IN THE COUNTY COURT OF VICTORIA	Revised
Not Restricted
Suitable for Publication	
AT MELBOURNE
CRIMINAL DIVISION

Case No. CR-19-00325

DIRECTOR OF PUBLIC PROSECUTIONS

v		

EVAN FOX
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JUDGE:	HER HONOUR JUDGE HAMPEL	
WHERE HELD:	Melbourne	
DATE OF HEARING:	2 July 2019	
DATE OF SENTENCE:	10 July 2019	
CASE MAY BE CITED AS:	DPP v Fox	
MEDIUM NEUTRAL CITATION:	[2019] VCC 1047		

REASONS FOR SENTENCE
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Subject:		
Catchwords: 	Sentence – kidnapping – mandatory imprisonment – exceptions – assistance – youth – psychosocial immaturity – pre existing conditions – foreign national – visa cancelled after charged – unlawful non-citizen subject to deportation on release from custody – ineligible for CCO due to migration status – period in migration detention taken into account in general way in fixing term of imprisonment – unfair disparity with co-offender not liable to deportation
Legislation Cited:	
Cases Cited:		
Sentence:		
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APPEARANCES:
	Counsel	Solicitors	
For the Crown	Mr A. Malik	Office of Public Prosecutions	
			
For the Accused	Mr P. Tiwana	James Dowsley & Associates	

HER HONOUR:

1	Evan Fox, you have pleaded guilty to one charge of intentionally damage property and one of kidnap.
2	The offences occurred in the early hours of the morning of Sunday, 3 June 2018.  You were living with your co-offender, Joshua Dodemaide, at an address in Carrum Downs.  You had been at home drinking with Mr Dodemaide and others and you have gone to bed at about 2 am.  At about 3 am you and Mr Dodemaide were apparently awoken by the sound of a car doing a burn out in front of your house.  You both immediately grabbed implements and got into Dodemaide’s Toyota HiLux intending to pursue and locate the vehicle that had done the burnout.
3	Jarrad Muscat, a person unknown to you, was driving his ute along the street where you live to the house of a friend of his at about 3 am.  He happened to cross paths with the HiLux that you and Mr Dodemaide were in.    Mr Dodemaide, who was at the wheel of the HiLux, slowed down and moved into the centre of the road causing Mr Muscat to stop.  You and Mr Dodemaide got out of the HiLux and took to Mr Muscat’s ute, hitting it with the implements you had armed yourself with before leaving the house.  Mr Muscat described one of the weapons as similar to a mace, a ball on the end of a rope with a handle.  The two of you struck at the windscreen and the driver's window causing damage to the vehicle.  That is Charge 1, criminal damage.
4	Muscat, fearing for his safety, reversed his car and then drove forward and around you down the street at some speed.  The two of you got back in to Dodemaide’s HiLux and chased him.  When Mr Muscat reached an intersection, he stopped.  He saw your vehicle in pursuit and did a u-turn to go back along the road in an attempt to get to his friend’s house and safety.  As he completed his u-turn, Mr Dodemaide, with you in the passenger seat, crossed the median strip and rammed the driver's side door of Mr Muscat’s car.  It caused Mr Muscat’s car to spin and the HiLux itself continued forward until it crashed into a wall.
5	That gives rise to the charge of reckless conduct endangering serious injury to which Mr Dodemaide has pleaded guilty but with which you have not been charged.  So I recite that only as part of the narrative.  I do not take the circumstances of that charge into account as a separate charge in sentencing you.
6	When the two cars came to a halt, you and Mr Dodemaide got out of your car and approached Mr Muscat who remained in his car.  You dragged him from the car, threw him up against it, and then started punching and kicking him to his head and body.  Mr Muscat was mystified as to why the two of you had pursued him.  He said ‘What have I done?  I don’t even know you’.  Mr Dodemaide said ‘Don’t fuck with me.  I'll kill you now.  I have got the footage’.  Mr Muscat said ‘What footage?  I was just driving past’.  Dodemaide said ‘You know what footage.  You know what you fucking did’.  It would appear that those references to the footage were from a CCTV camera outside the house that you and Mr Dodemaide were living in and which Mr Dodemaide at least seemed to believe would identify Mr Muscat as the person who did the burn out.
