R v Foster
[2013] VCC 1257
•19 September 2013
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR-13-01045
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SHANE JAMIE FOSTER |
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JUDGE: | HIS HONOUR JUDGE PUNSHON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13 September 2013 | |
DATE OF SENTENCE: | 19 September 2013 | |
CASE MAY BE CITED AS: | R v Foster | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1257 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr N. Goodfellow | OPP |
| For the Accused | Mr. L. Gwynn | Lethbridges |
HIS HONOUR:
1 Shane Jamie Foster, you have pleaded guilty to one charge of attempting to obtain a financial advantage by deception (Charge 1), one charge of criminal damage (Charge 2), one charge of extortion (Charge 3) and one charge of making a threat to kill (Charge 4). The offending spans the period between 14 January 2013 and 16 January 2013.
2 The prosecutor Mr Goodfellow, opened the circumstances of the offending by reading from a written prosecution opening which was tendered.
3 The attempt to obtain by deception concerns an attempt to obtain $20,000 from an insurance company by falsely representing that your motor cycle had been involved in an accident with a vehicle driven by your son’s girlfriend and owned by her mother (Charge 1). To your annoyance the progress of the scam was delayed causing you to then damage the car owned by your co-conspirator’s mother (Charge 2). You were arrested, questioned, made denials and were released pending summons. You then telephoned your co-conspirator in the intended insurance fraud. You threatened to drive your car through your co-conspirator’s mother’s house if you were not paid $20,000 (Charge 3) and kill her (Charge 4).
4 When interviewed about Charges 3 and 4 you made partial admissions concerning the threats but said you could not recall what was said.
5 You have a very extensive prior criminal history, dating from 1986, however you have not been sentenced to immediate imprisonment for over a decade. Your prior history includes dishonesty and violent offending. You have a very poor history of breaching supervisory orders including Community based orders and suspended sentences. Your last conviction was in October 2010. In 1999 you were sentenced to 2 months imprisonment, wholly suspended, for making a threat to kill. There is a further entry on your record for making a threat to kill in 2000 but its presence is confusing and I intend to disregard it as counsel agree I should.
6 You have consented to me making a Disposal Order and I will do so.
7 The motivation for the intended fraud was financial pressure. You were behind in mortgage payments and had considerable other debts.
8 Your counsel relied on a number of matters in mitigation.
9 You pleaded at the earliest reasonable opportunity. In addition, your plea to Charge 1 was in circumstances where without it the charge may have been difficult to prove because of the need to rely on the evidence of your co-offender. She still has not been charged and the prosecutor said he could not advise further concerning this. There was a further discussion this morning about the significance of your pleas to Charges 3 and 4 and I accept that you were always determined to plead guilty.
10 You must benefit from your pleas of guilty. They save time, expense and the need for witnesses to give evidence. I am prepared to accept that they were also accompanied by remorse.
11 A psychological report from Dr K. Yohannes of Open Place, a medical report from Dr S. Gray and a psychiatric report from Dr D. Tofler were tendered. A letter from your partner Ms Georgia Foster, who also attended court to support you, was also tendered.
12 The material confirmed that you have had a difficult, disadvantaged and deprived upbringing.
13 Critically, you have suffered from ADHD from childhood. This condition was only diagnosed in 2010. The material just referred to was relied upon to support the submission that you are currently at a critical stage in your rehabilitation and that it was in your interests and the community’s interests to facilitate further rehabilitative progress rather than put it at risk by immediate imprisonment.
14 The prosecution submitted that I should imprison you for between 15 and 20 months and fix a non-parole period of between 9 and 14 months. There was a shift in prosecution submissions concerning the length of the non-parole period and discussion concerning factors relevant to its length, however, the crucial submission by the prosecution is that immediate imprisonment of between 15 and 20 months should be imposed.
