Director of Public Prosecutions v Fyfe-Wright

[2014] VCC 1019

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-14-00466

DIRECTOR OF PUBLIC PROSECUTIONS

v

KANE FYFE-WRIGHT

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JUDGE:	HER HONOUR JUDGE CANNON
WHERE HELD:	Melbourne
DATE OF HEARING:	24 June 2014
DATE OF SENTENCE:	27 June 2014
CASE MAY BE CITED AS:	DPP v Fyfe-Wright
MEDIUM NEUTRAL CITATION:	[2014] VCC 1019

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:             Sentence – Attempted armed robbery – Robbery – Possess cannabis – Plea of guilty – Prior criminal record – Parity – Underlying major depressive illness – Prolonged poly-substance abuse

Cases Cited:R v Lacey [2007] VSCA 196; Hoang v R [2013] VSCA 287; Verdins (2007) 16 VR 269

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms E. Broadbent	Mr C. Hyland, Solicitor for Public Prosecutions
For the Accused	Mr M Hume	Fitzroy Legal Service

HER HONOUR:

1Kane Fyfe Wright, you have pleaded guilty to the following offences:

2Armed Robbery which has a maximum penalty of 25 years' imprisonment, Attempted armed robbery which has a maximum penalty of 20 years' imprisonment, Robbery which has a maximum penalty of 15 years' imprisonment and Possession of cannabis which attracts a fine of five penalty units.

3Your offending was opened as follows:

4On the evening of 25 April 2013, you were in the company of co‑accused Peter Arvanitakis and Saultania Haltogiannidis.

5At about 11.35 pm, victims Anthony Crabb and his girlfriend, Gemma Portelli, both 19 years old, were in Mr Crabb’s car which was parked at a car park on the corner of Swan Street and Punt Road.  Mr Crabb was seated in the driver’s seat and Ms Portelli in the front passenger seat.  They were about to leave, having watched a band perform at the Corner Hotel on Swan Street.

6Mr Arvanitakis tapped on the driver’s side window.  Mr Crabb wound down the window.  Mr Arvanitakis asked Mr Crabb how he was and then walked away.

7In order to leave the car park, Mr Crabb had to do a three point turn.  As he stopped his car for the first time during the three point turn, Mr Arvanitakis tapped on his window again.  You were also standing at the driver’s side window. Mr Crabb wound down his window again.  In his right hand Mr Arvanitakis held a knife, approximately three to four inches in length.  A photo was tendered of the weapon on the plea.  Mr Arvanitakis grabbed Mr Crabb by the throat with his left hand and held the knife against Mr Crabb’s throat.  As he did this, Mr Arvanitakis shouted, “Give me your money now,” three times.  Mr Crabb told Mr Arvanitakis to take his wallet. Mr Arvanitakis said, “I don’t want your wallet I just want your money."  Mr Arvanitakis snatched Mr CRABB’s wallet. Ms PORTELLI grabbed the wallet back and opened it to show that there was no money inside.  This gives rise to Charge 2 – attempted armed robbery.  Ms PORTELLI took $30 from her wallet and handed this over.  This gives rise to Charge 1 – armed robbery.  You and your co-offender said words to the effect that you had Mr Crabb’s number plate details and that if the victims went to the police, you would find them.

8Mr Haltogiannidis was not charged in relation to this incident.

9Mr Arvanitakis then punched Mr Crabb three times to the face.  As a result of the punches, Mr Crabb sustained a deep laceration above his right eye brow and bruising to his lips which required antibiotics to treat.  You told Mr Arvanitakis to stop and you are not charged in relation to this particular offending.

10Mr Crabb closed the window.  You and the co accused walked off along Swan Street while Mr Crabb and Ms Portelli drove to Richmond Police Station to report the incident.

11At about 11.40 pm, as you and the co-accused were walking along Swan Street, the three of you approached a third victim, Deming Huang, who was 18 years old.  Mr Huang was walking along Swan Street towards Punt Road, having also been at the Corner Hotel.