7	Mr Muscat said ‘I’m Jarrod Muscat.  Are you sure you got the right guy?’  As this was happening, despite his protestations of innocence and his preparedness to give the two of you his name, the two of you dragged him into the HiLux and threw him into the back seat.  You got into the driver's seat of the HiLux and Dodemaide got into the back seat with Mr Muscat.  Those circumstances, dragging Mr Muscat into the HiLux, throwing him into the back seat and the two of you getting into it with him constitutes the charge of kidnap, to which you have pleaded guilty.
8	In Mr Muscat’s presence, you and Mr Dodemaide then had a conversation about getting rid of Mr Muscat’s car.  You said ‘If we leave it there they will be able to find him'.  You then got out of the HiLux and got into Muscat’s car and tried to start it but because of the extent of damage caused by the ramming you could not.  While you were trying to do that, Mr Dodemaide got into the driver’s seat of the HiLux and drove away with Mr Muscat still in the rear seat.  He then caused further injury and made further threats to Mr Muscat who eventually, after the HiLux had driven off, took the dangerous step, which shows the desperate circumstances he was in, of opening the door and throwing himself out of the speeding vehicle.
9	As you saw Mr Dodemaide driving away with Mr Muscat in the back of the HiLux, you ran back along the road and into your home.  Mr Muscat, having made his escape, went to the address that he’d been intending to go to and called the police.
10	Mr Dodemaide eventually returned to the home that you occupied with him.  He told you that Muscat had escaped and he then left with two women that were at the house to take the HiLux somewhere else so that it could be hidden.
11	Although police attended the scene shortly after Mr Muscat got to his friend’s place, they weren’t able to identify at that stage who was responsible for the attack on him.  Later that afternoon though, at about 4.40 pm, they went back to the scene.  They saw tyre burn out marks on the road outside your house and spoke to you.
12	You told police that the CCTV system was not functional and that you had heard some burnouts during the night.  You did not however volunteer your involvement in the offending.
13	As it turned out, the CCTV footage was ultimately seized. It did show a vehicle doing burnouts. But it was not Mr Muscat's ute.  That is something you accept now.  I also accept that you had a basis for believing that the CCTV footage did not record, but simply live-streamed. Therefore I do not take into account, as a feature of the seriousness of the offending, that you deliberately lied to the police about the state of the CCTV footage.
14	Some weeks later, a search warrant was executed at your home.  That is when the CCTV footage was obtained. The following day you were interviewed and made a 'no comment' interview.  Fingerprints of yours were ultimately identified from a latent impression taken from the driver's side of Mr Muscat's vehicle.  You were again interviewed in August and again made a 'no comment' interview.  However, you were ultimately charged, remanded in custody for a short time, released on bail, and then ultimately moved to immigration detention in circumstances I will come to shortly.
15	Before the committal proceeding, and after, I think, you had gone into migration detention, you by arrangement met with the police and made a witness statement in which you told the truth.  You implicated yourself and, significantly, you implicated Mr Dodemaide.
16	You told the police that you had heard the screeching of tyres out the front of the house and you could see the smoke from a burnout, that you had grabbed a wooden stick and Dodemaide had also grabbed something and that the two of you got into the HiLux to go to look for the vehicle that had done the burnout. You said that, as Dodemaide drove up the road, the two of you had seen a dark coloured ute stopped in the middle of the road.
17	You said that Dodemaide had got out of the HiLux first and hit the windscreen and side of the ute with a weapon or a stick and that you could see the driver inside the ute.  You said that you may have hit the ute with your hand and you threw the wooden stick you had at the ute as it drove off but you missed.
18	You said that you and Dodemaide had got back into the HiLux and followed the ute, that Dodemaide had driven the HiLux into the driver's side of the ute and that you and Dodemaide had then run over to the Holden and punched the driver through the driver's side window.  You admitted that you had punched him once or twice to the side or to the face.  You also said that the two of you had taken the driver out of the ute, accused him of doing something to your house and that the driver had kept on denying he had done anything.