15 Your counsel, in a powerful plea, submitted that despite your appalling record and the nature and seriousness of the offending I should release you on a Community Corrections Order. In short, as I followed the submission, although immediate imprisonment might ordinarily be appropriate given the offending and your history the course of your improvement since the offending and the opportunity to consolidate it was such that you should be given a further chance to reform your life and avoid crime.
16 He submitted that your mental health was unstable at the time of the offending and although you were using drugs the underlying ADHD is highly likely to have contributed to your offending in a way that should reduce your moral culpability.
17 Furthermore, immediate imprisonment is likely to expose you to the contaminating influences of gaol and deprive you of crucial supports that are currently proving effective. Mr Gwynn argued that if you were imprisoned your treatment foundations would be removed and the risk of decline would be significant.
18 The prosecution agreed that the first limb of the Verdins principles was activated but because you were using drugs and were medication non-compliant at the time of the offending and because of the difficulty of unravelling the way in which your mental state problems contributed to the offending, this contribution or connection should be treated with caution and the reduction in moral culpability given only limited weight.
19 As I see it, Charge 2 and Charges 3 and 4 seem to have occurred when you were explosively angry. You seem to have had little regard to the potential for being observed when you damaged the car. In fact, a neighbour saw you and called the police. You specifically stated when making the threats, the subject of Charges 3 and 4, that you did not care if you were being recorded or if your conduct resulted in 10 years imprisonment. As well as threatening to kill your co-conspirator, you threatened to break her legs. In fact a police officer was with the victim at the time of the call and overheard the remarks. Clearly, your conduct was highly irrational. Whilst it is not unusual for people committing crimes to behave irrationally, quite the contrary, the likelihood is that your underlying ADHD contributed to the offending. Whilst this might reduce our moral culpability, ordinarily it would increase your dangerousness as well as the need to protect the public and increase the risk of re-offending. Your past history only reinforces this.
20 The submission made by your counsel is that you are now at a critical stage where, with appropriate support, the pattern can be broken and that this opportunity should be grasped.
21 I accept that you have had a very difficult and disrupted upbringing and were out of control at an early age. You experienced childhood trauma, abandonment and homelessness. You met your father, who was subsequently murdered, when you were both in prison. Dr Yonannes, who referred to DHS records, saw you as one of the ‘Forgotten Australians’.
22 As noted earlier, your ADHD was first diagnosed in 2010. Your treating practitioners consider your complex biopsychosocial history will take some years to fully identify. Of course you were receiving support at the time of the current offending.
23 In early 2012 you attempted suicide by overdosing on prescription medication. In August 2012 you began receiving weekly counselling support at Open Place. Initially you were thought to have extremely low self-esteem, severe anxiety and depression. Impulse control was problematic and you suffered major setbacks. As I followed the report from Dr Yohannes the current offending represents such a setback.
24 After your arrest you spent 20 days in prison before being bailed. Since release on bail you have made considerable improvement. There has been no further offending. I accept that the experience of 20 days imprisonment has had a salutary effect upon you.
25 You have attended 30 individual counselling sessions and 7 family therapy sessions over the last year. You have been punctual and enthusiastic. You are now in a relapse prevention phase. You are medication compliant, have accepted responsibility for your young son, completed anger management skills training, you are dealing with your past, you are making positive steps to avoid deleterious friendships and are seeking employment. Dr Yohannes has considerable confidence in your continued progress.
26 Dr Gray considers you have been making every effort to manage your condition. She described you as proactive in seeking help and said that your general health and mental health continued to improve. She noted your desire to continue to improve and thought you would do so.
27 Dr Tofler saw the current offending in the context of poor medication compliance and illicit amphetamine use “hopefully for the last time”. He thought you “unlikely to engage in the behaviour of the alleged offences again”.
28 He noted your remorse, which you confirmed in evidence before me. He thought your current “good lifestyle” would be jeopardised by imprisonment and significantly impact on rehabilitation and treatment.
