Director of Public Prosecutions v Fulton

[2020] VCC 2085

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 20-00185

DIRECTOR OF PUBLIC PROSECUTIONS

v

BRENTON ROBERT FULTON

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	6 October 2020
CASE MAY BE CITED AS:	DPP v FULTON
MEDIUM NEUTRAL CITATION:	[2021] VCC 2085

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms S. Clancy	Office of Public Prosecutions
For the Accused	Mr A. Paull

HER HONOUR:

1Brenton Robert Fulton, you have pleaded guilty before me to one charge of armed robbery.  You have also pleaded guilty to two summary offences, uplifted pursuant to the provisions of the Criminal Procedure Act, that being a charge of committing an indictable offence on bail and a charge of unlawful assault.  The facts underlying the offending are as follows.  On 3 November 2019 in the mid-afternoon, you went into the Coles Supermarket in Albert Street, Sebastopol and walked around the store selecting towels, clothing, toiletries and food valued at $215.25.  You put these into a bag and began walking to the front entrance of the store, at which time you were seen by the grocery manager, James Coral.

2As you got to the front door, Mr Coral grabbed the bag and stated that you were carrying and said 'You will need to pay for that'.  You pulled out a black handled kitchen knife from the tracksuit pants and pointed it towards Mr Coral's face, causing him to step back and let go of the bag.  You said to Mr Coral, 'Now you can get me for armed robbery’ and left the store carrying the bag.  Mr Coral followed you from a distance and kept an eye on you while he phoned 000.  The incident was captured on CCTV footage inside the store and in his statement, Mr Coral said 'I didn't think he was actually going to stab me'.  Police attended soon after.  Those actions underlie the charge of armed robbery.

3Later that day, at about 5.30, you went to the Cellebrations Liquor Store in White Horse Road, Mount Clear, went in and loitered around the fridge area.  You took a single can of Jack Daniel's from the packaging and approached the counter.  You put the can onto the counter and told the store manager,
Mark Castles, who was working there that you were thirsty and that you could trade the can for some of the things in your bag.  You put the black bag, which is presumably the bag you took into the supermarket and showed Mr Castles the items inside.  Mr Castles said he could not swap the items for Jack Daniel's, but he would get you a glass of water if you were thirsty.  You continued to plead with Mr Castles to swap the items, but when he did not agree, you stepped back and lifted the right side of your T-shirt, showing Mr Castles a black handled knife down the front of your pants.  You said to Mr Castles that you did not like robbing people and that is why you were trying to trade with him.

4Mr Castles very admirably defused the situation by keeping the conversation going and joking with you that you should have put something over your head first at least, but he refused to give you the can of Jack Daniel's, but offered you a can of beer instead.  This was valued at $10.00.  You were happy with this, you shook hands with Mr Castles and left.  After several customers told Mr Castles there was a man outside up the road waving a knife, he contacted 000 and reported the matter.

5Police had to produce the Taser after you started running away, dropping the knife on the ground, police chasing you on foot where you were placed under arrest.  You were taken to the Ballarat police station where it appeared you were both alcohol and drug effected, as you were banging your head against the wall and you had stripped down naked whilst you were lodged in the cells.  Because of your behaviour, you were not able to be interviewed at the time.  When police later asked you if you wanted to be interviewed, you said you could not because you were 'too fucked up'.  Those actions underlie the summary charge of unlawful assault.  At the time of this offending, you were on bail, having been bailed from the Ballarat police station on 30 August that year to appear at the Ballarat Magistrates' Court on 18 November 2019 for charges of criminal damage, unlawful assault, assaulting police and resisting arrest.  Those matters are still outstanding.

6I now turn to your personal circumstances.  There is a little confusion around your age, but it appears you are either 33 or 34, the second of three children born to your mother.  You contracted meningitis when you were a baby and according to Professor Carroll, a psychologist who had checked the records, after that you showed some regression in your development.  When you were four or five, you were diagnosed with ADHD and medicated with Ritalin for eleven years.