19	You said it was Dodemaide who dragged the driver to the HiLux, placing him in the back. You acknowledged that you got into the driver's seat and then that you had got out of the HiLux and tried to move the ute, but unsuccessfully because it was damaged, and that you had returned home.
20	At the conclusion of making that statement, which I must say is entirely consistent with the account given by Mr Muscat, but for the allegation of the two of you dragging him out of his car and into the HiLux, you told the police that you were sorry for the harm caused to the victim and for your role in the offending.
21	This was a senseless attack, which must have been terrifying for Mr Muscat.  As you now acknowledge, he was not the driver doing the burnout.  But even if he were, that would not have justified your actions.  In fact, the discovery that he was not the person doing the burnout demonstrates one of the vices of vigilante behaviour.  That the wrong person, an entirely innocent person, can be attacked, assaulted and terrorised for no good reason.  He was subjected to a terrifying and a vicious attack which sprang from an irrational and mistaken belief he had done something.  And what had he done?  Nothing worse than a burnout in front of your house.
22	It is noteworthy that, when the police attended later that day, the burnout marks were in the street out the front of the house, not in the driveway as had been put on Mr Dodemaide's behalf, but not on your behalf on the plea before me.
23	That you and Mr Dodemaide were substance impaired and may have been, as a result, disinhibited does not diminish the seriousness of the offending.  In fact, in my view, it adds to the seriousness of it.  You, and others like minded, must understand that vigilante attacks of this sort are not to be tolerated.  And you, and others like minded, must understand that pursuing a person, attacking him and his car in the way the two of you did, bundling him into your co offender’s car, threatening him and then having one of you drive him off is simply not to be countenanced.  In the cold light of day, I hope that when you think of what you did you are ashamed of yourself.
24	It is clear that, subject to considerations personal to you, just punishment, deterrence, both general and specific and denunciation therefore loom large in the sentencing mix.
25	Turning then to matters personal to you.  You were 20 at the time and are now only 21.  You have had no other involvement in the criminal justice system.  You are properly to be regarded as a youthful first offender, for whom encouraging or promoting rehabilitation should generally carry more weight than it would for older offenders and for whom, therefore, general deterrence generally carries less weight.
26	Generally imprisonment is, by s 5(4) of the Sentencing Act, and the application of general sentencing principles, the sentence of last resort.  It cannot be imposed if another sentence which does not involve the deprivation of a person's liberty is available as a matter of law and appropriate having regard to the circumstances of the offence, the offender, which will properly serve the needs of just punishment, denunciation, deterrence, promotion of the offender’s rehabilitation and protection of the community.  That is, to use the language of s 5(4), a court must not impose a sentence that involves the confinement of the offender unless it considers that the purpose or purposes for which the sentence is imposed cannot be achieved by a sentence that does not involve the confinement of the offender.
27	Further, by s 5(4C), a court must not impose a sentence that involves the confinement of the offender unless it considers that the purpose or purposes for which the sentence is imposed cannot be achieved by CCO to which one of the non-association, residence, place or area restriction or exclusion, curfew or alcohol exclusion conditions available as part of a CCO are attached.
28	Subsections 5(4) and (4C) are now expressly made subject to s 5(2H).  That is, a person sentenced for a Category 2 offence must be sentenced to a term of imprisonment, unless one of the specified statutory exceptions apply.
29	Kidnap, the second charge to which you have pleaded guilty, is a Category 2 offence.
30	The exceptions which permit the imposition of a sentence other than a term of imprisonment for kidnap include, by s 5(2H)(a), assistance to law enforcement authorities in the investigation and prosecution of an offence.  The clear and unchallenged evidence in this case is that you provided such assistance to the authorities, in respect of your own role and that of your co-accused in the offences for which you and he now fall to be sentenced.
31	It is acknowledged by the prosecution that, but for your assistance, your co-offender would not have easily been identified or charged.  It was only after he had been served with your statement implicating him and advised that you were prepared to give an undertaking to the court to give evidence against him at trial, that he abandoned what he had then pursued as a contested committal, which would otherwise have subjected the victim to cross examination on his behalf.  He then embarked on and negotiated his own guilty pleas reflecting his involvement in this incident.
