameras, and you made no effort to disguise yourself.  The value of the stolen meat was low.

43I have regard to the findings of Dr Darjee and the reported findings of Ms Carey, particularly as to your low-level IQ and brain damage, in my assessment of your level of moral culpability. I have particular regard to Ms Carey’s opinion that you have difficulties with impulse control, difficulty thinking in a clear and rational manner in stressful situations and that those difficulties may affect your ability to make appropriate judgments in high-stress situations. Those difficulties may have contributed to your offending, however, I accept the opinion of Dr Darjee that the most important factor in this offence was your significant level of alcohol intoxication.

44With regard to your prospects of rehabilitation, having regard to your background of mental health issues, drug and alcohol abuse, extensive criminal record and your conduct during the trial, I consider at this time they are poor.  I have come to this conclusion notwithstanding your brother’s reference and the fact that between November 2024 and 11 February 2025 you had been working with him two to three days per week labouring and concreting.  Your brother noted that during that period you demonstrated an ability to manage and co-ordinate your own activities.  You informed me that you maintain contact with your brother and will be able to live with him upon your release. You do, however, Mr Fulton, have significant issues that require appropriate counselling and treatment, particularly in relation to your alcohol and drug use. If you do not get the treatment that you need, I consider you are likely to re-offend and to spend increasing periods in custody.

45General deterrence and denunciation are usually significant considerations, but they shall be moderated somewhat in view of your mental health issues. I do not consider that you are a good vehicle for general deterrence in view of those issues.

46I note that on 14 February 2025, following a sentence indication hearing, a judge of this court indicated that should you plead guilty to the offence you would have been then sentenced to time served with or without a community correction order.   You rejected that indication, as was your right.  You variously told me throughout these proceedings that you did not trust that indication and that others advised you to proceed with your plea of not guilty. Whatever be the reason for you rejecting the indication, it has meant that you have served an additional period of approximately six months in custody.

47You are not to be punished for exercising your right to a trial but your plea of not guilty means that you are not entitled to the usual sentence reduction on account of the utilitarian benefits that attach to pleas of guilty.  I may also have regard to your plea of not guilty in my assessment of your prospects for rehabilitation, the need to deter you from further offending and to protect the community from you.

48In determining the appropriate sentence, I have also had regard to current sentencing practise for the offence of armed robbery. As might be expected, given the myriad ways in which this offence may be committed, sentences vary widely. However, each case must ultimately be decided by reference to the circumstances of the offending, the circumstances personal to the offender and any aggravating and mitigating features present in the case. The sentence to be imposed must also be proportionate to the level of your criminality.

49In my opinion all of the objectives of sentencing may be achieved by sentencing you, in the circumstances, to the time you have already served on remand.

50Accordingly, for the offence of armed robbery, you are sentenced to a term of imprisonment of 354 days, not including today.

51Pursuant to s18 Sentencing Act, the period to be reckoned as already served under the sentence of imprisonment is 354 days.

52Ms Pezzimenti, are there any other orders.

53MS PEZZIMENTI:  No, Your Honour. 

54HIS HONOUR:  Thank you.  Mr Fulton, that means you will be released from custody today.

55ACCUSED:  Thank you, Your Honour. 

- - -