12Mr Huang was facing the three of you.  Either Mr Arvanitakis or you approached Mr Huang and tried to talk to him. Mr Huang could not hear what was being said to him because he was wearing earphones.  He removed his earphones to hear the one who had approached him say, “Hey mate,” and then this same person, either you or Mr Arvanitakis, put his arm around Mr Huang’s head.  Mr Huang tried to run off but the male accused, who had not made the initial approach and Mr Haltogiannidis surrounded him and then the three of you tackled him to the ground.

13You dragged Mr Huang down Wellington Street.  The male accused who had initially approached Mr Huang, either you or Mr Arvanitakis, made demands, saying “Give me your wallet,” and “Give me your money.”  Mr Arvanitakis and you punched and kicked Mr Huang whilst he was on the ground.  While Mr Huang was on the ground, all three of you tried to take his shoulder bag from him.

14Mr Huang handed over his wallet to either you or Mr Arvanitakis, who searched through the wallet looking for money.

15(Charge 3 - robbery).  While this was happening, the other male accused put his hands on Mr Huang’s chest to stop him from getting up.

16Pedestrians and two Protective Service Officers from Richmond Police Station who witnessed the incident yelled out and attempted to approach.

17You and the co-accused ran down Wellington Street and turned into a laneway.  The knife that was used in the first incident was discarded in the laneway and later found by police.

18Mr Huang sustained multiple small haematomas on his scalp, swelling on his left cheek bone and superficial abrasions on both knees.  A photo of Mr Huang showing some of these injuries was tendered at the plea hearing.

Arrest and interview

19At about 12.03 am on 26 April 2013, you and the co-accused were found and arrested by police at the intersection of Blanche and Cremorne Streets, Richmond, a short distance away from where both incidents of offending took place.

20Mr Arvanitakis’ wallet was searched and $30 in the denominations matching those taken from Ms Portelli were found.

21When you were searched, police found two zip lock plastic bags containing approximately 3.2g of cannabis in your pockets (Charge 4 – possess drug of dependence).

22You and the co-accused were taken to Richmond Police Station and interviewed.  You made a ‘no comment’ interview.

Co-offenders

23Mr Arvanitakis was sentenced by me on 9 May 2014 in respect of armed robbery, attempted armed robbery and common law assault.  He was sentenced to a total effective term of two years' imprisonment with a non‑parole period of ten months’ imprisonment.

24Ms Haltogiannidis, who was charged with the robbery on Mr Huang only, as I understand the position, will contest the matter at trial, listed on 1 June 2015.

25     Mr Fyfe-Wright, as I said to Mr Arvanitakis when sentencing him, you and your co-accused engaged in thuggish behaviour toward young victims who were doing no more than attempting to make their way home, after going out for the evening.  You were party to a particularly nasty armed robbery where Mr Arvanitakis actually grabbed Mr Crabb by the throat and held the knife against his throat whilst his girlfriend looked on.  Such conduct makes Charges 1 and 2 particularly serious examples of this type of offending, that is, an attempted or completed armed robbery where a knife is used.  The robbery which was perpetrated upon Mr Huang was again, thuggish and cowardly.  Not only was he assaulted, but he was dragged along before any demand was made.

26In sentencing you, I have factored in that it was Mr Arvanitakis who played the leading role in respect of Charges 1 and 2, but that you played equal parts in respect of the robbery.  To your credit, you told Mr Arvanitakis to stop assaulting Mr Crabb, which puts you in an even better light insofar as Charges 1 and 2 are concerned, than he; however, you joined in when threatening the victims about having their registration number, which is an aggravating feature of those charges.  It also shows that you were not so drug addled that you didn’t have a sense of self‑preservation in attempting to scare off these victims.  It was most unfortunate that, having prevented further violence to Mr Crabb, you then saw fit to assault Mr Huang a short time later in a bid to steal money from him. Your offending is serious and requires a punishment which is just in all of the circumstances.  Your criminal conduct must also be denounced.  However, in assessing the objective seriousness of the offending, I have factored in that these were unsophisticated offences in nature - that is, the commission of them was unsophisticated in nature, and was fairly spontaneous.  Also, each incident was of relatively short duration.

27     I have taken into account the impact of your crimes upon the victims: Gemma Portelli says that since the offences were committed, she has felt more nervous about being out late at night and she has experienced feelings of anxiety when taking public transport, of being invited to go out with friends.  The offending to which you were a party has impacted on her lifestyle and everyday enjoyment, giving rise to a sense of fear and paranoia when she is out at night.  She is concerned about the future of her relationship in light of the impact that your offending has had upon both herself and her boyfriend.  She tries to block out the events of that night but it is not something, she says, that she will forget as it was a frightening experience as you might expect.