32	The co-accused was your friend and housemate.  On the agreed facts, he played a greater role.  If it is properly put that he initiated the offending it must be said that you were an active and immediate follower.  He was the driver who rammed the victim's car so dangerously and he was the person who drove off with the victim in his car after you got into the other vehicle to try to move it.  And it was he who threatened to kill Mr Muscat, not you.
33	Your assistance, therefore, is of a high order.  Without that evidence and without his plea of guilty precipitated by that, that evidence would not have been available.
34	As the Court of Appeal has repeatedly made clear, public policy demands that assistance to authorities, by way of informing on co-offenders and being prepared to give evidence against them, is to be encouraged and reflected in the imposition of sentences considerably lower than the offending might otherwise merit.
35	The exceptions which permit the imposition of a sentence other than a term of imprisonment for kidnap, at the time of this offending, also included, by s 5(2H)(b)(i), for offenders aged between 18 and 20 at the time of the commission of the offence, those with a particular psychosocial immaturity which has resulted in a substantially diminished ability to regulate their behaviour, when compared with the norm for a person of that age.
36	You were, at the time of offending, relevantly for s 5(2H)(b)(i), aged over 18 and under 21.  A psychological assessment of you was conducted by the psychologist, Ms Ferrari, for the purposes of the plea.  It reveals that you have a combination of: impaired attention and behavioural development following a traumatic brain injury at age 2, challenging childhood behaviours, which adversely impacted on your schooling and social interactions, posited by her now as likely to be, although undiagnosed or treated, attention deficit hyper-activity disorder, and symptoms of major depression and anxiety from adolescence, which have persisted into your early adulthood.
37	Ms Ferrari’s report focussed more on the significance of these conditions to the application of the principles in Verdins, which concerns the impact on sentencing of impaired mental functioning more generally.  She concluded that this combination of factors led to a maladaptive pattern of behaviour, which included alcohol and polysubstance use, or abuse, to levels properly falling within the classification of polysubstance use disorder.
38	Her findings, in my view, support the conclusion also that, at the time of the offending, you were psychosocially immature, and that psychosocial immaturity substantially diminished your ability to regulate your behaviour, in comparison to the norm for 20 year olds.  And that is even taking into account your impairment by drugs and alcohol on the night.  I am satisfied that you have discharged the onus of proving it is more likely than not that you were psychosocially immature at the time, and that particular psychosocial maturity resulted in a substantially diminished ability to regulate your behaviour on this night, when compared with the norm for persons of your age.
39	However, neither your youth nor your psychosocial immaturity and resultant inability to regulate your behaviour in the way ordinarily expected of a 20 year old, is of practical use in bringing you within these exceptions to the otherwise mandatory imprisonment for this Category 2 offence of kidnap.
40	You are an Irish national.  You came to Australia at 15, as a dependent child.  Your stepfather and mother decided to leave Ireland in search of better opportunities following the downturn in Ireland’s economic fortunes in the wake of the GFC.  Your stepfather obtained a skilled worker visa (commonly known as a 457 visa).  Your mother, you and your now 9 year old step brother entered Australia and gained your right to live here, as the spouse and dependents of a 457 visa holder.  Your mother and stepfather have decided that they want to remain here and the family (you by then, legally an adult, but still entitled to remain in Australia because of the terms of entry on your stepfather’s visa) were in the process of applying for permanent residence at the time of the commission of these offences.
41	You are now what is described in the Migration Act as an unlawful non-citizen.  Translated, that Orwellian term means your right to be or remain in Australia has been cancelled.  That is a direct consequence of being charged with this offence.  Although you came here as a dependent child, and although the family application for permanent residence was just that, a family application, the change in your legal status, from child to adult, meant you were, for the purposes of the operation of the character test following the laying of criminal charges, treated as an independent adult for the purposes of the Migration Act.
42	You were originally remanded for a short time and then released on bail on these charges.  However, once the immigration authorities became aware of the charges, your visa was cancelled and you were placed in immigration detention. You are therefore liable to deportation.  That is an implacable reality.  You spent approximately six months in immigration detention, before you surrendered your bail and were remanded in custody, pending the plea and sentence for these offences.  Once out of criminal justice custody, you will be removed to immigration detention and held there until you are deported.