7You got to Year 7 at school, having considerable behavioural difficulties and trouble with concentration on work, requiring the support of tutors.  You have done some work since, most recently as a concreter with your brother with whom you enjoy a close relationship.  Your parents separated when you young.  You no longer have much contact with your father, but you are supported by your mother and younger brother and the plan is that you will live with your mother when you are released from custody.

8In either 2014, according to you, but according to your mother 2010, you were hit by a car suffering spleen and head injuries and in 2016, a neuropsychological investigation by a neuropsychologist, Martin Jackson, found you had an IQ of 70, which is 1 point below the cut off for acceptance into the Department of Health and Human Services Intellectual Disability Program.  You have been on a disability support pension since your teens.

9Over the years, you have compiled an offending history, primarily it would seem, because since your teens, you have had significant trouble with alcohol, methamphetamine and cannabis use.  Your criminal history goes back to 2003 and you have been dealt with over the years for burglary, theft, assaulting police, drunkenness, un-licence driving, possessing ammunition without a licence, using cannabis, possessing cannabis, driving offences, possessing dangerous article in a public place, refusing a preliminary breath test, driving whilst disqualified, drink driving, shoplift, committing indictable offence on bail, threaten to assault an emergency worker, possessing a loaded firearm in a public place.  You last appearing before court on 22 May 2019, where you were gaoled for being a prohibited person, possessing a firearm, driving whilst disqualified and other driving offences.

10Along the way, you have also been placed on a number of community corrections orders which you have had trouble adhering to, but you have twice been sentenced to terms of imprisonment involving a period on parole, which was undertaken satisfactorily.  Your counsel informed me that at the time of this offending, you had deteriorated.  You were drug and alcohol effected at the time of this offending and you were effectively homeless, having been ejected from the house you were living in.

11You have been in custody since your arrest and done well there and are working as a paint billet, which is a position of trust.  Very sensibly, your counsel submitted that I should deal with you by way of a term of imprisonment, with a longer than normal parole period, taking into account the difficulties that you have, because you perform well on the stronger structure of parole and also, because you have recently been accepted on the National Disability Insurance Scheme, where plans have been made to access you to community activity, to peer support, to education.  You are interested in exploring a mechanics course.  You have the option on release of living with your mother and your brother.  You apparently enjoyed very much working with him and it is to be hoped that the dovetailing of the conditions of parole, which would hopefully include some treatment, drug and alcohol treatment, to put you in a strong structured position, so that the danger of you reoffending is lessened.

12It is accepted by the prosecution that this offending falls at the lower end of the range of seriousness of offending of this kind.  This was spontaneous, unsophisticated offending.  It did not last long.  Of course you went there armed with a knife, but you did not pull it out in order to menace people from the start, but essentially, only to get what you wanted when things did not work out, once you had engaged in the trying to steal things from the supermarket, or bargaining with Mr Castles for a can of Jack Daniel's.  I intend to sentence you on an aggregate basis, the offending pretty much having occurred in the one spree of offending, if you like, on the same day.  Armed robbery is always a serious form of offending.  The maximum penalty is 25 years.  The maximum penalty for common law assault is two years imprisonment and the maximum penalty for committing an indictable offence on bail is thirty penalty units or three months imprisonment.  In all the circumstances, I am going to sentence you to an aggregate term of three years imprisonment and order that you serve a minimum term of 15 months.  I declare that you have already served the pre-sentence detention.

13MS CLANCY:  Three hundred and thirty-eight days, not including today's date, Your Honour.

14HER HONOUR:  Three hundred and thirty-eight days of the sentence have already been served by way of pre-sentence detention.  Pursuant to s.6AAA, I declare that had you not pleaded guilty, I would have sentenced you to a term of imprisonment of four years and order that you serve a minimum term of two years. 

15MS CLANCY:  As Your Honour pleases.  Your Honour, the prosecution has also sought a disposal order in relation to the knife.

16HER HONOUR:  Yes, thank you, they are granted and ‑ ‑ ‑

17MS CLANCY:  As Your Honour pleases.

18HER HONOUR:  And they will be completed and forwarded to you.  I thank counsel very much for their assistance in this matter.

19MS CLANCY:  As Your Honour pleases.

20HER HONOUR:  Thank you.

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