28     Deming Huang says that since the incident, he has been told to consider returning to China as he might be in danger if he stays here.  He has experienced nightmares since the offence and feels anxious when he walks at night, being concerned about those around him.  He annexed to his Victim Impact Statement a taxation invoice from Ambulance Victoria for $990.41. There is no compensation order against you as Mr Arvanitakis has paid this sum.

29     You have a number of prior matters by way of criminal history from three Court appearances:

(a) On 11 April 2012, you were convicted of 18 offences, most of which were road traffic matters, but which also included one charge each of unlawful assault, reckless conduct endangering serious injury and two charges of carrying a controlled weapon without excuse.  You were ordered to undergo a 12-month Community Corrections Order, which included a condition for assessment and treatment for drug and alcohol dependency and in respect of mental health.

(b) On 10 October 2012, you were re-sentenced in respect of these matters, after the breaching the CCO, apparently for non-compliance of the order.  You received a wholly suspended sentence for the offences to which I have just specifically referred as well as some of the road traffic matters, and in relation to the balance of those matters, these were adjourned with conviction to 7February 2014 and it was noted that you were willing to work with ‘Louise Keppa’ or nominee from YSAS for the purposes of minimising offending.

(c) On 4 April 2013, you were convicted of possessing cannabis and drinking liquor on rail premises and fined an aggregate of $250.

30     I note that you committed the offences before me during the operational period of a suspended sentence which was granted in part in respect of unlawful assault and carrying a controlled weapon.  Mr Moglia who appeared on your behalf at the plea hearing, described your prior matters as ‘street offending’ and said that the offences for which you were given a suspended sentence were not in the nature of the offences before me.  Whilst he conceded that it was an aggravating feature that you re-offended during the operational period of the suspended sentence, he submitted that there was not a great deal of relevance in the prior matters to those before me.  In my view, unlawful assault and two charges of carrying a controlled weapon are relevant, albeit that the offending before me is more serious.  The fact that you had the support of a drug counsellor at the time and re-offended when subject to a suspended sentence for relevant offences only months later, is an aggravating feature which has some weight.

31I was told that you were affected by Ice at the time of the offences before me, having abused drugs for a significant period of your life and in the context of an underlying major Depressive disorder, and general instability in your living situation.  I accept that it was your need for money to feed this addiction which led to the offending.  While it may well be the case that you chose to self‑medicate or to experiment with drugs at an age and stage of immaturity leading to addiction, I do not accept that your moral culpability for these offences before me is reduced because of this.  It is evident that you have had opportunities before to stop taking drugs, including the benefit of a Community Corrections Order, which you breached.  You were then afforded a suspended sentence which appears to be partly on the basis that you expressed a willingness to work with a drug counsellor, and you have undergone detoxification on a number of occasions.  In these circumstances, although you have evidently battled with drug use over the years, your decision to commit the offences before me, when you had been afforded significant chances to stop drug abuse, does not reduce your moral culpability or the weight that I would otherwise give to factors such as punishment and denunciation.  I was referred to R v Lacey [2007] VSCA 196, but in my view, your case is more analogous to Hoang v R [2013] VSCA 287 [24]-[29].

32Further, the fact that you were affected by Ice when you committed these offences heightened the potential dangerousness of your conduct.  Although you have been successfully addressing your drug addiction in more recent times, I must still be concerned for the protection of the community, and in view of your criminal history your offending on this occasion and your difficulties with drugs and underlying mental health issues, I give some weight to that factor.

33I make it clear that I have not treated your drug abuse at the time you committed the offences for which I now sentence you as an aggravating factor, but I now put you on notice, Mr Fyfe-Wright that there is a link between your abuse of drugs and committing criminal offences.  If you abuse drugs in the future and then commit offences, your decision to take drugs may well be viewed as an aggravating factor by a sentencing judge in the future, who may well have a copy of my sentencing remarks.  This means that you will be at significant risk of a higher sentence than would otherwise be the case.