43	That unfortunately is a certainty with no prospect of change.  That means that you cannot serve a sentence in the community.  Any sentence which does not involve your confinement is incapable of operation, because your right to remain in Australia has been cancelled.
44	There are powerful reasons why, even having regard to parliament’s intention in sentencing for a Category 2 offence that a term of imprisonment should ordinarily be imposed, the purposes for which your sentence must be imposed could properly be achieved without imposing a term of imprisonment, but by instead imposing a community correction order.  Your Migration Act status however means that you are unable to live in the community, or remain in the country, once released from prison.  Commonwealth law (the Migration Act) prevents you from obtaining the benefit of state law, namely the community correction order provisions of the Sentencing Act.
45	Commonwealth law renders you incapable of complying with the residence conditions of a community correction order, or being able to perform any of the punitive or rehabilitative core or program conditions of a CCO, which require you to be in the state (or at least in the country if you obtain permission to transfer interstate).  You are ineligible, simply by reason of your migration status, for that sentencing option which, by s 5(4C), is available to citizens, or residents whose visas permit them to remain in the country after sentencing.
46	This creates a significant and unfair disparity with your co-offender.  He was, as I have noted, apparently the initiator.  He certainly played a greater role.  He has pleaded guilty to a further offence of reckless conduct endangering a person.  There is powerful evidence of serious developmental and behavioural disorders, and of vulnerability in a prison environment in his circumstances, which have led me to conclude that he may fall under the s 5(2H)(b)(ii) and (c)(i) exceptions, and I have not ruled out the imposition of a community correction order as a sentencing option for him.
47	He is an Australian citizen by birth, and so, not precluded by the Migration Act from serving a sentence by way of CCO if that is my ultimate decision.  Yet you, with a lesser role, fewer charges, lesser culpability and with significant remorse and cooperation in your favour, well in excess of what could apply to him, are unable to avail yourself of that option.  Realistically, you can only be dealt with by way of a sentence of imprisonment.  Such an outcome is disparate and unfair.
48	The reasons why, were it not for the operation of the Migration Act, I have come to the view that s 5(4C) would dictate you be sentenced to a CCO can be briefly stated.
49	You are, at law, a young offender, for whom, generally as I have noted, rehabilitation carries more weight than denunciation and deterrence in the sentencing mix.  You are otherwise of good character.  This is your first involvement in the criminal law and significantly your first experience of imprisonment.  You are entitled to have your previous good character count in your favour.  You have acknowledged your criminal and moral responsibility, pleaded guilty at an early stage and provided significant cooperation, as already noted.  These factors all weigh heavily in your favour of reducing the sentence otherwise appropriate.  I am satisfied, if your abstinence from alcohol and other substances continues after your release, that you are unlikely to reoffend again.  I consider that you have very good prospects for rehabilitation.
50	Your diagnosed depressive disorder and the knowledge of inevitable deportation has made imprisonment, and will continue to make imprisonment, more burdensome for you than for other prisoners who can look forward to a return to their family and who do not suffer under the oppression of a depressive disorder.  Isolation is a significant factor for you too.  You have been held at Ararat prison and the distance from Melbourne, where your family lives, has severely limited the frequency of family visits and therefore any contact with the outside world.
51	You will suffer hardship much greater than most young offenders as a result of this offending.  Deportation is inevitable.  Your family, your mother, your stepfather and your young brother have now become Australian permanent residents and they are settled here.  You will be removed from them.  You have very limited support to look to when you return to Ireland.  The only relatives with whom the family has a connection are your maternal grandparents and they spend much of their time outside Ireland.  You left Ireland as a 14 year old, and you return as a young adult.  You have no friends or community with whom you have maintained contact in your adolescent and early adult years.  Navigating life, as a young adult, in a place you left behind as a child and have not been back to since, will be alien and difficult.
52	There is a particular poignancy about this.  You did not want to leave Ireland as a 14 year old when your family left, and found the dislocation and the resettlement initially to New Zealand and then in Australia difficult.  Your relationship with your mother and stepfather suffered as a result and you were asked to leave home at 18.  Relations were strained after that.  I proceed on the basis you are only too aware now of the loss that you will suffer by reason of your forced return to Ireland, away from them, and the life you had built up here.
