Director of Public Prosecutions v Fulton
[2016] VCC 224
•24 February 2016
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-15-01893
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BEAU FULTON |
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JUDGE: | His Honour Judge Mason | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 23 February 2016 | |
DATE OF SENTENCE: | 24 February 2016 | |
CASE MAY BE CITED AS: | DPP v Fulton | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 224 | |
REASONS FOR SENTENCE
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Subject:Plea – sentencing
Catchwords: Armed robbery – theft - unlicensed driving - commit indictable offence whilst on bail
Legislation Cited: Sentencing Act 1991
Cases Cited:
Sentence:Total effective sentence 4 years and 10 months' imprisonment,
minimum term 3 years
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APPEARANCES: | Counsel | Solicitors |
| For the Director | Mr J. Manning | Office of Public Prosecutions |
| of Public Prosecutions | ||
| For the Accused | Mr A. Brand | Slades and Parsons |
HIS HONOUR:
1 Beau Fulton, you have pleaded guilty to one charge of armed robbery, one charge of theft, one transferred summary charge of unlicensed driving and two transferred summary charges of committing an indictable offence whilst on bail.
- Armed robbery carries a maximum penalty of 25 years' imprisonment.
- Theft carries a maximum penalty of 10 years’ imprisonment.
- Unlicensed driving carries a maximum penalty of 3 months' imprisonment.
-
Commit an indictable offence whilst on bail carries a maximum penalty of
3 months' imprisonment.
2 You were born on 27 July 1989 and are now 26 years old. You were 26, also, at the time of the offending.
3 You have a criminal record about which I will go into in more detail later.
4 The victim of the armed robbery is Brooke Mildenhall. At the time, Ms Mildenhall was 23 years old. She met you through a mutual friend approximately 3 weeks prior to the offending.
5 At the time of the offending, you were on bail. You have never held a driver's licence.
6 On 29 June 2015 at Sunshine Magistrates' Court you were sentenced to a Community Correction Order for a period of 18 months. This offending contravenes that Order.
7 On Monday, 7 September 2015 at approximately 11 am, you sent the victim a text message asking her to come and pick you up. You offered to supply her "puff" and "choof", which she knew to be methylamphetamine and cannabis.
8 You called the victim and repeated your request and offer. She declined. Throughout the morning, she continued to receive calls from you repeating your request.
9 The victim eventually agreed and drove to Werribee to meet you that afternoon. She was driving her car, a maroon Holden VT Commodore, and she had her dog with her. You had told her that you were alone.
10 The victim arrived at the address to find you, a female, and two children waiting. Everyone got into the car, with you sitting in the front passenger seat.
11 You drove to the kindergarten at Tarneit College where the female walked the two children inside before returning to the car. You asked if you could collect the female's other child at Bethany Primary School and the victim agreed.
12 When you arrived at the school, the female again left the car and returned with a young boy. All four of you attended at McDonald's in Hoppers Crossing where you bought them all meals.
13 The victim then drove you all to a friend's house in Werribee. When you arrived, you and the female went into inside leaving the victim with the boy and her dog. She repeatedly called you whilst waiting for you and told you that she needed to go.
14 You returned to the vehicle with the female 20 minutes later. You asked the victim to drop you off in Laverton, and provided her with directions as she drove.
15 Ultimately, you directed her to a dead-end street in Truganina and the car was depicted on CCTV entering the street at 4.05 pm. You told the victim to do a U-turn and pull over, as you needed to talk to her out of the car.
16
When you stopped, you said you couldn't talk to the victim in front of the female, and again asked her to get out of the car. You exited, and through the driver's window asked the victim to come to the boot to smoke methylamphetamine, and so that you could drive. The victim repeatedly declined and did not want to leave the car.
17 You lent in and removed the keys from the ignition. You opened the driver's door and removed a knife from the front of your pants. The knife was in a black sheath and had a sliver blade. It was 22 centimetres long and was similar to a fishing knife.
18 You said, "Get out of the car, I'm gunna stab you." The victim screamed at you to give the keys back. You told the female in the back seat to get the victim out of the car. The boy in the back seat was screaming. He was, on the evidence, approximately six years of age.
19 You sat back into the passenger seat, throwing the victim's dog into the back seat in the process. You repeatedly demanded to drive and waved the knife around the victim's face. The victim removed her phone, and you told her to put it down or you would take it.
20 The victim pleaded for the keys back and you again told the female to get the victim out of the car. You said you would stab the victim or stab the female.