34I take into account your plea of guilty and the stage at which it was entered.  Your plea was entered on the day listed for a contested committal hearing, which is a slightly later stage than that for Mr Arvanitakis.  However, no witnesses were called.  In the circumstances, I have allowed for a significant discount in the sentence you would otherwise receive as you have saved the witnesses, especially the victims, the trauma and time of giving evidence and you have saved the community the time and expense of contested proceedings.  I am also satisfied that you have genuine remorse for your actions and have appropriate insight into how your offending has impacted on the victims.

35While you accept the inevitability of a gaol term, this has not prevented you from commencing a path of rehabilitation, which is to your credit.  Since offending it appears that you have abstained from drugs and you have not committed any further offences.  You have also demonstrated a preparedness to do something about your position by obtaining a stable home environment and employment.  You have now obtained a driver’s licence which is a further positive step toward rehabilitation.  The people who have taken you in and who have given you a job will continue to support you in these ways upon your release from gaol.  You have continued to keep in touch with Ms Keepa Huna Huna, who has been your drug counsellor since 2011, and before that, you had been engaged with YSAS since March 2010.  Ms Keepa Huna Huna provided a letter in support of you and also gave evidence.

36At the time that you committed the offences you were ‘couch surfing’ and financially desperate, and it would also appear that you were suffering from depression as well as having a poly-substance abuse problem.  Unfortunately, as you were not an Australian citizen you were not entitled to Centrelink payments or a health care card, and therefore, you could not access health and mental health services; nor could you obtain funding for medication to address your depression and anxiety.  On the other hand, Ms French for the prosecution, made the point that somehow you were able to fund an illicit drug habit.  In any event, Ms Keepa Huna Huna, with whom you have a strong rapport, spoke well of you in respect of your efforts to address your drug problem whilst with YSAS, achieving a number of goals and developing strategies in order to lead a productive life.  She gave evidence that you had subjected yourself to detoxification on a number of occasions in a bid to improve your lot, which shows that you have attempted to deal with your drug problem.

37It was not put that your mental health issues ought result in a reduction of your moral culpability, but because of these, I have allowed for some reduction of specific and general deterrence.  I have also allowed for the fact that time in gaol will be harder for you than for someone without your difficulties and that this is and will be your first time in gaol.

38In sentencing you, I have also taken into account your background: You have had a difficult life which was set out in the course of the plea and referred to by Ms Lechner, psychologist.  Your father left when you were an infant.  Your mother re-partnered when you were six years old.  You and your mother were subjected to violence at the hands of your step-father.  Your mother has since separated from him.  You have struggled with your relationship with your mother, but things are slowly improving.  You are not in any intimate relationship; in the past, you have had two relationships, both of which ended because of your drug abuse.

39You left New Zealand with your family when you were 12 years old, and had a rather tough time at school being teased about your accent.  According to Ms Lechner’s report, you ultimately attended the Frank Dando school which is renowned for its strict and markedly different approach to discipline.  However, you seemed to say to Ms Lechner that you enjoyed aspects of this school and became proficient at boxing and swimming.  You also made some friends there.  After you left school, you worked in a factory for six months then you were unemployed for a few years, and since the start of this year you have worked as a labourer, stripping and sealing vinyl floors.

40You commenced drug use, mainly marijuana when you were in your mid‑teens at a time when your step-father was behaving in a threatening manner in a bitter custody battle over your half‑brother, Bailey.  According to your report to Ms Lechner you smoked about 7 grams of marijuana a day for five years then went on to using other drugs such as speed and Ice, using marijuana to come down off those drugs.  You have also used a number of other drugs.  You were prescribed Zoloft a few years ago but you told Ms Lechner you stopped this and ‘had more weed’.  This appears to be in line with Ms Keepa Huna Huna’s evidence, although you did not explain to Ms Lechner that finances prevented you from obtaining this medication, apparently able to somehow access ‘more weed.’  You have also abused alcohol, drinking a four-litre cask of wine a day in the past, but you said that you now only get drunk on the weekends.  Your most recent detoxification occurred in late 2013 and you no longer take drugs.  While this is a great effort, it is still early days, especially in light of Ms Lechner’s observation that your pattern in the past has been to turn to drugs when experiencing stress.  Ms Lechner was of the view that you were socially and emotionally immature, your development having been arrested by early drug use.