53	Added to that, your childhood was not easy.  Your parents separated when you were one and you and your mother lived with your maternal grandparents until you began living as a family with her new partner, now her husband, and your stepfather when you were seven.  At two years of age, you were hit by a car and suffered a severe head injury.  Two years of regular admissions to hospitals and 15 separate reconstructive surgical procedures followed.  I am told that you made a full physical recovery, with no diagnosed brain injury.
54	The departure from Ireland, at the impressionable age of 14, was difficult.  You struggled to adjust.  No doubt that struggle was increased by the fact that you had not wanted to leave in the first place.  And, as a child, it was not your choice.  Your schooling was interrupted, your concentration was poor and you struggled academically.  You had 10 months in New Zealand before the family relocated initially to outer Melbourne and then, after some months, to the Mornington Peninsula.  More disrupted schooling and poor adjustment accompanied that.  You left school in Year 11 and began working.  You completed 18 months of an apprenticeship as a roof tiler, before taking work as a concreter. You have had a good and consistent work history since leaving school.
55	Having left home at the age of 18, you lived with friends and moved in circles where partying, alcohol and drugs filled in the time when you were not at work.
56	It is this history which led Ms Ferrari to diagnose a chronic history of significant symptoms of major depression and anxiety from adolescence persisting into adulthood.  And it is that, she concludes, which resulted in your diminished resilience which led to the maladaptive pattern of alcohol and polysubstance use that marked your life at the time of this offence.
57	This clearly, since being charged, has been a sobering time for you and not just in relation to your inability to access alcohol or illicit substances in custody.  It is clearly an understatement to say that it is confronting for a young person, previously of good character, to find himself in custody for the first time at the age of 20, for a short period on remand before being released on bail, and then being held in immigration detention, to pass his 21st birthday in detention, and then to be returned to custody with the prospect of the inevitability of deportation hanging over his head.  If only older wiser heads could be put on young shoulders, you would not find yourself in the position you are today, I am sure of that.
58	You have spent nearly six months in immigration detention.  That is not able to be counted as time served for sentencing purposes under the Sentencing Act, as it is immigration detention, not custody.  It does count, in a general sense, and should be taken into account as a significant period of time when you have been deprived of your liberty as a result of this offending.  I therefore take it into account in fixing the sentence of imprisonment that I must impose. The sentence itself that I impose, looked at on its own, may not seem to be a proportionate sentence if one looks at the term of imprisonment alone.  But if one looks at the time you spent in immigration detention and one looks at the circumstances including the circumstances that would, as I have said, led me to consider you an appropriate candidate for a community correction order were my hands not tied by these circumstances, it is not disproportionately low in my view.
59	I consider that the combined nine months, six months in immigration detention and close to three months on remand exceed what is a proportionate sentence for your role in this offending, taking into account your circumstances as I have outlined them.  Restricted as I am by the sentencing options available and conscious of the artificiality of being able to take into account immigration detention in a general sense but not being able to physically count it as days served, I have determined that the just and appropriate sentence is one which will have the effect of sentencing you to the time that you have already served in custody, therefore allowing your transfer to migration detention forthwith.
60	Could you now please stand?
61	Evan Fox, on the two charges to which you have pleaded guilty you are convicted.  On Charge 1 of intentionally damaging property you are sentenced to be imprisoned to a period of 14 days.  On Charge 3 of kidnapping you are sentenced to be imprisoned for a period of 86 days.  The sentence on Charge 1 is to be served concurrently with the sentence on Charge 2.  That makes a total effective sentence of 86 days.
62	I declare that you have spent 86 days in presentence detention and direct that they be counted and reckoned as part of the sentence already served.
63	Pursuant to s 6AAA of the Sentencing Act, I declare that, but for your pleas of guilty, I would have sentenced you to a term of imprisonment of six months.
64	Any further orders that are required to be made?
65	MR MALIK:  No thank you.
66	HER HONOUR:  I think the disposal and licence were only in respect to Mr Dodemaide, weren't they?
67	MR TIWANA:  That's right, Your Honour.  There was no further orders in relation to Mr Fox.
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