29 You met your wife in 1993. However, she was sent to Greece where she married and had a child, who has always referred to you as his father. She returned to Australia in 1995 and you have been together since, although you were separated around 2008/2009. You married in 2010. You currently live as a couple along with your 7 year old son. You and your wife have both been drug users and at times life has been very difficult for both of you. There have been periods in the 90’s when you would disappear for days, weeks or even months, according to your wife.
30 After your condition was diagnosed your wife described improvements but also setbacks particularly with the loss of employment.
31 After being released on bail she said you have “made some amazing changes and has taken advantage of the opportunities to rehabilitate himself to be a productive member of society”.
32 As noted earlier you gave evidence before me and subjected yourself to the risk of cross-examination, although the prosecutor in fact asked no questions. As well as expressing remorse you said you wanted to better yourself, that you had “had enough” and were 100% confident that you could reform. You said you have never felt as you currently do, attributing this to the effectiveness of your medication. Offenders rarely give evidence on pleas in this jurisdiction.
33 I have found your case very difficult. My first thought was that imprisonment was inevitable. If I did imprison you it would be likely to be for a relatively modest period, perhaps around the lower end of the sentence range submitted as appropriate by the prosecution. Given your rehabilitative efforts I would be likely to impose a greater differential than the required 6 months between the sentence and non-parole period.
34 I had you assessed to determine your suitability for release on a Community Corrections Order. You were found suitable.
35 The balance is very fine. I accept Mr Gwynn’s submission that the CCO regime was intended to be available in those cases where an offender was at real risk, perhaps imminent risk, of immediate imprisonment.
36 I consider all of the offending to be serious. The intended fraud was for a substantial sum. The damage to the car, although confined, was an act of intolerable rage. The outburst on the phone, irrespective of how one translates it into specific offences, is likely to have produced considerable anxiety and concern despite the absence of victim impact statements.
37 Despite the fact that I consider this result merciful, I will convict you on all charges and release you on a Community Corrections Order for 18 months. The following conditions will apply:
· You will be under supervision (s.48E)
· You will be required to perform 150 hours of unpaid community work (s.48C)
· You are to be assessed and undergo treatment for a) drugs and for b) alcohol.
· You are to undergo mental health assessment and treatment.
· You are to undertake offender behaviour programs as directed (s.48D).
In other words, they are the recommendations of the assessor.
38 You should clearly understand that this result as I have said was finely balanced against immediate imprisonment and I am aware that I am taking a significant risk in imposing this order. Many would say you deserve no leniency. If you breach this order, in the absence of something unforseen, you will be imprisoned. The fact that you were sentenced as a serious offender on the charge of threat to kill is to be noted in the court records.
39 Is there anything I have overlooked that needs correcting that counsel can identify?
40 MR GOODFELLOW: There is not - I think there might be a formal declaration of PSD.
41 HIS HONOUR: I do not think I need to do that unless I am imposing imprisonment. I will certainly note that Mr Foster served 20 days by way of pre-sentence detention. The way I see it, Mr Goodfellow, is if he breaches, and as I have just indicated, imprisonment is almost inevitable, he would be entitled to have the PSD declared then.
42 MR GOODFELLOW: Thank you, Your Honour.
43 HIS HONOUR: I have signed the disposal orders. I will hand them down and - I think I will leave the Bench and let Mr Bastionon prepare the documentation. When it is all prepared I will get him to show it to both of you and would you check it for me?
44 COUNSEL: Yes, Your Honour.
(Short adjournment.)
45 HIS HONOUR: My associate just made an inquiry. It is correct, I need to have noted in the records that Mr Foster has been sentenced as a serious offender irrespective of the outcome, do I not?
46 COUNSEL: Yes, Your Honour.
47 HIS HONOUR: Very well. You have both checked the document?
48 COUNSEL: Yes we have.
49 HIS HONOUR: I have checked it as well, I think it is correct so we will get your client to sign it.
50 Very well, that is the lot.
51 COUNSEL: If Your Honour pleases.
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