41As at the plea hearing, you were not taking medication for your mental health, however, Ms Lechner was of the view that you ought be reviewed in this regard.  I have had her concerns conveyed to the prison authorities in respect of your mental health and review of the need for appropriate treatment, which I do hope has now been addressed.

42You are now 22 years old and had recently turned 21 at the time you committed the offences before me.  Whilst the offending is serious and you have some prior matters, this does not mean that I ought not do what I can to maximise your prospects of rehabilitation.  This is an important consideration in your case which I have given a good deal of weight in arriving at an appropriate sentence.  Mr Fyfe Wright, whilst in prison, I trust that you will remain determined to lead a productive life and to re‑enter the community free of drugs and ready to embark on a fulfilled and fulfilling life.

43All relevant matters considered, both in your favour and against, I consider that your prosects of rehabilitation are fairly good, so long as you continue on the path of drug abstinence, employment, stable accommodation, and taking advantage of every support you can to address your mental health and drug issues. If not for a Verdins allowance, I would have placed moderate weight on specific deterrence; in view of Verdins, I have given this principle less than moderate weight.  General deterrence would normally have strong weight in offences such as these, however, I have reduced this to some extent because of your mental health issues.  While gaol is inevitable as was properly accepted by you through your Counsel, I am of the view that you would benefit from a lengthier period of parole than might otherwise be the case.

44In applying the principle of parity as between you and Mr Arvanitakis, I have come to the view that all the matters of difference between your respective situations just about balance each other out.  While he played a more serious role than you in respect of Charges 1 and 2, your prior matters are more extensive and you committed the offences before me whilst being subject to a suspended sentence.  You are both about the same age, although he is a little older, and his mental health issues were somewhat more severe than yours, although it appears he had better family support than you have enjoyed.  He committed an additional offence to you which you stopped him from continuing, which is something which materially distinguishes you to some extent, and of course, you do not fall to be sentenced in respect of that particular matter.  All things considered, it is appropriate to sentence you to a slightly lesser term of imprisonment than Mr Arvanitakis.

45     In sentencing you I am cognisant of the fact that attempted armed robbery has a maximum penalty which is five years less than that for armed robbery; however, your co-offender’s use of the weapon against the throat of the victim in relation to the attempted armed robbery has led me to impose the sentences that I have, albeit that you played a lesser role in respect of this offence.  Also, I regard the offence of robbery, in which you played an equal role, as a serious example of this offence.

46Would you please stand up, Mr Fyfe Wright.

47In respect of each of the offences, you are convicted.

Ancillary orders:

48I make the disposal order which is consented to by you in the terms of the draft document provided by the Crown.

49     I make an order for a forensic sample to be taken from you by way of a scraping of saliva from the mouth. I make the order because it is not opposed by you, because of the seriousness of the offences and because it is in the public interest to do so and also because of your prior convictions.  Notwithstanding your present lack of opposition to the order, I warn you that if you do not co-operate with the officer who is authorised to take the sample, reasonable force may be used to ensure your compliance.

50You are sentenced to the following periods of imprisonment in respect of Charges 1 through to 3:

51Charge 1, armed robbery – 15 months.

52Charge 2, attempted armed robbery -17 months.

53Charge 3, robbery – 16 months.

54In respect of Charge 4 you are fined $200 and I grant you a stay of ten months to pay the fine.

55     Charge 2 will be the base sentence.  I direct that two months from the sentence on Charge 1 and three months from the sentence on Charge 3 be served cumulatively with each other and with the base sentence, giving a total effective sentence of 22 months and I direct that you serve nine months' imprisonment before becoming eligible for parole.

56     I declare that you have already served three days as part of this sentence.

57     If not for your pleas of guilty I would have sentenced you to a total effective term of two years, ten months' imprisonment with a non-parole period of 22 months.

58     You would take a seat for a moment please, sir.  Is there anything arising from those remarks?

59     MS BROADBENT:  Nothing arising, Your Honour.

60     MR HUME:  No, Your Honour.

61     HER HONOUR:  Yes, thank you.  Yes, you may remove Mr Fyfe Wright, thank you. We will now adjourn.

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