21 The victim got out of the car and asked if she could have her dog. The child passed the dog to her before you moved to the driver's seat and drove away. The car is again depicted on CCTV leaving the street at about 4.18 pm.
22 At some time between 8 pm and the early following morning, you removed the front and rear number plates from a blue 1999 Holden Commodore parked at Westfield Shopping Centre in Airport West.
23 On Tuesday 8 September 2015 at approximately 8.30 am police located you sleeping in the victim's vehicle in a small car park in Altona North. You were arrested and cautioned.
24 The car was searched and the knife was located in the driver's door. The two registration plates belonging to the blue Commodore were located in the rear passenger foot well.
25 The vehicle had sustained damage to the rear left panel, tail-light and bumper. There was also significant damage to the front right panel and bumper.
26 On your phone, police located text messages discussing the stolen vehicle and the need to remove its stickers and registration plates. You discuss selling the car quickly for cash.
27 You participated in a recorded interview and made “no comment” responses.
28 A Victim Impact Statement from Brooke Mildenhall was tendered.
29 You pleaded guilty at the first committal mention at the Melbourne Magistrates' Court on 29 October 2015.
30 I now turn to your personal circumstances.
31 As I noted earlier, you are now 26 and you were that age at the time of the offending in September last year.
32 You have an extensive criminal record for one so young, with your prior offending commencing with an appearance in the Children's Court at Werribee at the age of 18, when for unlicensed driving you were put on a 9-month good behaviour bond.
33 That was followed by an appearance in this court, the Melbourne County Court, in February 2010 when you were aged 20. On that occasion you were sentenced on a charge of armed robbery and ordered to be detained in a Youth Training Centre for a period of one year.
34 Some two weeks later you appeared at the Melbourne Magistrates' Court where, for theft and weapons offences, you were given an adjourned undertaking, effectively another good behaviour bond, this time for 12 months.
35 You appeared at the Sunshine Magistrates' Court in August 2013 for dishonesty, driving and weapons offences for which you were given 3 months imprisonment and placed on a Community Correction Order for 18 months. This Order included the drug testing and treatment, mental health assessment and treatment and offending behaviour program conditions as well as judicial monitoring.
36 Most recently you appeared again at the Sunshine Magistrates' Court in June last year when, for a veritable fleet of dishonesty, driving and other offences, and for the breach of the Community Correction Order imposed in August 2013, you received an overall sentence of 220 days imprisonment and a new 18-month Community Correction Order - which, as I noted earlier, you have breached by your current offending.
37 You have had an unfortunate early life, your parents separating before you were born and you never really getting to know your father. On one occasion later in life your father was to collect you to live with him - you were packed and waiting, however he became distracted, went drinking, did not turn up and you never saw him again. You were raised by your mother, who had a series of other relationships. One of her partners was violent to you and to her.
38 You rarely engaged in activities as a family, nor did you engage with your schoolwork, often being absent and “playing up” at school. This resulted in detentions, suspensions and finally being expelled halfway through Year 9.
39 You drifted into serious drug use, commencing with cannabis and alcohol, around the years when you were aged 12 and 13, and this included chroming. You were introduced to methylamphetamines at the age of 14, disclosing a pattern of daily use in combination with alcohol and cannabis.
40
At 18 you managed to cease your drug use for a period, and drink only modest quantities of alcohol at the weekend. Unfortunately you soon reverted to serious drug abuse involving methamphetamine.
41 In June last year, following your release from custody, you began using the drug GHB as well as amphetamines. You have also revealed occasional use of LSD, cocaine and ketamine.
42 Your employment has been sporadic, involving factory and labouring work, and some periods as a chef when you were involved in a Rebuild program run by the YMCA for two and a half years. Interestingly, you became a team leader in that program, and regarded that as a very rewarding role.
43 You have been involved in one major relationship which began when you were 18 and your partner 40. Your partnership lasted for a number of years, interspersed with periods when you were in custody. You have now ended that relationship and have expressed the view that it was toxic, with mutual drug use and arguments - often being physical.
44 A report from Mr Warren Simmons, psychologist, was tendered on your plea. Mr Simmons noted several matters of importance in your emotional development:
· your dislocated upbringing with the lack of stable male relationships and role models, and including violence;
· feelings of rejection by your mother;
· behavioural difficulties at school;
· early commencement of illicit drug use in combination with alcohol; and
· a dysfunctional personal relationship with your long term partner.
45 I note there is no evidence of any clinical psychological or psychiatric issues.
46 In mitigation I have taken into account the matters submitted by your counsel and in particular:
a) your significant addiction to drugs of dependence for the last 11 years;
b) the relevance of your early disadvantaged life to that addiction;
c) the break-up with your longterm partner prior to the offending occurring;
d) your plea of guilty being at the earliest stage in proceedings;
e) your expressions of remorse for your conduct;
f) your age at 26 years being acceptably relatively youthful;
g) the period of time you have spent in custody on remand and the circumstances of that remand including 22-hour lock-up.
47 These offences represent serious breaches of the law. Armed robbery in particular is a most serious offence, as is reflected in part by the penalty imposed by Parliament of a maximum of 25 years’ imprisonment. The impact of such offending is invariably very traumatic to the victims, and in this case this is eloquently reflected in the Victim Impact Statement tendered here.
48 It is aggravated by the threat to stab the victim and with that frightening confrontation being made in the presence of a young child.
49 You also have a previous conviction in 2010 for armed robbery.
50 Theft is also serious and is a common crime. The theft of number plates in order to make the detection of the car theft more difficult shows calculated, dishonest behaviour. You have numerous instances of prior offending for matters of dishonesty.
51 You have also been convicted for unlicensed driving on several prior occasions.
52 Your offending is further aggravated by the fact that it occurred during the currency of a Community Correction Order and also whilst you were on bail for other unrelated offences.
53 Your long history of illicit drug taking and its depth and range in recent years is most distressing. It is likely that it had its genesis in your early disadvantaged life without the care and nurturing that you might otherwise have had. I accept that this history has impacted on your ability to make rational choices. Nevertheless it is not an excuse for crime, and you have had opportunities to break the cycle. I understand and accept that your dysfunctional personal relationship has also had an effect on your capacity to rehabilitate yourself.
54 Whilst you very quickly descended into deep drug use following your most recent period in custody, and whilst you basically ignored the opportunities for help through a Community Correction Order, I still accept that you have the potential for rehabilitation if you really set your mind to it. You have a personal capacity for insight and have shown an ability to provide leadership to others in the past. You impress me as being intelligent, you are articulate and have demonstrated before that you can maintain a period of rewarding work in a drug-free environment.
55 Your responses to Mr Simmons were refreshing for their rational directness and lack of justification or minimisation of your acts. Your evidence in court also suggested an insight into the necessary path you should adopt to make the most of your time in prison for this offending.
56 Whilst your rehabilitation is an important factor in sentencing you, principles of denunciation as well as specific and general deterrence remain significant features.
57 Mr Fulton, could you please now stand.
58 On Charge 1 of armed robbery you are convicted and sentenced to 4 years and 6 months’ imprisonment.
59 On Charge 2 of theft you are convicted and sentence to 1 year’s imprisonment.
60 On transferred summary Charge 2 of unlicensed driving you are convicted and sentenced to 3 months’ imprisonment.
61 On each of the transferred summary Charges 4 and 7 of committing an indictable offence whilst on bail you are convicted and sentenced to 2 months’ imprisonment.
62 Charge 1 is the base sentence.
63 I direct that 3 months of the sentence imposed on Charge 2 and 1 month of the sentence imposed on summary Charge 2 be served cumulatively on Charge 1 and on each other.
64 The total effective sentence is 4 years and 10 months’ imprisonment.
65 I direct that the minimum term to be served before being eligible for parole is 3 years’ imprisonment.
66 I declare the period that you have already spent in custody in this matter, namely 169 days not including today, be reckoned as a period of imprisonment already served under this sentence and is to be deducted administratively.
67 For the purposes of s.6AAA of the Sentencing Act, but for you plea of guilty the total effective sentence that would have been imposed is 7 years imprisonment with a non-parole period of 5 years.
68 You may be seated for the moment, Mr Fulton.
69 At the plea hearing the Crown sought a disposal order which was not opposed, and I have made that order today.
70 I note that your armed robbery encompasses the theft of a motor vehicle and this has enlivened s.89(4) of the Sentencing Act, and pursuant to that section I further order that any driver's licence you hold be cancelled and you be disqualified from obtaining any such licence for a period of 6 months effective from today.
71 Are there any other matters from counsel?
72 MR MANNING: No, Your Honour.
73 HIS HONOUR: That being the case, Mr Fulton may be returned to custody.
74 Mr Fulton, you have shown and expressed a real aim to apply yourself appropriately in prison. I hope you can. As well as working through any psychological matters, which I think is correct and you should try to do, you really should work on your education and go as far as you can. There is no reason why you should not apply yourself there. You have got the intelligence to do that and it will also give you a better chance to have greater insight into your own condition, so I hope you can manage that and turn this around.
75 OFFENDER REMOVED
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